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The Labor & Employment Report

Employees May Discuss Their Discipline

Posted in Labor Law & NLRB

Wise employers know that management should keep individual employee discipline on a need to know basis.  In other words, an employee’s written warning or counseling should not be shared by management with the employee’s co-workers or even with managers who are not in the employee’s chain of command.  Some employers may also take the position that the employee should not discuss his/her discipline with co-workers because it may be disruptive if the employee does so, and therefore disciplinary matters should be considered confidential.  This position, however, could be problematic under the National Labor Relations Act, as one employer learned to its dismay in Philips Electronics North America Corp.

In this case, an employee received a final warning for disruptive behavior during meetings and harassment of colleagues and management.  After receiving the warning, the employee continued to harass a co-worker who complained about him by driving a forklift into the co-worker’s area and, while seated 10 feet away, making comments to her (Seriously?  Even my crazy teenagers are more mature than that!).  He also showed the warning to some of the other co-workers, while blaming the co-worker.  The company investigated these additional actions, and prepared a summary report of its findings.  This included a statement that the employees “are aware that disciplinary forms are confidential information and should not be shared on the warehouse floor, at any time…”  The employee was then fired. His termination notice stated that he was being terminated, in part for sharing confidential information.  It further stated that he had been told that his discipline was confidential at the time it was issued to him.

The National Labor Relations Board found that the employer had maintained an unwritten rule that discipline is confidential and prohibiting employees from discussing their discipline with co-workers.  It further found that this rule was a violation of Section 8(a) of the NLRA, which protects the rights of employees (both union and non-union) to discuss their terms and conditions of employment.  Specifically, the Board emphasized the importance of employees being able to discuss their discipline with each other, so that other employees would be aware of the nature of the discipline, how to avoid it, and how to defend themselves.

So employers, keep in mind that employees can disclose their own discipline if they want.




Employee’s Claims Undermined By Her Facebook Posts

Posted in Litigation, Social Media

As I’ve said before, it amazes me what people will put on their Facebook (and other social media) pages.  Many users, particularly Gen-X’ers, Y’ers, and millienials (and my crazy teenagers), tend to think of Facebook as being a private conversation (with 500 of their dearest friends).  Savvy employers should keep this in mind when faced with defending a (meritless) lawsuit brought by an employee.  It is amazing what you can find on a Facebook page, as the employer learned to its delight in Mealus v. Nirvana Spring Water NY Inc.

An employee told her supervisor that she had accepted another job.  The job offer was subsequently withdrawn, apparently because the employee had talked to others about what she would be making, which the new company viewed to be a breach of confidentiality.  (I question whether the company’s “confidentiality” policy violates the right of employees to discuss their pay under the National Labor Relations Act, but that’s a whole other issue…).  The employee ranted about this on her Facebook page.  There was conflicting testimony about whether the employee then asked for her job back, but in the end, she had a verbal altercation at work and claims that she was “forced to quit.”  That evening, she sent an email to the employer, claiming that she had been sexually harassed by the chairman of the Company’s Board of Directors (and brother of the CEO).

The employee then sued the employer, claiming that the sexual harassment made her physically ill, and that the harassment was the sole cause of her illness.  But, as the employer pointed out when asking the court to dismiss her claims, within days after her resignation, the employee had posted on her Facebook page that her boyfriend’s ex-girlfriend “caused utter chaos in our lives and he let it happen and I was so upset that I got sick every day for 4 months.”  Months later, she described her relationship with the then-ex-boyfriend as a “10-month nightmare.”  The court found that these posts, as well as other evidence including the employee’s own emails, directly contradicted the claims and allegations in her complaint.  The court then threw out her lawsuit.

So, the lesson for employers here is that an employee’s social media activity can contain incredibly helpful information for a defense, particularly since it’s in the employee’s own words.  In the course of litigation, employers should always seek access to the employee’s social medial activity.  But caution – if an employer wants to view an employee’s social media activity before a lawsuit is filed (like during an internal investigation into possible employee misconduct), there may be state laws that restrict access by an employer to private social media accounts.  And you can’t get around those restrictions by asking another employee who is “friends” with the employee to access the private account.  But hey – anything that is publicly available is fair game, and it is astounding how many people do not put privacy settings on their social media accounts!

Religious Accommodation in the NFL!

Posted in Employment Discrimination, Reasonable Accommodation

So, as we all know, the NFL is having a rough patch.  (And as a Baltimore Ravens fan, the past month has been particularly painful for me).  I was particularly intrigued by the latest (non-Ray Rice-related) gaffe – the penalty imposed on Kansas City Chiefs’ Husain Abdullah for bowing in Muslim prayer after intercepting a Tom Brady pass and running it back for a touchdown.

