The influential U.S. Court of Appeals for the District of Columbia has ruled that an employer cannot refuse to bargain with a union that represents illegal immigrants that the employer hired. In Agri Processesor Co. Inc., v. National Labor Relations Board, (Jan. 4, 2008), a New York City employer hired a number of undocumented aliens to work at a kosher meat processing plant. A majority of plant workers sought to improve their working conditions by electing the United Food and Commercial Workers Union as their union representative.

Instead of sitting down at the bargaining table with the democratically elected union, the employer chose to violate federal labor law. The employer claimed it had no obligation to bargain with a union that represents illegal aliens, even though the employer hired these employees. The employer also claimed that the National Labor Relations Board had no power to craft a bargaining unit that included both illegal aliens and legal residents. The NLRB and the D.C. Circuit Court easily rejected these arguments. They cited to a U.S. Supreme Court case that held that the National Labor Relations Act, which is the federal labor law that applies to the private sector, defines “employee” to protects legal and illegal residents. “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” the Supreme Court ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984).

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB cannot provide certain financial relief to illegal aliens, such as backpay to immigrants fired in violation of the NLRA. But as the D.C. Circuit pointed out, Hoffman Plastic did not change the basic rule from Sure-Tan: illegal aliens have the right to join unions and be free from anti-union retaliation.

Regardless of one’s position on illegal immigration, the D.C. Circuit’s decision in Agri Processor is a victory for unions and a rebuke of employer’s illegal efforts to undermine employee free choice. Agri Processing shows states that employers cannot rely on its own question hiring practices to justify illegally refusing to negotiate with unions elected by employees.

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In Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, http://socialaw.org/slip.htm?cid=17757&sid=120, SJC-09893 (Jan. 8, 2008), the Supreme Judicial Court ruled that the transit agency violated state anti-discrimination law when it refused to hire a Seventh-Day Adventist for his inability to work on the Sabbath (Friday sundown until Saturday at sundown).

The Massachusetts anti-discrimination law, known as General Laws Chapter 151B, §4, protects employees and applicants from discrimination by employers on the basis of religion. Once an employee notifies an employer that an employer’s practice requires him or her to violate a religious practice compelled by sincerely held belief, the employer must either a) accommodate the complainant or b) prove that accommodation of the employee’s religious obligations imposes “an undue hardship” on the employer. In analyzing the employer’s defense of undue hardship, the MCAD “must focus on the particular nature and operations of the employer’s business” and “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.”

In this case, the MBTA failed to explore any reasonable accommodation of the applicant’s religious inability to work on the Sabbath, namely allowing the prospective employee to swap Sabbath shifts with other bus drivers. The SJC agreed that the MBTA faces an undue hardship if accommodation of religion forces it to leave a shift uncovered or to pay overtime to a relief driver. But the SJC chided the MBTA for failing to conduct even a cursory investigation into whether shift-swapping is feasible. The anti-discrimination law, the court noted, expressly contemplates observance of the Sabbath as a protected religious activity that may entitle an employee to a reasonable accommodation. Swaps therefore may be the simplest cost-free method of accommodating this religious practice.

The SJC left the door open for an employer in future circumstances to show, following an investigation, that shift-swapping was unlikely to adequately enable the employee to not work on the Sabbath. The MBTA conducted no such investigation here. The SJC, however, declined to that an employer automatically violates Chapter 151B by failing to explore options for accommodating the employee’s asserted religious practice.

Finally, the Court appeared to indicate that a collective bargaining agreement may be a defense to an employer’s claim of undue hardship, if for instance, the CBA denied or restricted the practice of voluntary swaps.

In Nguyen v. William Joiner Center For The Study Of War And Social Consequences, SJC-09848 (December 21, 2007) [http://socialaw.org/slip.htm?cid=17718&sid=120], the Massachusetts Supreme Judicial Court dismissed a claim that the University of Massachusetts illegally refused to appoint a person to a fellowship because the plaintiff never actually applied for the fellowship. ?
In this case, the plaintiff, who claimed to be of South Vietnamese origin, claimed that the University’s hiring practices were motivated by discrimination. The plaintiff did not, however, ever apply for the positions during a three-year period. He justified his inaction by pointing to the University’s alleged failure to advertise widely for the positions and by pointing to the futility of applying for the fellowships once he filed a claim of discrimination with the Massachusetts Commission Against Discrimination.

The SJC found that the positions were adequately advertised and, moreover, insufficient advertising does not necessarily mean that the employer’s hiring was motivated by discriminatory beliefs. In addressing the significance of the plaintiff’s failure to apply for the positions, the SJC refused to rule that non-applicants are barred from asserting claims of discrimination. It wrote, “In the context of proving a discrimination claim under G. L. c. 151B, a per se prohibition of relief to a non-applicant on the basis of futility would contravene the remedial purpose of the statute.”

