Category Archives: Idaho

February 7, 2014

NLRB Again Proposes Rules to Speed Union Elections

After dropping its appeal of a District Court ruling that invalidated its “ambush election” rules, the National Labor Relations Board (NLRB or Board) has proposed those rules again. By a vote of 3-2, the Board reissued proposed amendments to its representation case procedures. The Board states that the amendments are designed to remove unnecessary delays and inefficiencies in representation case procedures. The effect, however, is expected to be an increase in union wins as the union election procedures are streamlined and votes occur quicker.

Board Lacked Quorum When Rules Adopted in 2011

The NLRB first proposed its rules to speed up the union election process in June of 2011. At the time, the Board had just three members as two positions were vacant. Despite an outcry by the business community and receipt of almost 66,000 comments, two of the three Board members voted to adopt the rules. The final rules were published in December of 2011 and went into effect on April 30, 2012.

The U.S. Chamber of Commerce and other interested groups sought to stop the implementation of the ambush election rules by suing the NLRB in federal court in the District of Columbia. Just two weeks after the rules went into effect, the judge in the case invalidated the rules, finding the Board lacked a three-member quorum needed to pass the rules. Although two of the Board members voted in favor of the rules, the third Board member, the sole Republican, did not participate in the vote. Finding that the rules were invalid for lack of the statutorily-mandated quorum, the judge did not need to address the challenge to the rules’ constitutionality and the lack of authority of the NLRB to adopt the rules. In a distinct incident of foreshadowing of this week’s events, the judge specifically stated “nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."

The NLRB appealed the District Court’s decision, asking the U.S. Court of Appeals for the District of Columbia Circuit to reverse the lower court’s ruling. On December 9, 2013, the NLRB withdrew its appeal pursuant to a joint stipulation by the parties. It did so in anticipation of doing exactly what the District Court judge had suggested, namely proposing the rules again so that a properly constituted quorum of the Board can vote to adopt the rules. Board Chairman Mark Gaston Pearce and Board members Kent Y. Hirozawa and Nancy Schiffer approved the re-issuance of the proposed rules.

“Ambush Election” Rules Would Speed Union Election Process

Published in the February 6, 2014 Federal Register, the proposed changes are virtually identical to those proposed in 2011. Highlights of the proposed amendments include:

A union may file its representation petition electronically, rather than by hand or regular mail.
A hearing must be held within 7 days of the union filing its petition.
Employers must provide a comprehensive “statement of position” on the union’s representation petition in advance of the hearing; any issues not included in the statement are waived.
Pre-election hearing is to determine only whether a question concerning representation exists; issues related to individual voter eligibility may be deferred to post-election procedures.
The parties right to file a post-hearing brief is discretionary as allowed by the hearing officer.
Deadline for employer to provide voter eligibility list is shortened from 7 work days to 2 work days from the Direction of Election.
Employer must provide email addresses and telephone numbers for employees eligible to vote in addition to the required names and home addresses.
Election need not wait for 25 days after the issuance of a Direction of Election.
Pre-election appeals to the Board are eliminated, leaving only a discretionary appeal of both pre- and post-election issues after the election occurs.

Two Board Members Dissented

Board members Philip A. Miscimarra and Harry I. Johnson III are not in favor of the proposed rules. Although stating that they share in the majority’s desire to protect and safeguard the rights and obligations of those subject to the National Labor Relations Act, they do not believe it necessary to adopt a “wholesale rewrite” of the Board’s election procedure.

Interested parties and the public may submit comments on the proposed rules until April 7. Electronic comments may be submitted through http://www.regulations.gov. Comments may also be mailed or hand delivered to: Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570. The Board intends to hold a hearing on the amendments during the week of April 7. We will keep you informed of developments on this issue.

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January 27, 2014

Union Membership: By the Numbers – 2013

By Jeffrey T. Johnson (retired)

The results are in. For 2013, the percentage of union members in the private sector ticked up slightly, to 6.7%. The percentage for 2012 was 6.6%. The total number of union members working in the private sector rose from 7.0 million in 2012 to 7.3 million in 2013.

Numbers for the public sector dipped slightly from 2012, with 35.9 percent of public sector employees reported to be union members in 2012 and 35.3 percent in 2013. The total number of public sector union members remained relatively flat, with 7.2 million union members in 2013, down just over 100,000 members from 2012.

