Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

A recent decision of the Employment Appeal Tribunal in Eagles v Rugged Systems has confirmed the position as to the circumstances in which an Employment Tribunal should exercise its discretion to extend the ordinary three-month time limit for presenting a claim in the Employment Tribunal for an extra three months under the statutory dispute resolution regulations (repealed on 6^th April 2009). The decision will be of interest to employers dealing with recent claims for unfair dismissal or who are currently negotiating compromise agreements or dealing with ongoing dismissal procedures in cases where, on a time limit transitional basis, the statutory dispute resolution procedures still apply.

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On June 18, 2009, the United States Supreme Court issued its opinion in Gross v. FBL Financial Serv., Inc., No. 08-441, giving a significant victory to employers facing claims under the Age Discrimination in Employment Act (“ADEA”).

Jack Gross, an employee of FBL Financial Services, Inc. (“FBL”), claimed that he was demoted because of his age, in violation of the ADEA. The jury ruled in Gross’s favor after being instructed by the judge that FBL was liable if age was “a motivating factor” in its demotion decision. In other words, the jury was told that if age played any part in that decision, FBL had violated the ADEA.

In an opinion by Justice Clarence Thomas, the Supreme Court held that the trial judge had misstated the standard for liability under the ADEA. Specifically, the Court held that the plaintiff in an ADEA suit must prove that age was the determinative, or “but-for,” cause of the adverse employment decision, not merely that it was “a motivating factor.” In other words, a plaintiff must demonstrate that, if it were not for his or her age, the adverse employment decision would not have been made.

Gross means that a plaintiff’s burden of proof under the ADEA is now higher than it is under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, sex, color, religion or national origin. In Title VII cases, a plaintiff must prove only that a protected characteristic was “a motivating factor” for the adverse employment decision, not that is was determinative.

While Gross provides a substantial win for employers, the victory may be short-lived. In the past, Congress has shown little hesitation in amending employment laws that it believes have been misinterpreted by the Supreme Court. Examples include the Civil Rights Act of 1991, which overruled a Supreme Court decision by amending Title VII to, among other things, substantially increase the difficulty of proving the employer’s affirmative defenses; and the Lilly Ledbetter Fair Pay Act of 2009, which overruled a Supreme Court opinion by amending several laws to provide greater protection for employees complaining of pay disparities. Given the current political composition of Congress, there is a substantial possibility that the House and Senate will overrule Gross by amending the ADEA to conform it to Title VII, so that it requires plaintiffs to prove only that age was a motivating factor in an employer’s decision. Until that happens, however, Gross will make it easier for employers to defend age discrimination claims.

A copy of the Gross opinion can be found on Cornell University Law School’s Legal Information Institute website.

For more information, please contact the author of this Client Alert, or the Reed Smith attorney with whom you regularly work.

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The House of Lords, in the case of HM Revenue and Customs v Stringer and others has overturned the decision of the Court of Appeal in that case, ruling that claims for unpaid statutory holiday pay and accrued statutory holiday pay on termination under the Working Time Regulations 1998 (“WTRegs”) can be made as unlawful deduction from wages under the Employment Rights Act 1996 (“ERA”), as well as under the WTRegs. This will mean that workers can take advantage of the more favourable time limits which apply under the ERA, which could potentially allow them to claim unpaid holiday pay on termination of their employment going back several years, provided they bring their holiday pay claim within three months of their employer’s most recent failure to pay them holiday pay. This decision will not be welcomed by employers as it will increase the cost of both continuing to employ workers on long term sick leave, and also on termination of their employment. It also leaves unresolved a number of practical problems arising from the decision of the European Court of Justice (ECJ) earlier this year on this issue (see our blog for details of the ECJ decision). 

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This post was written by Scott E. Blissman and Joel S. Barras.

In a recent decision by the Pennsylvania Labor Relations Board (“Board”), the Board found that a public employer committed an unfair labor practice by prohibiting its unionized employees from smoking in outdoor work spaces. This case represents the Board’s attempt to balance its longstanding case law requiring employers to negotiate prohibitions on employee smoking with the recently passed Pennsylvania Clean Indoor Air Act. Specifically, the Board concluded that the Clean Indoor Air Act permits public employers to unilaterally ban smoking by employees in all indoor work areas without first negotiating with the employees’ union, but the statute does not apply to outdoor spaces. The case may proceed on appeal to the Commonwealth Court, and we will update you if and when the case progresses.

Background

In Association of Pennsylvania State College and University Facilities v. Pennsylvania State System of Higher Education, prior to September 2008, faculty and coaches were allowed to smoke indoors and outdoors, subject to previously negotiated local restrictions at the various state college and university campuses. In September 2008, the State System of Higher Education (“SSHE”) informed the faculty’s union that the Pennsylvania Clean Indoor Air Act prohibited smoking in the workplace, and as such, any past practice or provision in the operative collective bargaining agreement that permitted such activity was null and void. As the new law did not provide an exception for existing labor agreements, the SSHE did not negotiate or discuss this new prohibition prior to its implementation.

In response, the union filed a charge of unfair labor practices with the Board, alleging that the state unilaterally changed a term of employment that is a mandatory subject of bargaining. Initially, the Board Hearing Examiner dismissed the charges, citing the overriding authority of the Clean Indoor Air Act. The union filed Exceptions to the Board, which reversed the Examiner’s Proposed Decision and found the SSHE violated Act 195 by failing to bargain with the union regarding the outdoor smoking ban.

The Pennsylvania Labor Relations Board’s Decision

In its decision, the Board first noted that the General Assembly can pass legislation that requires public employers to unilaterally change a mandatory subject of bargaining, regardless of its bargaining obligations to its employees’ unions. As such, to the extent that the Clean Indoor Air Act applies to public employers’ facilities and their employees, the Act would supersede existing provisions in any labor agreement. In reviewing that law, the Board agreed with the Hearing Examiner that public employers were statutorily required to prohibit smoking in their indoor facilities by members of the public and public employees. However, after analyzing the Act’s provisions, including its name – the Clean Indoor Air Act – and the General Assembly’s public deliberations, the Board held that it did not apply to outdoor areas. Accordingly, the Board concluded that its established case law that required bargaining over smoking prohibitions still applied to those spaces. Therefore, the SSHE committed an unfair labor practice by unilaterally banning smoking by unionized employees in outdoor work spaces.

Practical Effects for Pennsylvania Public Employers

Public employers are permitted, and in fact required, to prohibit smoking by their employees in all of their indoor facilities and vehicles. However, with regard to their public parks and other outdoor spaces, current contract provisions and established past practices control. Before a public employer can modify its outdoor smoking policy for unionized employees or institute a new policy, it must first gain the assent of the union representing any impacted employee.

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