Today’s News & Commentary — July 4, 2019
Over 40 briefs in support of Title VII’s extension to sexual orientation and/or gender identity were submitted by amici curiae in time for yesterday’s deadline in the cases of Zarda, Bostock, and Harris (see Adrienne’s recap of the cases here). Jon Davidson of Freedom For All Americans, which helped coordinate the briefs, said the number of filings was “unusually high” and “cover[ed] almost every angle you can think of.” OnLabor will publish a full round-up of the briefs next week.
Yesterday the National Labor Relations Board made it less risky for employers to withdraw recognition from and refuse to bargain new contracts with incumbent unions. In its 3-1 Johnson Controls decision, the Board adopted a new rule under which an employer that learns of an incumbent union’s loss of majority of support can notify the union 90 days before the current contract expires that it anticipates it will withdraw recognition. The union’s only recourse is to file a petition for a new Board election within 45 days of receiving the employer’s notice to reaffirm its majority status. The decision explicitly overturned the Board’s prior ruling in Levitz Furniture, which instead used a “last in time” rule. Under that precedent, an employer that withdraws recognition of the union after the contract expires could face an unfair labor practice charge under 8(a)(5) if the union reacquired majority support between the time the employer gave notice of its intent to withdraw recognition and the time it actually did so. The Johnson Controls Board justified its decision on free choice grounds, explaining that “[t]he framework we announce today . . . settles questions concerning employees’ representational preference in the anticipatory withdrawal context through a Board-conducted, secret-ballot election, the preferred means of resolving such questions.”
The White House announced yesterday that President Trump plans to nominate Keith Sonderling, currently the Deputy Administrator at the Department of Labor’s Wage and Hour Division, to fill a Republican seat on the Equal Employment Opportunity Commission (EEOC). Trump will re-nominate current commissioner Charlotte Burrows for a Democratic seat. Since Janet Dhillon’s confirmation in May, the EEOC has operated with a Republican majority for the first time since Trump took office.
In the wake of last year’s decision in Epic Systems upholding class action waivers in arbitration agreements, creative plaintiffs’ lawyers have responded by filing hundreds and even thousands of individual claims. Employers faced with the high cost of paying for arbitrators and defending each case one-by-one have been moved to settle. Some have even considered dropping their arbitration agreements. However, for mass arbitration strategies to work, lawyers need to be able to notify employees of their potential claims. Bloomberg Law reports that the Seventh Circuit is now considering the question of whether workers who signed arbitration agreements with class action waivers are required to be notified when a class or collective action that would have otherwise included them is filed. The Fifth Circuit previously said there was no notice requirement for employees bound by such agreements.