The NFL’s rule is ”Players are prohibited from engaging in any celebrations or demonstrations while on the ground.”  After the touchdown, Abdullah slid on his knees and then touched his forehead to the ground in prayer – the Muslim “sajdah.”  He immediately received a 15-yard unsportsmanlike penalty for violating the rule.  This sparked a social media firestorm, with people wondering how this was different than a Christian athlete dropping to one knee in prayer following a touchdown (Tim Tebow, famously, for example…).

The good thing is that the NFL stepped up the next morning to acknowledge the problem.  In a tweet, the NFL’s  vice president of football communication, Michael Signora, stated, “Abdullah should not have been penalized. Officiating mechanic is not to flag player who goes to ground for religious reasons.”

As any employer knows (or they should), accommodations should be provided for an employee’s religious practices, as long as the accommodation is reasonable (meaning that it does not pose an undue hardship on the employer). In this case, the NFL will refrain from applying a workplace conduct rule – no celebrations on the ground – to thanks given in religious prayer.  That doesn’t seem unreasonable!

“Wal-Mart Door Greeter” = Old?

Posted in Employment Discrimination, Laws & Regulations, Litigation

So, I know there are a lot of jokes about retired folks becoming a Wal-Mart greeter, even though I’m sure Wal-Mart would say that their greeters can be any age.  But this joke has actually taken on legal significance – the term, “Wal-Mart door greeter” now apparently equates with calling someone “old.”  At least it did in the case of Davis v. Progressive Waste Solutions of Louisiana, Inc.

In this case, a truck driver was terminated, ostensibly for missing five days of work.  The driver sued his employer, claiming that the termination was based on his age, 59 years old, in addition to some other claims.  The employers asked the court for summary judgment, arguing that the driver’s claims had no merit as a matter of law and should be dismissed.  The court, however, disagreed, finding that the driver had offered direct evidence of age discrimination – two comments by the Site Supervisor:

  • Either during or immediately after the termination, the Site Supervisor told the driver, “[G]o get a job as a Wal-Mart door greeter.”
  • Another employee reported that the Site Supervisor said the following day, “I’m the one that got rid of the old bastard.”

Well, that second comment is clearly ageist – there’s no question about it when you use the word “old.”  But “Wal-Mart door greeter”?  Huh.  Well, I guess that now one of my crazy teenagers is in college, I feel like a Wal-Mart greeter.(!!!)

“Funny Walk” Is a Disability? That’s Just Screwy.

Posted in Employment Discrimination, Laws & Regulations, Litigation

I know that the amendments to the Americans with Disabilities Act (ADAAA) were intended to expand coverage of the Act, but sometimes I think the extent of the expansion is just ridiculous.  This was highlighted for me in a recent case, EEOC v. Staffmark Investment LLC, in which the court found that an employee was covered by the ADAAA because a supervisor thought she had a “funny walk.”  Seriously?

This case involved an employee with a temporary staffing agency, Staffmark, who was placed at a company that did work for Sony Electronics.  Her job was to check for loose screws on television sets.  (No, really.  I am not kidding.)  According to Sony, she was supposed to walk around the table on which the tv set was placed, loosening and then tightening all the screws to make sure the screws were tight.  On her first day of work, a supervisor had to counsel her twice about the proper way to check the screws.  ( I know – how hard could this really be?)  One supervisor noticed she had difficulty walking, and another thought she had a “funny walk,” but neither of them thought it affected her ability to do the job.  No one knew that she was an amputee with a prosthetic leg – she wore long pants and did not use a cane.  The following day, Sony decided to remove her from the project.  According to Staffmark, Sony was  afraid she would be knocked down, and she was sent home at Sony’s request “due to her limping.”

The Equal Employment Opportunity Commission sued Staffmark and Sony for disability discrimination on behalf of the employee.  Staffmark settled.  Sony filed a motion for summary judgment, asking the court to dismiss the claims against it because, Sony argued, the employee was not disabled within the meaning of the ADAAA.  Under the ADAAA, an employee is “disabled” if: (1) she has a current physical or mental impairment that substantially limits a major life activity; (2) she has a “record of” such an impairment; or (3) she is “regarded as” having such an impairment.  This last category was the one at issue, and Sony argued that it could not have regarded her as having an impairment because it did not know that she actually had an amputated leg.  Therefore, if it didn’t regard her as having substantially limiting impairment, she wasn’t disabled under the ADAAA.  Well that seems to make sense, doesn’t it?

