Thursday, August 16, 2018

Revoking John Brennan’s Security Clearance Reveals Flaws in Whistleblower Protections for the Intelligence Community

Yesterday, the White House announced that President Trump had revoked the security clearance of John Brennan, the former Director of the Central Intelligence Agency (CIA). The President’s statement claimed the decision was justified by Brennan’s “erratic conduct and behavior” that “tested and far exceeded the limits of any professional courtesy[.]”

The President noted that Brennan told Congress that “the intelligence community did not make use of the so-called Steele dossier in an assessment regarding the 2016 election,” and he continued, saying:
Additionally, Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations — wild outbursts on the Internet and television — about this administration. Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is wholly inconsistent with access to the nation’s most closely held secrets, and facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.
Brennan’s most recent tweet criticized the President for calling Omarosa Manigault-Newman a “crazed, crying lowlife” and a “dog,” and praising his Chief of Staff John Kelly for firing her. Brennan stated:
It’s astounding how often you fail to live up to minimum standards of decency, civility, & probity. Seems like you will never understand what it means to be president, nor what it takes to be a good, decent, & honest person. So disheartening, so dangerous for our Nation.
This tweet is fairly described as a disclosure about “an abuse of authority.” An abuse of authority is an “arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.”

On August 1, 2018, Brennan tweeted:
Individuals of conscience who believe in rule of law should denounce this blatant effort to obstruct justice. As Mr. Trump’s desperation to protect himself grows, he could turn words into actions, prompting a Constitutional crisis. Congress must warn Trump of dire consequences.
Since obstruction of justice is a crime, this tweet can fairly be read to constitute a disclosure of a violation of law.

In 2014, Congress passed the Intelligence Authorization Act, that included protection of a whistleblower’s security clearance. At 50 U.S.C. Section 3341(j)(1), the law prohibits the revocation of an employee’s security clearance because that employee made a lawful disclosure of “ a violation of any Federal law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.]”

The Supreme Court previously held that a law protecting employees from retaliation also protects former employees.

The 2014 Act requires each IC agency to implement its own policy against whistleblower reprisals. If the agency determines that a denial of a security clearance was an unlawful reprisal, “the agency shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred.” The agency can also pay up to $300,000 in compensatory damages.

However, if the agency determines that it did nothing wrong, the whistleblower has 60 days to appeal to the DNI. Under procedures made in consultation with the Secretary of Defense and the Attorney General, the DNI gets to make the final decision. There is no appeal to any court, nor any right to file an individual lawsuit.

The odds that any or all of these presidential appointees would declare that the President himself violated the law seems too remote to build confidence in this system. If Congress wants to assure that employees in the IC will trust that they are protected if they disclose wrongdoing, it needs to provide for appeals to independent tribunals and eventually to the courts. IC employees can already bring discrimination claims to civilian courts, and the same procedures could be used in whistleblower cases.

Using the civilian Whistleblower Protection Act (WPA) would be one way to accomplish this goal. Employees covered by the WPA can make complaints to the Office of Special Counsel, appeal to the Merit Systems Protection Board (MSPB), appeal further to the federal Courts of Appeals, and if their claim is mixed with a claim of discrimination, they can file a civil lawsuit and seek a jury trial.

Now would be a good time for Congress to expand the coverage of the WPA to extend these protections to employees of the Intelligence Community.

By Richard Renner

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Tuesday, July 31, 2018

It Takes Courage to Say “Me Too” in the Workplace: Recognizing Bravery

Standing up and saying “Me Too” to report sexual harassment or assault in the workplace takes courage. The EEOC recently noted that “[r]oughly three out of four individuals who experienced [workplace] harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” These fears are not unfounded. Retaliation is illegal, but (as reported almost daily) it still happens. Reporting a workplace harasser or filing a complaint takes guts; but when an employee comes forward, s/he is standing up for everyone. Federal Correctional Center (FCC) Coleman, a federal penitentiary in Florida, is a perfect example.

Female Correctional Officers at FCC Coleman lived a workplace nightmare. Every day, inmates subjected them to sexual harassment including openly masturbating at them, shouting gendered and sexual obscenities at them, stalking them, grabbing their breasts, threatening to rape them, and even throwing semen at them. The women reported these egregious actions to management, but management told them to “suck it up” and that if they couldn’t handle it they shouldn’t work there. Even worse, some were told that it was just an example of why women shouldn’t work in a men’s prison. When some of the women had had enough, they sought legal advice. Even then, the first attorney they spoke with dismissed their complaints, telling them that “you can't sue the United States Department of Justice.” Luckily, they persisted.

Ultimately, the Coleman women came to me through their union. I was appalled by the situation and lack of response. We pursued a class action against the Bureau of Prisons (“BOP”) and, in order to bring the claim, five courageous women agreed to be “class agents,” essentially the face of the lawsuit. Taronica White, Tammy Padgett, Lena Londono, Eva Ryals, and Carlissa Warren-Spurlock, selflessly stood up not only for the rest of the women involved in the lawsuit, but for every woman who would work at FCC Coleman in the future. Countless other women came forward to provide information and support the litigation. By the end of the case, so many women wanted to help that we couldn't list them all as witnesses at trial. Without their courage, nothing would have changed.

Not surprisingly, BOP did not agree to make necessary changes until the women won a significant victory when the judge overwhelmingly agreed that the women were subjected to a hostile work environment. BOP then agreed to consider mediation.

The Coleman women pushed for extensive but necessary changes, seizing the opportunity to ensure a workplace free of harassment not just for themselves, but for all of the women who would come after them. In fact, by that time, only two of the five women still worked at Coleman. Several months later, the case settled for $20 million and an agreement that the Bureau of Prisons would implement extensive changes to stop the harassment. As it turns out, you can sue the Department of Justice. BOP agreed to changes that even the judge acknowledged she may not have had the authority to require. As testimony to their dedication, the National Employment Lawyers Association recognized these women and their bravery with a 2018 Courageous Plaintiffs Award. Speaking up about and standing up to sexual harassment and sexual assault in the workplace is never easy, but when those who can do, they do so for the benefit of everyone.

