U.S. SUPREME COURT PASSES ON WEIGHTY ISSUE OF OBESITY AS A DISABILITY UNDER THE ADA

The United States Supreme Court has declined to hear an appeal of a decision by the Court of Appeals for the Eighth Circuit, which held that that an obese job applicant was not disabled for purposes of a lawsuit under the Americans with Disabilities Act ("ADA"). By declining to hear the case, the Supreme Court left unresolved an issue splitting federal courts, and leaving employers without guidance as to reasonable accommodations and other requirements under the ADA.

 

Obesity is a subject most employers are likely to face. According to the Centers for Disease Control and Prevention ("CDCP"), more than one-third (36.5%) of U.S. adults qualify as obese (my home state has unfortunately once again tied for the silver medal in this competition). This has a significant impact on employee health-related costs. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer, some of the leading causes of preventable death. The CDCP estimates that the annual medical cost of obesity in the U.S. is $147 billion, and the medical costs for people who are obese are $1,429 higher than those of normal weight.

The story of Morriss v. BNSF Railway Company began in 2011. Melvin Morriss applied for a machinist position with BNSF Railway Company ("BNSF"), and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review.

BNSF doctors conducted two physical examinations of Morriss, who was 5’10" tall. In the first, Morriss weighed 285 pounds and had a body mass index ("BMI") of 40.9. In the second, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. The company notified Morriss by e-mail that he was "[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater)", and revoked its conditional offer of employment. Other than being overweight, Morriss had no other health problems, was not diabetic, and experienced no difficulties or limitations in his daily activities.

Morriss filed a lawsuit under the ADA, which was dismissed by a Nebraska federal District Court, which held that Morriss had failed to provide any evidence that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. Morriss appealed the decision to the United States Court of Appeals for the Eighth Circuit.

 

Prior to the ADA Amendments Act of 2008 ("ADAAA"), the Equal Employment Opportunity Commission ("EEOC") took the position that "except in rare circumstances, obesity is not considered a disabling impairment." However, after enactment of the ADAAA, the EEOC broadened the definitions of what constituted a disability, and concluded that weight outside the normal range, that was the result of a physiological disorder, constituted a disability.

 

However, despite the ADAAA’s more expansive definitions, on appeal, the Eighth Circuit’s opinion rejected Morriss’s arguments, and affirmed the District Court’s holding:  

"Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled ‘severe,’ ‘morbid,’ or ‘Class III’ obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder.

As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while ‘normal deviations’ in weight ‘that are not the result of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such deviations may constitute impairments.’ The Compliance Manual also states that ‘severe obesity,’ namely, ‘body weight more than 100% over the norm,’ is an impairment. We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance, which, as previously explained, all define ‘physical impairment’ to require an underlying physiological disorder or condition.

In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment. Because Morriss failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, the district court properly concluded that Morriss did not have a physical impairment under the ADA."

The Eighth Circuit is not the first U.S. appellate court, post ADAAA, to require that obesity or morbid obesity must be caused by a physiological condition to be considered a disability. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6^th Cir. 2006).

However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA.   The case of   EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.  In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:

"A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range that is, if the charging party is severely obese there is no explicit requirement that obesity be based on a physiological impairment. At all relevant points, Harrison was severely obese; when she was hired, she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds."

However the case never went to trial. Following the District Court’s ruling against the employer, the addiction treatment facility settled with the EEOC for $125,000.

So after the Supreme Court’s decision to not review the Eighth Circuit ruling in Morriss, where does this leave employers? First of all, employers should not consider the Morriss ruling to mean that obesity can never be a disability under the ADA. As in all such cases, a determination of whether an employee has a covered disability requires an individualized assessment of the particular facts and circumstances. However, the ruling by the District Court in Louisiana also should be troubling to employers, because under that interpretation, more than a third of the adults in this country could conceivably be considered disabled, based on the CDCP’s statistics. Expect to see the Supreme Court forced to weigh-in on this issue in the future. 

THE EEOC CATCHES THE FLU BUG

 

Back in June, when flu season was still just a sneeze on the horizon, I reported in “Religious Discrimination or Infectious Insubordination?” on how the Equal Employment Opportunity Commission (“EEOC”) was suing a Massachusetts hospital for religious discrimination over its policy of mandatory flu shots.

