On November 16, 2020, the Missouri Supreme Court heard oral arguments in the case of Missouri National Education Association, et al. v. Missouri Department of Labor and Industrial Relations, et al., Ferguson-Florissant School District, et al, challenging a circuit court ruling that House Bill 1413 (HB 1413), a public labor union reform law, is unconstitutional in its entirety. The circuit court held that the 2018 law unlawfully discriminates against certain public labor unions representing first responder personnel and infringes on public employees’ fundamental rights to bargain collectively and to choose their own representative, as well as certain First Amendment and equal protection rights. Upon concluding that the unconstitutional provisions dominate “the entirety of the legislative intent to undermine the plaintiff’s fundamental rights,” the circuit court enjoined the Missouri Department of Labor and Industrial Relations and the Missouri State Board of Mediation (SBM) from implementing and enforcing the provisions of HB 1413. On appeal, the Defendants assert that the right to bargain collectively is not a constitutionally protected fundamental right and deny that the restrictions imposed by HB 1413 abridge public employees’ constitutional rights.
Ninth Circuit: Court Decides Threshold Arbitration Issue Absent Clear and Unmistakable Evidence
On September 18, 2020, a three-judge panel of the Ninth Circuit U. S. Court of Appeals held in SEIU Local 121RN v. Los Robles Regional Medical Center, DBA Los Robles Hospital and Medical Center (Los Robles) that the power to decide whether a grievance is arbitrable in labor cases resides with the federal court and not the arbitrator absent “clear and unmistakable” evidence to the contrary. The Los Robles decision overturns the Ninth Circuit decision, United Bhd. Of Carpenters & Joiners of Am., Local No. 1780 v. Desert Palace, Inc. (Desert Palace), which held that in labor cases, an arbitrator must decide the issue of arbitrability if the agreement includes a broad arbitration clause even though the parties failed to specify their intent. The Los Robles decision is consistent with the unanimous U.S Supreme Court decision, Granite Rock Co. v. Int’l Bhd. of Teamsters (Granite Rock) which applied the same arbitrability framework to labor and commercial arbitration disputes, and rejected the assertion that the Federal Arbitration Act (FAA) “pro-arbitration policy” required that labor disputes be arbitrated “where evidence of the parties’ agreement to arbitrate the dispute [was] lacking.”
Protecting Concerted Activity during the COVID-19 Pandemic
Key Points
- Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
- Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that
Confidentiality and No-Participation Provisions in Voluntary Severance Agreements Lawful
On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act).
New Guidelines for Public Bargaining in Missouri
For a number of years now, since the Missouri’s Supreme Court’s 2007 decision in Independence NEA v. Independence School District, there has been a great deal of confusion regarding the collective bargaining process in the State of Missouri for public employees. All processes for those employees that were specifically excluded from the statutory
Gorsuch Restrains His Own Speech In Oral Arguments About Public Sector Union Dues
From Justice Kagan’s observation that a decision in favor of the plaintiff could affect millions of public sector workers to Justice Alito’s surprise at seeing a union brief include an argument that the Constitution originally did not grant public employees free speech rights, the U.S. Supreme Court was full of impassioned discourse during Monday’s
DOL Fiduciary Rule Update
Several recent updates regarding the new Department of Labor (DOL) fiduciary rule have caused confusion for our clients. On March 1, 2017, the DOL announced a proposed delay of the new fiduciary rule and prohibited transaction exemptions that were set to become applicable on April 10, 2017. The DOL requested that all comments on the
NLRB’s OGC Issues D.R. Horton Memo Following Certiorari Grant
Over the last several months, we have covered judicial developments relating to the NLRB’s D.R. Horton doctrine. As a reminder, since its D.R. Horton decision, the Board has taken the position that class-waiver provisions in arbitration agreements infringe on the rights of employees to engage in concerted activities and, therefore, violate the National Labor Relations
Mandatory Employee Arbitration Split To Be Heard By Supreme Court
Earlier this month the United States Supreme Court decided to hear three cases which will resolve the split between various Courts of Appeals (discussed in our prior post here) as to whether individual arbitration agreements barring class arbitration actions in employment-related matters are enforceable. While the Court held in 2011 that the Federal Arbitration Act would allow companies to avoid consumer class actions by insisting upon individual arbitrations in their contracts, AT&T Mobility v. Concepcion, workers have contended that employment contracts are different. They have successfully argued that the National Labor Relations Act prohibits class waivers since it would impinge upon worker’s rights to engage in “concerted activities”. The Seventh Circuit Court of Appeals accepted such an argument in Epic Systems Corp. v. Lewis (discussed in our prior post here), and the Ninth Circuit accepted such an argument in Ernst and Young v. Morris. The Fifth Circuit Court of Appeals rejected the same argument in National Labor Relations Board v. Murphy Oil U.S.A.
Federal Judge Issues Permanent, Nationwide Injunction Against DOL’s Persuader Rule
In a prior post, we discussed the Department of Labor’s issuance of a new final rule that expanded disclosure requirements for companies that hire union avoidance consultants. The Department’s new “persuader” rule required employers to report the hiring of such consultants whenever these third parties engaged in indirect persuader activities (e.g., planning employee meetings,