Author Archives: Holland & Hart

November 3, 2016

$4.25M Age Discrimination and Retaliation Verdict Tough Pill For Abbott Laboratories To Swallow

Four-and-a-quarter million dollars. That is what a federal jury recently awarded an ongoing employee at Abbott Laboratories for her age discrimination and retaliation claims. What caused the jury to award such a large amount in damages? Here is a look at the facts, followed by tips on how to avoid such liability when dealing with older employees.

All Seems Fine—Until Employee Hits Her Fifties

Luz Gonzalez-Bermudez (Gonzalez) has worked for Abbott since 1984, beginning her career as a pharmaceutical representative followed by promotions that ultimately made her the HCP national sales manager. In that role, Gonzalez was classified in Abbott’s compensation system as a Level 18 position, warranting a six-figure salary, an annual incentive bonus, stock options, and a company car.

But, eighteen months after her promotion to the HCP national sales manager, when Gonzalez was about 51 years old, her position was eliminated and she was demoted to a marketing manager position. Her new job was a Level 17 position, but Abbott allowed her to keep her Level 18 compensation and benefits for up to two years.

In the marketing manager position, Gonzalez reported to Kim Perez, the Director of Marketing (and later, the General Manager). Perez evaluated Gonzalez’s performance as a marketing manager negatively. Gonzalez complained internally that Perez was creating a hostile work environment, due to repeatedly asking her about outstanding work, sending a lot of emails following up on pending matters, and a lack of communication about things Gonzalez needed to know to do her job.

When Gonzalez’s two years of Level 18 compensation was up, Perez and the Human Resources Director told her that she had been assigned a Product Manager position, which was a Level 15 classification. At that level, Gonzalez took a pay cut, lowered bonus, loss of stock options, and lowered company car benefits.

Employee Lawyers Up

About six months later, Gonzalez’s attorneys sent a letter on her behalf to Perez and others at Abbott, notifying them that they had been retained to represent her in any age discrimination claims that Gonzalez may have against them. Despite the letter, Abbott did not conduct an investigation into any possible claims. Shortly thereafter, Gonzalez filed an administrative charge with the Antidiscrimination Unit of the Puerto Rico Department of Labor and Human Resources alleging age discrimination and retaliation. Read more >>

October 19, 2016

Firing Employee On FMLA Leave Is Risky, But Not Always Unlawful

By Mark Wiletsky

Terminating an employee out on Family and Medical Leave Act (FMLA) leave is risky business. After all, the major tenet behind the FMLA is to permit employees to take job-protected time off when serious health or family concerns arise.

But does that mean that an employer may never terminate an employee out on leave? No, but you better have well-supported business reasons for your termination decision, and be prepared to defend your decision in court. A recent decision by Tenth Circuit Court of Appeals offers a useful look at how a Colorado employer did it right and avoided liability for an FMLA-interference lawsuit.

Twelve-Year Employee Struggles After Promotion

Hired in 2002, Kris Olson began working for Penske Logistics, LLC as a dispatcher. Over the next ten years, he was promoted three times, including his 2013 promotion to Operations Manager of Penske’s Denver warehouse. In that role, Olson supervised over 30 employees and was responsible for hiring, financial records, moving and tracking inventory, conducting regular inventory audits, and other managerial tasks.

In his first year as Operations Manager, Olson appeared to be performing adequately, but not exceptionally, scoring mostly “2” and “3” grades on a 5-point scale on his 2013 performance review. He was told he needed to continue to train in his position. In January 2014, however, Penske issued a written warning to Olson for failing to fire an employee who had violated safety rules. Olson was told that any future failure to follow procedures would result in more severe discipline, up to and including termination. In June (about five months later), Olson’s supervisor, Rick Elliott, put Olson on a 60-day “action plan” that instructed Olson to hire more workers, process inventory more quickly, and respond promptly to phone calls and emails. The “action plan” concluded with a warning that failure to meet all requirements would result in Olson’s immediate termination. Olson appeared to follow the instructions in his “action plan.”

On July 9, 2014, Olson requested FMLA leave, which was approved. Olson’s last day at the warehouse before going out on leave was Friday, July 18, 2014.

