Monday morning musings for workplace watchers.
Starbucks Union Case on Pause|Abortion Travel Benefits Litigation
Robert Iafolla: A legal battle between
Judge John Sinatra, a Trump appointee to the Western District of New York, paused litigation late last week over an NLRB regional director’s request for an injunction against Starbucks, taking a November trial off the calendar.
Sinatra halted the case while Starbucks Workers United files a petition asking the US Court of Appeals for the Second Circuit to consider whether documents the company requested are protected by labor law and the union-employee privilege.
If the Second Circuit agrees to hear the case, that court could clarify the legal safeguards for union information. But it could also delay the NLRB’s bid for an injunction against Starbucks for several months or longer.
Fired Starbucks worker and union activist Victoria Conklin, who hopes the NLRB will win a court order calling for her reinstatement, said she’s willing to wait.
“We knew this was going to be a long fight,” Conklin told Bloomberg Law. “What’s a few more months if it means the union is protecting me?”
The Buffalo area was at the leading edge of the labor organizing wave at Starbucks nationwide, when a store there voted to become the first of more than 250 locations to unionize last December.
NLRB Buffalo Regional Director Linda Leslie hit Starbucks with a massive complaint in May, accusing the company of committing a slew of unfair labor practices in the Buffalo area, including unlawful store closures, terminations, withdrawal of benefits, failure to bargain with the union, and other labor law violations.
Starbucks has denied wrongdoing. The company didn’t respond to requests for comment.
Leslie also sought what’s known as a 10(j) injunction, named after the section of the National Labor Relations Act authorizing federal district courts to grant temporary orders pending the resolution of underlying cases at the board.
NLRB regional offices have tried to get those orders in two other Starbucks cases, winning one to reinstate workers in Memphis and losing a bid for a similar order in Phoenix.
But there won’t be any resolution to the Buffalo 10(j) case, which seeks a nationwide cease-and-desist order, until the union’s attempt to protect its information ends, either by the Second Circuit declining review of the issue or a ruling by that court.
Starbucks argued that the union, as well as fired workers and union employees, are in contempt for not turning over subpoenaed documents, meriting monetary penalties and other sanctions.
But the union asserted that the information requested—tens of thousands of sensitive documents about organizing plans, employees who wish to organize, and related information—is protected.
Triggering delay to litigate over protections is a gamble, said Jerry Hunter, a former NLRB general counsel.
“The union may have made a strategic mistake,” said Hunter, an employer-side attorney with Bryan Cave Leighton Paisner LLP. “Unless there’s something devastating in those documents, the union might be better off producing them.”
Starbucks Hit With Labor Board Petition for Nationwide Order (2)
Starbucks Must Offer to Rehire Fired Activists, Judge Rules (2)
Starbucks Fends Off Labor Board Request for Injunction (1)
Starbucks Dials Up Anti-Union Heat by Accusing NLRB of Collusion
J. Edward Moreno: A former Trump-era EEOC general counsel known for prioritizing religious discrimination during her tenure has been accused of “misleading and intimidating employers” who provide abortion travel benefits, but predictions of future litigation may not come to pass.
In a letter circulated to employers earlier this month, Sharon Fast Gustafson argued that companies who provide those benefits could be violating the Pregnancy Discrimination Act because it could be seen as giving preferential treatment to workers who seek abortions over those who carry out their pregnancies.
Gustafson’s behavior was brought to the attention of the EEOC by the Littler Workplace Policy Institute, which said clients have been getting letters from Gustafson, creating confusion.
But are employers who provide these benefits going to face a wave discrimination claims? Probably not, attorneys say.
The argument that providing abortion travel benefits is discriminatory is “creative and novel,” according to Sharona Hoffman, a professor at the Case Western Reserve University School of Law.
“That’s a stretch because it’s not discrimination based on any medical condition, it’s a difference based on the decision they make about their pregnancy,” Hoffman said. The only way it might count as pregnancy discrimination is if a worker carrying out their pregnancy was denied travel benefits if they also needed to travel to obtain pregnancy-related care, which is an unlikely scenario, she said.
Littler asked the EEOC to investigate Gustafson’s behavior, and clear up any notion that her letter carries the weight of the agency. When asked for comment, the EEOC pointed to its guidance on pregnancy discrimination, which says that medical care for pregnancy should be equivalent to other medical conditions.
EEOC Vice Chair Jocelyn Samuels, a Democrat, told Bloomberg Law that while each case is fact-specific “as a general matter, it is hard for me to see how it would amount to unlawful discrimination if an employer simply offers a benefit for medical services that are unavailable in the location an employee works.”
Notably, Gustafson said that employers should be wary of facing commissioners charges—a rarely used procedure that allows EEOC leadership to initiate targeted bias probes—not charges from private plaintiffs.
In response to Gustafson’s letter, an EEOC spokesperson said, “She lacks the authority to speak on behalf of the EEOC.”
Two out of the three Republican commissioners on the EEOC—Janet Dhillon and Keith Sonderling—sent statements to Bloomberg Law suggesting Gustafson’s behavior is inappropriate. The third GOP commissioner, Andrea Lucas, declined to comment on the matter.
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