The court, however, rejected Sony’s argument.  Prior to the amendments to the ADAAA, the employer had to regard the employee as being substantially limited in a major life activity in order to trigger the “regarded as” prong of the disability definition.  But now, as the court said, “Under the ADAAA, an individual need not prove that the employer had knowledge of an actual disability if she can demonstrate that she was subjected to a prohibited adverse employment because she was ‘regarded as’ having an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to limit, a major life activity.”  The court’s ruling simply follows the same position taken by the EEOC in its regulations implementing the ADAAA.  In this case, the employee did actually have a disability, but the court’s (and presumably the EEOC’s) reasoning would still apply even if she didn’t, and she just had a peculiar gait.  In other words, the employer doesn’t have to think an employee has a substantially limiting impairment to trigger the “regarded as” definition.  Any impairment will do.  At all.  Even something minor.  Even if no major life activity is affected.

So who has a screw loose?  The court, EEOC, or Congress?  Regardless, the employer is, well, screwed.

“Maxiflex” Schedule May Be Reasonable Accommodation

Posted in Laws & Regulations, Reasonable Accommodation

This case caught my eye because I’ve never seen the term “maxiflex schedule” before.  It sounds so…well, extensive and overwhelming.  I’m sure that’s what the employer in Solomon v. Vilsack  thought when it denied the employee’s requested accommodation for this type of schedule, which  involves substantial flexibility in working hours.  The trial court stated that a maxiflex schedule was unreasonable as a matter of law under the Rehabilitation Act (which is the disability law that covers federal employees, and which applies the same legal standards as the Americans with Disabilities Act).  Sadly for the employer, however, the U.S. Court of Appeals for the D.C. Circuit disagreed with the trial court, stating that whether a maxiflex schedule is reasonable or unreasonable requires a case by case analysis.

In this case, an employee suffered from depression, which intensified.  Because of her worsening condition, the employee couldn’t maintain her normal work schedule.  She managed to complete all of her work, however, by taking leave during her normal workday and then working additional unscheduled hours.  She also performed much of her work from home.  Her supervisor was aware that the employee was working these irregular hours.  The employee’s work performance was not an issue.

After several months of this, the employee emailed her supervisor to apologize for her erratic leave and explain that she was being treated for depression.  The supervisor requested medical documentation of any need for accommodation.  The employee provided a doctor’s note requesting a “flexible work schedule” like the one that the employee had already been working.  Her request for accommodation was rejected, and she was no longer permitted to work the same unpredictable schedule that she had been working.  She subsequently requested to telecommute part-time, but this request was also denied.  Believing that she had no other options, the employee retired on permanent disability.  She then sued for denial of her request for reasonable accommodation, in addition to some other claims.

The trial court found that a maxiflex schedule could never be reasonable, as a matter of law, and dismissed the reasonable accommodation claim.  On appeal, however, the D.C. Circuit reversed the trial court’s ruling.  Observing that whether any accommodation is reasonable is a “contextual and fact-specific inquiry,” the D.C. Circuit went on to state that, “Technological advances and the evolving nature of the workplace” have increased the types of accommodations available.  Thus, the D.C. Circuit concluded, “it is rare that any particular type of accommodation will be categorically unreasonable as a matter of law.”  With regard to the maxiflex schedule, the D.C. Circuit found that it should have been assessed to see if it would have enabled the employee to perform her essential job functions without undue hardship to the employer.

So the lesson for employers is don’t immediately reject an accommodations request out of hand, no matter how ridiculous it may appear.  Instead, go through the interactive process of discussing and assessing the requested accommodation and any potential alternatives to determine if the possible accommodations are reasonable or not.  In particular, be open-minded about technologically driven accommodations – because courts certainly are trending in that direction!

Don’t Just Drop Those FMLA Notices in the Mailbox!

Posted in Employee Leave (FMLA and ADA), Laws & Regulations, Litigation

As (most) FMLA-covered employers know, once an employee requests Family and Medical Leave Act Leave, there are certain notices that are required.  You have to provide the employee with an Eligibility Notice and a Rights and Responsibilities Notice within five business days of the request for leave, and once the employee has submitted enough information so you can determine if the leave is FMLA-qualifying, you must provide a Designation Notice within five business days.  But how are these notices given?  And more importantly, can you prove that they were?  This was the issue in a recent case, Lupyan v. Corinthian Colleges, Inc.

