Supreme Court Rules Fair Share Fees Unconstitutional

by Megan Bair | Jun 27, 2018 | Labor and Employment

Today the U.S. Supreme Court ruled in Janus v. AFSCME Council 31 that a public sector collective bargaining agreement that includes an agency fee clause (also referred to as “fair share” fee) that requires all employees of the unit to pay union dues is a violation of a public employee’s right to freedom of speech and must cease immediately.

This long-awaited decision overturns the 40-year-old framework established by the Court in Abood v. Detroit Board of Education, which permitted the collection of public sector agency fees from all unit employees to the extent the fees covered costs related only to collective bargaining, contract administration and grievances. 431 U.S. 209 (1977).

Effective immediately, fair share fees may no longer be lawfully collected from public sector employees. Agency fee arrangements that have been negotiated in a public sector collective bargaining agreement must cease immediately. Failure to do so may nullify any indemnity clauses in a collective bargaining agreement and may result in civil liability. This Supreme Court decision takes precedence over any contractual bargaining language.

The Janus ruling does not change the collection of dues from current union members. Dues from association members should continue to be collected without interruption. Union members who wish to make changes to their membership should follow the regular procedure of providing the union with their notification to withdraw.

Prior to today’s decision, 22 states plus Washington, D.C. allowed public sector unions to charge fees to nonmembers for collective bargaining activities.

It remains to be seen whether this landmark decision will represent a significant change to the collective-bargaining rights of public sector employees, or simply provide a public employee a choice to which the vast majority will respond by remaining dues-paying members.

Court’s Decision Overturned in Gender Discrimination Case

by Ryan LaFlamme | May 18, 2018 | Labor and Employment

Ohio’s Tenth District Court of Appeals recently overturned a decision of the Ohio Court of Claims in a case alleging gender discrimination. The Court of Claims had rendered summary judgment in favor of the employer, the Ohio Department of Transportation (ODOT), but the Court of Appeals found that the trial court overstepped its authority in making that decision. The Court of Appeals sent the case back to the Court of Claims, presumably for either trial or settlement.

The plaintiff, a truck driver named Anne Eschborn, was the only female employee at her assigned post. She was terminated from employment and was told the reason was lack of work. However, she later received a letter stating that she had been terminated for poor performance, for using foul language, and for sexual harassment. She admitted to using foul language in a few instances at work and that these were sexual in nature.

At the outset, the appellate court noted the legal standard in discrimination cases in Ohio. The analysis, often cited as the “McDonnell Douglas burden shifting,” goes as follows: If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to prove that the employer had a legitimate, nondiscriminatory reason for the adverse employment action. If the employer does so, the burden of proof shifts back to the plaintiff, who then must prove that the employer’s reasons are merely a pretext for discrimination.

A plaintiff can establish a prima facie case either directly or indirectly. Directly, a plaintiff may present evidence of any nature to show that the adverse employment action taken by the employer was more likely than not motivated by discriminatory intent. Indirectly, a plaintiff may show that “(1) he or she was a member of a statutorily protected class; (2) he or she was subjected to an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class.”

The Court of Claims found that Eschborn failed to present a prima facie case of discrimination. The Court of Claims determined that Eschborn could satisfy the first three elements of her prima facie case but could not satisfy the last element because the evidence was insufficient to support the conclusion that a person outside of the protected class replaced her or that other comparable, nonprotected persons were treated more favorably.

The evidence showed that ODOT assigned another employee to the post that Eschborn occupied prior to her termination. The trial court held that the evidence merely established a redistribution of work, not a replacement (with someone outside of the protected class). Therefore, the Court of Claims granted summary judgment to ODOT.

Summary judgment is a device used to terminate litigation before trial. It is granted sparingly because of the difficult burden of proof. In order to be granted summary judgment, a party must show that no dispute exists regarding all of the facts and evidence in the record, and that reasonable minds could come to only one conclusion, against the other party.

Generally, in a civil trial, the jury decides what the facts are, and the judge applies the law to those facts. The Court of Claims does not use juries, and so judges are the triers of fact. In this case, the plaintiff argued that the judge was making factual determinations that should have been left to a trier of fact.

Here, the issue is that no trial took place at which the judge could weigh the evidence presented to make a factual determination. Reasonable minds could differ on the meaning of the evidence about the replacement. Therefore, the two parties were in dispute of the facts, which is a genuine issue for a trial. If any genuine issues exist for the trier of fact to consider, a court cannot grant summary judgment. The Court of Appeals therefore agreed with the plaintiff, finding that the trial court had overstepped its authority in granting summary judgment. The Court of Appeals also pointed to evidence in the record that similar male employees were not disciplined for using foul language.