Written by Heidi Burakiewicz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, July 11, 2018

A new “reasonable” standard for sexual harassment claims

A recent Court of Appeals decision from Philadelphia shows that victims of sexual harassment can win discrimination claims even if the victim did not make an official report of the harassment, and even if the employer eventually fired the harasser when it did find out about it. The Court, mindful of the #MeToo “firestorm,” and growing evidence about the extent of both harassment and fear of retaliation, decided that juries, not judges, should decide the key questions of whether the victim’s and employer’s actions were “reasonable.”

Sheri Minarsky began working as a part-time secretary for the Susquehanna County Department of Veterans Affairs in 2009. On Fridays, she worked for Thomas Yadlosky, the former Director of the Department. Soon after Minarsky started this job, Yadlosky began to sexually harass her. Yadlosky attempted to kiss her on the lips before he left each Friday. He approached her from behind and embraced her, “pull[ing] [her] against him.” He "would purportedly massage her shoulders or touch her face. As they worked together, alone, others were seldom present to see what Yadlosky was doing, other than during the holiday season, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe."

Yadlosky began to control Minarsky by asking about her "whereabouts during lunch and with whom she was eating. He called her at home under the pretense of a work-related query but proceeded to ask personal questions." Yadlosky "became hostile if she avoided answering these calls. He sent sexually explicit messages from his work email to Minarsky’s work email, to which Minarsky did not respond."

When Yadlosky first began his harassment, Minarsky tried to stop him in a joking manner. That failed. Minarsky’s daughter was ill and they depended on her employment to pay medical bills. "She feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become 'nasty.'" Sylvia Beamer, the Chief County Clerk, twice became aware of Yadlosky’s inappropriate behavior toward other women, and admonished him. Beamer "told him he could face termination if his inappropriate behavior continued. There was no further action or follow-up, nor was any notation or report placed in Yadlosky’s personnel file. Also, once when Beamer was in the Veterans Affairs office, Minarsky saw Yadlosky try to embrace Beamer, but Beamer stopped him and said, 'Get away from me.'" A female Commissioner testified that Yadlosky attempted to hug her too, and that he put his arm around her, or kissed her on the cheek approximately ten times.

Susquehanna County has an anti-harassment policy. It permits an employee to report harassment to the supervisor, or to the Chief County Clerk or a County Commissioner. Minarsky feared what would happen if she made a report to County administrators because Yadlosky repeatedly warned her not to trust the County Commissioners or Beamer. He told her to look busy or else they would terminate her position. "These warnings, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others," led Minarsky to avoid reporting Yadlosky.

Minarsky finally "revealed the harassment and its emotional toll on her health to her physician in April of 2013," about four years after she started work. The doctor "emphasized the need to bring an end to the conduct. She encouraged Minarsky to compose an email to Yadlosky, so she would have some documentation." Minarsky also told a friendly coworker, and word got around to Beamer who investigated the harassment and fired Yadlosky.

Minarsky filed suit against Susquehanna County and Yadlosky. The district court eventually dismissed that suit because (1) the County took prompt and sufficient action against Yadlosky’s harassment, and (2) Minarsky failed to report the harassment pursuant to the County’s policy.

In 1998, the Supreme Court set out standards for holding employers liable for harassment. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court acknowledged the sensitive nature of workplace harassment: “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” "If the harassment resulted in a 'tangible employment action' against the employee, then the employer is strictly liable. The Supreme Court has described a tangible employment action as 'hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"

However, as in Minarsky’s case, "if the harassed employee suffered no tangible employment action,  the employer can avoid liability by asserting the Faragher-Ellerth affirmative defense. The employer must show (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

"The cornerstone of this analysis is reasonableness: the reasonableness of the employer’s preventive and corrective measures, and the reasonableness of the employee’s efforts (or lack thereof) to report misconduct and avoid further harm." In Minarsky’s case, the Court of Appeals held that the reasonableness of both the County’s and Minarsky’s actions “should be decided by a jury.”

The Court made this unusual observation, proving that judges read newspapers:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.

Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017),

Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).
That Beamer and Warren had personal knowledge of Yadlosky’s harassment, and yet took no documented action to stop it, featured prominently in the Court’s decision that a jury could find their response was unreasonable.

As for Minarsky’s conduct, the Court wanted to clarify that “a mere failure to report one’s harassment is not per se unreasonable.” The passage of time is just one factor in the analysis. “Workplace sexual harassment is highly circumstance-specific, and thus the reasonableness of a plaintiff’s actions is a paradigmatic question for the jury, in certain cases.” If a plaintiff’s concern about potential retaliation from reporting her harassment is “well-founded,” and a jury could find that it is “objectively reasonable," then the court should then leave the issue for the jury to determine at trial. The Court vacated the decision of the district court and returned the case for trial against both the County and Yadlosky.

A previous KCNF blog reviewed two other decisions in harassment cases (Guessous v. Fairview Properties Investments and Smith v. Rock-Tenn Services, Inc.) holding that the determination of reasonableness should be made from the victim’s point of view.

Employees would benefit from understanding how social movements influence the law. The growing demands for accountability for harassers is already pushing the needle toward greater opportunities for victims.

Employers would benefit from appreciating that issuing a policy against harassment is not enough. Employers can face liability if they fail to enforce that policy. They must be proactive in taking prompt and effective action to stop harassment. Even if victims do not complain, employers must get to the bottom of any information they have about workplace harassment and make sure the all employees feel safe and free to speak up.

The Supreme Court has also made clear that these principles are not limited to sexual harassment. Harassment on any basis that violates the law (race, color, national origin, religion, or retaliation) is actionable. Courts also use these same principles in whistleblower cases.

The case is Minarsky v. Susquehanna Cty., No. 17-2646, 2018 WL 3234243, at *1, 2018 U.S. App. LEXIS 18189 (3d Cir. July 3, 2018).

Written by Richard Renner.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Friday, July 6, 2018

Developing trends: With EEOC Administrative Judges denying discovery, Complainants and their counsel should ensure their Reports of Investigation include all relevant information.

