Bond recently published its 2012 Study of Employment Discrimination Litigation in the Northern and Western Districts of New York.  Bond’s first Study on Employment Discrimination Litigation was issued in 2001, with a follow up Study issued in 2007.  This latest Study reviews Northern and Western District cases for the January 1, 2007 through December 31, 2011 period, and then compares those findings with the 1991 through 2000 data in its original Study, as well as with data for 2001 through 2011, and cumulative data for the 1991 through 2011 period.

This latest Study shows that in the Northern and Western Districts defendants continued to prevail most of the time in cases that went to trial before a jury (more than 57% of the time in the 2007 through 2011 period, showing a slight decline over other periods).  Defendants prevailed by a much greater percentage in cases tried before a judge (87.5% of the time in the 2007 through 2011 period).  Fewer cases actually made it to trial and, perhaps not surprisingly given the preceding numbers, of those that did go to trial, far fewer cases were tried before a judge.  While the percentage of cases that settled declined a bit in the 2007 though 2011 period, the percentage of cases disposed of by substantive motion actually increased.

In the 21 jury trials that were tried to verdict in the Northern and Western Districts during the 2007 through 2011 time period, plaintiffs prevailed nine times with an average jury award of just under $295,000.

Based upon the manner in which the federal courts track cases, and in a change from prior periods studied, among the categories of age, disability, race and sex, race claims were the most common claims in litigation during the latest 2007 through 2011 period (followed by disability claims which have been growing in number over the years).  In prior years, sex-based claims held that top spot.  The most significant increase in claims asserted was the general category of “employment discrimination,” which includes retaliation claims.  Somewhat surprisingly, age claims were on the decline.  By comparison, race claims, followed by sex claims, were the most common claims filed by EEOC and New York Division of Human Rights complainants for the 2008/09 and 2009/10 periods (the latest periods for which statistics were available).

As has been the case for all periods studied, Bond represented more defendants in employment discrimination litigation in the Northern and Western Districts of New York than any other law firm, and in the 2001 through 2011 period, it appeared in almost twice as many cases as the next most frequent defense law firm.

Finally, the Study reveals that the length of time it took for a case to go from filing to verdict after trial increased, and significantly.  In the Northern and Western Districts combined, a jury trial took an average of just over four years to conclude during the 2007 through 2011 period, compared to 2.2 years during the 1997 through 2000 period.  Bench trials took even longer, at more than six and one-half years for the 2007 through 2011 period, compared to just under two years for the 1997 through 2000 period.  Of course, given the relatively small number of bench trials in particular, a lengthy delay in just one or two cases can skew these numbers.

To obtain a complete copy of the Study, click here.

Civil Service Law Section 115, entitled "Policy of the state," provides that "it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of quality of work demonstrated in service."  Is this "policy" enforceable in court?  That depends upon which court you ask.

In 2007, in Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v. State of New York Unified Court System, the Third Department Appellate Division cited prior court decisions and stated that "the courts have repeatedly held that [Civil Service Law Section 115] merely enunciates a policy and confers no jurisdiction on a court to enforce such policy."  (emphasis in original).

However, on January 22, 2013, the First Department Appellate Division held otherwise.  A divided Court held, in Subway Surface Supervisors Association v. New York City Transit Authority, that:  (1) there is no impediment to judicial enforcement of Civil Service Law Section 115; and (2) the fact that a union negotiated a salary schedule does not preclude the union from challenging that salary schedule under Civil Service Law Section 115.

The NYC Transit Authority case involved the Transit Authority's Station Supervisor title, which has two assignment levels (SS-I and SS-II).  The skill and testing requirements for the positions are the same; however, the functions and duties of each position are different.  Thus, the SS-II position has always been better compensated.  Each assignment level is represented by a different union, and each union negotiated a multi-year collective bargaining agreement covering the wages and benefits of the positions within its bargaining unit.

The union representing the employees in the SS-I position alleged that the Transit Authority had shifted work over time between the assignment levels, to the point where there was no significant distinction between the work performed by the employees at each level.  The union filed a lawsuit against the Transit Authority demanding "equal pay for equal work" under Civil Service Law Section 115, as well as the State and Federal Constitutions.

