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The Labor & Employment Report

The Affordable Care Act Complicates The Use of Temporary Employees

Posted in Employee Benefits, HR Compliance, Independent Contractors, Laws & Regulations, Legislative Developments

Employers did not need another reason to complain about the burdens of the Affordable Care Act (“ACA”). Most of us know that the law includes onerous obligations on employers that have made human resources and benefits personnel’s jobs increasingly difficult. For example, you have to figure out if the law applies to your organization (how many full-time and FTE employees do you have?), to whom you have to offer coverage (full-time, part-time, variable hour, seasonal employees?), what coverage you have to offer (minimum essential coverage that is affordable and meets the minimum value test), how to tell if the coverage you are offering is affordable (something about 9.5% of the employee’s W-2 wages, right?), how to track employees’ hours, etc., etc., etc.!

Well, I am sorry to say that for those of you that use temporary or contract workers, you have another thing to worry about under the ACA. Specifically, you need to determine whether you have to offer those temporary or contract workers health insurance benefits. The ACA requires that an applicable large employer offer health insurance benefits to its full-time employees (those that work on average 30 or hours more a week). The ACA uses the well-known IRS control test to determine who is an “employer.” That is, it does not matter what the agreement between the temporary agency and your organization spells out. If your organization exercises sufficient control over the temp or contractor employee, it will be deemed the common-law employer of that employee. And if that is the case, under ACA, your organization will be obligated to offer health care coverage to full-time workers, regardless of whether you categorize them as “temps,” “temps-to-hire” or “independent contractors.”

That being said, however, the ACA provides a workable option that enables you to – in essence – take credit for an offer of health insurance benefits by the temporary or staffing agency. Specifically, if the temporary staffing agency offers coverage that passes muster under the ACA, you can take credit for that offer. This option is spelled out in the preamble to the ACA Final Regulations on the employer shared responsibility requirements. The provision reads:

 … if certain conditions are met, an offer of coverage to an employee performing services for an employer that is a client of a professional employer organization or other staffing firm (in the typical case in which the professional employer organization or  staffing firm is not the common law employer of the individual) (referred to in this section IX.B of the preamble as a ‘‘staffing firm’’) made by the staffing firm on behalf of the client employer under a plan established or maintained by the staffing firm, is treated as an offer of coverage made by the client employer for purposes of section 4980H. For this purpose, an offer of coverage is treated as made on behalf of a client employer only if the fee the client employer would pay to the staffing firm for an employee enrolled in health coverage under the plan is higher than the fee the client employer would pay to the staffing firm for the same employee if the employee did not enroll in health coverage under the plan.

(Emphasis added).

If you are inclined to take credit for the offer of coverage by the temporary staffing agency, you should make sure the agreement (including what the additional fee will be) is clearly spelled out in writing. In addition, while the regulations are silent on what the additional fee must be, it should be more than a token.

Now, if this seems like a headache for your organization to take on at this time, I remind you that the ACA requires applicable larger employers (defined as those with 100 or more employees in 2015; 50 or more employees in 2016) to offer coverage to “substantially all” of its full-time employees. “Substantially all” means 70% in 2015 and to 95% in 2016. Therefore, if your percentage of temporary employees falls within the less than 30% this year or 5% next year of full-time employees who are not being offered benefits, you may be fine in terms of ACA compliance. But obviously, you must carefully track the numbers of temporary employees you are using, as compared to the total workforce (including those temp agency/contractor employees) to ensure you stay within those percentages.






Planning for Changes in Overtime Exemptions

Posted in HR Compliance, Laws & Regulations, Legislative Developments, Wage & Hour

Employers should start thinking about how changes in the tests for the federal overtime exemptions will affect their payroll costs and compensation plans.  An employee must meet both a salary test (meaning that they are paid a salary, currently at least $455 per week) and a duties test to qualify for the exemptions (except for certain professionals).

I recently attended a meeting of the Wage-Hour Defense Institute, a nationwide group of lawyers with expertise in the Fair Labor Standards Act.  Several important points were discussed.