Employer Discovers Employee’s Misconduct

July 18th proved to be a pivotal day for Olson. On that day, Elliott received a monthly grade that primary client, Whirlpool, gave the warehouse for June – a “D.” With Olson out on leave, Elliott asked a supervisor at another Penske warehouse, Nicki Brurs, to come to Denver to investigate why Whirlpool rated the Denver warehouse so low. Brurs found that there were at least 152 discrepancies between the warehouse’s inventory records and its actual inventory. In addition, Brurs learned that the warehouse was 567 audits behind schedule, having done only 37 random audits over the preceding few months.

At that same time, Elliott also discovered that over the previous few months, Olson had not billed Whirlpool for extra work performed by the warehouse. Earlier, Elliott had asked Olson why he had not billed Whirlpool for extra work and Olson answered that there had not been any extra work for which to bill. On July 28, however, Elliott learned that there had been several instances of extra work for Whirlpool, meaning Olson had lied to him.

By August 1, Elliott had made up his mind that Olson had to go. He sent a report to human resources summarizing the problems he had discovered with Olson, including his dishonesty. He detailed that Olson had hidden inventory losses by creating records for an imaginary storage location – a “ghost stow” – that allowed Olson to hide inventory losses for four years. He also reported that Olson had instructed his staff not to tell Whirlpool when inventory was missing, but instead, to report the missing units as damages. Elliott told HR that he wanted to bring in a temporary replacement as Operations Manager while Olson was out on FMLA leave and fire Olson on his first day back to work. HR agreed that Olson should be fired.

Despite its decision, Penske continued its investigation into Olson’s misconduct. Over the next couple of weeks, Penske discovered additional inventory errors and “ghost stows,” resulting in more than $120,000 of errors in the warehouse’s records. It also concluded that Olson had failed to train his employees, failed to enforce attendance policies, failed to return damaged items, and other lesser performance issues. Read more >>

October 5, 2016

DOL Finalizes Paid Sick Leave Rule For Federal Contractors

By Mark Wiletsky

To implement President Obama’s September 2015 Executive Order, the U.S. Department of Labor (DOL) recently issued its final rule requiring certain federal contractors to provide up to seven days of paid sick leave per year to employees who work on covered contracts. Here are the essential requirements for contractors under this new rule.

Which Contractors and Employees Are Covered?

The final rule applies to new contracts with the federal government resulting from a solicitation that was issued, or contract that was awarded, on or after January 1, 2017. It includes contracts that are covered by the Davis-Bacon Act, the Service Contract Act, concessions contracts, and service contracts in connection with federal property or lands.

Not all employees of a federal contractor must be provided with this mandated paid sick time. Instead, employees must be allowed to accrue and use paid sick leave only while working on or in connection with a covered contract. Employees who perform work duties that are necessary to the performance of a covered contract but who are not directly engaged in performing the specific work called for by the contract, and who spend less than 20 percent of their work time in a particular workweek performing work in connection with such contracts, are exempt from the rule’s accrual requirements.

What Amount of Paid Sick Time Must Be Provided?

Contractors must allow employees to accrue one hour of paid sick leave for every 30 hours worked on or in connection with a covered contract, up to a maximum of 56 hours per year. In order to calculate that accrual, contractors may use an estimate of time their employees work in connected with (rather than on) a covered contract as long as the estimate is reasonable and based on verifiable information. As for employees for whom contractors are not required by law to keep records of hours worked, such as exempt employees under the Fair Labor Standards Act, it may be assumed that such employees work 40 hours each week.

If a contractor prefers not to calculate accrual amounts, the contractor may elect to provide an employee with at least 56 hours of paid sick leave at the beginning of each accrual year.

What If A Contractor Already Provides Paid Sick Time Off?

A contractor’s existing paid time off (PTO) policy may fulfill the paid sick leave requirement as long as it provides employees with at least the same rights and benefits required under the final rule. In other words, if the contractor’s existing policy provides at least 56 hours of PTO that can be used for any purpose, the contractor does not have to provide separate paid sick leave, even if an employee chooses to use all of his or her PTO for vacation. However, if the contractor’s policy does not meet all of the requirements under the final rule, such as not permitting an employee to use paid time off for reasons related to domestic violence, sexual assault, or stalking, then the existing PTO policy would not comply. In such cases, the contractor would have to either amend its PTO policy to make it compliant, or separately provide paid sick leave for the additional purposes under the final rule.

How Does An Employee Use This Paid Sick Leave?

