BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

• It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
• It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
• It applies if the union has filed a petition for an election.
• If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
• Employers are no longer allowed to frustrate the election process.
• If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
• "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes! 

Some Cool New Laws Pending In Congress That Will Help Employees If Passed

 It isn't all bad news out there. Some bills pending in Congress look hopeful for employees. Of course, they probably won't get through the deadlocked Senate, but hey, let's be optimistic. If you think these bills should become law, call your Senators and members of Congress.

Here are some of the pro-worker bills pending and the descriptions their sponsors have given them:

S.505 - Forced Arbitration Injustice Repeal Act - This bill prohibits a predispute arbitration agreement from being valid or enforceable if it requires arbitration of an employment, consumer, antitrust, or civil rights dispute.

S.3641 - Part-Time Worker Bill of Rights Act - This bill modifies various employment, leave, and pension rules with respect to part-time workers. Specifically, the bill removes the requirement that employees work a minimum number of hours during the preceding 12-month period before becoming eligible for family and medical leave.

The bill also sets the maximum length of service on which employers may condition the eligibility of part-time employees for a qualified pension plan (e.g., 401(k) retirement plan). Except as required by an applicable collective bargaining agreement, such service requirement may be no longer than two consecutive 12-month periods of at least 500 hours of service for part-time employees who have reached the age of 21 by the end of such period.

The bill further prohibits employers of more than 15 employees from setting disparate terms of employment or working conditions for part-time employees, including with respect to compensation, notice of work hours, and promotion opportunities. Additionally, the bill requires such employers to offer available, qualified part-time employees additional work hours before hiring new employees for such hours. Among other enforcement methods, employers must maintain three years of records for offers of additional hours and employee responses to such offers. The bill also provides a private right of action for employees to enforce the nondiscrimination requirements of this bill.

S.3642 - Schedules That Work Act - This bill provides employees with the right to request changes to their work schedules related to the number of hours they are required to work or be on call, the location of the work, the amount of notification about work schedule assignments, and fluctuations in work hours.

Employers must negotiate in good faith with employees who make such requests and comply with certain work schedule notice and split shift pay requirements for retail, food service, cleaning, hospitality, or warehouse employees.

H.R.6762 - Special Inspector General for Law Enforcement Act - there is no description by the sponsor yet, but this would provide whistleblower protections for law enforcement employees who report wrongdoing by colleagues, ending the blue wall of silence.

H.R.7489 - Time Off to Vote Act - This bill requires an employer, upon the request of an employee, to provide the employee with a minimum of two consecutive hours of paid leave in order to vote in a federal election.

The employer may determine the two-hour period, excluding any lunch break or other break.

Taking such leave shall not result in the employee losing accrued employment benefits.

The bill makes it unlawful for an employer to interfere with the right to take such leave or for an employer to discriminate against an employee for taking such leave. Further, the bill makes it unlawful for any employer to retaliate against an employee for (1) opposing any practice made unlawful by this bill; (2) filing a charge, or instituting or causing to be instituted any proceeding, under or related to this bill; or (3) testifying or preparing to testify in an inquiry or proceeding relating to such leave.

The bill specifies penalties for employers who violate these provisions.

H.R.2243 - Fair Pay Act of 2021 - This bill requires employers to provide equal pay to employees for comparable or equivalent work.

Specifically, employers may not discriminate against employees on the basis of sex, race, or national origin with respect to payment of wages or other conditions of employment for jobs that, although dissimilar, the requirements of which are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions. However, employers may pay different wages in accordance with seniority systems, merit systems, systems that measure earnings by quantity or quality of production, or factors that the employer demonstrates are reasonably job-related, or further legitimate business interests. The bill allows compensatory or punitive damages for violations of this prohibition.

The bill prohibits an employer from (1) discriminating against any individual who opposes any act or practice made illegal by this bill or for assisting in an investigation, or (2) discharging or discriminating against any employee who inquires about or discusses another employee's wages.

The Equal Employment Opportunity Commission must assist employers, labor organizations, and the general public in implementing these provisions.