The Department of Labor sent proposed regulations revising the white-collar exemptions to overtime to the Office of Management and Budget for review prior to publication in the Federal Register.  It is expected that they will be published before June 21, 2015.  Once they are published there will be a notice and comment period before the regulations go into effect, but there will not necessarily be a long delay before the effective date.

No one outside the government has seen the new regulations, but DOL watchers expect it to double the salary test to around $900 per week.  At $900 per week ($46,800 per year) many supervisory and administrative jobs will cease to qualify for the overtime exemption.

DOL watchers also expect the DOL to rewrite the primary duty test to make it more difficult for employees to qualify for exemption, by requiring that exempt employees spent at least 50 percent of their time on exempt work.

Employers that are forced to reclassify employees as non-exempt will face important decisions.

In some instances, it may be cost effective to increase employees’ pay and responsibilities to qualify them under the revised test.

Employees who are reclassified as non-exempt can be converted to an hourly rate, in which case the employer will have to decide how to factor in anticipated overtime costs without creating the impression that they are cutting employees’ base pay.  Non-exempt employees can also remain on salary, in which case they can be paid half-time for overtime worked under the fluctuating workweek method (which assumes that the salary covers straight-time for all hours worked – including overtime hours), although that method is not available in all states and comes with a number of complications.

Employers will have to train newly non-exempt employees who are not used to reporting their hours to do so, and decide how to handle issues such as travel time and time spent on phone calls and emails outside the office.

Reclassifying employees as non-exempt may also affect whether they are covered by collective bargaining agreements and their participation in employee benefits plans.

Employers can also use the new regulations as an opportunity to correct existing misclassifications.  In some instances, employers have not corrected problematic misclassifications for fear of attracting a lawsuit.  The new regulations will provide an explanation for reclassification without necessarily suggesting that employees were misclassified in the past (and are thereby entitled to back pay).



Employees Reject Union in One of the First “Quickie Elections”

Posted in Labor Law & NLRB, Laws & Regulations, Unions

In 1947, Shawe Rosenthal’s founder, Earle K. Shawe, filed the first unfair labor practice charge against a union under the Taft-Hartley Act. Now, in another major labor law first, S&R represented a Baltimore-based distribution company in the first NLRB election conducted by the Board in its Region 5 (generally covering the mid-Atlantic area) under its new “quickie election” rules. Company truck drivers rejected representation by Teamsters Local 355, by a vote of 16 to 6. Stephen Shawe and Michael McGuire represented the company in proceedings before the NLRB and during the course of the Board-shortened campaign period. The Union filed its Petition with the Board on April 16 – just two days after the new rules went into effect – and the election was conducted just 21 days later, on May 7.

Such a decisive victory for the Company suggests one of two things: (1) the Union failed to explain to these drivers the implications of signing a union authorization card (it is not uncommon for a union to gather a bunch of drivers together, serve them a fancy meal with a cold beer, and then place a union card in front of them, urging them to sign, without explaining the ramifications of doing so) and (2) the company ran an effective – albeit shortened – campaign educating employees on why the employees would be better served by rejecting union representation.

Suffice it to say, the quickie election rules create significant new legal and practical problems for employers faced with union organizing. The NLRB’s new quickie-election rules have, as a general rule of thumb, cut in half the amount of time that is available to an employer to communicate its views to employees on the important issue of unions and collective bargaining. In light of the shortened time period under the new rules, it is crucial that companies understand the “do’s” and “don’ts” during a union organizing campaign. One pertinent example occurred on the morning of this election, when the company wished to provide bagels to its employees (the voting started at 4:00 a.m.!). As delicious and harmless as this may sound, it is a big risk to serve anything to voters on the morning of an election, as the company could be accused of improperly influencing the vote.

In short, even with the “quickie election,” an educated group of managers and supervisors can run an energetic campaign and communicate effectively to employees why remaining union-free is in their best interest.





The Wrong Way to Respond to an Employee Complaint…

Posted in Litigation, Wage & Hour

I enjoy cases with odd facts – and here’s one that unexpectedly came up in the (usually uninteresting) context of a Fair Labor Standards Act retaliation claim – Greathouse v. JHS Security Inc. The boring legal (but important) part of the case is that the U.S. Court of Appeals for the 2nd Circuit has now joined its sister circuits in finding that a claim of retaliation under the FLSA can be based on an oral complaint  to a supervisor about an FLSA violation (such as failure to pay the minimum wage or overtime, or improper payroll deductions).