The Transit Authority filed a motion to dismiss the claims, arguing that the union should be estopped from challenging salary levels that it had negotiated.  The Transit Authority also argued that the union's claims related to terms and conditions of employment required to be negotiated in good faith through collective bargaining under the Taylor Law, and that the claims therefore fell within the exclusive jurisdiction of the Public Employment Relations Board.

Affirming the lower court's denial of the motion to dismiss, the First Department majority wrote that "the issue here is not whether the union negotiated an unfavorable deal but whether the [Transit Authority] has violated public policy.  Such disputes are amenable to review by the courts."  The majority also rejected the Third Department's 2007 opinion that the courts do not have jurisdiction to enforce Civil Service Law Section 115.

The dissent agreed with the Third Department, and rejected the notion that a union could assert a viable equal protection claim after negotiating a salary schedule through collective bargaining.  The dissent also noted that Civil Service Law Section 115 not only stated a policy of "equal pay for equal work," but also a policy of regular pay increases based on ability, output, and quality.  The dissent pointed out that the majority's reasoning would essentially create a cause of action in court based on allegations that an employee had not received regular pay increases, which could not have been intended by the Legislature in stating this policy.

The First Department's recent decision creates a split in the appellate courts regarding the enforceability of the policy enunciated in Civil Service Law Section 115.  It remains to be seen whether the Court of Appeals will be asked to resolve this issue.

On January 25, 2013, the same day that the U.S. Court of Appeals for the D.C. Circuit ruled that the recess appointments of Richard Griffin and Sharon Block were unconstitutional, National Labor Relations Board ("NLRB") Members Griffin, Block, and Chairman Mark Gaston Pearce held, in DirectTV U.S. DirecTV Holdings, LLC, that several seemingly neutral and reasonable employer policies promulgated in a non-union setting unlawfully restricted protected activity in violation of the National Labor Relations Act ("NLRA").

The first policy, contained in the employee handbook, instructed employees in part:  "Do not contact the media."  The NLRB found this portion of the policy to be overly broad and unlawful because employee communication with newspaper reporters about labor disputes is protected activity under the NLRA, and the NLRB believed that employees would reasonably construe the rule to prohibit such protected communication.

The second policy, posted on the employer's intranet, provided in part:  "Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations."  The NLRB determined that this rule was overly broad and unlawful for the same reason as the first policy.  The NLRB further held that "any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee's free time and in non-work areas is unlawful."

The third policy, contained in the employee handbook, provided in part:  "If law enforcement wants to interview or obtain information regarding a DIRECTV employee . . . the employee should contact the security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments."  The NLRB interpreted the term "law enforcement" to include not only the police and representatives of other criminal law enforcement agencies, but also NLRB agents.  Accordingly, the NLRB concluded that this rule was unlawful because employees would reasonably believe that they were required to contact the employer's security department before cooperating with an NLRB investigation.

The fourth policy, contained in the employee handbook, instructed employees in part:  "Never discuss details about your job, company business or work projects with anyone outside the company" and "Never give out information about customers or DIRECTV employees."  The rule included "employee records" as a category of confidential information that could not be discussed or disclosed.  The NLRB found this rule to be unlawful because employees would reasonably understand the rule to restrict discussion of their wages and other terms and conditions of employment.  The NLRB also held that the rule did not exempt protected communications with third parties such as union representatives, NLRB agents, or other government agencies investigating workplace matters.

The fifth policy, posted on the employer's intranet, provided in part:  "Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record."  The NLRB found this rule to be unlawful, because it determined that employees would reasonably interpret "company information" to include information regarding their wages, discipline, performance ratings, and other terms and conditions of employment.

This decision demonstrates that the NLRB is determined to continue its focus on protected activity in non-union settings, and to strike down workplace policies and rules that it believes restrict such protected activity.  In light of the D.C. Circuit Court of Appeals' recent decision invalidating the recess appointments of Members Griffin and Block, it is not clear whether this decision will have any precedential effect.  Nevertheless, employers should carefully examine their own policies to determine whether any revisions or clarifications are necessary before those policies are challenged.

Employers who engage third parties to perform background checks on employees or job applicants must provide the employees/applicants with an updated "Summary of Rights" form pursuant to new Fair Credit Reporting Act ("FCRA") requirements, which took effect on January 1, 2013.  The form is available here, at "Appendix K to Part 1022 -- Summary of Consumer Rights."

