As you may know, the National Labor Relations Board substantially revised the rules governing the union elections process, by which employees choose whether or not they wish to be represented by a union. The controversial revisions greatly sped up the process, with the effect that employer had less time to educate their employees about the impact of unionization before an election is held – which means more unionization (hence the controversy!).

These revised “quickie election” rules took effect in April 2015. Because the rules themselves were not troubling enough for employers, we now have to contend with the Board’s expansive interpretation of those rules. Here’s an example of what I mean.

As part of the election process, the employer must provide a voter list to the union, containing the names and contact information for all employees eligible to vote in the election. Before the revisions, this list consisted of the names and addresses of eligible voters. This information is readily available from a company’s human resources department, through its database or records. The revised rule, however, requires that the list must now include “available” personal e-mail addresses, and home and cell phone numbers.Voting List

What does this mean? Well, in the Danbury Hospital of the Western Connecticut Health Network case, the employer generated a list from its HR database. The list contained the addresses and emails for all the eligible voters, and phone number for 94% of them. Continue Reading NLRB Imposes Expansive (and Onerous) Requirements For Preparation of Voter List

So, someone who posed as a nude lumberjack for Playgirl is now upset about the (foreseeable!) consequences of his decision – teasing by his coworkers. And a federal court judge has found that the employee’s sexual harassment claim against his employer, based on his coworkers’ teasing, may have merit. To me, this case, Sawka v. ADP, Inc., is crazy on several levels!Axe

Let’s start with the employee. I find the lack of personal accountability in our society to be appalling. Many people are unwilling to take responsibility for their choices and actions – and, in my opinion, this employee falls into this group. It seems to me that if you choose to put it ALL out there in a sexually-focused publication that is intended for widespread public distribution, you should realize that people (including those you know!) will look at the pictures, comment on them, and, yes, tease you about them. Really, isn’t the whole point of posing for a magazine like Playgirl to invite such attention? Now, I understand that the pictures date from 1991, and perhaps the employee regrets having posed for them at this point in his life. But the passage of time does not and should not absolve him of his responsibility for his (in retrospect) possibly ill-considered decision.

Moreover, his expectations of what his employer should have done were, again in my opinion, unrealistic. The employee initially failed to complain because, in part, he found it “embarrassing.” (Really?) When he finally complained about his coworkers, the employer conducted an investigation, which included interviewing the list of witnesses he provided as well as others. The employee now contends that the employer should have searched the computers of his coworkers to verify that they had looked for his pictures on the Internet. But at the time, I am sure the employer believed it had addressed the issue by speaking with the worst offender about his comments and instructing the Vice President in charge of the office to report any further comments or Internet searches for the employee’s pictures. Given that the employee admittedly did not make any further complaints (although he now alleges that the comments didn’t stop), the employer undoubtedly thought it had resolved the problem.

Continue Reading The Playgirl Model’s Sexual Harassment Claim

As you may know, I am a die-hard management lawyer. For example, I recently saw a production of J.B. Priestly’s, “An Inspector Calls.” The titular Inspector forces various members of a wealthy family in Edwardian England to examine their roles in putting a young woman on the path to suicide. In particular, the father had fired the young woman from his factory for being a labor agitator. I know I was supposed to sympathize with the young woman, but I frankly thought the father had behaved in an completely Baby Bottleunderstandable manner (although, of course, it would now be a violation of the National Labor Relations Act to do so). My husband told me, “Well, I guess you’re in the right profession.”

But every now and then, there is a case that just smacks of unfairness to me, even though it may be legally correct. Frederick v. State of New Hampshire was just such a case.

The employee’s new baby had difficulties with bottle feeding. In addition, the employee’s doctor provided a letter explaining that the employee should breastfeed as must as possible to minimize her anxiety disorder. In preparation for returning to work, the employee asked for either an extended break time to go to her baby’s nearby daycare center to breastfeed, or to have her baby brought to her and to be allowed to breastfeed her baby in the employer-provided lactation room.

Continue Reading No Protection for a Breastfeeding Mother?

So as Halloween approaches, a recent religious accommodations case involving the “mark of the beast” seemed seasonally appropriate.