A trend appears to be developing in which EEOC Administrative Judges curtail or deny EEOC complainants the ability to conduct discovery before they issue a decision based on the facts and evidence contained in the Report of Investigation, or “ROI.” The result is to effectively deny a complainant the right to an administrative hearing on the merits of his or her complaint. This is a profound revision to the EEOC’s procedures, made without any notice or comment.

Since the EEOC assumed responsibility for processing discrimination complaints by federal employees, when a complainant requests a hearing, the Commission assigns an administrative judge to conduct that hearing in accordance with the Commission’s regulations at 29 CFR §1614 and its management directive governing Federal Sector Complaint Processing, otherwise known as MD 110. The administrative judge maintains responsibility for the adjudication of the complaint. Federal regulations actually require an administrative judge to notify the parties of the right to seek discovery before the hearing.1 And although the administrative judge maintains the authority to limit the quantity and timing of discovery, EEOC regulations contemplate that “[b]oth parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint….”

The right to discovery before a hearing is not an accident: the ROI for a claim of discrimination is prepared under the supervision of the same Agency that is accused of discrimination. Other than submitting his or her own affidavit and rebuttal affidavit, with attachments, the complainant is permitted no role in determining what goes into or is left out of the ROI. The Commission has long held that “a hearing before an EEOC AJ is ‘an adjudicatory proceeding which completes the investigation of a complaint by ensuring that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses.’”2

Nevertheless, some administrative judges have recently denied complainants the right to develop the evidence through the discovery process. One example of this development is evident from the EEOC’s San Antonio Field Office, which issued an Acknowledgment Order warning the parties that the Administrative Judge was prepared to deny discovery unless the judge found it justified at the Initial Scheduling Conference. The Order included the following statements:
The Parties are notified that not all cases require discovery and discovery will not be granted in all cases. Moreover, discovery may be further limited, and in some cases denied altogether.
[T]he parties should be prepared for the Administrative Judge to deny discovery. Under these circumstances, the AJ may, as an example, determine that the record is substantially complete, and that there is little remaining evidence necessary to complete the record for decision. In such cases, the resolution of the complaint may take the form of a Summary Judgment decision, or there may be a Targeted Hearing, which may focus on gathering a few additional facts to complete the record, or such a hearing may be convened to resolve a limited credibility issue. In these cases, the AJ may also limit the parties’ participation in these hearings. In fact, it is possible that the AJ may convene the hearing and preclude examination of any witness(es) by the parties and conduct the examination of any witnesses her/himself.
Nearly identical statements warning that “not all cases require discovery and discovery will not be granted in all cases,” also have been included in Acknowledgement Orders issued by administrative judges in the Washington Field Office. Though these orders similarly threaten to deny the parties any discovery at all, they offer no explanation of the factors the administrative judge will use to determine whether discovery will be granted, severely limited, or denied altogether. The result may leave complainants who expect to pursue their complaints to hearing without counsel scratching their heads about how best to justify the need and expense for discovery under the circumstances.

Another variation on this trend, recently exercised by the EEOC’s Washington Field Office, involved an Acknowledgment Order that calls for an in-person Initial Scheduling Conference. The Order provided that during the Conference, limited testimony would be taken exclusively from four witnesses before a decision on the complaint would be read from the bench. In this matter, buried within the particulars providing for discovery, the administrative judge stated:
I have determined that the record has been adequately developed, with the exception of  the required documents in Section III of this Order and additional testimony from the witnesses listed in Section IV of this Order. Therefore, discovery requests will be streamlined thoroughly.
In this matter, the administrative judge required the Complainant to produce both 1) affidavits from any witness that would assist the Complainant with establishing pretext or corroborate the Complainant’s testimony, and 2) all “documents/evidence not within the ROI within the Complainant’s possession” that would help Complainant prove his case. The administrative judge only required the Agency to produce “all documents/evidence not included in the ROI within the Agency’s possession that can help establish its defense.” Apparently, this administrative judge did not believe the agency should be required to produce evidence in its possession that would benefit the complainant, i.e., evidence that is normally sought in discovery.

Finally, in one of the most severe examples of this trend, an administrative judge in the Washington Field Office relied on the rarely-used authority under 29 CFR §1614.109(g)(3). Under §1614.109(g)(3), an administrative judge can determine, on his or her own initiative, that there are no material facts in dispute, and provide notice to the parties of his or her intent to issue a decision without holding a hearing. The notice allowed the parties an opportunity to respond to the order declaring the administrative judge’s intent to grant summary judgment without any discovery or a hearing and to explain why discovery was necessary. But the administrative judge remained free to issue a decision both denying the complainant’s request for discovery and deciding the case in favor of the Agency.

If this practice of limiting or precluding discovery is adopted by other administrative judges, the evidence available in the record is likely to be incomplete. It is difficult to see how the movement toward limiting complainants’ ability to obtain evidence not included in the ROI contributes towards the government’s goal of “conduct[ing] a continuing campaign to eradicate every form of prejudice or discrimination from the agency’s personnel policies, practices, and working conditions.”3

129 CFR §1614.109 (d) (“The administrative judge shall notified the parties of the right to seek discovery prior to the hearing and may issue such discovery orders as are appropriate.”). 
2 Angelita G. Guerra, Appellant, EEOC Appeal No. 01940899 slip op. at *8 n.3 (Oct. 4, 1994); see also Complainant v. Archuleta, EEOC Appeal No. 0120120901, slip op. at *12 (Dec. 2, 2013) (“One function of the hearing process is to supplement the Record of Investigation (ROI).”). 

Written by Puja Gupta 

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Friday, June 29, 2018

OSC and Unions: A Common-Sense Partnership

In light of President Trump’s May 2018 Executive Orders targeting civil service protections and union rights, it is more important than ever for unions and the U.S. Office of Special Counsel (“OSC”) to partner toward their common goals. Unions and OSC are natural allies in their efforts to protect employee and whistleblowing rights. Indeed, Special Counsel Henry Kerner recently described OSC’s mission as “safeguard[ing] employee rights and hold[ing] the government accountable.”

