Management attorney Peter Robb confirmed as next NLRB general counsel

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On Nov. 8, by a vote of 49 to 46, the U.S. Senate confirmed President Trump's nomination of Peter Robb to be the next NLRB general counsel. Robb, a management labor lawyer from Vermont, replaces Richard Griffin, whose term expired on Nov. 4. Notably, Robb has been critical of many of the Obama board's decisions, including the NLRB's "Quickie Election" rule. Along with the recent confirmation of board members William Emanuel and Marvin Kaplan, Robb's appointment is more good news for management.

The NLRB general counsel investigates and prosecutes unfair labor practice cases. He decides which unfair labor practice cases are litigated and potentially reach the five-member NLRB for decision. The general counsel controls which cases the board prioritizes and pursues. Significantly, when a case reaches the NLRB for decision, the general counsel can ask the NLRB to change existing precedent.

On Oct. 4, Senator Lamar Alexander held a hearing on Robb's nomination. During Robb's testimony, he stated that he would uphold the core values of the National Labor Relations Act, including the right to refrain from union activity. He further stated that he would make it a priority to ensure the rights of employees who dissent from their unions' positions, and that he would set a higher bar for unions to prove that they have the majority support of workers before certifying an election.

Peter Robb will bring fair and balanced decision-making to the board. During the Oct. 4 hearing, Senator Alexander stated, "When the Board is too partisan, it creates instability in our nation's workplaces and creates confusion for employers, employees, and unions."

Update of U.S. Department of Labor overtime rule litigation
In a surprising and disappointing move, U.S. Secretary of Labor Alexander Acosta has decided to appeal U.S. District Court Judge Amos Mazzant's decision on the merits that the U.S. Department of Labor's overtime rule is unlawful. Secretary Acosta filed a notice to appeal the decision on Oct. 30 to the U.S. Court of Appeals for the 5th Circuit.

In a public statement, the Department of Labor said, "Once this appeal is docketed, the Department of Justice will file a motion with the 5th Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be."

The Aug. 31 decision by Judge Mazzant found that the DOL focused too heavily on the amount of money exempt employees make – instead of on their job duties – for overtime eligibility.

It appears that the Secretary of Labor is filing the new appeal to preserve the ability to engage in new rulemaking to set an increased salary threshold, without violating the Aug. 31 ruling of Judge Mazzant.

The DOL is currently reviewing more than 140,000 public comments recently submitted at the request of Secretary Acosta to advise the DOL on what a new rule should look like, in terms of overtime eligibility. We have previously reported that Secretary Acosta believes a salary level in the range of $33,000 is more appropriate than the $47,000 figure in the enjoined rule.

It is clear that Secretary Acosta wants to avoid a ruling on the merits by the U.S. Court of Appeals for the 5th Circuit. He is likely hoping to make moot any decision by the 5th Circuit by issuing a new Notice of Proposed Rulemaking with a different rule that will be less vulnerable to attack.

It is also likely that, once a new rule has been promulgated, the DOL will file another motion, seeking to vacate the decision of Judge Mazzant, to avoid having on the books a reported case that limits the authority of the Secretary of Labor.

Let us hope that there would be vigorous opposition to a motion to vacate Judge Mazzant's decision. That is important future guidance, in the event that a Secretary of Labor again seeks to overreach his or her authority under the federal wage and hour law.

EEOC pays employer attorneys' fees of nearly $2 million
The EEOC brought suit against CRST on behalf of a class of employees in Iowa. After years of protracted litigation, the U.S. District Court in Iowa ultimately held that most of the sexual harassment claims were "frivolous, groundless, or unreasonable."

On Sept. 22, the court ordered the EEOC to pay to CRST $1,860,127.36 in attorneys' fees and costs to CRST. The court was offended by the following tactics of the EEOC:

  • Many of the claims occurred outside of the applicable statute of limitations and the EEOC was faulted for proceeding on allegations that could not have formed the basis of a valid claim.
  • The EEOC failed to properly show a pattern or practice of violation, which is necessary for a class action lawsuit.
  • The EEOC conceded that many of the claims were not "severe or pervasive," an essential element of a Title VII sexual harassment case.
  • Many of the claimants, while aware of CRST's procedures for reporting sexual harassment, failed to use them.
  • The EEOC did not provide evidence that the employer had alternate means of knowing about the harassment.
  • When CRST became aware of the offensive behavior, it acted promptly.

The ADA is not a medical leave entitlement
Raymond Severson had exhausted his 12 weeks of leave under the Family Medical Leave Act to deal with serious back pain. On the last day of his leave, he had back surgery that required an additional two to three months away from work. Severson asked Heartland to continue his medical leave; Heartland denied his request, terminated his employment, and invited him to reapply when he was medically cleared to resume work.

Three months later, Severson was cleared to resume work and did not reapply. Instead, he filed suit against Heartland, alleging discrimination under the Americans with Disabilities Act for failing to provide him a reasonable accommodation in the form of a three-month leave of absence after having exhausted his FMLA leave.

Judge Sykes, writing for the U.S. Court of Appeals for the 7th Circuit, affirmed the lower court's dismissal of the case, explaining that the ADA is an anti-discrimination statute – and, unlike the FMLA, not a medical-leave entitlement.

At issue was whether Heartland failed to reasonably accommodate Severson under the ADA after having exhausted his FMLA leave. The issue turned on the definition of "reasonable accommodation" under the ADA. The court explained, "[If a] proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a 'qualified individual' as that term is defined in the ADA."

The court opined:

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working. Accordingly, we [previously] held ... "an inability to do the job's essential tasks means that one is not qualified"; it does not mean that the employer must excuse the inability ... a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. To the contrary, the "inability to work for a multi-month period removes a person from the class protected by the ADA."

Further, the court rejected the Equal Employment Opportunity Commission's efforts to qualify a long-term medical leave of absence as a reasonable accommodation, as so doing would serve to "transform the ADA into a medical-leave statute – in effect, an open-ended extension of the FMLA." The court noted that this was an "untenable interpretation" of the term "reasonable accommodation."

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

Zinser, NLRB

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