Survey of Developments in Labor and Employment Law 2010

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 85 Pg. 145
Pages145
Connecticut Bar Journal
Volume 85.

85 CBJ 145. SURVEY OF DEVELOPMENTS IN LABOR AND EMPLOYMENT LAW 2010

Connecticut Bar Journal
Volume 85, No. 2, Pg. 145
June 2011

SURVEY OF DEVELOPMENTS IN LABOR AND EMPLOYMENT LAW 2010

By Rita B. Trivedi(fn*)

There were several notable additions to Connecticut's labor and employment jurisprudence in 2010, including U.S. Supreme Court decisions on arbitration, the statute of limitations in disparate impact cases, and employee privacy expectations. The Second Circuit and the District of Connecticut also issued key decisions on retaliation claims, application of the Ellerth-Faragher affirmative defense,(fn1) and the effect of electronic filing on "rush to the courthouse" cases. Meanwhile, state courts addressed the scope of the Connecticut Family and Medical Leave Act, wages and bonuses, and labor past practices. From the National Labor Relations Board came a series of cases concerning bannering and picketing, backpay, and the impact of social media on protected concerted activity. Statutory developments and newly-issued regulations also affected background checks, the Genetic Information Nondiscrimination Act, and family violence leave laws. This article surveys these and other significant 2010 developments.

I. Supreme Court Cases

The Supreme Court's decision in New Process Steel, L.P. v. NLRB(fn2) resolved a split in the circuits over whether Section 3(b) of the National Labor Relations Act(fn3) authorized the Board to act when only two out of its five positions are filled, when it had previously delegated its full powers to a group of three members and the sitting two constituted a quorum of the three. Using a textual analysis, the Court held that the Board did not have such authority, and with that decision invalidated hundreds of decisions between December 2007 and 2010. The Board is now revisiting, and quickly resolving, the affected cases.

Arbitration continued to generate issues before the Court. In Granite Rock Co. v. International Brotherhood of Teamsters,(fn4) the Court reversed the Ninth Circuit in a 7-2 decision and held that a dispute over the ratification date of a collective bargaining agreement should be resolved by a district court rather than an arbitrator. In June 2004, the local union in that case initiated a strike against Granite Rock after the expiration of the collective bargaining agreement between the parties and an impasse in negotiations. A new agreement with no-strike and arbitration clauses was agreed to on July 2, but it did not address the union's liability for strike-related damages between the expiration of the old collective bargaining agreement and the negotiation of the new one. Without a hold-harmless/back-to-work clause, another strike began on July 6. Granite Rock sued in district court for an injunction against the strike and strike-related damages, alleging that the July 6 strike violated the no-strike provision in the new contract. It also claimed that the district court should enjoin the strike because the hold-harmless dispute prompting the strike was an arbitrable grievance. The union held a successful ratification vote on August 22.

Key to the dispute was the date of ratification: Granite Rock maintained that the contract was ratified on July 2, while the union claimed that ratification took place on August 22. The date of ratification would therefore determine whether the union's strike activity fell within the contract's arbitration clause. The district court found that the question was one for a jury, and a unanimous jury concluded that the Local ratified the contract on July 2. The parties were ordered to arbitration over the claims for strike-related damages. However, on appeal the Ninth Circuit found that the parties' dispute over the date of ratification was itself governed by the arbitration clause and should be arbitrated rather than decided by the district court.