S.2390 - Support Through Loss Act - This bill provides employees with 24 hours of paid leave time each year for an absence resulting from a pregnancy loss or other specified circumstance related to pregnancy, fertility, or an unsuccessful assisted reproductive procedure or adoption match.

Employers must notify each employee about the availability of this paid leave and may not discriminate or discharge an employee for exercising or attempting to exercise the right to such paid leave.

The bill provides for enforcement of this requirement by the Department of Labor and through civil action brought by an employee or individual.

Further, the bill requires specified federal agencies to conduct research and publish information about pregnancy loss and related evidence-based treatment options.

H.R.1065 - Pregnant Workers Fairness Act - This bill prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions. A qualified employee is an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.

Specifically, the bill declares that it is an unlawful employment practice tofail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices.

H.R.3610 - Flexibility for Working Families Act - This bill allows an employee to request from an employer a temporary or permanent change in the terms or conditions of the employee's employment if the request relates to (1) the number of hours the employee is required to work, (2) the times when the employee is required to work or be on call for work, (3) where the employee is required to work, or (4) the amount of notification the employee receives of work schedule assignments. The bill sets forth certain employer duties with respect to such requests.

The bill prohibits an employer from interfering with any rights provided to an employee under this bill. An employee may file a complaint with the Department of Labor for any violations of such rights. Labor shall investigate and attempt to resolve such complaints and may issue orders making determinations and assessing civil penalties or awarding relief for alleged violations. The bill provides for judicial review of such orders, including in federal courts of appeal.

Labor and certain federal agencies and offices shall provide information and technical assistance to employers, labor organizations, and the general public regarding compliance with this bill.

The Wage and Hour Division of Labor must issue guidance on compliance with providing a flexible work environment through changes in employee terms and conditions of employment as provided in this bill.

The requirements of this bill are applicable to certain classes of employees, including employees of the Government Accountability Office and the Library of Congress.The Equal Employment Opportunity Commission must provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The bill prohibits state immunity under the Eleventh Amendment to the Constitution from an action for a violation of this bill.

H.R.842 - Protecting the Right to Organize Act - This bill expands various labor protections related to employees' rights to organize and collectively bargain in the workplace.

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The bill also allows collective bargaining agreements to require all employees represented by the bargaining unit to contribute fees to the labor organization for the cost of such representation, notwithstanding a state law to the contrary; and expands unfair labor practices to include prohibitions against replacement of, or discrimination against, workers who participate in strikes.

The bill makes it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership and prohibits employers from entering into agreements with employees under which employees waive the right to pursue or a join collective or class-action litigation.

The bill further prohibits employers from taking adverse actions against an employee, including employees with management responsibilities, in response to that employee participating in protected activities related to the enforcement of the prohibitions against unfair labor practices (i.e., whistleblower protections). Such protected activities includeproviding information about a potential violation to an enforcement agency,
participating in an enforcement proceeding,
initiating a proceeding concerning an alleged violation or assisting in such a proceeding, or
refusing to participate in an activity the employee reasonably believes is a violation of labor laws.

Finally, the bill addresses the procedures for union representation elections, provides employees with the ability to vote in such elections remotely by telephone or the internet, modifies the protections against unfair labor practices that result in serious economic harm, and establishes penalties and permits injunctive relief against entities that fail to comply with National Labor Relations Board orders.

This is only a sampling of pro-employee laws that could be passed and that are pending right now. It isn't that we don't know how to protect employees. It's that we don't. Talk to your elected officials about these pro-employee laws, and vote well in November and beyond.

What To Expect In #Employment Law In 2022

 If you are a regular reader, you've probably noticed that I haven't done any predictions in the past few years. Because how could anything have possibly been predicted? But employment law is becoming more predictable now, and I think it's time to take a deep breath and do my Cassandra bit. Here are my predictions for 2022:

1.    More pro-employee NLRB: We've already seen this with some very pro-employee, pro-union decisions coming down regarding Amazon, Starbucks, and other unionization attempts. As the year progresses, we'll see NLRB cracking down on employer retaliation and union busting efforts. We'll also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation.

2.    EEOC will re-energize: They were cut to the bone in budget and staffing under the last administration, so it's taking a bit for them to bounce back. They'll also focus on issues like sexual orientation that got pushed aside under the last administration. I hope they'll fully staff the mediation divisions, because those folks are really terrific at settling cases.