The 2nd Circuit had previously held, in the 1993 case of Lambert v. Genesee Hospital, that an FLSA retaliation claim could only be based on a written complaint that was made to a government agency.  The Supreme Court, however, in its 2011 decision in Kasten v. Saint-Gobain Performance Plastics Corp.held that that the complaints could be oral, not just written.

The Supreme Court did not address whether such complaints encompassed internal complaints as well as external complaints to a government agency. Other federal circuit courts, as well as the Department of Labor and the Equal Employment Opportunity Commission (the two agencies with enforcement authority over the FLSA), however, have all found that internal complaints of FLSA violations are protected from retaliation. And the 2nd Circuit has now overruled its Lambert decision, agreeing that the FLSA’s anti-retaliation protections extend to an employee’s oral complaints to a supervisor.

So, (you may be saying) enough with the legal explication! What actually happened in the Greathouse case? The plaintiff was a security guard who worked for the company for over 5 years. During the course of his employment, the plaintiff ‘s paychecks were late or missing, and improper deductions were made from his pay. Although the president and co-owner of the company repeatedly told the plaintiff that he would receive his outstanding checks, they were never given to the plaintiff.

Finally, the plaintiff complained to the president that he had not been paid in several months. According to the plaintiff, the president responded, “I’ll pay you when I feel like it!” And then, without warning, the president pulled out a gun and pointed it at the plaintiff! The plaintiff (quite logically, in my opinion) assumed that meant he was fired. He then sued, asserting claims for his missing and improperly reduced wages, and also claimed that he had been fired in retaliation for making a complaint about those wages – leading to the decision discussed above.

As a management-side employment attorney, I’d certainly advise that there are other, less criminal ways to respond to employee complaints…

Inability to Speak English Is a Disability?!!!

Posted in Employment Discrimination, Laws & Regulations

OK, I know that I frequently and flippantly say that, under the expanded American with Disabilities Act, we are all disabled. But the situation described in a recent Washington Post blog found by one of my law partners is really beyond ridiculous! Apparently, individuals who can’t speak English may receive federal Social Security disability benefits! Let me reiterate – they are disabled, in part, because they can’t speak English!!!

The Social Security Administration uses an evaluation process for determining whether an individual qualifies for disability benefits. The SSA reviews the severity of a claimant’s medical impairments. If the impairment is not severe, the SSA then determines if the claimant can perform work that he or she has performed in the past. If the claimant can, they are not disabled. If they cannot, but can possibly perform other work, the SSA then assesses their employability by reviewing their age, education, and work experience. A component of education, under Social Security regulations, is the (in)ability to speak English. The SSA then makes a determination whether, considering all these factors under regulatory guidelines, the claimant is disabled and therefore entitled to SS disability benefits.

What is particularly outrageous is the fact that this regulation was applied to non-English-speaking/Spanish-speaking Puerto Ricans (who are covered by federal law because Puerto Rico is a U.S. territory) in Puerto Rico, where both Spanish and English are official languages. In fact, according to the Census Bureau, 95% of Puerto Ricans over age 5 speak Spanish at home and 84% say they do not speak English well. Thus, Spanish is actually the predominant language in Puerto Rico.

This appalling situation came to light through an independent audit report from the Office of the Inspector General of the SSA. The OIG stated that it had identified 218 individuals in Puerto Rico who were granted benefits under these regulatory guidelines. The report noted that the guidelines did not take into account the fact that English may not be the predominant language in areas such as Puerto Rico.

Fortunately, the report notes that the SSA is proposing to update the guidelines. The OIG suggests the SSA should consider modifying the English language rule to take into consideration unique regional circumstances, like those in Puerto Rico.

So, from an employment lawyer’s perspective, this situation makes the ADA, as broadly as it’s now being interpreted, look almost reasonable. But from a taxpayer’s perspective, I am really incensed!!!



Are Service Writers Exempt Under the FLSA?

