Obama Executive Order promotes use of Union Contractors

Posted on March 10, 2009 by Michael Moore

Executive Order 13502 is the first step to funneling a significant portion of the $787 billion in Stimulus Bill money to union workers. Executive Order 13502 promotes the use of Project Labor Agreements in large scale construction projects where the total cost to the federal government exceeds $25 million. Bush Administration Executive Orders prohibiting the use of project labor agreements have been revoked under the Obama Executive Order.

The term "project labor agreement" as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).   Project Labor Agreements require all contractors, whether they are unionized or not, to subject themselves and their employees to unionization in order to work on a government-funded construction project. The terms of the union collective bargaining agreement are part of the public construction project's bid specifications.  In order to receive a contract, a contractor must sign the agreement and subject its employees union dues and work rules on the construction project.

E.O 13502 is currently discretionary allowing the executive agency to mandate the use of PLAs if it determines that a PLA will "advance the Federal Government's interest in achieving economy and efficiency in Federal procurement, producing labor-management stability, and ensuring compliance with laws and regulations governing safety and health, equal employment opportunity, labor and employment standards, and other matters." However, E.O. 13502 requires the Department of Labor and OMB to make a recommendation about whether broader use of project labor agreements would help to promote the economical, efficient, and timely completion of such projects. The recommendation is due by early August, 2009 and is to cover both Federal construction projects those receiving Federal financial assistance.

The likely result of the DOL/OMB study will be the expanded requirements for project labor agreements to all federal and federally assisted construction contracts. Given the enormity of government spending on public works project under the current and future stimulus bills, project labor agreements are a huge boon for unions. Similar union preferences may also find their way in other aspects of federal contracting affecting trillions of dollars in government spending.

Nonunion employers, already facing enhanced unionization risks, must further prepare to impact of project labor agreements. Strategies in this area may include business restructuring through double breasting, training managers and adopting defensive policies and practices.

Tags: , , , , , , , , , ,

Employee's Abortion As Basis For Discrimination Claim

Posted on June 3, 2008 by Michael Moore

A company’s termination of a female worker's employment for missing work in violation of an attendance policy is illegal discrimination if the termination decision is sufficiently related to the woman’s exercise of her right to an abortion. On May 30, 2008, the Third Circuit Court of Appeals issued its decision in Jane Doe v. C.A.R.S. Protection Plus, Inc., and held that:

Clearly, the plain language of the [Pregnancy Discrimination Act], together with the legislative history, and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the [PDA’s] term “related medical conditions” includes an abortion.

The Third Circuit reversed a district court's decision, which granted summary judgment in favor of a company that operated a business insuring used cars. The Third Circuit found that there were issues of fact that must be resolved by a jury, not a judge. 

The decision also noted the following items unique to a pregnancy discrimination case:

  • There are three elements to a prima facie case of pregnancy discrimination to be proven by an employee:
    • She is or was pregnant and her employer knew she was pregnant
    • She was qualified for her job;
    • She suffered an adverse employment action; and
    • A nexus exists between the pregnancy and the adverse employment action that suggests unlawful discrimination.

The legal analysis for pregnancy discrimination claims follows the rubric set forth for Title VII discrimination claims. Set forth below is a brief overview of the analysis as discussed in Jane Doe v. C.A.R.S. Protection Plus, Inc.

Employee's Prima Facie Case:

  • A nexus can be demonstrated by showing that the pregnant employee was treated less favorably that similarly situated non-pregnant employees. Anemployer's more favorable treatment of temporarily disabled non-pregnant workers raises an inference of discrimination.
  • A discriminatory motive can be demonstrated by remarks by a company decision maker critical of pregnancy or abortion and by the temporal proximity between the abortion and the employee’s separation from employment.

Employer's Burden of Production:

  • An employer may defend a discrimination claim by producinga legitimate nondiscriminatory business reason for an employee’s termination. For example, in Jane Doe v. C.A.R.S. Protection Plus, Inc., the employer’s justification for the employee's termination was job abandonment for failing to call in under its absenteeism policy. 

Employee's Burden to Prove Pretext:

  • The employee must then show the justification is a mere pretext for discrimination by evidence that either casts doubt upon the employer’s reason as fabricated or shows that discrimination was the employer’s true motivation. The evidence of record in Jane Doe v. C.A.R.S. Protection Plus, Inc., created a material issue of fact regarding whether C.A.R.S.'s legitimate nondiscriminatory reason was pretextual.

Social views aside, it appears that in the Third Circuit an abortion is now a recognized activity, covered under the PDA, for which an employee cannot be treated differently in the terms and conditions of her employment. Irrespective of an employer's social views, employers must now recognize the differing treatment of employees who have undergone an abortion presents the possibility for claims under the PDA, and most likely the Pennsylvania Human Relations Act.

Tags: , , , , , , , , , , , ,