The revised form reflects the change in the agency responsible for administering the FCRA.  In 2010, President Obama transferred authority to administer the FCRA from the Federal Trade Commission ("FTC") to the Consumer Financial Protection Board ("CFPB").  The new form directs employees/applicants to contact the CFPB or to visit the CFPB's web site (instead of contacting the FTC or visiting the FTC's web site) for more information about their rights under the FCRA.

In addition to the recent changes, employers should note that the other long-standing requirements of the FCRA, including providing a written disclosure that a consumer report may be obtained for employment purposes and obtaining a written authorization to procure the report, remain in effect.  With regard to the written disclosure and authorization, employers should be aware that the U.S. District Court for the District of Maryland ruled last year, in Singleton v. Domino's Pizza, that it is a violation of the FCRA for an employer to include a liability release in its disclosure document.

Prior to obtaining a consumer report under the FCRA, an employer is required to provide the employee or applicant with a clear and conspicuous disclosure "in a document that consists solely of the disclosure."  The employer may, under the statute, include the written authorization in the disclosure document, but the statute does not expressly permit any other provisions to be included in the disclosure document.

In Singleton, the employer's disclosure document contained three paragraphs:  (1) disclosure of the employer's intent to obtain a consumer report; (2) the employee's/applicant's written authorization for the employer to obtain the report; and (3) the employee's/applicant's release of "any and all liabilities, claims, or causes of action in regards to the information obtained from" the consumer report.  The court ruled that the inclusion of the liability release in the disclosure document violated the FCRA's mandate that the disclosure be made "in a document that consists solely of the disclosure."

Although the U.S. District Courts in New York are not necessarily bound by the Singleton decision, there is a risk that the U.S. District Courts in New York may rely on Singleton as persuasive authority and may interpret the FCRA in a similar way.  Accordingly, employers in New York would be well-advised to limit the disclosure document only to an expression of the employer's intent to obtain a consumer report and the employee's/applicant's authorization to procure the report.  Any releases or other information should be contained in separate documents.

The U.S. Court of Appeals for the District of Columbia Circuit held today, in Noel Canning v. NLRB, that President Obama's recess appointments to the National Labor Relations Board ("NLRB") on January 4, 2012 were unconstitutional because the Senate was not actually in "recess" at the time of the appointments.  At least for now (pending a likely appeal to the U.S. Supreme Court), this holding essentially means that every decision issued by the NLRB from January 4, 2012 to the present is invalid because the NLRB lacked a valid quorum of three members during this entire time.  This holding also means that the NLRB currently has only one properly appointed member (Chairman Mark Gaston Pearce), and therefore lacks authority to issue any decisions or take any action going forward.

On January 4, 2012, President Obama appointed three members of the NLRB:  (1) Sharon Block, who was appointed to fill a vacancy that had arisen on January 3, 2012; (2) Terence Flynn, who was appointed to fill a vacancy that had arisen on August 27, 2010; and (3) Richard Griffin, who was appointed to fill a vacancy that had arisen on August 27, 2011.  At the time of the purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011 through January 23, 2012.  During its January 3, 2012 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its duty under the Twentieth Amendment to the U.S. Constitution, which provides that "the Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day."

In general, the U.S. Constitution requires that members of the NLRB (as officers of the United States) must be nominated by the President and appointed "by and with the Advice and Consent of the Senate."  However, the Recess Appointments Clause of the U.S. Constitution permits the President to "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

At the time President Obama appointed Members Block, Flynn, and Griffin, Republican Senators complained that the appointments bypassed the Constitutionally mandated Senate confirmation process for Presidential nominees.  In Noel Canning, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously agreed that the appointments were unconstitutional.

The Court initially determined that the term "the Recess" in the Recess Appointments Clause applies only to recesses that occur in between sessions of Congress -- not to breaks in activity that occur during a session of Congress.  The NLRB conceded during oral argument that the appointments were not made during the intersession recess; instead, they were made on January 4, 2012, one day after Congress began a new session on January 3, 2012.

