The Importance of Clear Documentation in Post-IRIF Re-hiring Decisions

Yesterday, the Sixth Circuit issued a decision in an involuntary reduction in force (IRIF), failure to rehire lawsuit involving the Wellmont Hospital in Kingsport. The hospital did a lot of things right when it eliminated the job of a 54-year-old physical therapy technician ("PTT") in 2003. Being something less than a heartless employer, the hospital tried to work with displaced employees to find them other jobs within the hospital. The hospital even offered to interview the PTT for a position at the same pay grade but the PTT didn't show for the interview or express any other interest in that position. The hospital later offered the PTT a different job (same pay grade) but she turned it down because (apparently) she would have to work three 12-hour shifts instead of five 8-hour shifts. Later, the PTT claimed to have expressed an interest in a job but someone else was hired for it. This last failure to rehire claim was the only claim that the court of appeals sent back for a trial. The IRIF aspect of the decision is unremarkable – the plaintiff lost because there was no evidence of age bias and she could not support her pretext argument with record evidence.

The reason the appeals court held a trial was necessary on the failure to rehire provides a good lesson for Tennessee employers.

Of course, "[w]here an employer reduces his workforce for economic reasons, it incurs no duty to transfer an employee to another position within the company." Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th Cir. 1986). As this decision shows, the same rule applies to failure to rehire previously laidoff employees. Owens v. Wellmont Inc., ____ Fed.Appx. ___ (6th Cir. 2009).

Unfortunately, the Sixth Circuit's decision is yet another example of the well-settled rule that no good deed goes unpunished. The PTT never formally applied for the position. That did not justify dismissal, the court of appeals held, because the PTT specifically identified to the employer the position she wanted and, critically, the hospital "had offered [the PTT] positions in the past without a formal application."

Not requiring some formal application was one thing. What really sunk the employer's argument was that it did not unambiguously establish the minimum selection criteria for the position before announcing the vacancy. The hospital argued the PTT did not have the license it preferred for the job but the court held the evidence did not clearly establish whether this requirement was imposed before the position was filled. Also, the hospital did not have unambiguous records showing when the vacancy opened, when the vacancy ended, whether the position was filled, or the identity of the person filled it (and her qualifications).

The lesson the case presents is pretty clear. It is not that employers should be heartless and make no effort to find other jobs for impacted employees. It is not heartless, however, to require impacted employees (or even former employees) to submit some type of formal written application for other vacant positions. While using a signup lists is a better practice than requiring nothing, I also recommend against these as well because it is far too easy for impacted employees to walk around the room (or log onto a computer) and express an interest in every vacancy without regard to whether they have the minimal training and experience for the position. The process should not, of course, be too onerous but it should, at least, put some burden on impacted employees to demonstrate why their training and experience makes them minimally qualified for the position.

IRIF decisions are tough enough; employers don't need to complicate things by overlooking what happens after the IRIF has been implemented. So, Tennessee employers who are hiring or transferring impacted employees after conducting an IRIF should (at a minimum):

• be unambiguous in requiring a formal application for every vacant position
  
• make sure the minimum selection criteria for the position have been established, in writing, before the vacancy is announced
  
• set clear dates for when the job is "vacant"
  
• document when the job is filled and by whom
  
• send all unsuccessful applicants something (even if it is just an e-mail) that tells them they were not selected for the position.
  

The last point is important not just because it is a courteous thing to do but primarily because it removes any doubt about when the statute of limitations begins to run. It is not necessarily required, see Cline v. BWXT Y-12, LLC, 521 F.3d 507, 512 (6th Cir. 2008), as the limitations period starts to run "as soon as a potential plaintiff either is aware, or should be aware after a sufficient degree of diligence, of the existence and source of an actual injury," but giving a clear notice to unsuccessful applicants can make it much easier to establish that the lawsuit (or charge) was untimely.

Arbitrating Discrimination Claims

I was modestly surprised by the Supreme Court's arbitration decision this week. In 14 Penn Plaza LLC v. Pyett, the Supreme Court held that "a collective-bargaining agreement ["CBA"] that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law." I had expected (assumed is more like it) the Court would do what it had previously done, find some way to avoid addessing the main issue. Let's start with some history.

In Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), the Supreme Court held that a union employee could pursue a Title VII claim even though the employee had already lost an arbitration at which the parties had disputed the same facts presented in the race discrimination claim. In its decision the Court distinguished between "contractual and statutory rights" and stated that "there can be no prospective waiver of an employee's rights under Title VII." This meant, to the "lower" courts, that employees could both arbitrate their contract rights under the CBA and pursue their discrimination claims with the EEOC and in court.