An employee may use paid sick leave in increments as little as one hour for absences resulting from any of the following:

the employee’s medical condition, illness or injury (physical or mental)
for the employee to obtain diagnosis, care, or preventive care from a health care provider for the above conditions
caring for the employee’s child, parent, spouse, domestic partner, or another individual in a close relationship with the employee (by blood or affinity) who has a medical condition, illness or injury (physical or mental) or the need to obtain diagnosis, care, or preventive care for the same
domestic violence, sexual assault, or stalking, that results in a medical condition, illness or injury (physical or mental), or causes the need to obtain additional counseling, seek relocation or assistance from a victim services organization, take legal action, or assist an individual in engaging in any of these activities.

An employee may request to use paid sick leave by a written or verbal request, at least seven calendar days in advance when the need for the leave is foreseeable. When not foreseeable, the request must be made as soon as is practicable. Contractors may limit the amount of paid sick leave that an employee uses only based on how much paid sick time the employee has available. Any denial of a request to use paid sick leave must be provided by the contractor to the employee in writing with an explanation of the denial. Operational need is not an acceptable reason to deny paid sick leave requests.

May Contractors Require Medical Certifications?

Contractors may require a medical certification only if the employee is absent for three or more consecutive full workdays. Contractors must inform employees that a medical certification will be required before he or she returns to work.

What About The Overlap With The FMLA?

Contractors must still comply fully with the federal Family and Medical Leave Act (FMLA) as well as state and local paid sick time laws. If an employee is eligible for time off under the FMLA, the contractor must meet FMLA requirements for notices and certifications, regardless of whether the employee is eligible to use accrued paid sick leave. The contractor may, however, run the paid sick leave concurrently with unpaid FMLA leave.

Must Unused Paid Sick Time Be Carried Over or Paid Out?

Contractors must carry over unused, accrued paid sick leave from one year to the next, but may limit the maximum amount of accrual at any point in time to 56 hours. Contractors are not required to pay employees for accrued, unused paid sick leave at the time of job separation, but keep in mind that state or local laws may mandate a different result if the organization uses PTO instead of sick time. However, if an employee has been rehired by the same contractor within 12 months after a job separation, the contractor must reinstate the employee’s accrued, unused paid sick leave, unless such amount was paid out upon separation.

Preparing For January 2017

Employers who expect to seek or renew federal contracts on or after January 1, 2017 should review their existing sick leave and/or PTO policies to determine what changes may be required in order to comply with the new rule. The DOL provides many additional resources to explain the final rule, including a Fact Sheet, Overview of the Final Rule, and Frequently Asked Questions. Given the potential impact on contractors’ policies and how they are administered, we recommend taking steps now to determine how best to comply.

October 4, 2016

Employment Contracts with California Employees Require California Law

By Jude Biggs

Beginning January 1, 2017, employers may not require a California employee to agree to litigate claims in a state other than California or to apply the law of another state to disputes that arose in California. These new restrictions pose particular problems for companies headquartered outside of California who employ workers in California.

New CA Labor Code Section 925

Recently signed into law by Governor Jerry Brown, Senate Bill 1241 adds section 925 to the California Labor Code. It provides that an employer “shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following:

Require the employee to adjudicate outside of California a claim arising in California.
Deprive the employee of the substantive protection of California law with respect to a controversy arising in California.”

In other words, an employer may not force an employee who primarily works and lives in California to enter into an employment agreement, as a condition of employment, that provides that any claims must be resolved, either in court or by arbitration, in another state (a so-called forum-selection clause) or that another state’s law, which offers less protection to the employee than California law, will apply (a choice-of-law provision).

Why It Matters

California law is typically more pro-employee than other states’ laws. For instance, California law prohibits employers from requiring employees to waive their right to a jury trial before a dispute arises and places substantial restrictions on arbitration agreements. It also requires the payment of business expenses, where many other states do not.

Multi-state companies frequently seek to create some uniformity and predictability in where employment disputes will be litigated so they insert a venue clause into their employment agreements. Such clauses often provide that disputes must be heard in the state where the business is based or where its legal team is located, regardless of where the employee lives or works. Similarly, companies may write into contracts that the law to be applied is that of the state where they are headquartered or incorporated. This offers the business uniformity across all its operations and helps to avoid onerous employment laws in certain states.

The new Labor Code section 925 makes non-California venue and choice-of-law provisions virtually unenforceable per se for California employees, when made a condition of employment. If an employee has to go to court to enforce his or her rights to have a case in California and to use California law in the case, the court may award reasonable attorney’s fees to the employee. Read more >>

September 26, 2016

Tax Reporting For Deferred Compensation Payments Following Death of Employee: Are You Reporting Correctly?

