Issue No.3. January 3rd, 2006

Written by Administrator

Cabot Employment Alert

I. Featured Employment Case

5th Circuit Court of Appeals Applies Mixed Motive Analysis to FMLA Retaliation Claim


On December 12, 2005, the United States Court of Appeals for the Fifth Circuit became the second Federal Court of Appeals to apply a mixed motive analysis to a claim arising under the Family Medical Leave Act (FMLA. A mixed-motive analysis applies when the employers motivation for the adverse employment action is both legitimate and illegitimate. Plaintiff will not prevail if the em ployer can demonstrate that it would have taken the same action with or without the discriminatory motivation. Pamela Richardson claimed that she was terminated in retaliation for filing an FMLA claim against her employer, Monitronics International, Inc., for failure to accommodate her carpal tunnel s yndrome. After developing carpal tunnel syndrome, Richardson applied for and was denied FMLA leave because she had not worked for the company for the requisite year. After she began having atten dance problems, Monitronics placed Richardson on suspension. She applied for and was granted FMLA leave after she had been employed with the company for one year.Upon returning to work, employee filed an FMLA claim against the employer for its denial of her original leave request and her suspension. Richardson then applied for and was granted intermittent FMLA leave.After being granted the intermittent FMLA leave, she continued to violate Monitronics new attendance policy, and was terminated. Monitronics did not believe her assertion that all of her absences fell under FMLA intermittent leave.

Applying the traditional burden shifting approach used to evaluate discrimination cases, the trial court granted summary judgment in favor of the employer because it found that Richardson cou ld not prove retaliation. On appeal, the Fifth Circuit ultimately agreed with the trial courts decision to grant summary judgment, but disagreed with its application of the traditional burden s hifting approach. The Fifth Circuit found that although the FMLA neither specifically prohibit nor allows a mixed motive analysis, such an approach was not at odds with the statutory text, and therefore should apply in an FMLA retaliation claim when the employer has both legitimate and illegitimate reasons for the adverse employment action.

II.Featured Labor Decision

NLRB Allows Company to Forbid Employee Conversations with Non-Employee Union Officials on Company Property

On November 30, 2005, the NLRB rejected a unions § 8(a)(1) charge against a cleaning service company for interfering, restraining, or coercing one if its employees § 7 rights.

The company, North Hills Office Services Inc., had an established policy stating, No unauthorized personnel on the job at any time.Only people who are employed by North Hills Office Services can be on the property. The employee, Ruth Perez, had a conversation with a non-employee in the companys parking lot.A building security guard reported to Perezs supervisor, Policarpio Cruz, that he had seen Perez and the union official conversing on company property. Cruz told Perez that she may have conversations with whomever she chooses off-site, but may not have any conversati ons with non-employees on North Hills property.On another occasion, Supervisor Angel Alvarez saw Perez talking to someone on company property, who he assumed was a union organizer. Alvarez appr oached Perezs car and informed her that she could continue her conversation, but must continue it off-site.

The issue in this case was whether North Hills violated § 8(a)(1) of the NLRA by instructing Perez not to speak with union officials on the company property, when those persons were not autho rized to be on the property. The NLRB found that North Hills did not violate the NLRA. Perez was not prohibited from speaking with the union representatives; but rather, she was simply told that she could not speak with non-employees on company property.The NLRB found that there was no meaningful distinction between Cruz and Alvarez telling the union representative to leave the propert y and telling Perez, its employee, to stop talking to the union representative on company property. The Board found that the purpose and effect of Cruz and Alvarezs instructions was not to impe rmissibly restrict Perezs § 7 rights, but rather to achieve employee compliance with a company property restriction.

III.Featured Employer Tip

NLRB Announces Two Year Alternative Dispute Resolution Pilot Program

The NLRB recently announced its new two year alternative dispute resolution (ADR) pilot program, which will assist parties in resolving unfair labor practices cases pending before the Board.< /p>

The Board will provide parties with an experienced neutral who will facilitate settlement discussions. Program participation is voluntary and participating parties may withdraw from settlemen t negotiations at any time.During the confidential settlement discussions the parties will explore resolution options that serve their interests.The Board will stay processing of the unfair labo r practices charge for 60 days from the first meeting with the neutral or until a settlement is reached, whichever comes first.

According to Chairman Robert J. Battista, the benefits of the program for the involved parties include the saving of time and money, greater control over the outcome of their cases, and more creative, flexible and customized results. Battista hopes that the ADR program serves to broaden resolution options, especially in cases where traditional settlement negotiations either have bee n, or are likely to be, unsuccessful.

Other features of the ADR program include:
 

•  Parties may request that an NLRB Administrative Law Judge serve as the neutral.
•  In-person settlement conferences preferred; however, settlement conferences by telephone will be allowed where personal attendance is impossible.
•  Representation by counsel at the settlement conference is permitted, though not required. A representative of each party, who has the authority to bind the party to the terms of the settlement must be in attendance.
•  Neutral may require that each party submit a confidential pre-conference memo detailing the issues in dispute, any prior attempts at settlement, and any other i nformation the party believes should be brought to the neutral attention.
•  Neutral lacks authority to impose a settlement between the parties.
•  All discussions between the neutral and the parties are confidential; only procedural information, such as case name, number and status, will be communicated to the Board.
•  Program is not intended to discourage or interfere with any settlement negotiations that the parties may wish to conduct on their own, outside the program.
•  Settlement agreements are subject to approval in accordance with existing Board procedures for settlement approval and for reviewing the approval of settlements .