Previously, in April 2018, we wrote that federal sector union officials now have a stronger legal basis, under the Whistleblower Protection Enhancement Act (“WPEA”), to bring claims of union retaliation to OSC. Not only do union officials have a better legal avenue under the WPEA, OSC is becoming more effective in carrying out its mission. On June 12, 2018, OSC released its FY 2017 Annual Report , in which it reported that with just a modest increase in its resources, it achieved a record-breaking number of favorable resolutions for federal employees in both prohibited personnel practice (“PPP”) and whistleblower retaliation matters:
In PPP cases this past year, OSC achieved 323 favorable actions, more than triple the number in an average year. Over FY 2016-17, OSC obtained favorable results in 459 whistleblower retaliation actions, which is also triple the rate of an average two-year span. Further, OSC achieved a record 47 systemic corrective actions in FY 2017, which will result in significant policy changes or larger training efforts to proactively prevent future violations at the agencies involved.
FY 2017 Annual Report at 18-19. For union officials who are concerned that the recent Executive Orders might prompt managers to declare “open season” on unions, OSC is an increasingly valuable resource. This is encouraging news for all federal employees, but the timing is particularly critical for unions.

If union officials are concerned that they will suffer retaliation themselves, they are now also worried that labor relations specialists who deal with them in good faith will be targeted and suffer retaliation. On June 19, 2018, 23 federal sector unions came together and wrote a letter to OSC expressing concern that Agencies will retaliate against their own labor relations professionals, specialists who are required by law to engage with unions in good faith. This coalition of unions asked OSC to:
[B]e proactive in investigating retaliation (as well as implied threats of retaliation and other forms of pressure) being taken against labor relations employees at various agencies who push back against carrying orders that violate law.
In their day-to-day duties and negotiations, unions and labor relations professionals often take opposing positions, so it is meaningful that unions are coming to their defense here. Of course, unions need labor relations professionals to be able to work with them in good faith, but this gesture highlights that unions value the symbiotic relationship they have with their management counterparts and the importance of the parties being able to work productively together. We are encouraged to see unions coming together on this significant issue, and we hope that OSC will take any such claims of retaliation seriously.

While unions need all the support they can get right now, this isn’t just a one-way street. OSC would benefit from strengthening its relationships with unions too. By virtue of their mission and structure, unions often serve as the primary point of contact for employees who witness wrongdoing in the federal workplace. Bargaining unit employees who are charged with carrying out new policies or who actually see where “the rubber meets the road” are often in the best position to see where an agency might break the law or fall short of its mandate. What’s more, these employees frequently rely on their union officials to help them navigate the reporting and complaint mechanisms. Unions are essentially in a position to neatly package actionable cases for OSC to carry out its mission.

Unions and OSC are natural allies. We hope that OSC will use the present opportunity to form strong partnerships with unions that represent such a large percentage of the federal workforce.

Even as OSC becomes more effective, it is still a small agency that must process thousands of new matters each year. At KCNF, we are available to help unions and individual employees present the best possible retaliation and whistleblower claims. We are always thinking creatively to develop better legal strategies for our clients. If you have a question about whistleblowing or retaliation, please call 202-331-9260 to begin our intake process, or submit your legal issue here.

Written by Robert DePriest.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Thursday, June 21, 2018

Eject the Executive Orders, Don’t Evict the Unions

On May 25, 2018, President Trump issued three Executive Orders (EOs) all with similar preambles claiming to ensure the effective functioning of the executive branch. Unfortunately, confusion now rules the day, and much of what is required or suggested in the EOs appear to simply punish federal employees. As Joe Davidson at the Washington Post explains, “[i]f Trump is successful . . . he would upset long-standing labor-management relationships that largely have existed in an atmosphere of cooperation rather than the confrontation he favors.” Unfortunately, one of the President’s EOs goes so far as to literally remove the union from the workplace. That is not what Congress had in mind when it established the nation’s current civil service system.

In 1979, when Congress enacted the Federal Service Labor-Management Relations Statute, it found that the “statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations” was in the government’s interest, and it described numerous reasons to support such findings:
  • It safeguards the public interest,

  • contributes to the effective conduct of public business, and

  • facilitates and encourages the amicable settlements for disputes between employees and their employers involving conditions of employment.
Congress concluded that “labor organizations and collective bargaining in the civil service are in the public interest.” 

It’s not surprising that over the years, as union representatives have worked with their management counterparts, managers found it more efficient for the union representatives (typically these are agency employees fulfilling dual roles) to have an office nearby and to allow them to use agency resources. Those arrangements were often incorporated into the parties’ collective bargaining agreements. Here is an example (found in footnote two of the linked decision) of an agreement recognizing the worth of providing the union with office space and resources:
Article 48, Section 1 - Local Union Office Space

A. Management recognizes the importance and value of the Union's mission and purpose. Accordingly, Management agrees to furnish office space to the Union appropriate for carrying out its representational and partnership duties in locations easily accessible to employees and private citizens and of size, furnishings, and decor commensurate with other administrative offices within the facility.

B. Each office will be equipped with adequate telephone lines, fax and computer capabilities.

C. In addition, the Department will provide District and National representatives with office space or suitable arrangements to carry out their representational responsibilities under this Agreement.
Despite the importance of and value in providing a union space and resources to fulfill its mission, the President’s new EO on official time requires agencies to completely discontinue the employees’ ability to conduct certain union matters in ways previously found acceptable:
No employee, when acting on behalf of a Federal labor organization, may be permitted the free or discounted use of government property or any other agency resources if such free or discounted use is not generally available for non-agency business by employees when acting on behalf of non-Federal organizations. Such property and resources include office or meeting space, reserved parking spaces, phones, computers, and computer systems.
EO 13837, Section 4(a)(iii).

But, at Section 8(a), the EO also goes on to say that agencies should implement the order “to the extent permitted by law and consistent with their obligations under the collective bargaining agreement.” (Emphasis added.) Notwithstanding this exception, at least three federal agencies are now using the EO to justify upending their contracts with their respective unions or to otherwise ignore their bargaining obligations.