The SJC then elaborated on this concept of “futility,” which is how a discrimination claim by a non-applicant is analyzed. This concept is similar to “constructive discharge,” which permits persons who “voluntarily” quit a job to claim that they were effectively forced out of their position. While normally a person denied a position cannot file a claim of discrimination if they did not apply for said position, the SJC recognized that such an omission is excusable when the employer has a notorious discriminatory hiring practice or policy. However, the plaintiff here failed to provide any evidence that the University would have refused to hire him subsequent to his filing of an MCAD claim. “The plaintiff’s subjective belief that, in light of the backdrop of legal proceedings, he would have been rejected had he applied for a fellowship cannot excuse his failure to apply, because the fact that he filed a charge with the commission alleging discrimination does not by itself establish that discrimination existed.”

The Massachusetts Commission Against Discrimination is re-opening its Central Massachusetts office in January 2008. MCAD, the state agency that enforces state law prohibiting many forms of discrimination in employment, housing, lending, education, and public places, returns to Worcester City Hall, located at 455 Main Street, Worcester, MA 01608 for the first time in 16 years. [The MCAD web site lists (508) 799-1871 as the office’s contact number].

This news is significant because MCAD requires all relevant claims of discrimination – including on the basis of age, race, gender, sexual orientation, religion, national origin, disability, and criminal record – to be filed in person. Currently, persons in Central Massachusetts must trek to Springfield or Boston to seek a vindication of rights protected by MCAD. If nothing else, this revived office provides one more option for claimants. For more information about your rights to be protected against discrimination and retaliation for engaging in protected activity and MCAD’s involvement in these investigating and enforcing the law, go to www.mass.gov/mcad.

The State Appeals Court ruled that a county laboratory director is exempt from the protections of state wage and hour law embodied in General Laws chapters 149 and 151. Like its federal counterpart (the Federal Labor Standards Act), the state overtime law requires that employees receive time-and-a-half of their regular wages for hours worked beyond 40 in one week. The state and federal wage and hour laws exempt bona fide “executive, or administrative or professional” employees from this guarantee of overtime.

In Ahadul Quazi v. Barnstable County, #06-P-486 (Dec. 3, 2007) [http://socialaw.org/slip.htm?cid=17661&sid=119], the Court ruled that the phrase bona fide executive, or administrative or professional person under the state law is interpreted consistently with federal law. Applying federal precedent to the case, the Court ruled that the plaintiff, a laboratory director, was exempt. His job qualified as professional because the water analysis job required that plaintiff possess advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Further, the responsibilities of the plaintiff’s job, which involved problemsolving, policymaking and directing the work of other employees, also qualified under the “executive” (a.k.a. managerial) exemption. Because of these facts, the Court ruled that the plaintiff was not entitled to any overtime under state law.

The Appeals Court also ruled that the plaintiff could maintain a claim against his employer under the state whistleblower act, G.L. c. 149, §185. The Act generally protects public employees against retaliation for reporting of misdeeds or illegal behavior by their employer. To obtain protections under the Act, employees must notify superiors of the misconduct allegations in order to provide employers with an opportunity to correct behavior. The Appeals Court ruled that the notice requirement does not apply when, as here, the employee claims that the retaliation arose as a result of the employee’s refusal to participate in misconduct, as opposed to the employee’s threat to publicize said misconduct.

In LeMaitre vs. Mass. Turnpike Authority (November 5, 2007) [http://socialaw.org/slip.htm?cid=17603&sid=119], the Appeals Court ruled that a nonunion civil engineer is entitled to sick leave buyback under the public employer’s buyback policy in place for the majority of his employment.

Plaintiff’s benefits as a nonunion employee were governed by the Authority’s Personnel Manual. During the nearly 30 years that the Plaintiff worked for the Authority, he used only 14.5 sick leave days. For the majority of his employment, the Manual stated that he could receive 50 percent reimbursement for unused sick leave upon retirement. In 1996, the Authority unilaterally reduced this sick leave incentive to 20 percent of unused sick leave. Upon retirement, the Plaintiff received 20 percent for his 28 years of accumulated sick leave.

The Appeals Court agreed with the Plaintiff that the Authority should have applied the buyback percentage in force at the time the Plaintiff accrued the leave (50 percent for days accrued prior to 1996; 20 percent for days accrued thereafter). The Appeals Court found that the terms in the Personnel Manual constituted a binding contract, once the Plaintiff accepted and complied with the terms. The Court rejected arguments that the Manual permitted the Authority to reduce or eliminate previous terms in the contract. The decision does not prohibit an employer’s retroactive changes to terms or conditions for nonunion employees. An employer may reduce benefits so long as its Manual contains conspicuous and detailed disclaimers. The Court ruled, “Moreover, had the authority intended to make no legally binding promises, it should have included in the personnel manuals ‘in a very prominent position . . . an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing . . . .’”