Posted in Laws & Regulations, Wage & Hour

Whether Auto Dealer Service Writers (also called Service Advisors) are exempt from federal and state overtime pay requirements has been an issue for years. The U.S. Department of Labor (“DOL”) has flip-flopped on the issue since the exemption for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” was written into the Fair Labor Standards Act (“FLSA”) in 1966. The DOL’s latest position was set forth in 2011 when it issued a Final Rule amending the “salesman, partsman, mechanic” exemption that did not include Service Writers employed at a retail dealership as exempt. This was in contradiction to the DOL’s action in 2008, when it issued a Notice of Proposed Rulemaking in which it stated that it considered Service Writers to be exempt.

The Courts have not always agreed with the DOL’s interpretation of this exemption. The U.S. Courts of Appeals for the Fourth Circuit (which includes Maryland, as well as North Carolina, South Carolina, Virginia and West Virginia) and Fifth Circuit (covering Louisiana, Mississippi and Texas), several federal district courts, and the Supreme Court of Montana have found Service Writers exempt. Specifically, the Fourth Circuit in Walton v. Greenbrier Ford, Inc. found that Service Writers are “salesman” because their job is to sell services for cars, and because their role is to help customers receive mechanical work on their cars they are involved in the general business of “servicing automobiles.” The Fifth Circuit in Brennan v. Deel Motors, Inc. found the duties and pay structure of Service Writers to be functionally similar to those of salesman, partsman and mechanics whom the statute expressly exempts.

Just recently, however, the Ninth Circuit, in Navarro v. Encino Motorcars, LLC (March 24, 2015) disagreeing with the Fourth and Fifth Circuits, decided that it was required to defer to the DOL’s interpretation and ruled that an auto dealer’s service advisors did not fall within the FLSA’s “salesman, partsman, mechanic” exemption. Essentially the court said that, while there were good arguments supporting both interpretations of the exemption, where a regulatory agency, like the DOL, has chosen one interpretation, it must defer to that choice. The DOL’s view is the exemption is limited to salesmen who sell vehicles and partsman and mechanics who service vehicles. Service Writers do neither.

What does this mean for auto dealers in Mid-Atlantic? Ultimately this issue may wind its way to the Supreme Court. In the meantime, the Ninth Circuit decision is not controlling on federal district courts outside the Ninth Circuit, like Maryland. That may not be as comforting as it appears on first blush. The Fourth Circuit case was decided in 2004, well before the DOL’s 2011 Final Rule. Given that fact, and the reasoning of a well-regarded court like the Ninth Circuit, it’s entirely possible that the federal court in Maryland or the Fourth Circuit itself could reach a different conclusion than was reached in 2004.

We also note that the DOL is poised to issue proposed regulations that are intended to substantially revise and limit the FLSA white collar exemptions (executive, administrative and professional employees). Once issued, the public will have the opportunity to offer comments on the proposed regulations, and the DOL will then issue final regulations – a process that could take a year or more. Thus, although any impact of these regulations will not be immediate, auto dealers should keep in mind that further changes to service writers’ exemption status may be forthcoming.

FLSA compliance is a tricky area. Wage-hour litigation is a booming industry for plaintiffs’ lawyers. Now may be a good time to revisit your exemption classification decisions in order to stay ahead of current litigation trends.

NLRB Final Rule Expediting Union Elections Takes Effect Next Week

Posted in Labor Law & NLRB, Unions

Absent an injunction issuing in one of the pending cases challenging the National Labor Relations Board’s Final Rule substantially revising its representation case procedures, the rules become effective April 14, 2015. The practical effect is that representation elections will be held in a shorter period of time, which reduces the ability of employers to educate their employees about the impact of unionization. Traditionally, uncontested elections were held within 42 days following the filing of a union petition for election. Although the NLRB has not issued any definitive statement as to the timing of elections under the new Final Rule, all indications are that this 42-day period will be cut almost in half.