As the Washington Post article cited above further details, the Department of Housing and Urban Development (HUD) sent a letter dated June 14, 2018 to the employees’ union, the American Federation of Government Employees (AFGE), stating that “the union shall have until July 15, 2018 to vacate all offices they currently occupy, return all government property they currently possess and cease using government resources.” The Social Security Administration (SSA) apparently sent a similar notice to AFGE. And the Department of Health and Human Services (HHS) sent a letter to the National Treasury Employees Union, telling the union that it would have to begin paying rent for its office space. But in each situation, it appears that the parties have collective bargaining agreements in place that cover these matters, i.e., contractual terms providing space and resources to the union. Notably, the contracts’ expiration dates extend well beyond the agencies’ proposed timelines for implementation. On the surface, the agencies seem intent on violating their contracts.

Even if the parties’ agreements allowed for limited mid-term contract bargaining or opening the contracts, the law requires that they engage in good-faith negotiations. The Federal Labor Relations Authority, the independent agency tasked with settling labor disputes in the federal sector, has found that “it is well established that the use of office space by a union functioning as the exclusive representative of bargaining unit employees is a matter affecting conditions of employment.” Along those lines, the Authority has also found that union office space is a substantively negotiable condition of employment. As a result, an agency wishing to change such an established condition of work must give the union an opportunity to bargain. This means that the agencies here are prohibited from declaring unilaterally that the unions are simply evicted from their space or that they no longer have access to certain resources unless they pay for them. HUD’s July 15, 2018 deadline for the union to vacate certainly does not indicate a willingness to bargain. Even if the contracts allow the agencies to reopen certain provisions of their contracts – which again does not appear to be the case at HUD, SSA, or HHS – they would still have to sit down at the bargaining table and negotiate any changes with the union. Section 8 of the EO appears to recognize this, but obviously there is confusion over how to properly apply the president’s recent pronouncements.

While not a certainty, one type of remedy for failing to engage in good faith bargaining over such conditions of work includes providing a union with status quo ante relief. While the agencies’ rush to remove the unions and change the employees’ ability to access certain resources, they might very well be required to later return these resources. It seems more efficient to follow the law and adhere to the contract or otherwise engage in good faith bargaining with the union.

While it remains to be seen whether the president’s EOs will survive judicial scrutiny – multiple unions have filed lawsuits claiming the EOs are illegal – agencies should continue to work with the employees and their representatives. Agencies should not be allowed to disregard contractual agreements and statutory bargaining obligations; the president’s orders do not supersede existing statutory law. And disrupting years of agreed upon workplace relations by unnecessarily punishing employees does not ensure the efficient and effective functioning of the executive branch. Indeed, the new orders and how some of them are being applied conflict with Congress’s finding that unions and collective bargaining are in the public interest.

Written by Zachary R. Henige.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, June 20, 2018

The Executive Order Concerning Expungement Should be Expunged

On May 25, 2018, the President signed Executive Order 13839, purportedly to “ensure the effective functioning of the Executive Branch.” Specifically, under Section 5, titled “Ensuring Integrity of Personnel Files,” federal agencies are now limited in how they are allowed to settle workplace disputes:
Agencies shall not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee’s performance or conduct in that employee’s official personnel records, including an employee’s Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse personnel action.
The President’s new order, however, runs contrary to explicit federal regulations governing remedies and relief for federal employees in federal-sector Equal Employment Opportunity complaints. These expressly list recommended remedies and relief for discrimination, including, “Expunction from the agency’s records of any adverse materials relating to the discriminatory employment practice.” 29 C.F.R. § 1614.501(c)(4).

Can the President by Executive Order exclude from settlement a remedy specifically identified by a duly adopted federal regulation as appropriate for resolving EEO complaints? In general, Executive Orders (EO) arise from a President’s power to clarify or fill in gaps in federal law or regulation; that power, however, does not extend to revoking or changing any portion of those regulations or laws. It is true that the EO addresses settlement specifically and not remedies awarded after a finding of discrimination at an administrative hearing, but both the EEOC’s regulations and the history of EEOC settlements makes clear that remedies under 29 C.F.R. § 1614.501 extend to settlements as well.

Moreover, well-established authority, from numerous sources, demonstrates that settlement is strongly encouraged as a preferred outcome in resolving workplace problems. For instance, federal regulations require agencies to make reasonable efforts to settle complaints as early as possible in the administrative process:
Each agency shall make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of complaints, including the pre-complaint counseling stage. Any settlement reached shall be in writing and signed by both parties and shall identify the claims resolved.
29 C.F.R. § 1614.603. And no finding of discrimination is required for a settlement to be valid. Further, it is well established that agencies may agree in settlement to anything that might have been awarded after a finding of discrimination, as the U.S. Government Accountability Office has found. Additionally, the Equal Employment Opportunity Commission, in its guidance for agency attorneys on Settlement Standards, urges that individual affirmative relief “should not be waived without strong reasons, as it is important to effective enforcement of discrimination laws that victims attain their rightful place in the workforce.” The EEOC balances any competing interests by stating that, “[t]he settlement should fully address the discriminatory practices alleged in the complaint.”  The settlement must also address the effects of discriminatory practices.

If an agency discriminates against an employee in the federal workplace by, for example, issuing unjustifiably low performance ratings or unfair letters of reprimand, the EEOC mandates – in keeping with federal regulations – that the discriminatory records be expunged from the federal employee’s personnel file (or eOPF). If a personnel record is discriminatory – as found in a decision or implied in settlement – expungement is the only remedy that would “fully address the discriminatory practices alleged.” Because the President’s EO precludes removing the discriminatory records from the employee’s record, however, the employee would continue to suffer the effects of the discriminatory personnel action and would be denied his or her “rightful place in the workforce.” And the stated purpose of anti-discrimination legislation, explicitly set forth in the federal regulations after notice and comment, would be rendered null.

Where an employee’s record has been harmed by employer discrimination, the employee is entitled to expungement of the harmful, discriminatory material from his or her record. The President’s EO goes too far by revoking what the law and regulation explicitly grant and, accordingly, is unenforceable and should be expunged.