In analyzing the data provided by the U.S. Department of Labor’s Bureau of Labor Statistics (BLS), the trend in both percentage and total number of union members has been a steady downward one. For example, in 2005, 7.8% of private sector employees were union members. In 2005, 15.7 million workers (private and public) were union members; in 2013, only 14.5 million.

The BLS report breaks down the union membership data by many categories, including by state, gender, age, industry, and occupation. It also provides comparative earnings information. Here are some highlights:

Men had a higher union membership rate (11.9%) than women (10.5%).
The age category with the highest percentage of union members was age 55-64 (14.3%).
The occupations with the highest percentage of private sector union members were protective service occupations (35.3%), utilities (25.6%), and transportation and warehousing (19.6%)
New York continues to have the highest union membership rate (24.4%), while North Carolina had the lowest rate (3.0%).

Statistics for 2013 union membership in the primary states served by Holland & Hart’s offices were as follows:

Nevada – 14.6% unionized, total of 169,000 members
Montana – 13.0% unionized, total of 52,000 members
Colorado – 7.6% unionized, total of 171,000 members
New Mexico – 6.2% unionized, total of 751,000 members
Wyoming – 5.7% unionized, total of 15,000 members
Idaho – 4.7% unionized, total of 29,000 members
Utah – 3.9% unionized, total of 49,000 members

Note: Above figures are private and public sectors combined

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October 9, 2013

Idaho Supreme Court Changes Tack and Applies McDonnell Douglas Burden Shifting Analysis at Summary Judgment Stage

By A. Dean Bennett

Since 2008, employers defending employment claims in Idaho have faced a higher burden of proof, thanks to the Curlee v. Kootenai County Fire & Rescue decision of the Idaho Supreme Court. In that case, the Court decided that the well-known McDonnell Douglas burden shifting analysis used in employment cases did not apply at the summary judgment stage, making it more difficult for employers to get a favorable outcome without going to trial. Recently, however, the Idaho Supreme Court changed its position, deciding that the McDonnell Douglas burden shifting analysis did apply at the summary judgment stage, resolving a five-year debacle in which Idaho employers faced different burdens of proof depending on whether employment claims were litigated in state or federal court. See Hatheway v. Bd. of Regents of the Univ. of Idaho, No. 39507 (Idaho Sept. 6, 2013).

Federal Framework Applied to Age Discrimination Claim Under the Idaho Human Rights Act (IHRA)

The McDonnell Douglas burden shifting analysis has been widely used to resolve a variety of federal employment law claims since 1973. The analysis allows a plaintiff to put forth indirect evidence of discrimination to establish a prima facie case. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employer’s actions. If the employer provides such reason, the burden of production then swings back to the plaintiff to show that the proffered reason is in fact pretext for unlawful discrimination. At all times, the plaintiff bears the burden of persuasion, meaning the plaintiff must convince the judge or jury that his or her position is correct.

Many state courts have adopted the McDonnell Douglas burden shifting analysis when adjudicating employment claims brought under analogous state laws. In Curlee, the Idaho Supreme Court appeared to adopt the McDonnell Douglas analysis, but went on to rule that the analysis explicitly governed the burden of persuasion at tria, and did not apply at the summary judgment stage.

The Hatheway decision appears to change that. Without specifically mentioning or overruling its Curlee decision, the Court applied the McDonnell Douglas burden shifting analysis at the summary judgment stage of Hatheway’s IHRA discrimination claims against the University of Idaho. The Court reiterated that federal law guides the interpretation of the IHRA and applied the same degree of proof and standards to an IHRA age discrimination claim as is used to analyze discrimination claims under the federal Age Discrimination in Employment Act.

Why Employers Should Care

If this all sounds like legal mumbo-jumbo, let’s put it in practical, real-life terms. Employers want to get employment claims dismissed at the earliest possible stage for numerous reasons, including avoiding expensive litigation, disruption to their operations and unfavorable publicity. Following the 2008 Curlee decision, Idaho employers had to prove more of their case early on, making it difficult to get a favorable judgment prior to trial. This prolonged meritless cases and cost employers more in legal fees and litigation-related expenses. Now, with the application of the traditional burden shifting analysis at the summary judgment stage, employers facing employment claims in Idaho state courts will have a better chance of getting employment claims dismissed earlier in the legal process with fewer cases proceeding to trial.

Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

May 15, 2012

National Labor Relations Board Election Rule Invalidated

A federal judge has invalidated the "ambush election" rule by the National Labor Relations Board ("NLRB"). Brian Mumaugh and Brad Williams summarized the decision by Judge James E. Boasberg of the United States District Court for the District of Columbia and its impact on employers in a post, which is available on Holland & Hart's website by clicking here.

March 28, 2012

A Checklist to Use before Discharging an Employee

By Nicole C. Snyder

Clients often ask us to help assess the legal risk and proper procedures for discharging employees. The following list is not exhaustive, but it provides a helpful starting point for considering almost any termination of employment:

1. Do I fully understand the facts surrounding this employee? Have I done a full investigation of why this employee is being selected for termination?

2. Have I assembled this person’s records? Is the personnel file in order?

3. Have I read any company policies/employee handbook provisions that are relevant to the situation to be sure we are complying with them?

4. Is my decision to discharge this person (or the supervisor’s decision) based on facts, not suspicion or emotion?

5. Is the employee subject to a collective bargaining agreement that must be followed? If so, are we following it?

6. Has the employee received at least one warning of possible dismissal or at least some prior notice of significant performance issues? Do we have documentation of these warnings or instances? Has the employee had some reasonable time and opportunity to correct the performance problems?

7. Does this employee have an employment agreement or any other kind of agreement concerning the term of his or her employment? If so, is the employee an at-will employee, or can he or she only be terminated in certain situations and pursuant to procedures set forth in the agreement?

8. Has this employee signed a noncompete or confidentiality agreement? If so, have I consulted with legal counsel to determine whether the noncompete agreement is enforceable and determined what type of communication to use during the termination meeting concerning these post-employment restrictions?

9. Have I checked the company policies/employee handbook to be sure that I am complying with any warning systems?

10. Does this employee have any kind of equity interest in the company, such as stock, membership units, or options? If so, have I worked with the corporate department or legal counsel to be sure we are addressing those interests correctly?

11. Have personal difficulties or special circumstances been taken into account, such as family or medical conditions?

12. Is dismissal in this case consistent with past practices?

13. Would the company be able to justify the decision if he/she claims discrimination or unjust dismissal?

14. Has this decision been discussed and approved by higher management or any other person in the company that needs to approve it?

15. Have I scheduled the dismissal/exit interview to minimize the employee’s personal contact with other employees before he/she leaves the premises?

16. Have I arranged for two people to be present at the dismissal/exit interview?

17. Have I arranged for the final paycheck and am I prepared to explain the amount?

18. Do I know what group insurance the employee has and am I able to explain what will happen to it after dismissal?

19. Have I decided what restricted statements will be made to other employees concerning this person’s discharge?

20. If the employee is being offered any form of severance pay, have we considered a severance agreement so we can obtain a release of claims from this employee?

21. Would a jury conclude that our treatment of this employee was fair?

22. Are there any special circumstances that should be fully evaluated with legal counsel prior to the termination? For example, does this termination fall within the legal “caution zone”?

Employee has a medical condition or has recently been on any type of leave
Employee is in a suspect class protected by discrimination laws (for example, the employee is female or over 40 or disabled or a member of a certain religious group or a racial minority)
Employee has complained recently about being harassed or working in a hostile environment
Employee has brought important problems to the company’s attention recently (for example, has notified management that the company is potentially doing something illegal)
Similar employees have not been discharged for the same behavior this employee is being discharged for
More than one employee is being discharged at or about the same time

May 3, 2011

EEOC files suit against retailer alleging retaliation

The EEOC announced last Thursday that it was filing suit against a large retailer under Title VII. The EEOC complained that retailer retaliated against an employee when she heeded mandatory evacuation warnings. According to the EEOC, the retailer terminated the employee for "excessive absenteeism." The case will now proceed in federal court. Whether or not the EEOC can prevail in its suit remains to be seen.