This rule has a convoluted history. The NLRB had previously issued a controversial and substantially similar quickie election rule in December 2011. The rule was overturned by a federal court because the Board lacked a quorum at the time it issued the rule, and the Board issued a final rule rescinding the quickie election rule in January 2014. The following month, however, the Board re-issued a proposed quickie election rule. The new Final Rule, which takes effect on Tuesday, April 14, will apply to all representation cases filed on or after that date (pending R-cases will continue to be processed under the prior procedures).

The Final Rule provides as follows:

• Parties may now file or transmit documents electronically, rather than by using mail, hand-delivery, or fax. While parties may e-file using the NLRB’s e-filing system, emailing a Petition to an NLRB Agent does not constitute filing.
• When a union files a petition for a union election, it must serve on the employer a copy of the petition, along with the Board’s description of the new representation case procedures, and a Statement of Position form that identifies issues to be raised at the pre-election hearing. The NLRB Regional Director will serve a Notice of Petition for Election and Notice of Hearing on all parties, likely the same day as the petition was filed. The employer must then file its own Statement of Position form, generally by Noon of the business day before the hearing, identifying the issues it has with the Petition. The petitioner will respond to the issues in the employer’s Statement of Position at the beginning of the hearing. During the hearing, the parties will be limited to litigating only those issues that were raised in their Statements of Position or responses to the other’s Statement. However, NLRB jurisdiction cannot be waived at any point.
• At the same time the employer files its Statement of Position form, the employer must also file a list of prospective voters, with their job classifications, shifts and work locations. Previously, the list of eligible voters did not have to be supplied until after the Regional Director approved an election agreement or directed an election following a hearing.
• The employer must post a Notice of Petition for Election within two business days after being served by the Board. This posting provides more detailed information about the election and voting process to prospective voters.
• Pre-election hearings will generally be scheduled to begin 8 days after the Notice of Hearing is served on the parties. The Regional Director may postpone the hearing for up to 2 business days with a showing of special circumstances, or more if there is a showing of extraordinary circumstances.
• Generally, only those issues necessary to determine whether an election should be held will be heard in the pre-election hearing. Disputes concerning voter eligibility or inclusion, according to the Final Rule, do not have to be decided before the election, and may be heard post-election. This portion of the Final Rule will create uncertainty as to whether an employee is a “supervisor” or simply a leadperson.
• All parties may make a closing argument at the hearing. Written briefs, which were previously commonplace, will be permitted only if the NLRB Regional Director decides they are necessary. However, parties are encouraged to submit written arguments/case citations during the pre-election hearing.
• The employer must submit a final voter list, including phone numbers and e-mail addresses, to the union within two business days of the Regional Director’s approval of an election agreement or decision directing an election.
• Under the old rule, if a party seeks a Request for Review by the Board of a Regional Director’s decision, the election was delayed 25-30 days. The new rule provides that the election will not be stayed after the Regional Director issues a decision and direction of election, unless the Board orders otherwise.
• Post-election, each party may make a single post-election request for review of all pre-election rulings by the Regional Director.
• Post-election hearings on objections to conduct affecting the results of the election generally will begin 21 days after the tally of ballots is issued. Either party has up to 7 days after the tally to file objections.
• Post-election exceptions and requests for review will now be filed directly with the Regional Director, not the Board. The Board may deny review of post-election rulings by the Regional Director.

The NLRB has issued new Petition forms and Statement of Position forms, as well as suggested formats for the Initial List (submitted with Position Statement) and Voter List (submitted after Election Agreement is approved or election is directed. The NLRB has also issued various documents, as well as a General Counsel memorandum, providing detailed guidance on the new Rule.

What is the bottom line? NLRB elections may happen as soon as 15 – 20 days after the Notice of Petition is served on an employer. The time to make sure your employees understand the risks of unionization is prior to receiving the petition.

EEOC Sued For Failing to Accommodate Employee’s Disability

Posted in Litigation, Reasonable Accommodation

In the vein of “man bites dog,” I particularly enjoyed a recent case in which an employee claims that her employer – the Equal Employment Opportunity Commission (?!!!) – failed to accommodate her disability. Yes, the federal agency charged with the enforcement of the Americans with Disabilities Act – the same agency that broadly interprets the ADA in favor of excessive coverage (we’re all disabled, don’t you know?) – the same agency that finds all manner of ridiculous accommodations to be “reasonable” (light duty for everyone!!) – the same agency that is all too willing to find violations of the ADA by innocent employers (my poor clients!) – that agency is now itself charged with failing to comply with its obligations under the ADA!