Written by Mary E. Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Monday, June 11, 2018

Masterpiece Cakeshop Decision Provides a Useful Tool for Other Discrimination Cases

As a case of religious discrimination, the Supreme Court’s recent opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission shows remarkable breadth in the range of evidence that can be used to prove bias and unlawful discrimination. Moreover, the Court’s majority has made clear that governments have the power to prohibit discrimination against the LGBTQ community, so long as they enforce their laws without betraying an unlawful “hostility” toward religion.
In 2012, before the Supreme Court’s 2015 Obergefell decision recognized the right to same-sex marriage, Charlie Craig and Dave Mullins (with Craig’s mother) visited the Masterpiece Cakeshop near Denver, Colorado, to order a wedding cake. They did not request any particular design or text for the cake. Nevertheless, Jack Phillips, the proprietor, announced that he would not make a cake for a same-sex wedding. He offered to make cakes for other occasions for them, but not for same-sex weddings. Craig’s mother called back the next day, and Phillips explained that he had a religious objection to same-sex weddings.

Craig and Mullins filed a complaint with the Colorado Civil Rights Division alleging that Masterpiece Cakeshop denied them “full and equal service” on account of their sexual orientation. Indeed, the investigation confirmed that this cakeshop had turned away other potential customers because of their sexual orientation. The Division found probable cause supporting Craig and Mullins’ complaint and referred the case to the Colorado Civil Rights Commission for a hearing.

A Colorado Administrative Law Judge (ALJ) rejected Phillips’ claim that the anti-discrimination law violated his First Amendment right to exercise his religion. The ALJ relied on the 1990 Supreme Court decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, in which the Court held that Oregon could deny unemployment benefits to those fired for using peyote during religious ceremonies. This is because, according to the Court, “the Free Exercise Clause ‘does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability[.]’” The ALJ also held that making a cake is not a protected form of Free Speech.

During the appeal to the full Commission, one Commissioner stated that people and companies doing business in Colorado needed “to look at being able to compromise.” Another said, “religion has been used to justify all kinds of discrimination throughout history” and made reference to slavery and the holocaust. “And to me it is one of the most despicable pieces of rhetoric … to use their religion to hurt others.” The Commission affirmed the ALJ’s order and required Masterpiece Cakeshop to cease and desist from discrimination, provide staff training on non-discrimination laws, and to make quarterly compliance reports for two years. Colorado’s law does not authorize the Commission to award monetary damages or fines. A state appeals court affirmed the order, and the state Supreme Court declined to hear it.

Speaking for seven Justices, Justice Kennedy (the author of the Obergefell decision) began by saying, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” He made clear that “religious and philosophical objections are protected,” but, “it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Citing Newman v. Piggy Park Enterprises, Inc. (1968), the Court emphasized that the same doctrine that protects African-Americans from being denied motel rooms still applies today to protect the right of gay Americans to buy wedding cakes. Indeed, governments legally can protect any group that “is the target of discrimination.”

In this case, however, the Supreme Court’s decision, turned on the notion of “neutrality”: “Phillips was entitled to neutral and respectful consideration of his claims in all the circumstances of the case.” The Supreme Court would not accept even a “subtle” departure from neutrality. Because the Commission’s treatment “has some elements of a clear and impermissible hostility toward [Phillips’] sincere religious beliefs,” its order had to be set aside. Justice Kennedy’s opinion notes the Commissioners’ argument that religious beliefs cannot legitimately be carried into the public sphere. The First Amendment’s Free Exercise Clause says the opposite.

Justice Kennedy acknowledged that the statements that business people cannot act on their religious beliefs, or must “compromise” them, may be “susceptible of different interpretations.” That the Court nevertheless rejected the Commission’s decision on this basis is a significant expansion of the types of statements that can be used as direct evidence of bias. If bias can be one of a number of different interpretations of a decision-maker’s statement, then claimants can use them to support a claim of unlawful motive.

In conjunction with the statements about slavery and the holocaust, though, Justice Kennedy found that the statements more likely expressed a lack of due consideration for Phillips’ free exercise rights. Justice Kennedy underscored how the Commission failed to disavow the comments in the subsequent litigation all the way to the Supreme Court. “[T]hese statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case” – that is all the Supreme Court required to find an unlawful motive and set aside the order.

Justice Ginsberg disagreed that comments by the Commissioners should invalidate the order that was otherwise valid. She notes that the comments came from only two of the seven commissioners, and the decision was affirmed by the Court of Appeals which made no comments disparaging of religion. However, the Supreme Court had held in Staub v. Proctor Hospital (2011) that the unlawful animus of one participant in a decision can cause that decision to be unlawful. Ginsberg did not mention Staub in her dissent. Claimants facing a company defense that the final decision was made independently by a higher authority with no animus can now point to this Masterpiece decision to show how the Supreme Court has rejected this defense.

At the Supreme Court, even Phillips’ attorney had to agree that if Phillips refused to sell any goods for a gay wedding, then the State would have a strong argument that Phillips had violated the law. However, this same lawyer pointed to three other cases decided by the same Commission. These cases arose from a Phillips sympathizer, William Jack, who went to three presumably liberal bakeries and asked them to prepare cakes with two specific designs disapproving of homosexuality. All three refused and Jack filed complaints against all three. In all three cases, the Commission found no violation of the law. Recall that Phillips refused to provide a wedding cake for Craig and Mullins before they could specify any design at all.

Pointing to others who were treated differently – called “comparators – can be evidence of discrimination unless the difference can be otherwise explained. Although comparator evidence is not always available, and is never required, discrimination cases can often be proven by showing that an employer treats some people differently than others. In many instances, comparator evidence is challenged on the ground the plaintiff and the comparator are not similarly, or identically, situated. Here, the majority opinion found that the Commission’s treatment of the Jack complaints “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.”

This holding is remarkable in two respects. First, it holds that even if a comparator can be distinguished, it can still be used as a comparator to find an unlawful motive. Way too many courts have held that comparators have to be “substantially similar” and will use all manner of differences to deny claimants their evidence of disparate treatment. While in the 2007 Sprint/United Mgmt. Co. v. Mendelsohn case, the Supreme Court made clear that it is for the jury to decide if cases are fair comparators, in Masterpiece, the Supreme Court opened the door to evidence of unlawful motive even if the cases are distinguishable. The Court majority used the Jack cases as comparators even though (as Justice Kagan noted) the liberal bakers did not break the law at all – the cakes Jack sought were cakes they would not sell to anyone, and Jack could have bought (as the gay couple in Masterpiece tried to do) the same cakes available to everyone else.