Subsequent decisions from the Supreme Court, however, undermined Alexander's statement that the discrimination statutes prohibited arbitration of discrimination claims. Those decisions, however, construed individual employment contracts, not collective bargaining agreements and for some time, the Supreme Court seemed content to permit the "tension" (the term a court uses to say "our decisions are not logically consistent") between individual arbitration agreements and CBA arbitration agreements.

Then, some 11 years ago, in Wright v. Universal Maritime Service Corp., 525 U.S. 70, 82 (1998), the parties raised the same issue decided in Penn Plaza. The Court ducked the issue, however, because clause in the CBA was not "clear and unmistakable." So even if an arbitration clause in a CBA could include discrimination claims, the clause in Wright would fail the clear and unmistakable standard primarily (but not only) because it required arbitration of "matters in dispute," did not explicitly incorporate any statutory antidiscrimination requirement or even have a no discrimination clause in the bargaining agreement. Picking up on these points, the Sixth Circuit in Kennedy v. Superior Printing Co., 215 F.3d 650, 654 (6th Cir. 2000), held that a "general anti-discrimination provision [in a bargaining agreement] that prohibits various forms of discrimination against employees" does not force union employees to arbitrate discrimination claims where the arbitration clause only applied to the interpretation of the contract and did not specifically require arbitration of discrimination claims. And in Bratten v. SSI Servs., Inc., 185 F.3d 625, 631 (6th Cir. Tenn. 1999), the court held that where the CBA arbitration clause "does not mention statutory claims, but only states in boilerplate fashion that it applies to "any grievance arising under the terms of this contract or an alleged violation thereof" was not a sufficient waiver of statutory rights.

The clause in Penn Plaza squarely presented the issue because it not only prohibited discrimination and listed the relevant state and federal discrimination statutes by name, it then said (in the no-discrimination clause) that "All such claims shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations." The clause was, in fact, so clear that the employees' never argued that it was not a clear and unmistakable waiver until they filed their merits brief in the Supreme Court.

So the practical question employers should ask, after Penn Plaza, will be whether or not the no-discrimination clause or the arbitration clause contains a clear and unmistakable waiver of the right to pursue statutory discrimination claims in federal court. What Penn Plaza does is remove the final hurdle to this inquiry by saying that a CBA can, if sufficiently clear, require employees and employers to arbitrate discrimination claims. Penn Plaza does leave open the possibility that there may be some statutes which might prohibit arbitration but, so far, those statutes do not include Title VII, the ADEA or the ADA. Neither does USERRA, but there is a bill pending in Congress (H.R. 1474) which would prohibit arbitration of USERRA claims unless the agreement to arbitrate arises after the "dispute arises." Even here, the bill provides that the prohibition on arbitration does not "preclude the enforcement of any of the rights or terms of a valid collective bargaining agreement." And whether Congress might act to legislatively overturn the Penn Plaza decision remains to be seen.

So what does a CBA have to say to require (or not) discrimination claims be arbitrated? The clause in Penn Plaza is the clearest example. On the other extreme, Wright says a general "all disputes" arbitration clause is not enough. The Sixth Circuit decisions I mentioned earlier hold that unless the CBA specifically says (at a minimum) that discrimination claims are subject to the arbitration clause, they are not sufficient. Also, the decisions might be construed to say that a CBA arbitration clause must not just mention "age discrimination" claims (for example) but must also specifically mention the statute (the "Age Discrimination in Employment Act") in question. I am not so sure that it makes sense to require the statute be mentioned. Think about it, if your clause says that all rights protected by "Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e" must be arbitrated, that is not as informative (to a non-lawyer) as telling employees that all claims for race, sex, national origin and religious discrimination must be arbitrated. But, as the contract lawyers in my firm constantly say, when you draft a contract you use the language that you know works.

And remember, to quote the Penn Plaza decision, "[u]nion members may also file age-discrimination claims with the EEOC and the National Labor Relations Board, which may then seek judicial intervention under this Court's precedent. See EEOC v. Waffle House, Inc., 534 U. S. 279, 295–296 (2002)." In other words, no matter how clear the arbitration clause is, it will not prevent the EEOC or the NLRB from investigating or litigating a discrimination or NLRA claim against an employer (or union).