The FMLA regulations state that the Eligibility Notice  can be oral or in writing.  As a practical matter, we suggest that you ALWAYS give the notice in writing, using the DOL’s model form. As for the Rights and Responsibilities Notice  and the Designation Notice , they must be in writing.  Again, the DOL has prepared model forms for each (the Eligibility Notice and Rights and Responsibilities Notice are the same form), and we suggest you use them.  The regulations set out very specific items of information that must be included in each notice.  By using the DOL’s forms, there will be no dispute that the requisite items of information have been covered.  But this leads to the next question – how do you actually deliver these written notices?

Oddly, the regulations don’t specify the means of delivery for the Eligibility and Designation Notices, but they do for the Rights and Responsibility Notice.  They state that, if leave has already begun, the Rights and Responsibilities Notice “should be mailed to employee’s address of record.”  The regulations also provide that it “may be distributed electronically.”  Because the regulations don’t talk about delivery of the other two Notices, we can presume that these methods are also acceptable for those documents.  So most employers will drop the notices in the mailbox, and the U.S. Postal Service takes it from there.  And that is fully compliant with the regulations.

But the issue that came up in the Lupyan case is whether the employee actually received the notices.  Under the regulations, the failure to provide notice may be viewed as an interference with an employee’s FMLA rights – and this can subject the employer to a wide range of damages, including back pay and benefits, other actual monetary losses, and reinstatement.

The employer argued that the “mailbox rule” should apply – this is a longstanding rule that presumes a properly-addressed and mailed letter was received by the recipient.  In this case, the HR Coordinator testified that she prepared the letter designating the employee’s leave as FMLA-covered and placed it in the outgoing mail bin.  The problem here is that the presumption fails because the employee testified that she never received the letter, and therefore never knew she was on FMLA leave or what was required of her under FMLA.  Had she known, she argued, she would have handled her leave differently and, therefore, would not have been terminated for failing to return at the end of her FMLA leave entitlement.

The U.S. Court of Appeals for the Third Circuit observed that there was no evidence that the employee had received the letter – the employer had not used registered or certified mail or use any other “now common” tracking methods.  The Court stated, “In the age of computerized communications and handheld devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing something as important as a legally mandated notice.”

What this case emphasizes is that wise employers might wish to take extra steps to be able to prove that the required notices were actually delivered.  If the notices are sent by mail, you could require a signature receipt (i.e. certified mail) or use a tracking number for delivery.  If they are sent by e-mail, use some sort of electronic receipt.


Don’t Let the Harasser Back – Even as a Volunteer

Posted in Employment Discrimination, Litigation

This one seems like a no-brainer.  If you determine that an employee is behaving badly and you terminate him, you shouldn’t allow him back into the workplace.  But that is what happened in the case of Frias v. Spencer.

A Hispanic employee complained that an African-American manager yelled at her.  No action was taken by her African-American supervisors.  According to the employee, the manager then made her job performance difficult by yelling at her and criticizing her.  After other employees also complained of the manager’s conduct, the employer conducted an investigation and ended up issuing a warning.  The manager subsequently acted inappropriately to a supervisor, and the decision was made to terminate him.  At this time, the employer also hired a security guard (which seems to speak volumes…)  But the termination decision was then reduced to a suspension.

When the employee heard the manager was going to be allowed to return, she sent a letter to management, expressing concern about her safety.  The decision to terminate was then reinstated.

Five months later, however, the employee saw the manager back on the premises.  He was there as a volunteer. (?!!)  The employee then left work and did not return.  She filed an internal EEO complaint, explaining that she had experienced a hostile work environment, and the manager’s return was “the last harassment [she] could humanly, emotionally and physically endure.”  She further said that she had repeatedly told her supervisors that she was scared of the manager and did not want him to be around her workplace.

The employee also filed suit, and the employer asked the court to dismiss the claims, arguing that permitting the manager to return as a volunteer was not any kind of employment action on which a claim of discrimination can be based.  But there doesn’t need to be an employment action in a claim for a hostile environment – where the working environment itself is so objectively and subjectively hostile that is creates an abusive working environment.  Under the law, the employer is liable for failing to remedy or prevent a hostile work environment.

In this case, the court found that there was sufficient evidence to send the case to trial for a jury to determine if a hostile work environment existed.  The court found that the employee had presented many examples of how she felt threatened or harassed by the manager – sufficient to show a subjectively hostile environment.  Of particular note, the manager was allowed to return to the workplace even after his termination – which could allow him to continue his negative interactions with others, including the employee.

What the jury will decide is yet to be seen.  But as a practical matter, the employer is left with a difficult situation – trying to explain why it found the manager’s conduct sufficiently concerning to warrant termination, but then allowing him back into the workplace.  Really, if his conduct towards others was bad enough to result in his firing (and in the hiring of a security guard!), there doesn’t appear to be any rational basis for allowing him back at all.

