Labor and Employment Risk in the Real World: A Practical Guide to Understanding Recent Trends and Laws Intersecting the Construction Industry

AuthorBy Erin Ebeler Rolf and Andrea Woods
Pages6-22
THE CONSTRUCTION LAWYER6 Winter 2021
Published in The Construction Lawyer, Volume 41, Number 1, Winter 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
THE EVOLVING LANDSCAPE
Labor and Employment Risk in
the Real World: A Practical Guide
to Understanding Recent Trends
and Laws Intersecting the
Construction Industry
By Erin Ebeler Rolf and Andrea Woods
This article aims to serve as a
practical guide for employers
and attorneys to understand
the legal issues facing the con-
struction industry in the area of
labor and employment, includ-
ing topics such as the increasing
use of arbitration clauses in
employment contracts; LGBTQ,
sexual orientation, and gender
identication in the workplace;
maintenance of privilege during
an employer’s internal investi-
gation; and specic challenges
facing multiple generations
operating together in one
workforce.
Construction employers, like
all employers, are not isolated
from the ever-changing landscape of labor and employ-
ment law today. Employers are facing increased pressures
to conduct investigations in response to employees’ com-
plaints of harassment, retaliation, discrimination, and
general workplace grievances. They are also encountering
specic challenges related to workplace culture including
approaching topics such as an employee’s sexual orienta-
tion and gender identity as we integrate new generations
into the workforce. This article covers recent legal updates
on these topics and provides some practical advice for
employers and their attorneys as they confront this evolv-
ing landscape.
Use of Arbitration Clauses in Employment Disputes
Over the past two decades or so, it has become a com-
mon practice for employers to mandate the inclusion of
employment arbitration agreements in employment con-
tracts for new employees. Arbitration clauses have the
benet of saving employers’ time and money by avoiding
the complexity of litigation, as well as allowing the par-
ties to have more control over the factnder, including
the ability to select one with specialized knowledge of
highly technical elds. Arbitration also avoids the formal
processes involved in litigation discovery and provides
nality with the decision of the arbitrator, rather than the
uncertainty, time, and expense of waiting on an appeal.
In general, these mandatory arbitration provisions are
understood to favor the employer and, as such, have been
the subject of recent judicial scrutiny.
The U.S. Supreme Court most recently addressed the
validity of these mandatory arbitration contract provi-
sions in employment agreements in Epic Systems Corp. v.
Lewis.
1
That case, which was decided in 2018, centered on
a conict between two federal statutes: the Federal Arbi-
tration Act (FAA)2 and the National Labor Relations
Act (NLRA).3 Enacted in 1925, the FAA was created
to ensure the validity and enforcement of arbitration
agreements in any “maritime transaction or ... contract
evidencing a transaction involving commerce[.]”
4
The
Supreme Court has interpreted the FAA to include the
enforcement of arbitration agreements for claims arising
under federal statutes, but not for agreements that waive
a person’s substantive rights guaranteed by another stat-
ute.5 The Supreme Court has also made it clear the FAA
promotes the national policy of favoring arbitration and
the courts generally uphold these clauses.
In Epic Systems Corp., the Court considered three
similar cases, all involving employees seeking to litigate
Fair Labor Standards Act (FLSA)6 and state law claims
through either class or collective actions. Although the
FAA generally requires courts to enforce arbitration
agreements, employees argued that the FAA’s “saving
clause”7 rendered the arbitration agreements both unlaw-
ful and unenforceable because the terms of the agreements
violated other federal laws, specically the NLRA. The
arbitration agreements, the employees claimed, were
unlawful because they required an individualized resolu-
tion—with separate proceedings—of disputes and claims
that could pertain to multiple or classes of employees.8
Employees based this argument upon section 7 of the
NLRA, which guarantees workers
Erin Ebeler Rolf
Andrea Woods
THE CONSTRUCTION LAWYER 7Winter 2021
Published in The Construction Lawyer, Volume 41, Number 1, Winter 2021. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
[t]he right to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection.9
The Court, in a 5-4 decision, disagreed with the
employees.10 The Court noted that employee arbitration
agreements are to be enforced as written and pointed to
its responsibility to “give effect to both” the FAA and
the NLRA11 and to enforce the terms of the agreements
to which the parties agreed.
