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Covid Conundrums, Fickleness of Agency Deference, Resisting Labor in a Pandemic, and Days of Armendariz-Are They Over?

From the Covid Desk:

The United Mine Workers of American International Union and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers on June 18, 2020 jointly filed a petition seeking court order requiring the Mine Safety and Health Administration (MSHA) to create an “emergency” temporary standard for mine workers.  The workers’ complaint against Maid-Rite contends that Maid-Rite failed to provide workers with cloth face coverings, configured the production line in such way that workers cannot social distance, failed to provide adequate hand-washing facilities, created incentives for workers to work while sick, and did not apprise workers of potential coronavirus exposure.  In a report released July 28 the Labor Department’s Office of Inspector General maintained that “while the federal mine  safety agency standard in March issued an advisory to its workforce and to the mining industry, “MSHA can’t enforce that guidance ‘unless it issues an emergency temporary standard.’”  The IG concluded that “more action is needed,” noting unavailable inspectors, lack of personal protective equipment for MSHA workers, and inspection delays.

On July 22, 2020 three anonymous workers at Maid-Rite, a Pennsylvania meat processing plant, filed suit seeking order forcing OSHA to inspect the company’s site for Covid-19 hazards.  The Department of Labor, headed by Antonin Scalia’s son Eugene, moved to dismiss the suit, contending that the employees failed to show the required elements to prove a case of “imminent danger” and that, if such suit is allowed, there will be an “avalanche” of similar worker suits.  Meanwhile, Senate GOP leaders have proposed legislation that would shield employers not only from liability but also from agency investigation for actions taken to comply with public health guidance, whereby businesses would lose their legal shield only if they’ve “failed to make reasonable efforts to adhere to applicable public health guidelines” or committed an act of “gross negligence” or “intentional misconduct.”  Further, the proposed legislation also provides that corporations that offer training, PPE or other assistance to independent contractors or franchisees would not assume liability as employer of the contractors’ or franchisee’s employees.

Agency Deference Matters:

Strikingly, while on other “hot button” issues, as reported in this blog, the Trump Administration and its appointed judicial officers are resisting deference to administrative agencies and contesting the expertise of such agencies and associated personnel, here where OSHA during the pandemic has resisted calls from organized labor and Democratic lawmakers to issue emergency temporary standards for infectious diseases, Labor Secretary Scalia has defended OSHA’s inaction, commenting that the agency could yet bring enforcement actions under OSHA’s “general duty” clause which generally requires employers to maintain a hazard-free workplace.  Thus, the U.S. Court of Appeals for the District of Columbia Circuit rejected the AFL-CIO’s request for the court to compel OSHA to issue an emergency temporary standard to protect employees from Covid-19.  The federation of labor unions through its request sought to compel OSHA to develop workplace safety plans to safeguard workers against the risk of airborne disease transmission.  The court in its ruling rejecting AFL-CIO’s request announced that “The OSHA’s decision not to issue an ETS is entitled to considerable deference….the OSHA reasonably determined that an ETS is not necessary at this time.”

Craig Becker, counsel for AFL-CIO, expressed his disappointment that three judges “did not deem the lives of American workers worthy of holding argument or issuing a full opinion about.”  Becker further reflected that “it is exactly the unprecedented nature of the Covid-19 pandemic that requires OSHA to issue an enforceable standard under the law and none of the other ‘regulatory tools’ require employers to do anything at all.”  In its petition the AFL-CIO contends that OSHA’s unwillingness to issue an emergency standard “constitutes an abuse of agency discretion so blatant and of such magnitude as to amount to a clear abdication of statutory responsibility.”

Agency Resistance to Labor:

As this blog has previously recounted, labor organizations representing federal employees in numerous agencies or departments have faced unprecedented agency resistance from the current administration.  Another example is the EEOC’s proposal under its Chair Janet Dhillon to curtail how much “official time” union representatives can devote to federal employees’ discrimination complaints and to subject the right of representation to a manager’s personnel decision, thereby undermining the right of representation.  Late last year the Trump administration issued several executive orders which focused on limiting federal workplace union activity.

Mandatory Pre-Dispute Employment Arbitration:  Are Armendariz’s Days Numbered?

Employment law monitors have noted courts continue rotely to compel arbitration  in instances where a purported mutual pre-dispute mandatory term of employment is an agreement to arbitrate, even in cases where various states have sought to deny enforcement of such clauses in particular industries (elder care) or with respect to particular claims (sexual harassment).  A former WeWork Companies executive asked a New York federal judge to “fast-track” for appeal her contention that state law precludes her being forced to arbitrate race and gender bias claims.  The issue on appeal is whether the Federal Arbitration Act (FAA) preempts New York statutory law prohibiting mandatory arbitration of job discrimination and harassment claims.  The plaintiff argues that immediate appeal is proper because a ruling by the Court of Appeals for the Second Circuit in her case will likely impact literally thousands of other employees.  Plaintiff Whyte further remarks that New York is one among “a growing chorus” of states that have enacted mandatory employment arbitration bans, including California, Maryland, New Jersey, Vermont and Washington.

An issue which in California was determined in progeny of California’s landmark Armendariz decision is whether it is permissible that an arbitration agreement purport to impose a significantly shorter statute of limitations on some or all causes of action.  The Court of Appeals for the 6th Circuit soon will hear oral argument in an action against Fresh Products in which plaintiff Thompson contends that the employment arbitration agreement placing a 6-month SOL on all work-related claims against the company denies her substantive employment rights, rather than purely procedural rights which may be waived.  Many have wondered how long Armendariz may maintain its ascendency under FAA attack and if plaintiff Thompson is allowed her expedited appeal, we may know sooner than later.