By Rebecca Hudson and Arthur Hundhausen

When an employee dies, deferred compensation may be due and payable to the employee’s beneficiary or estate. Employers are often tripped up by the corresponding tax reporting and withholding requirements and whether income tax and FICA tax withholdings are due from such payments. This article briefly addresses these tricky questions.

No Income Taxes Should Be Withheld

Under many employer-sponsored deferred compensation arrangements, employees earn compensation in one year that will not be paid until a future date. This may include traditional deferred compensation plans, short-term and long-term incentive arrangements, and stock awards, to name a few. When an employee/plan participant dies, the terms of the plan or arrangement typically dictate when and how the future payments are to be made to the employee’s beneficiary or estate. Employers should follow the terms of the plan and make payments and plan distributions to beneficiaries at the required times.

The proper income tax treatment of compensation that is earned preceding death, but is unpaid at the time of death, and is ultimately paid to a beneficiary or the estate of the deceased employee is outlined in IRS Revenue Rulings 71-456 and 86-109. These rulings provide that for income tax withholding purposes, these amounts do not constitute “wages.” Consequently, employers should not withhold income taxes on the amounts paid to a beneficiary or estate following an employee’s death.

FICA Taxes Still Withheld and Due If Compensation Paid In Year of Death

In an odd, and less-than-intuitive provision, the federal tax code (Code) treats FICA tax withholding differently depending on whether the compensation payments are made to the beneficiary/estate in the calendar year of the employee’s or former employee’s death, or in succeeding calendar years. Section 3121(a)(14) of the Code states that if compensation amounts are paid in the calendar year of the employee’s death or former employee’s death, such amounts will constitute FICA “wages” and therefore, are subject to FICA (Social Security and Medicare) tax withholding. However, Code Section 3121(a)(14) also confirms that these amounts will not constitute “wages” for FICA purposes, and therefore will not be subject to FICA tax withholding, if they are paid in the calendar year or years after the year in which the employee or former employee died.

Form W-2 or 1099?

So what tax reporting forms must be issued to the beneficiary or estate to reflect the compensation payments made following an employee’s death? Under IRS Revenue Ruling 64-150, all amounts earned but unpaid at an employee’s or former employee’s death received by an estate or beneficiary of a deceased employee should be reported as non-employee compensation on a Form 1099-MISC. But, as explained below, the amounts reported on the Form 1099-MISC must take into account FICA tax withholding and therefore, will depend on whether the payments are made in the calendar year of the employee’s or former employee’s death or in the calendar year(s) after the death.

Specifically, for payments made in the same calendar year as the employee or former employee died, the payments are not subject to income tax withholding but are subject to FICA withholding. Therefore, employers should issue a Form W-2 for that year in the name of the employee or former employee (with the social security number of the employee), solely to reflect the FICA wages and the corresponding FICA tax withheld. The compensation/plan distributions should be reported in box 3, Social Security wages, and box 5, Medicare wages and tips, on the Form W-2. The corresponding employee Social Security tax withheld should be reported in box 4, and the corresponding employee Medicare tax withheld should be reported in box 6, on the same Form W-2. Finally, the net amount of the compensation/plan distributions made to the beneficiary/estate in that calendar year (“net” meaning the full amount of the payment less the amount of FICA taxes withheld) should be reported on a Form 1099-MISC, box 3, Other income, issued to the beneficiary/estate.

For payments made in the calendar year(s) following the year in which the employee or former employee died, no income tax or FICA taxes should be withheld and no Form W-2 is required. Instead, the full amount of the distribution payments should be reported on a Form 1099-MISC, box 3, Other income, issued to the beneficiary/estate.

September 22, 2016

Minimum Wage For Federal Contractors Going Up In 2017

By Mark Wiletsky

On January 1, 2017, the new minimum wage for employees working on covered federal contracts will be $10.20 per hour, up five cents from the current hourly minimum of $10.15. An even bigger increase will go into effect for tipped employees working on or in connection with covered contracts as the tipped-employee minimum cash wage goes up from $5.85 to $6.80 per hour.

Inflation-Based Increases

According to President Obama’s 2014 Executive Order establishing a minimum wage for employees working on federal contracts, and the Department of Labor’s (DOL’s) corresponding regulations, the annual minimum wage for non-tipped employees increases based on the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics, rounded to the nearest five cents. The annual percentage increase in the CPI-W over the past year was 0.287% which would raise the minimum wage rate to $10.18. Because the hourly rate must be rounded to the nearest multiple of five cents, the new rate beginning January 1, 2017 will be $10.20.