The Court also found it significant that the Recess Appointments Clause only permits the President to fill vacancies "that may happen during the Recess of the Senate."  The Court interpreted this provision to mean that the vacancy actually must arise during the Senate's intersession recess in order for the President to have the authority to fill a vacancy without going through the Senate confirmation process.  The Court determined that none of the three vacancies that President Obama sought to fill on January 4, 2012 arose "during the Recess of the Senate," and found that the appointments were unconstitutional for this reason as well.

There is no doubt that this decision will be appealed to the U.S. Supreme Court.  We will provide updates on this blog as they become available.

For nearly 35 years, employers in pre-arbitration discovery with a union have not been required to disclose witness statements obtained during internal workplace investigations.  However, consistent with its unabashedly pro-union year-end theme of overturning longstanding precedent, the National Labor Relations Board (“NLRB” or "Board") in American Baptist Homes of the West, d/b/a Piedmont Gardens abandoned this bright-line rule in favor of a fact-specific balancing test.  The balancing test will be applied to all information requests made after December 15, 2012.

Under Section 8(a)(5) of the National Labor Relations Act (“NLRA”), an employer must furnish a union with relevant information necessary to the union’s performance of its duties, including for grievance or arbitration purposes.  Under a rule established in its 1978 Anheuser-Busch decision, the Board had consistently applied a blanket exemption from disclosure for witness statements obtained during internal investigations of employee misconduct, reasoning that such an exemption was necessary to avoid coercion and intimidation and to encourage cooperation in internal investigations.

Finding its logic “flawed,” the Board in Piedmont Gardens explicitly rejected the Anheuser-Busch rule.  In its place, the Board held that the production of witness statements should be subject to the same standard as other union information requests and that any attempts to withhold disclosure should be analyzed using the test developed by the U.S. Supreme Court in Detroit Edison Co. v. NLRB.  Under this test, where requested witness statements may contain relevant information, an employer may refuse to produce them only if it can show that a legitimate and substantial confidentiality interest outweighs the union’s need for the information.  Additionally, in order to assert a valid confidentiality defense, an employer must raise its concerns to the union in a “timely manner” and offer an accommodation regarding the information requested before refusing to disclose the statement.

Essentially, a longstanding bright-line rule has been replaced with a test that will force employers to make a case-by-case prediction of how the Board will apply a subjective balancing of interests.  This unclear standard is almost certain to extend the grievance process as parties engage in lengthy proceedings to resolve confidentiality claims.  Lone dissenting member Brian Hayes expressed these very concerns, and he also noted that the production of witness statements is inconsistent with existing guidance from the Equal Employment Opportunity Commission regarding confidentiality in connection with an investigation of an employee’s harassment complaint.

When this decision is combined with the NLRB’s Banner Health decision (previously reported here), which found that an employer’s rule requiring confidentiality during an internal investigation was an unfair labor practice, the effect is a major shift in the law that impedes an employer’s ability to conduct effective and meaningful internal investigations.  In light of these decisions, employers should reassess their current investigatory practices, including whether to continue to produce witness statements, and if so, how best to protect employees from legitimate confidentiality concerns regarding the disclosure of those statements.

With 2012 now behind us and the start of a new year firmly underway, employers should be aware of the heightened possibility of an unexpected visitor showing up in the workplace in 2013.  Under President Obama’s Administration, the U.S. Immigration and Customs Enforcement (“ICE”) has dramatically ramped up I-9 audits and enforcement actions, conducting more than 3,000 audits in fiscal year 2012, as compared to only 250 conducted in fiscal year 2007.  With four more years on the horizon for this Administration, one New Year’s resolution that all employers should make is to ensure that their Form I-9s are in compliance before ICE comes knocking.

ICE serves as the principal investigative arm of the U.S. Department of Homeland Security (“DHS”).  One of ICE’s primary purposes is to police the Immigration Reform and Control Act (“IRCA”).  Under IRCA, employers are prohibited from knowingly hiring or employing unauthorized workers.  Employers are required to complete Form I-9s for all employees, including U.S. citizens, hired after November 6, 1986, to verify an employee’s identity and to confirm that the individual is authorized to accept employment in the United States.  Employers are also prohibited from discriminating against employees on the basis of national origin, citizenship, or immigration status, which includes engaging in “document abuse” (i.e., demanding that certain employees show specific documents because of the individual’s national origin, citizenship, or other protected status) or requiring “indemnity bonds” guaranteeing that the individual is authorized to work in the United States.  For record-keeping purposes, an employer is required to retain completed Form I-9s for the later of three years after an individual’s date of hire or one year after the employment relationship ends.