For those of you not so familiar with the Bible, the Book of Revelation tells the story of a satanic beast that comes out of the earth and forces all humans to worship another beast coming from the sea. The worshipers are marked on their right hands or their foreheads with the number “666” – i.e. the “mark of the beast.”Mark of the Beast

Several years ago, a client implemented a biometric timekeeping system, which used a hand scanning procedure. One of the employees objected to using the new system on religious grounds, based on his fear that the system would either imprint or reveal the mark of the beast (it wasn’t terribly clear exactly what the concern was). My partner, Mike McGuire, noted that the mark appears on the right hand, however, and the employee could simply use his left hand on the scanner. Well, that seemed to fix the problem – a pretty simple solution, wasn’t it?

Unfortunately, it didn’t work out so easily for another company – Consol Energy. In that case, an employee who was an Evangelical Christian objected to the biometric scanning system for the same reasons as our client’s employee. Consol actually provided a letter to the employee from the company that made the system, explaining that the Book of Revelation specifies that the mark will appear only on the right hand (or forehead), and therefore the left hand may be used for scanning purposes.

Continue Reading Religious Accommodations – A Beastly Concern

There’s a part of me that thoroughly enjoys a smackdown between government agencies. (The other part of me is screaming at the government inefficiency and waste of my tax dollars). Here’s a good one.

As most of you know, the U.S. Department of Labor released its proposed revisions to the overtime regulations under the Fair Labor Standards Act. The current regulations set forth three tests for exempt status: (1) the employee must be paid on a salary basis; (2) the salary threshold must be at least $455 per week ($23,660 per year); and (3) the employee must meet duties tests specific to the exemption in questions (executive, administrative or professional). As we discussed (with a highly raised eyebrow) in a previous blog, the proposed regulations contain only one actual change to these tests – an increase in the salary level to over $50,000 per year, with yearly increases thereafter.

The public was invited to submit comments on the proposed regulations – 289,932 individuals and entities took them up on that invitation. One of those was the Small Business Administration – another federal agency. The SBA has an Office of Advocacy, which represents the interests of small businesses before Congress and other federal agencies.

Continue Reading Don’t Invite the SBA and the DOL to the Same Party!

As those companies who are required to submit an EEO-1 form know, the extended deadline for the annual submission this year (2015) is coming up soon – October 30 (Normally it’s September 30 each year). Generally speaking, covered employers must report on the form, by establishment/company totals and job group (e.g. first level officials and managers, professionals, administrative support employees, etc.), the number of employees by sex and race or ethnic category. The Equal Employment Opportunity Commission requires most private employers with 100 or more employees to submit the EEO-1 form, while the Office of Federal Contract Compliance Programs requires most government contractors with 50 or more employees and $50,000 or more in federal contracts to submit this form.

Originally on the EEO-1 form, multi-racial employees had to be designated a single racial or ethnic category. For example, an individual who had a Black father and a White mother would have to be identified as solely White or solely Black. In 2005, however, the EEO-1 form was revised to include new racial and ethnic categories, including “Two or More Races.” This change was entirely appropriate in our increasingly multi-racial society, and permitted a more accurate reflection of the racial makeup of a company’s workplace.

But what about sex? There has been a lot of recent media attention to gender identity issues (in case you’ve been living in a cave) – and the choice of gender identity is apparently far broader than I could have possible imagined. As Slate reported, in July, Facebook began allowing its users to self-identify as other than just “male” or “female.” In fact, Slate counted 56 options!!! (Whaaaaat?!!!  Naïve me.) Many of these terms were ones that I had never heard of before – agender/neutrois, gender questioning, intersex, non-binary, pangender, two-spirit….

Continue Reading Two or More Genders? Gender Identity and the EEO-1 Form

On Labor Day 2015, President Obama issued an Executive Order that requires certain government contractors and subcontractors to provide up to 7 days of paid sick leave per year. This leave may be used for illness or injury; medical appointments or treatment; caring for an injured or ill family member, or obtaining medical treatment for them; and, in cases involving domestic violence, sexual assault or stalking, to obtain counseling, seek relocation, seek assistance from a victim services organization, take legal action, or to assist a family member with regard to any of these actions. This requirement will be effective for all contracts entered into or renewed on or after January 1, 2017. (More pain for government contractors…)

Along with the Executive Order, the White House also issued a Fact Sheet: Helping Middle-Class Families Get Ahead by Expanding Paid Sick Leave. According to the Fact Sheet, the Executive Order will extend paid sick leave to 300,000 workers on federal contracts and subcontracts. The White House contends that this action will “improve the health and performance of employees,” will make (sub) contractors competitive by bringing their benefits packages in line with leading firms, and will protect the public health by allowing employees with communicable diseases to remain home.