The Supreme Court rejected that argument, finding that the presumption in favor of arbitration did not override the basic principle that arbitration is required only when the parties agree to submit the specific dispute in question. Rather than a dispute over whether the collective bargaining agreement was ratified, this case presented the question of when ratification took place. Arbitration would thus be an issue only after the court was persuaded that the agreement was validly formed, covered the dispute in question, and was legally enforceable. Because the parties agreed that the arbitration clause in the new contract covered only disputes "arising under" the agreement, a court first had to make that decision based on when the agreement was agreed to. If the collective bargaining agreement was not formed at the time of the strike activity, it could not have been covered. Therefore, the majority reasoned, the district court had to determine the ratification date before deciding arbitrability on the substantive issue. Dissenting on the issue of arbitrability, Justices Sotomayor and Stevens maintained that the parties agreed to resolution by arbitration, as the contract was made retroactive to May 1, before the strikes began, and that the "formation defense" merely went to the merits of Granite Rock's claim.(fn5)

In Lewis v. City of Chicago,(fn6) the Supreme Court held that the statute of limitations for a disparate impact claim under Title VII can begin upon each application of the alleged discrimination practice, not just at the time the policy was announced or enacted. The Lewis plaintiffs were job applicants who filed charges based on the City's decision to exclude applicants scoring below 89 out of 100 on its employment examination for firefighters. In early 1996, the City announced that it would begin drawing individuals randomly from the top tier of scorers ("well qualified") in its 1995 tests, who would then move to the next phase of the hiring process. Individuals scoring below 65 failed the test. Those scoring between 65 and 88 were deemed "qualified" but were told that it was unlikely they would be called for further processing. The City continued to use applicants who tested in 1995 to fill positions over the next six years until it exhausted the "well-qualified" applicants, at which time it moved to "qualified" candidates. In March of 1997, plaintiff Smith, an African-American scoring in the "qualified" range on the 1995 examination who had not been named a candidate firefighter brought suit in court alleging the policy had a disparate impact on African Americans.(fn7)

Relying heavily on statutory language, the unanimous Court noted that a plaintiff establishes a prima facie disparate impact case by showing that the employer "uses a particular employment practice that causes a disparate impact on one of the prohibited bases."(fn8) The plaintiffs in this case stated that element, insofar as the City "made use" of its hiring policy of excluding those scoring 88 or below each time it filled a new class of firefighters: although the policy was announced in 1996, the allegedly discriminatory activity began anew with each round of hiring.(fn9) Stepping briefly away from textual analysis, the Court also noted that the City's argument would illogically mean that an unlawful practice could continue to be used indefinitely and with impunity despite ongoing disparate impact, as long as it was not challenged within the first statute of limitations. Ultimately, the Court acknowledged that its reading might mean that some claims that fail under disparate treatment (with its additional intent requirement) would survive under disparate impact. However, in an ongoing unwillingness to engage in legislative activity, the Court noted that this was "the product of the law Congress has written [and] it is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended."(fn10)

Another unanimous decision issued in City of Ontario v. Quon,(fn11) addressing the scope of a government employee's expectation of privacy in mobile devices under the Fourth Amendment.(fn12) As an initial matter, the Court decided to sidestep the parties' disagreement over Quon's privacy expectation-arguably one of the questions of most practical relevance-due to an unwillingness to define too closely the workplace norms with respect to quickly changing dynamics of communication, technology, and information transmission. As the Court stated, "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear."(fn13) Instead, it focused on the reasonableness of the employer's search. In Quon, the plaintiffs were issued 'alphanumeric pagers' capable of sending and receiving text messages. The City's wireless service contract provided a limited number of characters per month, with overages resulting in an additional fee. Before distributing the devices, the City issued a policy reserving the right to "monitor and log" all network activity including email and internet use and stating no expectation of privacy was to exist. Although the policy did not expressly cover text messages, employees were told that the City would treat the messages as it did email. Soon after issuance, the plaintiff exceeded the monthly usage amount and was reminded that his use could be audited. However, overages continued over the next few months, and the plaintiff paid for the additional costs. An examination of his logs revealed extensive personal use and sexually explicit content. After an investigation, Quon was disciplined.

On these facts, the Court concluded that the City had the right to examine the plaintiff's usage logs (including content), particularly as its initial goal was not to pry into the employee's personal affairs but rather to determine if officers such as Quon were paying out-of-pocket...

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