For tipped employees, the Executive Order requires that the minimum cash wage increase by $0.95 (or a lesser amount, if necessary) until it reaches 70% of the contractor minimum wage for non-tipped employees. For 2017, the hourly cash wage for tipped employees will go up by $0.95 cents to $6.80 per hour. Employers must remember that at all times, the amount of tips received by the employee must equal at least the difference between the cash wage paid and the Executive Order minimum wage. If the employee does not receive sufficient tips, the contractor must increase the cash wage paid so that the cash wage in combination with the tips received equals the Executive Order minimum wage.

Required Minimum Wage Notice

Covered federal contractors are required to inform all workers performing on or in connection with a covered contract of the applicable minimum wage rate under the Executive Order. The required notice may be met by posting the free poster on Federal Minimum Wage for Contractors provided on the Wage and Hour Division’s website. As with all employment law posters, this notice should be displayed in a conspicuous place at the worksite.

September 20, 2016

Overtime Rule Lawsuit Seeks To Stop December 1st Changes

By Mark Wiletsky

Twenty-one states have sued the federal Department of Labor (DOL) seeking to prevent the new overtime exemption salary boost from going into effect on December 1, 2016. In a lawsuit filed in the Eastern District of Texas, the states argue that the DOL exceeded its authority when it issued its final rule increasing the salary level for exempt employees to $47,476 per year, with automatic updates to the salary threshold every three years.

Legal Challenge To The Overtime Rule

In the states’ complaint against the DOL, the states argue that the new rule is unlawful. One of their primary arguments is that enforcing the Fair Labor Standards Act (FLSA) and the new overtime rule against the states infringes upon state sovereignty in violation of the Tenth Amendment. The complaint cites the increased payroll costs to the states that would result from having to comply with the new exempt salary levels.

The states argue numerous other reasons why the new overtime rule should be stopped, including that the DOL exceeded the authority granted to it by Congress when it focused on the salary level as the litmus test for exempt status rather than on the duties of white collar workers. The states argue that exempt status should apply to any “bona fide executive, administrative, or professional” employee, even if their salary falls below the new threshold.

The states also take issue with the automatic increases in the new rule through which the DOL will index the salary thresholds every three years. The states assert that the DOL should have to go through the normal notice and comment period in order to make future changes to the salary levels. Read more >>

September 13, 2016

Colorado Hospital Targeted For Alleged Age Discrimination Against Nurses

By Steve Gutierrez

senior nurse A Chief Nursing Officer (CNO) is alleged to have stated that a younger nurse could “dance around the older nurses.” Not hard to imagine that such a statement would raise the hackles of many nurses over age 40, but do comments like that mean that the hospital discriminated against one or more nurses on the basis of their age when the nurses were discharged or resigned? That is the question facing Montrose Memorial Hospital after the Equal Employment Opportunity Commission (EEOC) filed an age discrimination lawsuit against the Western Slope hospital last Friday.

EEOC Cites Numerous Age-Related Comments

In its complaint, the EEOC alleges that Montrose Memorial Hospital’s CNO, Joan Napolilli, made various age-biased statements to charging party Katherine Casias and other nurses. Casias began work for the hospital in 1985 as a licensed practical nurse but then earned her degree cum laude as a registered nurse (RN). The alleged comments attributed to Napolilli include:

a younger RN could “dance around the older nurses;”
younger nurses are “easier to train” and “cheaper to employ;”
Casias was not “fresh enough” and was chastised for not smiling or saying hello enough;
referring to Casias as an “old bitch;”
older workers at the hospital were “a bunch of monkeys” and she’d “like to fill the hospital with new nurses and get rid of all the old ones;” and
telling a nurse supervisor to “work that old grey-haired bitch into the ground” and to work her “long and hard until she quit or got fired.”

The complaint also alleges that Nurse Manager Susan Smith told an RN that “you’re getting too old for this job.”

If proven to have actually been said, comments expressing an aversion to workers over 40 and a preference for younger workers can be direct evidence of age discrimination under the Age Discrimination in Employment Act (ADEA). Read more >>

September 6, 2016

Tips For Avoiding Retaliation Claims Under EEOC’s New Guidance

By Bryan Benard

In recent years, the Equal Employment Opportunity Commission (EEOC) has received more retaliation charges than any other type of discrimination claim. Last year, almost 45 percent of EEOC charges included an allegation of retaliation – yes, almost half!

