2005 Workplace Alerts
Workplace Alert, 03/31/2005
On March 29, 2005 the U.S. Supreme Court issued a decision in Jackson v Birmingham Board of Education, that there is a private right of action under Title IX (equality of educational/athletic opportunity) for retaliation. Jackson had been the girls’ basketball coach and complained about the girls receiving inferior practice and playing conditions. He was fired from his coaching position, although he retained his job as a physical education teacher. The majority found that retaliation is necessarily and intentional act and that it was irrelevant that Jackson was not a victim of the discrimination being complained of. The majority held that loss of extra pay and retirement credit was an adverse action. As has been the finding under other anti-discrimination statutes, the court found that failure to punish retaliation would defeat the public policy of the anti-discrimination statute. On March 30, 2005 the U.S. Supreme Court issued a decision in Smith v City of Jackson holding that SOME, but not all, disparate impact claims were permitted under the Age Discrimination in Employment Act (ADEA). As a general principle the court majority held that the ADEA allows disparate impact claims in the same fashion as other anti-discrimination statutes such as Title VII, but that there were provisions in the ADEA which narrow the permitted basis of such claims under the ADEA. The decision does not create quite a bright line, but needs to be read with care by employment arbitrators and mediators. Workplace Alert, 07/13/2005 29 CFR Part 1404 Proposed Changes to Arbitration Policies, Functions, and Procedures AGENCY: Federal Mediation and Conciliation Service. ACTION: Proposed rule. SUMMARY:The Federal Mediation and Conciliation Service (FMCS) is proposing to amend 29 CFR part 1404, Arbitration Services. The amendments are intended to set forth the criteria and procedures for listing on the arbitration roster, removal from the arbitration roster, and expedited arbitration processing. Other changes include how parties may request arbitration lists or panels and fees associated with the arbitrators. The purpose of these changes is to facilitate the management and administration of the arbitration roster. FMCS is soliciting comments on the proposed changes described below. DATES: Written comments must be submitted to the office listed in the address section below on or before August 8, 2005. ADDRESSES: Submit comments to the Maria A. Fried, General Counsel, Federal Mediation and Conciliation Service, 2100 K Street, NW., Washington, DC 20427. Comments may be submitted also by fax at (202) 606-5345 or electronic mail (e-mail) to mfried@fmcs.gov. All comments and data in electronic form must be identified by the appropriate agency form number. FOR FURTHER INFORMATION CONTACT: Maria A. Fried, General Counsel and Federal Register Liaison, FMCS, 2100 K Street, NW., Washington, DC 20427. Telephone (202) 606-5444, FAX (202) 606-5345.
Workplace Alert, 07/11/2005
In what seems to be a “first” in the nation, Illinois has enacted a union-member privilege statute effective January 1, 2006. The statute is reproduced below: 735 ILCS 5/8-803.5
FEDERAL MEDIATION AND CONCILIATION SERVICE
SUPPLEMENTARY INFORMATION: FMCS proposes to amend 29 CFR part 1404. The original regulation was issued in June 1997. The amendments set forth procedures for the listing and removal of arbitrators from the arbitration roster maintained by FMCS, procedures for requesting arbitration lists and panels, and the nomination of arbitrators.
Pursuant to 29 U.S.C. 171(b) and 29 CFR part 1404, FMCS offers panels of arbitrators for selection by labor and management to resolve grievances and disagreements arising under their collective bargaining agreements and to deal with the fact finding and interest arbitration issues as well.
Title II of the Labor Management Relations Act of 1947 (Pub. L. 90-101) as amended in 1959 (Pub. L. 86-257) and 1974 (Pub. L. 93-360), states that it is the labor policy of the United States that ``the settlement of issues between employers and employees through collective bargaining may be advanced by making available full and adequate governmental facilities for conciliation, mediation, and voluntary arbitration to encourage employers and representatives of their employees to reach and maintain agreements concerning rates of pay, hours, and working conditions, and to make all reasonable efforts to settle their differences by mutual agreement reached through conferences and collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes.’’
Under its regulations at 29 CFR part 1404, FMCS has established policies and procedures for its arbitration function dealing with all arbitrators listed on the FMCS Roster of Arbitrators, all applicants for listing on the Roster, and all person or parties seeking to obtain from FMCS either names or panels of names of arbitrators listed on the Roster in connection with disputes which are to be submitted to arbitration or fact-finding. FMCS strives to maintain the highest quality of dispute resolution experts on its roster. FMCS now proposes to amend 29 CFR part 1404 to update its procedures and facilitate the maintenance and administration of its arbitration roster.
Access to Information in Comments
Information submitted as a comment concerning this document may be claimed confidential by marking any part or all of the information as “CBI.’’ Information so marked will not be disclosed but a copy of the comment that does contain CBI must be submitted for inclusion in the public record. FMCS may disclose information not marked confidential without prior notice. All written comments will be available for inspection in Room 704 at the Washington, DC address above from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.
