November News

Employee Free Choice Act Would Abolish Current Election System for Union Representation Petitions.

For over 60 years, the National Labor Relations Act has used secret-ballot elections as the preferred method for determining whether employees wish to be represented by a union in collective bargaining.  A Bill (H.R. 800) introduced in Congress by Congressman George Miller (D. Cal.) and currently under consideration (ironically named the “Employee Free Choice Act”) is a proposed amendment that would abolish the National Labor Relation Board’s current secret-ballot process in favor of a process that would require only a Board finding “that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative.”  The legislation does not define the form of the new “valid authorizations,” but instead leaves that for further determination by the NLRB.  However, it is believed that the NLRB would institute some version of the “card check” now performed to determine majority status in other situations, such as in response to a decertification petition.  The EFCA thus would offer less process and less safeguards for free choice than currently are available under the secret-ballot system. 

Employer Must Pay Non-Work Time and Travel Costs Related to Needlestick Evaluation and Treatment.

In a victory for OSHA, a federal court of appeals has ruled that a nursing home employer received fair notice and must reimburse two nurses who received needlesticks at work for their non-work time and travel expenses spent in getting post-accident evaluation and treatment.  The Court found that the Bloodborne Pathogens Standard (BPS) adopted by OSHA in 1991 was ambiguous about the nature of how much cost the employer had to absorb.  However, to fill the void, the Secretary had broadly interpreted the BPS in a 1999 opinion letter that was available to the public to require reimbursement for time spent receiving initial and follow-up treatment, as well as travel expenses.  The Court held that the employer had fair notice of this interpretation and was bound by it.  A contrary ruling, observed the Court, would act as a significant disincentive to employees’ voluntary participation in the program and, therefore, frustrate the statutory purpose of ensuring healthful working conditions.  Thus, an employer should consider an employee to be “on the clock” when receiving treatment for a needlestick and should reimburse for reasonable time and travel expenses.  Sec’y of Labor v. Beverly Healthcare-Hillview, 541 F.3d 193 (3d Cir. 2008).

Court Ruling Discourages Second-Guessing by Employers of Doctor’s Recommendation.

A recent federal district court ruling in an FMLA case suggests that employers be extremely wary of second-guessing the employee’s doctor.  I have frequently cautioned about the danger of an employer “playing doctor” in ADA cases and the same rationale applies in FMLA cases.  The plaintiff in this case called in sick due to a migraine and later obtained a doctor’s note for a 3-week absence.  However, because she personally delivered the note the very next day and appeared to be “dressed properly” and “going somewhere,” the Company became suspicious (it also questioned whether plaintiff was really sick since she personally delivered the note) and commenced surveillance on her activities.  On two separate days, the plaintiff was observed doing errands around town, shopping, spending time at her child’s daycare, and fixing a taillight on her car.  Thereafter, the Company asked plaintiff’s doctor for clarification since the initial FMLA paperwork was incomplete and vague.  The doctor responded that plaintiff’s ability was unpredictable and that she could perform activities when she felt able.  The doctor added that plaintiff was “unable to reliably perform her job duties due to her mental illness and side effects of her medication.  Being home allowed her to work through the side effects and start her recovery without endangering her co-workers.”  The Company met with plaintiff, but decided to terminate, reasoning that she engaged in physical activities outside her home that were inconsistent with her claim that she was unable to perform the same activities at work.  Plaintiff sued and the court denied the employer’s motion for summary judgment.  The court observed that the Company could have had an honest suspicion that plaintiff misrepresented her situation; however, it also could have been looking for an opportunity to get rid of an employee with a chronic mental illness who was regarded as unreliable.  There was evidence to sustain either finding, so a jury would have to decide the issue.  The key to the court’s ruling appears to be that the Company disregarded the doctor’s supplemental explanation out of hand without getting any medical opinion of its own.  A second opinion is available in FMLA cases if an employer does not agree with the initial opinion of the employee’s doctor.  Nelson v. Oshkosh Truck Corp., 2008 U.S. Dist. LEXIS 72375 (E.D. Wis. 2008).