Along with the steady increase in the number of audits conducted, the dollar value of penalties assessed for IRCA violations has also significantly escalated under the Obama Administration.  Specifically, penalties have increased from $1 million in fiscal year 2009 to $13 million in 2012.  Employers who knowingly hire or continue to employ unauthorized workers can expect monetary penalties to begin at $375 per violation and reach as high as $16,000 for repeat offenders.  Employers may also be fined for errors found on the Form I-9s.  Fines for substantive violations and uncorrected technical violations range from $110 to $1,100 per violation.  In addition, ICE may also subject an employer to debarment, whereby the employer is prevented from participating in future federal contracts or prohibited from receiving other government benefits.  Criminal penalties may also be imposed under certain circumstances.  In the 2012 fiscal year alone, ICE arrested approximately 238 corporate managers and officers.

Taking affirmative steps prior to receiving a government audit notice or an on-site visit from ICE could mean the difference between a verbal warning, a monetary fine, or a criminal penalty, particularly if an employer chooses to contest the issuance of any ICE fines.  Therefore, employers are encouraged to take proactive measures, which may include the following:  (1) implementing a written I-9 policy, which includes anti-discrimination protocols and/or Social Security “no match” letter resolution procedures; (2) utilizing voluntary programs such as E-Verify (mandatory for federal contractors) and Social Security Number Verification Services (“SSNVS”) provided by DHS and the Social Security Administration to confirm employment eligibility; (3) training designated Human Resources personnel on proper I-9 verification procedures; (4) having an outside third-party or properly trained employee (who was not involved in the original I-9 process) conduct self-audits of I-9 records; (5) immediately correcting and documenting mistakes on Form I-9s; (6) instituting a confidential tip line for employees to freely report I-9 and/or work eligibility issues; and (7) avoiding any conduct that could be interpreted by ICE as encouragement of, acquiescence in, or constructive knowledge of, fraudulent I-9 documentation.

As reported on this blog in August 2012, employers should also be aware that a new Form I-9 is in the works.  For now, employers should continue to use the Form I-9 that contains an August 31, 2012 expiration date.  We will continue to monitor the availability and issuance of any updates pertaining to a new Form I-9 and will provide additional details on this blog when further information becomes available.

Employers who have employees in New York are required to issue annual notices under the Wage Theft Prevention Act ("WTPA") to all New York employees between January 1 and February 1, 2013.  Although a bill was introduced in the New York State Legislature to repeal the annual notice requirement in early 2012 (which was the first year that the annual notice requirement was in effect), the bill passed in the Senate but remains dormant in the Assembly.  Therefore, the WTPA annual notice requirement continues to be in effect.

As we have summarized in previous blog posts, the annual notice must contain the following information:

• the employee's rate or rates of pay (for non-exempt employees, this must include both the regular rate and overtime rate);
• the employee's basis of pay (e.g., hourly, shift, day, week, salary, piece, commission, or other);
• allowances, if any, claimed as part of the minimum wage (e.g., tips, meals, lodging);
• the regular pay day; and
• the name (including any "doing business as" name), address, and telephone number of the employer.

The annual notice must be provided to each employee in English and in the primary language identified by each employee, if the New York State Department of Labor ("NYSDOL") has prepared a dual-language form for the language identified by the employee.  At this point, the NYSDOL has prepared dual-language forms in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish.  The English-only and dual-language forms created by the NYSDOL are available on the NYSDOL's web site.  If an employee identifies a primary language other than one of the six languages for which a dual-language form is available, the employer may provide the annual notice in English only.  Employers are not required to use the NYSDOL's forms, but employers who create their own forms must be sure that all of the information required by the WTPA is included.

Employers are required to obtain a signed acknowledgment of receipt of the annual notice from each employee.  The acknowledgment must include an affirmation by the employee that the employee accurately identified to the employer his/her primary language, and that the notice was in the language so identified.  Signed acknowledgments must be maintained for at least six years.