Because of the alarming frequency of charges and the need for employees to report discrimination without fear of reprisal, the EEOC recently issued a new enforcement guidance on retaliation that replaces and updates its 1998 compliance manual on the subject. Even though the EEOC’s position is not necessarily the final word on these issues, as courts often disagree with the EEOC’s interpretation of federal discrimination laws, employers should know how EEOC staff, including its investigators and litigators, will approach retaliation charges. Here is a look at the new guidance with tips on how to avoid becoming another retaliation charge statistic.

Overview of Retaliation and Protected Activities

The federal discrimination laws enforced by the EEOC, such as Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA) and others, prohibit employers from taking adverse action against an employee or applicant because the individual engaged in “protected activity.” Adverse actions that can be seen as retaliatory by the EEOC include not just discipline or discharge, but also transferring the employee to a less desirable position or shift, giving a negative or lower performance evaluation, increasing scrutiny, or making the person’s work more difficult.

“Protected activity” falls into two categories: participation and opposition. Participation activity is when an individual “participates” in an EEO process, which can include filing a charge, being involved in an investigation, or testifying or serving as a witness in a proceeding or hearing. Opposition activity is when an individual complains, questions, or otherwise opposes any discriminatory practice. Employees have the right to engage in both types of protected activity without being subject to retaliation from their employer.

Harassment As Retaliation

According to the EEOC, harassing conduct can be seen as retaliation, even if it does not rise to the level of being severe or pervasive enough to alter the terms and conditions of employment. The agency states that harassment can constitute actionable retaliation so long as the conduct is sufficiently material to deter protected activity in the given context.

Evidence That May Support a Retaliation Finding

To determine whether there is a causal connection between a materially adverse action and the individual’s protected activity, the EEOC will consider different types of relevant evidence, alone or in combination. Some of the facts that may lead to a retaliation finding include:

Suspicious timing, especially when the adverse action occurs shortly after the individual engaged in protected activity;
Inconsistent or shifting explanations, such as where the employer changes its stated reasons for taking the adverse action;
Treating similarly situated employees more favorably than the individual who engaged in protected activity;
Statements or other evidence that suggest the employer’s justification for taking the adverse action is not believable, was pre-determined, or is hiding a retaliatory reason.

August 24, 2016

NLRB Reverses Position on Grad Student Assistants, Allowing Them To Unionize

By Steven Gutierrez

Overruling its 2004 Brown University decision, the National Labor Relations Board (NLRB or Board) decided that graduate student assistants at private colleges and universities can be considered statutory employees under the National Labor Relations Act (NLRA), permitting them to organize and form a union. Columbia University, 364 NLRB 90 (August 23, 2016). The Board concluded that student assistants who perform paid work at the direction of their university have a common-law employment relationship with the university and therefore, are entitled to the protections of the NLRA.

Why Brown University Was Wrong

The 2004 Board that decided this issue in Brown University ruled that graduate assistants could not be statutory employees under the NLRA because they are primarily students and have a primarily educational relationship with the university, not an economic one. The current Board rejected that view, finding that because student assistants perform work, at the direction of the university, for which they are compensated, they are statutory employees and the fact that there may be another relationship not covered by the NLRA, namely an educational relationship, did not foreclose their coverage as employees.

The current Board also disagreed with the Brown University Board’s “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the [NLRA].” Instead, this Board believes that allowing grad assistants to be covered employees meets the “unequivocal policy” of the NLRA to encourage the practice and procedure of collective bargaining, and will make sure that an entire category of workers are not deprived of the protections of the law.

Multiple Flip-Flops On Graduate Assistants

In overruling Brown University, the Board’s position returns to the position held in the 2000 New York University (NYU) ruling, which itself was overruled in Brown University. Prior to the NYU ruling, however, the Board had long held that various student assistants could not be included in petitioned-for bargaining units.

This new flip-flop on the issue of coverage for graduate student assistants is not surprising given the leanings and make-up of the majority of the current Board, which has favored the extension of coverage and its jurisdiction, when possible. Board member Philip Miscimarra dissented in this case, writing that he agreed with the Brown University reasoning that graduate student assistants have a predominately academic, rather than economic, relationship with their school. He would not have overruled Brown University, or permitted the petitioned-for bargaining unit to proceed. Read more >>