The Fact Sheet also notes that President Obama is urging Congress to pass the long-languishing Healthy Families Act, which would require all employers with 15 or more employees to provide paid sick leave. Because it is unlikely to pass (snowball’s chance in hell, really), President Obama also specifically called upon cities and states to pass sick leave laws.

Here in Maryland, President Obama’s call is falling on receptive ears in the Maryland General Assembly. A paid sick leave bill has been proposed for the past several sessions, and has gained traction each year, but ultimately has not made it out of the House Economic Matters Committee. In response to the Executive Order, the Chairman of the Committee, Representative Dereck E. Davis was quoted by the Washington Post, in an article on Prince Georges County’s attempt to pass a paid sick leave law, as stating, “I think [sick leave is] a bill whose time has come … I think it would be best if we had one bill that governed everyone in the state, but that does not mean that if the locals want to do something stronger, they are definitely encouraged to do so.” According to the Washington Post, Delegate Davis is “committed to using all his power to push a bill out of the House this session.”

As I previously blogged, there are substantial costs and other non-monetary impacts on employers resulting from a paid sick leave mandate. If the state law passes this year, as many people expect it to do, I believe there will be unintended negative consequences for those workers the law is intended to help, as employers seek to deal with the increased costs of doing business in Maryland.

 

In a long-awaited and split decision, Browning-Ferris Industries of California, Inc., the National Labor Relations Board addressed whether BFI should be deemed a joint employer with the staffing agency whose employees performed various work functions for BFI and, in so doing, the Board revised its 30+-year standard for determining joint employer status. According to the three-member Democratic majority, the new standard in intended “to better effectuate the purposes of the Act in the current economic landscape.” This decision clearly alters the landscape for staffing agencies and host companies utilizing the services of staffing agencies. The two-member Republican minority castigates the new standard as a test that “confuses the definition of a joint employer and will predictably produce broad-based instability in bargaining relationships.”

The Staffing Arrangement Between BFI and Leadpoint

BFI owns and operates a recycling facility. It employs its own employees to operate forklifts and loaders on the outside portion of its facility, where the material to be recycled is delivered, moved around, and staged for processing. These 60 employees are represented by the Teamsters Union and subject to a collective bargaining agreement. Inside the recycling facility are conveyor belts on which the material to be recycled is placed for sorting and screening. A temporary staffing agency, Leadpoint, provides 240 workers to perform the sorting and screening services, as well as housekeeping services for BFI. Leadpoint also provides on-site supervision and lead workers who create the workers’ schedules and oversee the work.

The staffing arrangement between BFI and Leadpoint is typical of the type of arrangement that many companies have with the staffing agencies that they use. Under the staffing agreement, Leadpoint is responsible for the recruiting and hiring of workers, although it must ensure that the workers have the appropriate qualifications to perform BFI’s work. Leadpoint also conducts drug testing, piece-of-the-job testing, and background checks. Leadpoint is responsible for all discipline, evaluation and termination of the workers, but BFI has the authority to order the removal of any worker. Leadpoint sets the wages for its workers, although the agreement specifies that the wages cannot exceed those paid to BFI workers performing similar tasks (of which there was one worker, making $5.00 more per hour). All benefits, including holidays, PTO, and insurance are provided by Leadpoint.

Continue Reading NLRB Issues New Joint Employer Standard

The National Labor Relations Board on Monday dismissed a petition filed by Northwestern football players who were seeking to unionize. In what is widely viewed as a surprising decision by the union-friendly Obama Board, in Northwestern University, the three Democrats and two Republicans on the Board unanimously declined to assert jurisdiction over Northwestern scholarship football players. Instead, the Board determined that even if the student-athletes were statutory employees, it would not effectuate the policies of the National Labor Relations Act to assert jurisdiction.

In 2014, Northwestern University scholarship football players filed a petition with the Board’s Chicago Regional office seeking representation by the College Athletes Players Association, a United Steelworkers-supported group that sought to represent the players. The Regional Director found that the scholarship players were employees within the meaning of Section 2(3) of the Act. In so finding, the Regional Director determined that the players were not primarily students because they devoted over 50 hours per week to football, a separate activity from the academic degree program. Likewise, the Regional Director reasoned that the scholarship athletes were subject to the University’s control – – the athletes were required to attend workouts, and were restricted from certain personal activities solely because they were members of the football team.