While this case is certainly better for law students studying summary judgment than for school administrators, the case facts contain some practical lessons regarding employment law, discrimination, and harassment. First, without the shifting explanations for termination, the employee’s claim of discrimination would likely not have been made. Employers must be clear in their communications to employees, especially communications of a disciplinary nature. Make sure that department heads and supervisors are on the same page regarding an employment matter before moving forward. Second, employers should keep in mind that discipline must be uniform among employees to prevent claims of better treatment of persons outside of a protected class. It is difficult for an employer to credibly state that foul language was a basis for termination, and not a pretext for discrimination, when other similar employees are not disciplined for similar behavior.

– Eschborn v. Dept. of Transp., 2018-Ohio-1808.

Ohio Supreme Court Decision: Substitute Custodian Is Not a Regular Employee

by John E. Britton | Nov 21, 2017 | Labor and Employment

The Ohio Supreme Court recently determined that a substitute custodian was not a “regular nonteaching school employee,” a designation that would have entitled him to better wages and benefits. The employee, substitute custodian Kurt Singer, demanded that the Fairland Local School District recognize him as a regular nonteaching employee since 2006 and pay him the additional back wages and benefits that he would have been qualified for under that designation.

Ohio law does not define “regular nonteaching school employee.” Under R.C. 3319.081, “regular nonteaching school employees” in local school districts, including hourly and per diem employees, are under a one-year contract for their first year, then a two-year contract for their second and third years. If renewed, a subsequent contract is a continuing contract, which includes other benefits such as paid leave as well as termination only for just cause. Because Singer worked hours and performed job functions similar to contractual custodians, he argued that he met the definition of a regular nonteaching school employee.

From 2006, when Singer was hired as a substitute custodian, to June 2016, every day that Singer worked for the district was recorded as “substituting.” Alleging that he had asked for a contract but was denied, he requested benefits and back wages to the 2009–2010 school year, which is when he would have received continuing contract benefits if the contract was granted. Singer asked the Supreme Court to compel Fairland Local to recognize him as a regular nonteaching employee and to provide a continuing contract.

The court found that Singer did satisfy the requirements of working full-time and at least 120 days within a school year for the first seven years, but he did not satisfy the requirement of being a “regular” employee. In the absence of a statutory definition of “regular,” the court turned to Black’s Law Dictionary to find the definition “steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation.” The court examined Singer’s employment and found that it was not regular in terms of days of service, hours, and school-building assignments. Additionally, Singer worked anywhere from four to ten days in a pay period, and during many pay periods he worked even fewer than four days.

Additional facts leading to the court’s decision include that Singer had no regular location assignment but worked routinely in any of the district’s four buildings – sometimes in more than one building in the same day, and other times in the same building on a daily basis. Furthermore, Singer was able to turn down opportunities to substitute, and at times he did so.

In consideration of these facts, the court issued a 6-1 decision holding that “we cannot conclude that Singer’s employment was in any meaningful way ‘regular.’”

– State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn., Slip Opinion No. 2017-Ohio-8368.

Resignation Triggers Halt to Fringe Benefits

by Bronston McCord | Jun 22, 2017 | Labor and Employment

In an arbitration decision published June 12, a grievance calling for a school district’s employment benefits to continue past the effective date of a teacher’s resignation was denied. After three teachers retired, their health insurance benefits ceased, but the teachers’ association demanded that the school district continue to provide and pay for these benefits up to the end of the school year, defined by the contract as August 31.

The basic facts of this grievance were undisputed. Both the school district and the teachers’ association agreed that the collective bargaining agreement (CBA) contained the agreed terms regarding employment benefits. These terms noted that all full-time employees are eligible to participate in the district’s insurance plan on a “yearly basis.”

Three employees who had participated in the insurance plan submitted their resignation to be effective on the last working day of the school year. Because they had fulfilled their contractual obligation to work the required number of days, they continued to receive payment for the school year through August. However, their health and other fringe benefits ceased as of the effective date of their resignation or the last day of the month of their resignation, in accordance with the CBA.

The teachers’ association filed a grievance arguing that the fringe benefits should continue through the entire school year, as defined by the CBA to end on August 31, as the employees had received their paychecks through that period.

The district argued that its past practice had always been to terminate employment benefits as of the effective date of resignation and was able to show that it had consistently held to that practice. Furthermore, employees who were contemplating retirement were routinely advised of severance matters by the district treasurer, including notification that health, dental, vision, and/or life insurance generally would end as of the effective date of resignation.

Interestingly, the previous teachers’ association president, who had more than two decades of leadership in the association, provided testimony that when an employee resigns or retires, the employee severs the employment relationship, and the fringe benefits and other contractual entitlements cease as of the date of resignation or at the end of the month. Additionally, she had encouraged the association to bargain for fringe benefits to continue through the end of the school year but was unsuccessful in bargaining for this very provision.

The arbitrator agreed with the Board of Education and held that an employee ceases to be an employee as of the effective date of resignation and as such ceases to be a member of the bargaining unit covered by the CBA. The arbitrator went so far as to declare that the association is “estopped from taking a contrary position through this Grievance since it has been long-standing and it has been aware of the District’s practice.” The association, the arbitrator held, must bargain for this provision in the contract if it is so desired.