The lesson for employers is that the EEOC is paying close attention to claims of retaliation by employees and is filing suit when it believes that employers have retaliated against employees for engaging in protected activity. Employers should tread carefully in this area, as the costs of defending a suit can be significant, as can the negative publicity that can result from an EEOC enforcement action. In recent days, the EEOC has announced settlements of retaliation claims totaling thousands of dollars. In addition, some of the settlements have involved mandatory training for all company personnel and other policy changes. Employers are well advised to train their management team on these issues to ensure that all key personnel understand the importance of disconnecting complaints about protected activity from employment decisions about that individual.

March 4, 2011

Avoiding Policy or Reimbursement Liability for Unemployment Benefits

by A. Dean Bennett

To determine whether a former employee is eligible for unemployment benefits, the State of Idaho applies the “standard of behavior test.” Under this test, an employer can contest a former employee’s claim to unemployment benefits if it can show: “(1) the employee’s conduct fell below the standard of behavior expected by the employer; and (2) the employer’s expectations were objectively reasonable under the circumstances.”

But practically, how does the State apply the test, and how can employers make sure that under-performing employees do not continue to cost the employer money—even after being terminated? The Idaho Supreme Court recently addressed the standard, and gave employers some helpful guidance. See Adams v. Aspen Water, Inc., No. 36501, 2011 WL 322362 (Idaho Feb. 3, 2011).

The Court hurried past the first prong of the test, labeling it “subjective.” Whether an employee’s conduct falls below the standard of behavior expected by an employer is determined only by what the employer expected of the employee. Were the “standard of behavior test” limited to the first prong, no employer would ever lose a case contesting a claim for unemployment benefits.

The second prong of the test, however, is objective. Whether the employer’s expectations were objectively reasonable under the circumstances will likely turn on whether the employer communicated its expectations to the employee. The Court noted that it will sometimes recognize uncommunicated expectations as reasonable if they “flow naturally from the employment relationship.” But the safer route, and the route that will avoid protracted litigation and the associated costs, is for the employer to expressly communicate its expectations to the employee.

As with most liability-limiting advice—get it in writing. The best way to communicate employer expectations is through a written job description and/or an employment policy manual setting forth expectations for employee conduct. If an employee fails to meet the written expectations, the employer will be in a position to quickly and effectively contest an unemployment claim.

February 2, 2011

February 3: Beyond the Basics in Employment Law

On February 3, Anthony Hall, Dean Bennett, and I will be co-presenting at an employment law seminar in Boise. The seminar is called "Beyond the Basics in Employment Law" and is intended to update human resources professionals, business owners, and employment attorneys on the recent developments in this area of the law.

We will be presenting on wage and hour issues, including classification issues, pitfalls in the use of independent contractors, compensability issues for employees working on or off the clock, and other timely topics of significance to this area of the law.

In a separate session, we'll discuss new regulations applicable to the FMLA and the forthcoming regulations under the ADA Amendments Act of 2008. As we mentioned in a previous post, those regulations will likely be implemented soon.

The seminar will be held at the Doubletree Hotel, 2900 Chinden, Boise, Idaho beginning at 8:30 a.m. We hope you join us. Same-day registration is available.

January 26, 2011

Precedent Regarding the Scope of Workplace Internet Posting Policies Delayed

by A. Dean Bennett

Employers may have to wait for another case for precedent regarding workplace internet posting policies. In October 2010, the NLRB filed a complaint against the American Medical Response of Connecticut, Inc., after the company fired an employee who made disparaging comments on Facebook about her workplace and boss.

The Complaint alleged violation of Section 7 of the National Labor Relations Act that protects workers’ rights to “self-organization, to form, join or assist labor organizations, to bargain collectively through representation of their own choosing and to engage in other concerted activities for the purpose of collective bargaining of other mutual aid protection.”

At issue in that case was an employer’s policy, which stated “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, coworkers and/or competitors.”

Many commentators expected the new, more employee friendly NLRB, to conclude that such a broad policy was unlawful because it prohibits protected speech. But today, the parties to that case called off a hearing and appear to be engaged in settlement talks.

It might be time to revisit your workplace internet posting policies. Is your policy so broad that it prohibits discussion about wages and working conditions? If so, your policy may be unlawful. Although a court has not expressly decided the issue, plaintiffs’ counsel are on notice that the argument and legal theory has some traction.