Lawrence J. McNamara is founding shareholder of Spencer, Crain, Cubbage, Healy & McNamara in Dallas, Texas, and has more than 30 years of experience with litigation and labor and employment law.
Union representation is a fact of life for many public employers, particularly those in education. Although unions represented little more than 12 percent of employed wage and salary workers in 2008, according to the U.S. Bureau of Labor Statistics, 37 percent of public sector workers and 42 percent of local government workers (who include teachers, administrators and library professionals) were represented by a union.
It is also a fact of life that employers and unions can sometimes have confrontational relationships. Federal and state statutes define traditional labor law as an adversarial relationship between companies and their employees when represented by third parties. Because of that, human resources policies and procedures that foster a positive working environment are essential to helping prevent problems in unionized workplaces.
Proactive knowledge of issues that can sour the workplace is crucial, because what an educational employer doesn't know about basic legal obligations toward employees can definitely lead to a grievance or arbitration. Courts, regulators and arbitrators often support employee claims and accept only persuasive employer positions on contentious issues.
Administrators are typically aware of the major concerns, from the need to prohibit racial discrimination and sexual harassment to the fulfillment of collective bargaining agreement terms. But requirements in other areas, while not so well known, can also cause conflict in unionized workplaces. Four examples illustrate some of the contentious issues that can arise:
Religious beliefs
School administrators can be caught in the middle when religious beliefs and workplace realities clash. Federal law requires that employers reasonably accommodate an employee's religious beliefs and practices in the workplace. Federal law, the courts and the Equal Employment Opportunity Commission (EEOC) have defined religion far beyond traditional churches, saying that it encompasses any "belief system" that the employee sincerely holds.
An employee's religious beliefs must be accommodated unless it creates an "undue hardship" for employers, but employees must also be protected from intimidation by others, or from compulsory religious observance required by employers.
When accommodations are made for religious beliefs, typically they involve individual exceptions to general workplace rules. Examples include flexibility in scheduling to allow observance of religious ceremonies or holy days, and permission to wear certain hairstyles or garments. A school system employer's anti-harassment policy needs to include and recognize that harassment and discrimination based on religion or on a person's religious belief is as illegal as sexual or racial harassment.
If employees see a conflict between religious beliefs and their jobs, the employer should be proactive in working with the employee to try and reach an accommodation that resolves the problem and does not result in an undue hardship to the employer. Fortunately, the courts have held that employers need only meet a very low threshold in order to prove an "undue hardship."
Reductions in force
Each spring, school boards are faced with the prospect of sending out Reduction in Force (RIF) notices to employees so that they arrive 60 days before the end of the school term.
RIFs are a potential legal minefield for employers in union and non-union workplaces. Performance evaluations that are used to decide layoffs should be supported by objective criteria that are documented in well-defined job descriptions that identify the duties, functions and competencies relevant to each job. Employers must make certain that performance evaluations used as a rationale for layoffs in fact support a negative assessment.
School systems increasingly face the difficult decision to implement a reduction in force for staff. If a layoff is necessary, administrators must document every step of the process by which individuals are selected for layoff to avoid violating not only union contracts but such statutes as the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act and companion state statutes. Unless a layoff is conducted by reverse seniority, if an employee sues alleging discrimination in reduction in force decisions, the employer must be prepared to prove that the employer identified specific individuals selected for layoff by using objective and documented rating criteria, if possible, and avoided any statistically significant adverse impact on any particular protected group when compared to the demographics of the employer's workforce.
Retaliation
Many federal and state employment laws are designed to protect employees who oppose or participate in a complaint against unlawful discrimination in the workplace. Before 2006, many federal courts held that, for an employee to have a valid claim for retaliation, the employer must have taken an action that had a materially adverse impact on the employee, such as discharge or demotion. In 2006, however, the U.S. Supreme Court ruled that that a retaliation claim could be made if the employer's action would likely "dissuade a reasonable worker from either making or supporting a charge of discrimination."
With this ruling, the bar for an employee claim was lowered and the application of anti-retaliation laws was broadened. Many actions by employers that fall well short of termination or demotion of an employee can now trigger the federal anti-retaliation laws. Administrators must now consider that nearly any action that a school system employer takes which could have the effect of reasonably dissuading an employee from filing or pursuing a claim of unlawful discrimination creates the risk of a claim for retaliation.
Fair pay
In a landmark 2007 ruling, the U.S. Supreme Court held that an employee could file a Title VII pay discrimination claim by challenging only an employer's most recent pay decisions, not those made throughout an entire career. The decision was roundly criticized by organized labor and women's groups, and in January 2009 their clout with the new Obama administration and Democratic-controlled Congress led to passage of the Lily Ledbetter Fair Pay Act.
The Act reverses the Supreme Court's decision and supports an employee's right to file pay discrimination claims each time an employer issues a paycheck that was allegedly the product of a past discriminatory pay decision. In short, a new cause of action arises with each paycheck based on a past discriminatory act about which the employee was unaware.
To ensure that a school system's compensation and appraisal systems are not only fair but legally defensible, all performance evaluations and pay decisions, for unionized and non-union employees, should be in writing. In the event of an employee's pay discrimination lawsuit, courts and juries are likely to give greater weight to thorough written evaluations and pay criteria. Job descriptions which recite duties and qualifications can be key components of a defense to an equal pay claim.
Be sure also to review provisions found in employee or staff handbooks or policy manuals to ensure that there is no vague or inconsistent language that can be used to support a discrimination claim.
Best approach
It should be clear from even this brief discussion that, whether or not a school system must deal with a union, the rights of employees under federal law are paramount beyond specific contract provisions. The best approach to employment law problems is to keep them from occurring, by identifying potential employment law compliance problems before they become the basis for a dispute.
Asking the right questions about a system's current legal compliance may expose areas that need improvement. The goal is to eliminate current problems and avoid risk by following personnel policies that meet all legal requirements — whether or not the district is unionized. Indeed, addressing employee concerns in a proactive manner may well insulate a district from problems with the union.