In Buie v. Berrien (Jacqueline Berrien was the former head of the EEOC), the plaintiff, who worked at the EEOC’s Washington D.C. office, suffered from lung disease and chronic asthma. She requested an accommodation of a private office equipped with an air purifier or, alternatively, to be permitted to telework. The head of the office refused to let her telework and said there were no private offices currently available for her use. The plaintiff was assigned to an open-air cubicle, where her air purifier was ineffective because of the large space. Following surgery for her condition, the plaintiff repeatedly communicated with the Disability Coordinator for the office about her accommodation needs, without success. After several months, she concluded that she was not going to be accommodated in the Washington office. Consequently, she requested and was granted a transfer back to the Charlotte office where she had previously worked and could be provided with a private office and the option to telework – although she was not given the mediator position she wanted and had to take a demotion in grade level. Seven months later, she retired on disability.

The plaintiff then sued the EEOC for failure to accommodate her disability, among other things. Upon receiving the Complaint and before the case proceeded any further, the EEOC moved to dismiss her Complaint, arguing that she failed to state a plausible claim. The EEOC stated that her requested accommodations of a private office and/or telework were not available in the Washington office, and that it granted her an accommodation by facilitating her return to Charlotte. The federal district court, however, found that the plaintiff had made sufficient allegations in her Complaint to allow her claim to proceed- at least with regard to the telework. The court determined that there were questions of fact about whether the plaintiff had to be physically present in the workplace, as the EEOC contended, to perform her job.

The court did agree with the EEOC, however, that the failure to accommodate claim should be tossed as to the private office, since the EEOC was able to demonstrate that there were, in fact, no offices available and that it continued to look for an office until the plaintiff decided to ask for the transfer. In addition, the transfer/demotion claim was also dismissed because the employer is not obligated to provide the accommodation the employee prefers (in this case, the mediator position). Further, the plaintiff could not demonstrate that she could perform the essential functions of that mediator position, which would have required her to be in the office.

Now it may be in the end that the EEOC will be able to demonstrate that the plaintiff’s requested accommodation of telework was unworkable or disruptive or otherwise unreasonable. We’ll have to wait to see how it plays out as the case proceeds through discovery and a possible trial. But in the meantime, I’m just enjoying watching the EEOC on the hot seat for once.

Say What? NLRB ALJ Finds Hospital’s English-Only Rule Unlawful

Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, Unions, Workplace Trends

The latest office fodder for me and my colleague, Jason Usher (who formerly worked at the National Labor Relations Board (“Board”)), involves an Administrative Law Judge’s (“ALJ”) decision, Valley Health System LLC, that found that a healthcare employer’s English-only rule violated the National Labor Relations Act (“Act”).

Many employers, especially those in the healthcare industry, institute English-only rules for the workplace to ensure the safety and efficient operations of the facility. The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on the subject, permitting such rules provided that the rule is not overly broad and is justified by a “business necessity.” According to the EEOC, the following justify business necessity:

  • In communications with customers, co-workers, or supervisors who only speak English;
  • In emergencies or other situations in which workers must speak a common language to promote safety;
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Up until now, however, the Board has not weighed in on English-only policies. This issue was presented before a Board ALJ for the first time in the Valley Health System case. The hospital’s rule required all employees to speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.”  The employer’s rule was compliant with the EEOC’s guidance. Indeed, the rule allowed employees to speak their native language during their own time (before and after their work schedules and on breaks and lunch).

In her decision, however, the ALJ found that the rule violated employees’ rights under Section 7 of the Act to engage in protected “concerted activities,” which includes the ability to discuss and communicate about wages, hours, and other terms and conditions of employment. The ALJ determined that the policy was not sufficiently limited in time and location, and as such, found that employees, especially non-native English speaking employees would reasonably believe that they could not engage in concerted activity.