Second, without mention, the Supreme Court makes clear that events arising after the adverse action at issue are still sources of relevant evidence of motive. While numerous appellate cases have said that subsequent events can be relevant, and no per se rules should prevent discovery of relevant evidence, it is nice to have the Supreme Court use this type of evidence to make a case of unlawful discrimination. Justices Thomas and Ginsberg even cited to the Masterpiece web page as it existed three days before they issued their decision (Thomas to show Phillips’ “exceptional care” and Ginsberg to show that his wedding cakes do not have any words at all).

Justice Gorsuch took pride in how “we protect religious beliefs we find offensive.” Yet, this Court went to new lengths to make a finding of anti-religious discrimination to free Phillips from Colorado’s order. Time will tell if the Supreme Court, and other courts, will use these same methods to make findings of unlawful discrimination in other cases. If they do not, we will have good comparator evidence that Masterpiece Cakeshop received special treatment.

Written by Richard Renner.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Thursday, May 31, 2018

New Executive Orders Contradict the Federal Statutes and Regulations

Late on Friday, May 25, 2018, less than an hour before the start of the long holiday weekend, the White House issued three new Executive Orders (“EO’s”) which drastically reduce the civil service protections of federal employees and restrict the ability of federal unions to organize and advocate for their members. Because of their reach, these EO’s in many ways appear to be a huge overstep in Presidential authority. While one injunction already has been filed to challenge this overreach, more actions are likely to be brought in the coming weeks.

The first Order, officially titled “Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles,” reduces job protections for employees thus making it easier for agencies to discipline and fire them. For example, the EO removes the requirement for the Agency to impose progressive discipline and changes the concept of an improvement period for underperforming employees to a demonstration period.

Several of the provisions within the Streamlining Order, however, contradict current federal regulations. The White House recognizes this and, in the Accountability Order, directs the Office of Personnel Management Director to examine the current regulations and propose rules “as soon as practicable” that “effectuate the principles… and the requirements” of the Order. This process requires a “notice and comment period,” which will likely take several months before any new or modified rules are adopted into the Code of Federal Regulations. After a new regulation is issued, the Streamlining Order directs agency heads to revise their discipline and performance polices to conform to the new rule within 45 days.

The White House also issued an “Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use,” which limits the rights of federal labor unions and their members.

The Union Time Order begrudgingly admits that federal law allows federal employees to perform union work (described in the Order as “other non-agency business”) “while being paid by American taxpayers.” The Civil Service Reform Act defines this as “official time,” while the Order refers to it as “taxpayer-funded union time.” The Union Time Order instructs agencies to “eliminate unrestricted grants of taxpayer-funded union time” and provides instructions to the agencies on how to achieve this goal. The Order requires agencies to restrict the amount of official time its members can spend on union work by utilizing an arbitrary and convoluted calculation. Any amount of time in excess of that figure should not be considered “reasonable, necessary, or in the public interest” by the agency. Further, the Union Time Order restricts the amount of time an employee may spend on authorized union work to twenty five percent of her duty time. If the employee spends more hours than that on her union work, the agency may limit the amount of union work she does in the next fiscal year. Finally, the Union Time Order mandates that an employee may not use official time to prepare or pursue grievances brought under a collective bargaining agreement, unless the employee is bringing the grievance on her own behalf. Because pursuing grievances on behalf of union members is a fundamental component of union activity, the White House efforts to restrict this activity are sure to face an aggressive union response.

On May 30, 2018, the American Federation of Government Employees (“AFGE”), the representative of many federal bargaining units, requested an injunction in federal district court in Washington asking the court to declare specific provisions of the Union Time Order contrary to federal law and stop the administration from implementing those provisions. AFGE argued that these provisions directly contradict a statue passed by Congress, the Federal Service Labor-Management Relations Statute (“the Statute”), and the First Amendment to the U.S. Constitution. The Union Time Order, according to AFGE, is an attempt by the President to legislate, and the Constitution does not vest legislative power in the President – only in the Congress, which has already spoken on the topic through the Statute.

Finally, the White House issued “Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining.” The Bargaining Order also violates sections of the Statute. For example, the Order mandates that agencies take steps to eliminate requirements in negotiating agreements that contain a bargaining approach other than the exchange of written proposals. This eliminates the in-person bargaining table and the negotiations that happen around it. This written-only approach is not what is imagined in the Statute, which provides that both the agency and the union have an obligation “to meet at reasonable times and convenient places as frequently as may be necessary” in order to negotiate in good faith. The Bargaining Order also instructs agency heads that they “may not negotiate over the substance of the subjects set forth in” a section of the Statute, 5 U.S.C. § 7106(b)(1). This section, however, states “[n]othing in [the Statute] shall preclude any agency and any labor organization from negotiating” on the listed subjects. Here, the administration is trying to bind the agencies’ hands where Congress remained permissive – again a potential overreach by the executive branch.

Given all the contradictions with existing federal labor and civil service laws, more lawsuits and injunctions will no doubt be filed in the coming weeks. If you are a federal employee who has been negatively affected by policies mandated by these three new Executive Orders, please contact the lawyers at Kalijarvi, Chuzi, Newman & Fitch to discuss your options.

Written by Sarah Martin

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Friday, May 25, 2018

Epic Systems Corp. v. Lewis: an Epic step back for workers’ rights?

On May 21, 2018, the Supreme Court issued its decision in Epic Systems Corp. v. Lewis, holding that employers can demand individualized arbitration proceedings instead of a class or collective action with respect to wage and hours claims.  Epic Systems sent an email to some of its employees containing a provision stating that wage and hours claims could be brought only through individual arbitration and that employees waived “the right to participate in or receive money or any other relief from any class, collective, or representative proceeding.”   The email also stated that employees were “deemed to have accepted this Agreement” if they “continue[d] to work at Epic.”  Epic gave employees the classic Hobson’s choice:  accept the Waiver or lose their jobs.  Epic Systems raises again the question plaguing employee rights for over 100 years:  Do workers have the fundamental right to join together to advance their common interests?  Congress has attempted at critical times to place employers and employees on a more equal footing.  The Court’s decision in Epic Systems, however, fails to safeguard this right.