Eight S&R Attorneys Named to “Best Lawyers©” List

Posted in Uncategorized

It’s fun to be able to toot your own horn. Eight – yes, EIGHT – of our attorneys have AGAIN been listed in The Best Lawyers in America© 2015, the oldest and most-respected peer review publication in the legal field. And our own Gary L. Simpler has been named Best Lawyers’ 2015 Labor Law -Management “Lawyer of the Year” in Baltimore!

Selection to The Best Lawyers in America  is based on an extensive peer-review survey of more than five and half million top attorneys. Our honorees this year are:

Of particular note, Steve has been recognized since 1983, the year that the first Best Lawyers list was created.

New Executive Order = New Burdens for Government Contractors

Posted in Affirmative Action, Government Contractors, Laws & Regulations

On July 31, 2014, the President issued an Executive Order entitled, “Fair Pay and Safe Workplaces,” which will make an employer’s record of compliance with federal and state labor laws a criterion for successful bidding on government contracts and subcontracts exceeding $500,000.  In a Fact Sheet accompanying the Executive Order, the White House described it as an effort to prevent contractors who obey the law from being underbid by unscrupulous contractors.  Even for scrupulous contractors, however, the Executive Order will add new burdens.

Reporting of Labor Law Violations.  To permit the government to assess a contractor’s record of compliance, the regulation requires covered contractors to report “administrative merits determinations,” arbitration decisions and court decisions involving certain federal labor laws or their state law counterparts for the three-year period preceding the contract bid. Contractors are required to obtain and report this information for many of their subcontractors as well.  Serious, repeated, willful or pervasive violations of labor law will disqualify a contractor from a bid, under criteria to be set forth by the Federal Acquisition Regulatory Council.  After a federal contract or subcontract has been awarded, the contractor must update the list of violations every six months, for itself and its subcontractors.

The term, “administrative merits determination,” does not appear in federal law and it not clear whether or not it includes EEOC cause findings (we think it does not).  Because settlements do not need to be reported, the Executive Order also puts additional pressure on employers to settle disputes.  Indeed, that is an announced purpose of the Executive Order.  The White House Fact Sheet states, “The new process is structured to encourage companies to settle existing disputes, like paying back wages.”

The 14 federal laws listed in the regulation are The Fair Labor Standards Act, The Occupational Safety and Health Act, The Migrant and Seasonal Agricultural Worker Protection Act, the National Labor Relations Act, the Davis-Bacon Act, The Service Contract Act, Executive Order 11246 (equal employment opportunity and affirmative action plans for government contractors), Section 503 of the Rehabilitation Act, The Vietnam Era Veterans Adjustment Assistance Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act, and Executive Order 13658 (establishing a minimum wage for contractors).   Notably missing from the list are immigration laws.

Anti-arbitration Provision.  For contracts and subcontracts in excess of one million dollars (apart from commercial items or off-the-shelf items) the Executive Order bars predispute arbitration agreements covering discrimination claims under Title VII and torts arising out of assault and harassment.  This ban on arbitration does not apply to collective bargaining agreements, agreements to arbitrate voluntarily reached after the dispute arises, or arbitration agreements entered into before the contractor bids on a federal contract (except if the contractor has the right to change the arbitration agreement).

Pay Disclosures.  The Executive Order requires contractors and subcontractors to provide employees, in each pay period, a statement of the employee’s hours worked, overtime hours, pay and additions to and deductions from pay.  This requirement appears to be largely duplicative, since state wage payment and collection laws normally require employers to issue pay stubs.  Under the Executive Order, the employer need not provide hours worked to employees who are exempt from overtime, if it informs them of their overtime exempt status.  If an individual is working as an independent contractor, the contractor or subcontractor must inform that individual in writing of his status.

The Executive Order is not effective immediately.  It will become effective when final implementation rules are issued by the Federal Acquisition Regulatory Council, which is expected in 2016.

If previous experience is a guide, implementation of the Executive Order is likely to be problematic.  Currently, various agencies each focus on enforcement of a particular labor law.  Even with specialized enforcement, the government has trouble completing timely and competent investigations of particular claims.  The investigations often suffer from inexperienced investigators, changing legal standards, and political motivations.  The Executive Order ups the ante, by putting an employer’s ability to bid on government contracts in the hands of agency staffers who will be expected to assess the quality of the employer’s compliance with 14 different laws, and their state law counterparts, over a three year period.  Even if the government can properly administer the Executive Order it will impose, at the least, additional data collection and reporting requirements and another level of bureaucracy.