 

While not as infectious as the influenza virus itself, the EEOC’s litigation over this issue also appears to be spreading across the country.  In  EEOC v. Saint Vincent Health Center, the EEOC has filed suit against a Pennsylvania hospital, alleging the facility violated Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of six employees and terminating their employment.

According to the EEOC's lawsuit, in October 2013, Saint Vincent Health Center implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season instead of receiving the vaccination.

In its lawsuit, EEOC alleges that the six employees requested religious exemptions from the flu vaccination requirement based on religious beliefs, and that the facility denied their requests. When the employees continued to refuse to get a flu shot, they were fired.  The lawsuit makes a point of noting that during the same period, the hospital granted 14 vaccination exemption requests based on non-religious medical reasons. 

In addition to this newest case in Pennsylvania, and the one in Massachusetts, the EEOC also has filed a similar lawsuit against a hospital in North Carolina for failing to accommodate employees’ religious objections to mandatory flu shots.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a much lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

Whether the EEOC or the healthcare facilities will prevail in these lawsuits will likely hinge on whether it is an undue hardship to offer an accommodation to a policy aimed at protecting the health and safety of patients.  In the Massachusetts and Pennsylvania cases, an accommodation of wearing a facemask to prevent contagion was refused by employees.  In the North Carolina case, the failure to accommodate claim is based on the employee requesting an exemption after the deadline for getting a flu shot already had passed.

According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose.  While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.

Back in August of this year, a federal court in Pennsylvania dismissed a similar lawsuit brought by a hospital employee in Fallon v. Mercy Catholic Medical Center.  In dismissing the plaintiff’s Title VII religious discrimination, the court’s opinion focused on the fact that the employee’s secular objections to receiving a flu shot simply were not entitled to the religious protections of Title VII:

In sum, Fallon clearly fails to state a claim for religious discrimination under Title VII. He does not belong to a religious congregation, nor does he claim that his reasons for refusing to be vaccinated are based on “religious beliefs,” sincerely held or otherwise. To the contrary, Fallon’s stated opposition to vaccinations is entirely personal, political, sociological and economic—the very definition of secular philosophy as opposed to religious orientation. To adopt Fallon’s argument that he need only show a strongly held moral or ethical belief in lieu of a sincere religious belief would contravene Third Circuit and Supreme Court precedent and would potentially entitle anyone with “strongly held” beliefs on any topic to protection under Title VII’s religious discrimination provision.

However, it remains to be seen whether the court’s ruling in Fallon will be of much help to the Pennsylvania hospital in the EEOC’s latest lawsuit.  Title VII and courts generally construe religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. 

EEOC PAYS SETTLEMENT FOR VIOLATING OVERTIME RULES AND THE NLRB PAYS THE PRICE FOR “ADMINISTRATIVE HUBRIS”

Welcome back to another episode of “Federal Employment Agencies Behaving Badly” and in this week’s episode, we’ll start off with the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing the nation’s anti-discrimination laws.  While the EEOC does not enforce the Fair Labor Standards Act (“FLSA”) and the laws regarding overtime pay, it is required to comply with the FLSA as it relates to the agency’s own employees. As a reminder of this fact, the EEOC has now agreed to pay a $1.53 Million settlement for failing to properly pay overtime to its employees.

The case began back in 2006, and in 2009, an arbitration ruling found the EEOC had violated the FLSA by requiring investigators, mediators and paralegals to work during lunch hours, on weekends, or after hours, and then forcing them to accept compensatory time instead of the overtime pay they were entitled to for their overtime errors.  EEOC employees described what they were subjected to as “forced volunteering.”  The ruling held:

There is an entitlement to overtime, whereas compensatory time operates as an alternative, should the employees request it . . .  Put another way, it is incorrect to view the FLSA as providing non-exempt employees with the option of selecting either overtime or compensatory time. The right is to overtime; compensatory time is the option.”

The arbitration ruling seven years ago urged the EEOC and the union representing the federal employees to reach a settlement, however, an agreement was not reached until September 22, 2016. 

Despite the settlement, the union was critical of the EEOC’s role in the long delay toward resolving the dispute.  According to National Council of EEOC Locals, No. 216 President Gabrielle Martin “It has been very frustrating to employees that this case has gone on for a decade during which employees retired or unfortunately passed away . . . It is a sad irony that the agency charged with preventing discrimination against workers violated the rights of its employees.”