The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers.  We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement.  Two days after issuing that decision, the NLRB issued a decision in Alan Ritchey, Inc., holding that an employer must bargain with a union under certain circumstances prior to imposing discretionary discipline on an employee who is represented by a union.

This new rule will apply only in the absence of a binding agreement between the employer and the union to address discipline, such as a grievance-arbitration procedure.  Therefore, as the NLRB explained, this obligation to bargain over employee discipline will typically arise only after a union is newly certified, but before the parties have agreed to a first contract.

In Alan Ritchey, Inc., after the union was certified and while negotiations were being conducted for a first contract, the employer continued to rely on its pre-existing five-step progressive disciplinary system set forth in its employee handbook to discipline several employees for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards.  Pursuant to the handbook, the employer reserved the right to exercise discretion in the enforcement of policies, and the employer admittedly exercised this discretion in setting the levels of discipline with regard to the employees in this case.  For example, when imposing discipline for failing to meet performance standards, three employees were treated leniently because of extenuating circumstances -- one employee’s husband died, another worked in a low volume area, and another was unable to work consecutive days in the same position.

The Union filed unfair labor practice charges to challenge these disciplinary actions, taking the position that it should have first been notified and given an opportunity to bargain.  The NLRB agreed.  It held that even though the employer’s existing discipline system represents the status quo that can and must be continued during bargaining for a first contract, the employer was not privileged to exercise any discretion with regard to that discipline system without negotiating with the union.  Rather, the employer was required to provide the union with notice and an opportunity to bargain each time it seeks to exercise any discretion with regard to employee discipline.  Recognizing that it had never articulated this requirement before, the NLRB opted to apply the rule only prospectively.

The NLRB set forth a few limiting principles in laying out this rule:

• First, the employer will only be required to provide the union with notice and an opportunity to bargain prior to implementing the discipline where it seeks to impose a suspension, demotion, or discharge.  For lesser forms of discipline, such as warnings and counselings, there is still a bargaining obligation, but the employer can delay providing the notice and opportunity to bargain until after the implementation of the discipline.
• Second, where there is an obligation to provide pre-implementation notice and opportunity to bargain, the employer need not bargain to agreement or impasse at this stage.  The employer need only provide sufficient notice, and provide responses to union information requests, if any.  If the parties cannot reach an agreement, the discipline can be imposed, and the bargaining obligation continues after imposition (albeit with the possibility that the discipline may have to be rescinded or altered).
• Third, no prior notice is required where “exigent circumstances” exist.  The NLRB defines this as a reasonable, good faith belief that “the employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.”  This includes situations where the employer believes the employee is engaging in unlawful conduct, is posing a significant risk of imposing legal liability on the employer, or threatens safety, health, or security inside or outside the workplace.

In its decision, the NLRB expressed its view that this new bargaining obligation will not “unduly burden” employers.  It is difficult to agree with this assessment.  This new obligation presents a significant impediment to an employer's ability to manage its workforce while bargaining for an initial contract.  Although the employer need not complete bargaining regarding the discipline before imposing the proposed discipline, the obligation to provide meaningful notice and to respond to union information requests prior to imposing the proposed discipline will certainly create significant delays in the disciplinary process.

On December 18, 2012, the Equal Employment Opportunity Commission ("EEOC") announced the approval of its 2013-2016 Strategic Enforcement Plan.  The Plan’s purpose is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.”  The Plan sets forth six agency priorities:

• Eliminating Barriers in Recruiting and Hiring.  The EEOC will target discriminatory policies and practices that still exist at the hiring stage, such as exclusionary policies and procedures, the practice of steering individuals into certain jobs based on their status in a particular group, and the use of certain screening tools (pre-employment tests, background checks, and date-of-birth inquiries).
• Protecting Immigrant, Migrant, and Other Vulnerable Workers.  This priority will focus on practices that affect groups of vulnerable workers who are often unaware of their rights, or reluctant to exercise them.  The Plan specifically identifies disparate pay, job segregation, harassment, and trafficking practices as issues faced by this population of workers.
• Addressing Emerging and Developing Issues.  The Plan identifies several priority issues under this heading, including coverage and reasonable accommodation under the Americans with Disabilities Act ("ADA"), accommodating pregnancy-related limitations under the ADA, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII.
• Enforcing Equal Pay Laws.  The EEOC will focus on compensation systems that discriminate based on gender.
• Preserving Access to the Legal System.  This priority includes policies and practices that discourage or prohibit individuals from exercising their rights under the law, or impede the EEOC’s enforcement efforts, such as retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges or providing information to the EEOC, and failure to retain records required by EEOC regulations.
• Preventing Harassment Through Systemic Enforcement and Targeted Outreach.  The EEOC identifies harassment as one of the most common workplace complaints, and will continue to focus its efforts in this area.