Northwestern University appealed the Regional Director’s decision to the Board, arguing that the scholarship players were not employees under the Act. To the surprise of many scholars and practitioners, the left-leaning Board, citing competitive balance and the potential impact on NCAA rules, determined that it would not effectuate the policies of the Act to assert jurisdiction. Put differently, the Board specifically declined to determine whether the scholarship players were statutory employees. In so holding, the Board reasoned that the case involves “novel and unique circumstances,” because there has never been a petition for representation before the Board in a unit of a single college team, or a group of college teams.

The Board announced that “it would be difficult to imagine any degree of stability in labor relations if we were to assert jurisdiction in this single-team case.” Specifically, the Board explained that bargaining has never involved a bargaining unit consisting of a single team’s players, where the players for competing teams were unrepresented or entirely outside of the Board’s jurisdiction. All previous Board cases concerning sports involved professional leaguewide bargaining units. Here, the Board explained, roughly 125 colleges and universities participate in the Division I Football Bowl Subdivision, with all but 17 of the universities outside of the Board’s jurisdiction because they are state-run institutions, and are therefore not considered “employers” within the meaning of the Act.

Notably, the Board distinguished the instant case from cases involving graduate student assistants, student janitors and cafeteria workers whose employee status the Board has considered, and rejected, in prior cases. The Board noted that, unlike graduate assistants, the scholarship players are undergraduates, and the football activities they engage in are unrelated to their course of study or education programs. Moreover, the Board noted, the fact that the scholarship players are students who are also athletes receiving a scholarship to participate in what has traditionally been regarded as an extracurricular activity sets them apart from the Board’s previous decisions involving students. However, in observing that the Board has never confronted a case involving students who are similarly situated to the scholarship players at issue in this case, the Board clarified that it has no opinion as to whether the cases discussing graduate student assistants or student janitors and cafeteria workers were correctly decided.

The Board’s decision is a blow to the union movement in college sports, which was led by the former Northwestern quarterback Kain Colter. The decision leaves no recourse for Northwestern players to appeal. And while the Board emphasized that its decision not to assert jurisdiction does not preclude reconsideration of this issue in the future, it is unlikely that the Board will revisit this issue anytime soon. By punting the issue of jurisdiction, the Board avoided a backlash from not only the pro-employer community, but nearly every private college and university in the country.

While unionization is unlikely in college sports in the foreseeable future, the NCAA has taken notice. The NCAA recently changed its governance structure to allow its wealthiest conferences to make some of their own rules, including allowing full-cost-of-attendance stipends, offering four-year scholarships, and providing more comprehensive health care to its student-athletes.

I’m the type of person who reads the ends of books first (which drives my book club friends crazy).  I always want to know how things turn out, which can be a little frustrating in my area of practice.  I provide advice and counsel to clients on how to deal with sticky employment situations, but I don’t always hear what happens afterwards. ( I assume things go as planned, since my clients don’t have to ask for further advice, but who knows?)

I also wonder what happens in important and interesting cases after an appeals court weighs in and reverses a lower court.  In those cases, the matter is sent back to the lower courts for further proceedings consistent with the appellate court decision, but you don’t always hear what actually happens there.  One such recent important and interesting case was EEOC v. Abercrombie & Fitch , in which the U.S. Supreme Court reversed the U.S. Court of Appeals for the 10th Circuit.  In this case, the applicant for employment did not state that her headscarf was worn for religious reasons, but the company believed that it was and it chose not to hire her because she did not fit its East Coast Preppy “Look” policy.

The 10th Circuit had held that an employer must have actual knowledge of an individual’s religious need in order to be liable for failing to accommodate that need under Title VII.  The Supreme Court reversed the 10th Circuit, however, and held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required.

So, for those of you, like me, who wondered what happened after the Supreme Court’s ruling, the Equal Employment Opportunity Commission issued a press release, announcing that Abercrombie & Fitch had settled the case by paying $25,670 in damages to the applicant (who apparently now works at Urban Outfitters) and $18,983 in court costs.

Although it wasn’t included in the press release, I’m sure that Abercrombie & Fitch is also reworking its interview and hiring policies, and training its managers, with regard to possible religious dress accommodations – a step that other employers should also consider.  If an applicant dresses in a manner that is not compliant with the company’s dress code, it may be wise for the employer to explain the dress code and ask if the applicant can comply with it – this would likely trigger the applicant to explain any religious dress needs, enabling the employer to engage in the obligatory reasonable accommodation interactive discussion.  In fact, employers may wish to make this a generally applicable question to all applicants, so as to not target individuals based on a “perceived” religious dress requirement.

And they all lived happily ever after.  The end.