3.    Supremes go anti-employee: Unfortunately, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. Look for really pro-management decisions on the federal level.

4.    Paralysis on noncompetes: Even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there's little the agencies can do without legislation. Congress won't do anything. Neither will the Florida legislature. Maybe some pro-employee states will limit or ban noncompetes. Some have done it already. Will more follow?

5.    Sexual harassment crackdown: With President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. Where the military goes, usually goes the rest of the nation, so we should see some more crackdown on sexual harassers.

6.    COVID, COVID, COVID: The virus will continue to be an issue. OSHA will continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. Florida will continue to be the Wild West. 

7.    More unions: As NLRB becomes more employee-friendly, we'll see more unionization attempts. Once Amazon is forced to allow a union (and it will happen this year), employees of other workplaces previously thought impossible will begin efforts to unionize. Some will succeed. The Great Resignation has made employees more conscious of working conditions. They'll continue to fight to be treated fairly. Union busters will make a fortune this year as employers try to fight back.

8.    Disability discrimination: Now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'll see more disability discrimination cases. Employees who seek remote work as a reasonable accommodation will face resistance, but employers will lose the argument that granting the accommodation is a hardship. After all, they had a year or more of remote work very successfully. 

9.    Zoom: I don't know about you, but I love Zoom. Having to do a 2 - 3 hour round trip for a 5 minute hearing is a huge waste of resources. Judges like it because they have more control. For non-evidentiary hearings, Zoom will remain in many courtrooms. We'll also continue to see more Zoom depositions and mediations, which work very well on that platform. This will make attendance by employees much less onerous. They won't miss as much work, for one. In employment law, it will be a huge benefit. I find that employees are way more likely to settle in a Zoom mediation where they feel comfortable and more relaxed. Employers will also continue to utlize Zoom or similar platforms for meetings rather than having employees commute from remote locations. 

10.    Anti-employee laws: We'll see some extreme anti-employee laws in red states as the right wing pushes to be more and more extreme. Expect some laws attacking LGBT folks, abortion, marijuana, protests, and free speech. Some of these laws will give employers extra protection against lawsuits for terminating employees for their activities outside of work.

Well, that's about all I think I can predict for now. Let's see how I do. It's still crazy out there, but hopefully things will get a bit more normal as 2022 progresses.

Give Thanks And Support To Labor Unions Before It's Too Late

The Supreme Court, hijacked by conservatives when they refused to allow President Obama to appoint a Justice during his term, has predictably put another knife in the back of labor unions. The Republican plan is to eliminate unions altogether. They may succeed. So I wanted to do a rerun of an article I wrote some time ago about why you should give thanks to labor unions and support them by joining, paying dues, and participating.

Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you. The Triangle Shirtwaist Factory was a sweatshop. Women and children, mostly immigrants, worked for terrible wages in terrible conditions. When a fire broke out, they couldn't escape because the employer had locked them in. Wouldn't want employees to take breaks or anything, would you? The employer said it was to stop theft. The fire escapes had collapsed and the elevators stopped working in the 10-story building. One hundred forty six workers died that day in 1911, many as young as 14. It was, until 9/11, the worst tragedy in New York history.

In a speech about the tragedy, explaining what lessons workers needed to learn from it, Rose Schneiderman said:

I would be a traitor to these poor burned bodies if I came here to talk good fellowship. We have tried you good people of the public and we have found you wanting. 

The old Inquisition had its rack and its thumbscrews and its instruments of torture with iron teeth. We know what these things are today; the iron teeth are our necessities, the thumbscrews are the high-powered and swift machinery close to which we must work, and the rack is here in the firetrap structures that will destroy us the minute they catch on fire. 

This is not the first time girls have been burned alive in the city. Every week I must learn of the untimely death of one of my sister workers. Every year thousands of us are maimed. The life of men and women is so cheap and property is so sacred. There are so many of us for one job it matters little if 146 of us are burned to death. 