The Plan reflects a targeted approach that will place a greater share of the EEOC’s resources on these six priority areas.  Charges that fall within these six areas will be given priority attention.

One key theme that can be discerned from this Plan is the EEOC’s strong interest in cases that could potentially affect more than just the charging party.  The EEOC intends to take the greatest investigative interest in charges that reference or otherwise involve employment policies or practices with potential class-wide impact -- even if the charging party does not specifically allege that more than one employee has been affected.  In assessing the risk or exposure associated with any given EEOC charge, employers must consider the possibility that the EEOC will broaden its investigation beyond the particular employee who filed the charge.  The EEOC's Plan serves as another reminder that employers should periodically evaluate whether their standard employment policies and practices might unintentionally have a discriminatory impact on any protected group, or might otherwise need to be improved or amended.

Although public employers may be aware of their obligation to provide certain types of employees with an opportunity for a hearing prior to imposing discipline (such as a written reprimand), the line between a non-disciplinary counseling memorandum and a disciplinary reprimand is not always clear.  The New York State Court of Appeals' recent decision in Matter of Michael D’Angelo v Nicholas Scoppetta serves as an important reminder that the term “reprimand” may be interpreted more broadly than public employers anticipate.

In the D'Angelo case, the Court of Appeals held that a letter informing a firefighter that he had violated the Fire Department’s Code of Conduct and Equal Employment Opportunity (“EEO”) Policy, following a detailed and lengthy investigation, constituted a “reprimand” that could not be placed in his file without affording him the opportunity for a hearing and other due process rights.  The firefighter was accused of yelling a racial epithet at an emergency medical technician, also employed by the Fire Department, while responding to a motor vehicle accident.  The EMT filed a police report, notified his supervisor of the incident, and complained to the department’s EEO office.  After a two-year internal investigation, a finding was made that the firefighter had used the racial slur as alleged.  A final report summarizing the findings and recommendations resulting from the investigation was issued, and the report was approved by the Commissioner of the Fire Department.

The Assistant Commissioner of the Fire Department then sent the firefighter a letter regarding the determination that he had “exercised unprofessional conduct and made an offensive racial statement.”  The letter instructed him to read and sign an attached Advisory Memorandum and informed him that he would receive additional EEO training in the future.  The Assistant Commissioner characterized the letter as a “formal Notice of Disposition of the filed Complaint” which would be placed in the firefighter's permanent file.

The firefighter objected to the placement of the letter in his file without the opportunity for a hearing and commenced an Article 78 proceeding to challenge the Fire Department's placement of the letter in his file.  The trial court annulled the determination and expunged the letter from the firefighter's file, holding that the letter was a disciplinary reprimand and, therefore, the firefighter was entitled to a formal hearing and other due process safeguards.  The decision was subsequently affirmed by both the Appellate Division and the Court of Appeals.

In reaching its decision, the Court of Appeals focused on several key facts to distinguish the letter issued to the firefighter from counseling letters issued to teachers which were found to be non-disciplinary “critical evaluations” in a 1981 Court of Appeals decision.  Specifically, the Court noted that the letters to the teachers, although “sharply critical,” were not intended to punish the teachers, but rather were intended to identify relatively minor breaches of school policy and to encourage future compliance.  In contrast, the Court held that the determination that the firefighter had used a racial epithet could not be considered a “minor breach” of the EEO policy.  In fact, the Fire Department conceded during oral argument that it was serious misconduct which could negatively affect the firefighter’s eligibility for future promotion.  Further, the requirement that the firefighter participate in additional EEO training was determined by the Court to be a form of discipline.