12
Neither the FAAs saving
clause13 nor the NLRA could be construed to the con-
trary. The Court held that while “[t]he policy may be
debatable ... the law is clear: Congress has instruct[ed]
that arbitration agreements like those before us must be
enforced as written.”14
Addressing and casting aside employees’ arguments,
Epic Systems Corp. serves as a further protection for
employers, ensuring they maintain the ability to enforce
terms requiring employees to engage in individual arbi-
tration proceedings to address their disputes, rather than
through class or collective litigation. Epic Systems Corp. is
certain to signicantly limit wage and hour class actions
and other types of mass disputes against employers that
can have large dollar implications.
Efforts to gain the ability to pursue class or collective
action despite contrary terms within an employee arbi-
tration agreement did not simply end with Epic Systems
Corp. In Lamps Plus, Inc. v. Varela,
15
the Supreme Court,
after disposing of jurisdictional questions,16 held that
courts cannot compel class-wide arbitration based on
an arbitration agreement that is ambiguous on the issue
of whether the parties agreed to permit arbitration on a
class basis.
17
As in Epic Systems Corp., giving effect to
the public policy reasons supporting arbitration,18 the
intent of the parties, and mutual consent to the terms of
the agreement, the arbitration agreements were found
enforceable. The court focused on the importance of the
FAA principle that “arbitration is a matter of consent,
not coercion,”19 noting that “courts may not infer consent
to participate in class arbitration absent an afrmative
contractual basis for concluding that the party agreed to
do so.”20 Ambiguity cannot equal consent.21
The court also recently addressed the critical ques-
tion of arbitrability determinations in Henry Schein, Inc.
v. Archer & White Sales, Inc.22 When the parties’ con-
tract delegates the arbitrability question to an arbitrator,
the Court held that courts may not override the con-
tract, even if the court thinks the arbitrability claim is
wholly groundless.
23
Henry Schein serves as yet another
example of the widespread enforceability of arbitration
agreements.
Attention on arbitration agreements in employ-
ment has been interpreted by the courts as a “victory
for employers seeking to arbitrate workplace claims on
an individual basis, but also a victory for manufactur-
ers and businesses who prioritize individual arbitration
when faced with consumer disputes.”
24
Amid this juris-
prudence is increased talk that the Court’s recent holdings
reect a continued “trend in the direction of creating fed-
eral common law on arbitration agreements.”
25
From a
practical standpoint, employers are generally safe using
individualized arbitration agreements. It is wise to take
steps to tighten these agreements even more by assuring
clear clauses of understanding and acknowledgment by
the employee, providing a few days before the rst day
of employment to review and return the contract, and
including an acknowledgment of the time to review and
opportunity to review with counsel.
OSHA, Whistleblower, and Arbitration Agreements
Outside of employment agreements mandating arbitra-
tion to resolve disputes between an employee and an
employer, the Occupational Safety and Health Admin-
istration (OSHA) has developed a dispute resolution
process for employees who seek redress for workplace
safety concerns and potential retaliation under applica-
ble federal U.S. Department of Labor regulations. This
dispute resolution process ensures workplace safety con-
cerns are addressed and whistleblowers are protected from
retaliation by their employer while avoiding the expense
and hassle of litigation. Under this process, the focus of
the dispute resolution will be a quick resolution of the
whistleblower’s complaint, rather than fully investigating
the merits of the allegations.26
OSHA enforces over 20 whistleblower laws through
its Whistleblower Protection Program. In clarifying its
enforcement, OSHA has promulgated regulations related
to whistleblower activity led under the Occupational
Safety and Health Act (OSH Act).27 OSHA has created
a chart28 that summarizes all the various laws it enforces
as well as timelines and remedies associated with each
enforcement. Of the statutes that OSHA enforces, most
of the enforcement activity occurs under either section
11(c) of the OSH Act or the Surface Transportation Assis-
tance Act (STAA).29
Under the OSH Act, any employee who les a whis-
tleblower complaint regarding workplace safety and who
has suffered an adverse employment action following a
ling of a complaint with OSHA, participating in an
OSHA inspection, or otherwise exercising rights pur-
suant to the OSH Act is eligible to participate in the
alternative dispute resolution (ADR) process. All whis-
tleblower complaints are investigated by investigators
who enforce the whistleblower protection laws, irrespec-
tive of the dispute resolution process. These investigators
receive specic training on how to investigate retaliatory
whistleblower complaints and are not the same people
who inspect workplaces for enforcement of safety and
health hazards.
As part of OHSA’s whistleblower investigation, the par
-
ties can volunteer to resolve their disputes by participating

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