Our next segment deals with the National Labor Relations Board (“NLRB”), which is the federal agency charged with enforcing U.S. labor law and investigating and remedying unfair labor practices.  A federal appeals court judge has now ordered the agency to pay a company nearly $18,000.00 in legal fees for engaging in “bad faith litigation” and engaging in “administrative hubris”

In Heartland Plymouth Court MI, LLC v. NLRB, a company sought legal fees after it had successfully appealed an NLRB ruling that incorrectly found the company had violated a collective bargaining agreement by reducing employee hours.  In the opinion, Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit found that the NLRB had taken positions unsupported by the law, which placed the employer in the untenable position of having to incur the costs of an unjustified settlement demand, or the legal costs of appealing the NLRB’s improper ruling:

  Facts may be stubborn things, but the Board’s longstanding “nonacquiescence” towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: “We don’t care what the law says, if you want to beat us, you will have to fight us.”  It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs.

 

Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.

 

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NLRB CONTINUES AGGRESIVE CRACKDOWN ON EMPLOYEE HANDBOOKS

As The Employee With The Dragon Tattoo first reported back in 2014 and 2015, the National Labor Relations Board (“NLRB”) has taken a highly aggressive position against many commonly utilized employee handbook policies.  The NLRB alleges that overbroad employment policies could have a chilling effect on employees’ concerted activities protected by Section 7 of the National Labor Relations Act (“NLRA” or “the Act”).  This applies whether employees are members of a union or not.  Under the NLRB’s 2015 interpretive guidelines, an employer’s policy will violate the NLRA if it could simply be “construed” as restricting Section 7 rights.

The NLRB has now taken it one step further.  In a recent ruling earlier this Summer, an NLRB Administrative Law Judge (“ALJ”) held that a California casino’s handbook policy that prohibited employees from conducting “personal business” while on the job on company property could be construed to be illegal under the Act.  In the ruling, the ALJ held:

[T]he prohibition against conducting "personal business" on company property and "while at work" can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time. The rule makes it clear that personal business is the opposite of "Casino Pauma business," thus including communications about unions or complaints about working conditions in the "personal business" category. The restriction of protected activity "while at work" is also too broad because it is not properly restricted to "work time" and thus bans protected activity during  nonwork time, such a time on lunch, breaks and before and after work.

 

At the least, the prohibitions against conducting "personal business" in Rule 2.19 are ambiguous insofar as that term may be read to include discussions about unions and other concerted activity; the rule thus puts employees at risk if they guess wrongly about what the Respondent means by "personal business." (citations omitted).

The ALJ’s opinion also noted that under the Act, employees are generally free to distribute union literature on company property during such nonwork time as long as it is in nonworking areas of the company facility.

In its 2015 interpretive guidelines, the NLRB listed a series of other commonly implemented employment policies that it maintained were illegally overbroad.  Examples of such policies include:

·         Do not discuss "customer or employee information" outside of work, including "phone numbers [and] addresses."

·         "You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy)."

·         Prohibiting employees from "[d]isclosing ... details about the [Employer]."

·         "Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited."

·         "Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places."

·         "[I]f something is not public information, you must not share it."

The ALJ’s opinion that a policy against conducting personal business “while at work” likely seems nonsensical to employers who are legitimately trying to prevent employees from spending their work hours on Facebook, shopping on Amazon, or chatting with friends on the phone.  However, this latest ruling is a wake-up call for employers to review their employee handbooks to address any purported ambiguity that the NLRB might “construe” as being overbroad.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

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THE EEOC GETS A DREAD (LOCKS) RULING

Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.

 

However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 

The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees to be “dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines . . . [H]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 

In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 

In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 

The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.

This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.

The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.

In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:

Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.

Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 

Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

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EEOC SUES EMPLOYER OVER POSITIVE DRUG TEST FOR PRESCRIPTION OPIOID PAINKILLER

            In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record, with the majority of deaths from opioids, and 78  Americans die every day from an opioid overdose.  Prescription opioid abuse also has been linked to the national increase in heroin addiction.  Commonly prescribed opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing Codeine.

            However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).

            According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino.  The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain, and had a valid prescription for the prescription drug Hydrocodone.  Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for Hydrocodone.  According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them that she would provide additional information if needed, Happy Jack's Casino refused to hire her.  According to the Complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act.  Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law

            Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result.  However, this lawsuit should service as a notice for employers to review their current drug testing policies.  This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States.   Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

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FORMER UNION OFFICIAL’S “GOOSE IS COOKED” IN “TOP CHEF” UNION EXTORTION CASE

            “Top Chef” is one of my favorite shows, and because of my last post on a legal victory against union hardball tactics, this story out of Boston caught my eye. 