We have tried you citizens; we are trying you now, and you have a couple of dollars for the sorrowing mothers, brothers and sisters by way of a charity gift. But every time the workers come out in the only way they know to protest against conditions which are unbearable the strong hand of the law is allowed to press down heavily upon us. Public officials have only words of warning to us--warning that we must be intensely peaceable, and they have the workhouse just back of all their warnings. The strong hand of the law beats us back, when we rise, into the conditions that make life unbearable. 

I can't talk fellowship to you who are gathered here. Too much blood has been spilled. I know from my experience it is up to the working people to save themselves. The only way they can save themselves is by a strong working-class movement.

As a result of this terrible tragedy, New York strengthened its labor laws. An investigation showed 200 factories had equally dangerous conditions for workers.

Before the labor movement, it wasn't uncommon for sweatshops to engage in human trafficking. Workers in coal mines, factories, farms and many other workplaces were sometimes forced to work while getting further and further in debt. Many workers were paid in company "scrip" that they could use only at the company store. They could never save for their families and never hope for a better life. Children had to work starting very young, to help support their families, with no opportunity to go to school.

The next time you hear someone knock the labor movement and say unions aren't necessary, please remember that, without unions, our workers would not have these benefits we take for granted:

• Minimum wage
• Overtime pay
• Safety standards/OSHA
• Paid vacation
• Sick days
• Child labor laws
• Weekends
• 40-hour work week
• Health benefits
• Unemployment compensation

Now that your job (or old job) doesn't look half as bad anymore, make sure you thank union leaders for the rights you take for granted. Think they can't take away those rights? Then you aren't paying attention. Wake up, before it's too late.

I wrote this in 2011. Now they really are starting to take away those rights. What can you do? Join a union. Pay dues. Participate. Change your workplace for the better. Vote better. Vote in the mid-terms in November. Register some friends to vote.

Walmart Should Have Listened To Me About Firing Striking Workers

About exactly a year ago, I wrongly predicted that Walmart wouldn't fire their striking workers. The article was called Why Walmart Won't Fire Striking Workers - And What That Means For You. The reason I predicted that they wouldn't fire their workers for striking is that the National Labor Relations Act says even non-union American workers have the right to strike and take other actions to protest and try to improve working conditions, and they can't be fired in retaliation.

Despite my warning that the strikers couldn't be legally fired, at least 23 workers were fired and another 43 were disciplined. Well, the NLRB didn't take that sitting down. They just slapped Walmart hard, announcing they will pursue legal claims against Walmart for the employees, which means these employees may get reinstated and awarded back pay. 

Here's what NLRB said about Walmart's actions: “During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.” NLRB also found that, “Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”

What this means is we can expect more Black Friday protests, and probably more battles to improve working conditions at Walmart.

Just a reminder - before you run out the door with placards to protest your workplace, the National Labor Relations Act only covers non-supervisory employees, and while it covers most non-government workplaces, it doesn't cover them all. Plus, you have to be part of "concerted activity" with coworkers to be protected. If you're protesting your own working conditions, you aren't protected against retaliation. However, if you are objecting to something that affects at least one co-worker, or with at least one co-worker, then you may be legally protected.

If you are thinking about organizing at work, smaller micro-unions are now allowed. This means that you don't have to organize the whole company anymore, but can organize a specific group of workers. For instance, a court recently allowed a union to organize a group of nursing assistants at a hospital. The employer thought other non-professional employees should be included, but the smaller unit was approved.

If you decide you want to organize a union at work, or want to know more about your rights to discuss and improve working conditions, I suggest contacting a union like AFL-CIO to get some help and legal advice. There are some legal hoops you'll have to jump through if you actually form a union.

No Flu Shot? That's a Firing

Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Give Thanks To The Labor Movement

In honor of Jobs Week on AOL Jobs, I want to speak up in praise of an entity that has taken a beating this year – the labor union. Anti-union sentiment has spread from state to state, and union busting has become popular under the banner of money savings. Before your billionaire CEO convinces you that labor unions are bad, please don't forget what life was like in the bad old days before unions.

Maybe you don't remember the Triangle Shirtwaist Factory from your American History classes. I'll remind you.  . . . Read more on AOL Jobs.



 Thanks to Gina Misiroglu of Red Room for putting me in touch with AOL!