Additionally, the letters to the teachers in the 1981 case were sent by the individual school administrator, who was the teachers’ direct supervisor.  In contrast, the letter in the D’Angelo case was sent to the firefighter following a two-year formal investigation conducted by the Fire Department’s EEO office with approval from both the Fire Department’s Assistant Commissioner and Commissioner.

In light of these specific facts, the Court of Appeals concluded that the letter was a formal disciplinary reprimand, and that the firefighter was entitled to a hearing to protect his due process rights prior to placement of the letter in his permanent file.

The D’Angelo decision serves as a good reminder to public employers to consider the manner in which employee performance and conduct problems are addressed, and to be prepared to follow applicable due process requirements when appropriate.

The National Labor Relations Board ("NLRB") recently re-examined the issue of whether an employer's obligation to check off union dues from employees' wages terminates upon the expiration of a collective bargaining agreement that contains a dues checkoff provision.  This issue was seemingly resolved more than 50 years ago, in the NLRB's Bethlehem Steel decision.  However, on December 12, 2012, in its WKYC-TV, Inc. decision, the NLRB reversed its 50 year-old precedent and held that an employer's obligation to check off union dues continues after the expiration of a collective bargaining agreement that establishes such an arrangement.

In its 1962 Bethlehem Steel decision, the NLRB considered the issue of whether the employer had violated its obligation to negotiate in good faith by unilaterally refusing to honor the union security clause and the union dues checkoff provisions contained in an expired collective bargaining agreement.  Although the NLRB found that both union security and dues checkoff provisions are mandatory subjects of bargaining, the NLRB held in Bethlehem Steel that the employer did not violate the National Labor Relations Act ("NLRA") by unilaterally refusing to honor the union security clause and discontinuing union dues deductions from employees' pay checks.  The NLRB determined that the language of Section 8(a)(3) of the NLRA, which permits employers and unions to make an "agreement" to require union membership as a condition of employment, means that parties cannot enforce a union security provision after the collective bargaining agreement containing such a provision has expired.  The NLRB further reasoned that dues checkoff provisions are intended to implement union security clauses, and that an employer's obligation to continue deducting union dues from employees' pay checks ceases upon the expiration of the collective bargaining agreement.

According to the three NLRB members who comprised the majority in the WKYC-TV decision, the reasoning contained in the Bethlehem Steel decision is flawed.  The three-member majority disagreed with the premise that dues checkoff provisions are intended to implement union security clauses, and stated that "union-security and dues-checkoff arrangements can, and often do, exist independently of one another."  The three-member majority also found that employees cannot be required to authorize union dues deductions as a condition of employment even if the collective bargaining agreement contains a union security clause that requires them to be a member of the union.  Although employees generally choose to sign authorizations allowing the dues deductions as a matter of convenience, employees retain the option of transmitting their union dues directly to the union instead of consenting to automatic deductions.  The three-member majority observed that employees who sign dues checkoff authorizations are free to revoke those authorizations upon the expiration of the collective bargaining agreement if they no longer wish to continue those automatic deductions.

For these reasons, the three-member majority reversed the Bethlehem Steel decision and held that employers are required to honor dues checkoff provisions in an expired collective bargaining agreement until the parties have reached a new agreement or until a valid impasse has been reached that permits unilateral action by the employer.  This new rule will only be applied prospectively, and will not be applied to any pending cases.

Not surprisingly, Member Hayes wrote a strong dissenting opinion.  Member Hayes found no adequate justification for the NLRB to abandon more than 50 years of precedent.  Member Hayes stated that a union security clause operates as a powerful inducement for employees to authorize union dues deductions, and "it is unreasonable to think that employees generally would wish to continue having dues deducted from their pay once their employment no longer depends on it."  Member Hayes also responded to the majority's view that employees can simply revoke their authorizations, stating that "it is unlikely that employees will recall the revocation language in their authorizations, and less likely still that they will understand that their obligation to pay dues as a condition of employment terminated as a matter of law once the contract expired."  Member Hayes also recognized that an employer's ability to cease collecting union dues from employees upon the expiration of a collective bargaining agreement is "a legitimate economic weapon in bargaining for a successor agreement" and accused the three-member majority of deliberately stripping employers of this weapon to provide more leverage to unions in negotiating for successor agreements.

It is not clear at this point whether the NLRB's WKYC-TV decision will be appealed.