            Mark Harrington, a former official of Teamsters Local 25 pled guilty to federal extortion charges in connection with union threats of physical violence and production disruption against the cast and crew of the top-rated culinary reality show because they were using non-union workers. Charges are still pending against four other union members, who have entered pleas of not guilty. Bean Town politics also are entangled in the case. In a separate but related federal  indictment, Boston’s head of tourism is accused of withholding permits for Top Chef to film in the area and calling local restaurants that were scheduled to host the show, and threatening them that they would be picketed by the union if they did not withdraw the invitations.

            After the union officials were initially indicted in 2015, Local 25 argued that they were not engaged in criminal activity, but were instead engaged in the protected concerted activity of picketing, as allowed for under the National Labor Relations Act (“NLRA”).  However federal prosecutors fired back that the union defendants were not entitled to collective bargaining rights because they did not have a collective bargaining agreement with the Top Chef production company, and the positions they were seeking for union members already were filled by non-union employees.  The ugly facts of this case make it clear that what occurred was not protected union activity under the NLRA.  As noted by U.S. Attorney Carmen M. Ortiz at the time of the September 25, 2015 indictments:

In the course of this alleged conspiracy, they managed to chase a legitimate business out of the City of Boston and then harassed the cast and crew when they set up shop in Milton. This kind of conduct reflects poorly on our city and must be addressed for what it is – not union organizing, but criminal extortion.

           
             Here is what happened.  In June 2014, Top Chef came to Boston to film the twelfth season of the show.  This included Top Chef host Padma Lakshmi.  Following the threats against Boston restaurants, they withdrew their offers to host the filming of the show, and Top Chef decided to move their production plans to a well-known restaurant in nearby Milton, Massachusetts. During the production of the show, Local 25 members picketed the restaurant, physically roughed up members of the production crew, and slashed the tires of fourteen production workers. 

            From the picket line outside the Milton restaurant, the members of Local 25 screamed racist, sexist and homophobic threats and slurs for hours as production crew and cast came and went.  Some of the worst conduct was directed toward the show’s host. When Lakshmi arrived at the scene, one of the union members rushed her car and screamed “We’re gonna bash that pretty face in, you f***ing whore!”  In responding to local media reports of the incident at the time, a Local 25 spokeswoman stated, “As far as we’re concerned, nothing happened.”

            The indictment a year later charged the union members with using violent tactics in an attempt to extort jobs from Top Chef under the threat of disrupting or shutting down production.  By agreeing to plead guilty, Harrington, who was the former Secretary-Treasurer of Local 25, received a deal in which he will receive no prison time and will spend no more than two years of probation.  The maximum sentence available was up to 20 years in prison and fines of up to $250,000.  The other union members still await trial.

            According to media reports, this is not atypical behavior for Local 25.  Other union members have previously been convicted of money-laundering, extortion, racketeering and shaking down movie producers who tried to film in Boston.  The union is politically active, and has made campaign donations to Boston Mayor Martin J. Walsh, a former union attorney, every member of the Boston City Council, and Attorney General Maura Healey.

            The good news in this case is that the U.S. Department of Justice took action against obviously criminal and terrorizing action by the union, but the bad news is that the relative “slap on the wrist” no jail-time sentence of Harrington is unlikely to prove much of a deterrent to such abusive union activity in the future. There is no indication as to what, if any, involvement the National Labor Relations Board ("NLRB") had in the case.

            In light of the NLRB’s recently announced joint employer standard for franchise operations, an interesting perspective on the Top Chef incident was offered in an article by the Competitive Enterprise Institute entitled “Why Isn't There a Joint Union Standard?”  According to the author:

The NLRB argued in the majority that companies utilize common business relationships—franchising, contracting and temporary staff—to insulate themselves from labor violations and collective bargaining responsibilities.

Seemingly, if corporations are deemed liable for the wrongdoings of an entity that they voluntarily associate with and may reserve control over, then why are labor unions insulated from liability when union officials commit criminal acts when pursuing union objectives—in this case, obtaining work? Also, why is a national union shielded from liability when local unions commit criminal acts?

A national union, in essence, acts in a similar fashion as a franchisor of labor services. National unions let local unions use its brand, “provide services to their locals, such as legal advice and leadership training” and help negotiate collective bargaining agreements.

           
          As they might say on Top Chef, food for thought.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com

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