Around the beginning of the 20th century, aiming to secure better pay, shorter workdays, and safer working conditions, workers began banding together to make their demands more effective.  In response, employers engaged in a variety of tactics to thwart workers’ efforts to act in concert for their mutual benefit.  One such tactic was the “yellow-dog contract.”  Such agreements—mandated by employers—barred employees from remaining in or joining a union; some went further, barring all manner of concerted activities.

In the 1930’s, in an effort to safeguard vulnerable workers, Congress passed two statutes aimed at protecting employees’ associational  rights in order to redress the bargaining power imbalance workers faced.  The first, in 1932, was the Norris-LaGuardia Act (NLGA), which indirectly regulates the employer-employee relationship.  Specifically, Section 2  of this Act states, inter alia, that

the individual unorganized worker . . . shall be free from the interference, restraint, or coercion of employers . . . in the designation of . . . representatives [of his own choosing, to negotiate the terms and conditions of his employment] or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]

Section 3  provides that federal courts shall not enforce “[a]ny . . . undertaking or promise in conflict with the public policy declared in section 102[.]’”  Thus, Congress sought to invalidate “employer-imposed contracts proscribing employees’ concerted activity of any and every kind.”  The goal of the NLGA is straightforward:  as part of an offer of employment, an employer cannot require employees to agree not to engage in “concerted activity of any and every kind.”

In 1935, Congress enacted the National Labor Relations Act (NLRA)—the statute at issue in Epic SystemsSection 7  of the NLRA guarantees employees

the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]

Safeguarding these rights, Section8(a)(1)  makes it an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7].” 

In Epic Systems , the question before the Supreme Court was whether the Federal Arbitration Act (FAA) protects agreements requiring individualized arbitration proceedings or whether such agreements violate the NLRA and thus fall within the “saving clause” of the FAA, allowing courts to refuse to enforce them.  In Epic Systems, the Court answered that question in favor of employers.  Specifically, the Court held that the FAA protects such arbitration agreements and that neither the Act’s saving clause nor the NLRA demands a different result.

Writing for the Court, Justice Gorsuch recounted that the NLRA “secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum.”  The Court implicitly ignored the NLRA’s protection of “other activities for the purpose of . . . mutual aid or protection.”

In response to a perception that courts were unduly hostile to arbitration, Congress adopted the Arbitration Act in 1925.  Recognizing that arbitration offered “the promise of quicker, more informal, and often cheaper resolutions for everyone involved,” Congress directed courts to treat arbitration agreement as “valid, irrevocable, and enforceable”—according to the parties’ chosen terms.  The saving clause  of the Arbitration Act, however, creates an exception.  By its terms, this clause allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.”  Thus, arguably, if an arbitration agreement violates the NLRA, the court can revoke the arbitration agreement, at least to the extent the agreement violates the Act.

The Supreme Court reasoned, however, that “because the saving clause recognizes only defenses that apply to ‘any’ contract . . . , the clause offers no refuge for ‘defenses that apply only to arbitration or derive their meaning from the fact that an agreement to arbitrate is at issue.’”  Thus, under the Court’s reasoning, an arbitration agreement can only be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.”

Applied in Epic Systems, because the employees objected to their arbitration agreements on the grounds that they require individualized arbitration proceedings instead of a class or collective action—“attacking the individual nature of the arbitration proceedings”—the Court held that such contracts fail to qualify for protection under the saving clause.

Citing to its 2011 decision in AT&T Mobility LLC v. Concepcion, the Court noted that courts cannot interfere with a fundamental attribute of arbitration, absent the parties’ consent.  Specifically, the Court reasoned that permitting class proceedings despite the traditionally individualized and informal nature of arbitration would “sacrifice[e] the principal advantage of arbitration—its informality—and mak[e] the process slower, more costly, and more likely to generate procedural morass than final judgment.”

With respect to the NLRA, the Court stated that, although Section 7 “may permit unions to bargain to prohibit arbitration,” “it does not express approval or disapproval of arbitration,” noting that class action arbitration did not emerge until decades later.  This latter argument is specious, however, given the fact that Congress entrusted the National Labor Relations Board with “responsibility to adapt the [NLRA] to changing patterns of industrial life.”

Thus, the Court concluded:  “The policy may be debatable but the law is clear:  Congress has instructed that arbitration agreements like those before us must be enforced as written.”

The dissent, however, advocates that the Arbitration Act should not be read to shrink the NLRA’s protective sphere.

In her dissent, Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) argued that employers—such as the employer in Epic Systems—requiring employees “to sign contracts stipulating to submission of wage and hours claims to binding arbitration, and to do so one-by-one” is an unfair labor practice barred by the NLRA.  Specifically, Justice Ginsburg posits that “[e]mployees’ rights to band together to meet their employers’ superior strength would be worth precious little if employers could condition employment on workers signing away those rights.”

The real result of the Court’s decision may be the “underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”  According to Justice Ginsburg, because government agencies have limited resources, they

must rely on private parties to take a lead role in enforcing wage and hours laws. . . .  If employers can stave off collective employment litigation aimed at obtaining redress for wage and hours infractions, the enforcement gap is almost certain to widen.

Certainly, employees will be deterred from bringing individual wage and hour claims given 1) that the expenses entailed in bringing individual claims will often far outweigh potential recoveries and 2) the fear of retaliation for seeking redress on their own.  This result—a consequence of the unequal power between employers and employees that the majority ignores—benefits employers.  Justice Ginsburg may well be correct when she predicts that “[e]mployers, aware that employees will be disinclined to pursue small-value claims when confined to proceeding on-by-one, will no doubt perceive that the cost-benefit balance of underpaying workers tips heavily in favor of skirting legal obligations.”

Written by Aaron A. Herreras

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees.  If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at