Understandably, the employer pointed to the EEOC’s guidance in its defense. The ALJ stated, however, that the EEOC guidance is not binding on the Board (WHAT?!!!  They’re both part of the same federal government!), and that the Board disfavors adopting precedent from other administrative agencies (?!!) unless the Board finds it is materially related to the goals and purposes of the Act. Instead, the ALJ based her ruling upon prior Board precedent that analyzed the lawfulness of a workplace rule by looking at whether it would reasonably tend to chill employees from exercising their Section 7 rights. The ALJ found that the English-only rule was vague with respect to time and location, because it required employees to speak only English while on duty and beyond patient care areas, and she also found that it would infringe on an employee’s ability to freely discuss and communicate about working conditions. The ALJ failed to see how patient care would be disrupted if employees were permitted to speak other languages in non-patient care areas and with other employees, staff, visitors, and customers, particularly if non-native English-speaking employees wish to talk about working conditions.

This decision may lead to consternation among employers, including those not in the healthcare field, as their current English-only rule, which may be lawful according to EEOC guidelines, may not be lawful under the Act. The good news though is that the ALJ decision is not binding legal precedent unless it has been adopted by the Board on review of exceptions. The hospitals involved will likely file exceptions, and we’ll have to wait to see what the (admittedly liberal Obama) Board will do.

Take Away:  While the ALJ’s decision is not the law of the land, an employer may wish to review its current English-only work rules to ensure that they are narrowly tailored with respect to time and location to prevent potential unfair labor practice charges and costly litigation.

Give Me a Coffee on the Clover, Hold the “Race Together” Please!!!

Posted in Employment Discrimination, Workplace Trends

I admit I am addicted to Starbucks coffee, particularly the concentrated brew that I can get for extra money on the Clover machine at my local joint. My husband insists I have a store locator chip in my brain (this before I had my i-Phone app with the actual – and BRILLIANT – store locator).IMG_1447

But, I am worried about my coffee joint. It is importuning me to discuss the issue of race in the U.S. with my barista. Indeed, as many news outlets have reported, I am not alone. We don’t want “race together” scrawled on our cardboard coffee cups (we non-ecological folks) or, as apparently my local Starbucks determined to be the middle-ground, written on a tiny whiteboard on the counter area in front of the barista “stage.”

Race matters, in many, many ways in the U.S., but here is why I fear for my beloved Starbucks when it decides to interject open discussion of this unresolved topic into my morning coffee.

  1. I am an employment lawyer. Let me refine that. I am an employment litigator. I defend employers when they are sued. This concept is beyond “diversity training gone wrong” where some “luminary” decides that the males in the office need to decide how it feels to be groped and ogled by the other sex (and so makes that one of the diversity training exercises, resulting in lawsuits). Asking your average barista to field discussions about race is above their pay grade and may lead to situations in which THEY feel harassed based on a protected characteristic/view (let’s just say divergent views on any number of topics – such as Ferguson and the propriety or lack thereof of the police conduct – do not neatly align with coffee house conversation).
  2. My parents schooled me that there are certain conversations that you save for people whom you know – politics and religion among them. I thought my parents were bourgeoisie when I was 21. I now understand at 54 how spot-on they were.  It is not low-brow to appreciate that certain debates are not appropriate in certain contexts (such as a commercial transaction when all I really want to do is wake up my mind, not debate the origins of oppression).
  3. I believe that conversations about important topics should be generated by thoughtful, deliberate dialogue.  I truly respect each and every person who provides me service. I was them 40 years ago. But I was not qualified to mediate discussions of race when I was a waitress and I think asking that of these folks is just not fair.

So, please, Starbucks, “stay in your lane.” You are fulfilling my need for superb coffee that gets me going each day. I have your app on my phone. I am happy whenever you are there in a faraway place that I travel to (although, candidly, not so much in Italy – you don’t cut it there).  But I worry for you when you try to extend yourself – and your unwitting staff – into discussions that are bound only to alienate your loyal clients and, even more troublingly, result in your staff filing claims that they were subjected to racially hostile working environments when they are subjected to “divergent views on race” that simply do not belong in the workplace. With that, I would like a tall Brazil in a Grande cup on the clover (and please, write nothing but “tall” on my cup). Thanks loads!