As we reported in May, the United States District Court for the District of Columbia invalidated the NLRB’s proposed “quickie” election rules, on the grounds that the Board lacked a proper quorum on the day of voting.   Member Brian Hayes never formally voted on the rules, though he did indicate in the days before the electronic vote that he opposed them.   The NLRB believed apparently that this opposition was enough, procedurally.   The Court held otherwise, concluding that Hayes never actually showed up for the electronic vote, a quorum was not constituted, and any action adopting the rules was invalid.   The Board asked the Court to reconsider its decision.   The Court has done so and reached the same result as before: the election rules are still invalid.

The NLRB focused on two points – first, that Member Brian Hayes’ participation in some pre-voting activity should “qualify him for inclusion in the quorum.”   This argument was made during the first round of legal wrangling and rejected by Judge Boasberg—it was rejected again in the latest ruling as well.

The argument that presented a “closer call” was an affidavit submitted by the “principal architect” of the Labor Board’s “electronic voting room.”  He swore that the other two Board members voted on the final rule at 11:54 a.m. and 12:05 p.m. respectively and that approximately 20 minutes later, the Chairman created a voting task asking Member Hayes to vote.   His counsel “opened” the task at 12:37 p.m., thus leading the Labor Board to conclude that Member Hayes was part of the quorum.

The Court rejected this argument, for several reasons.  First, the Court found that the Board failed to make this argument at all during the original proceeding.   It seemed that since this was the “first time” this argument was raised, the Court found it less credible.   Next, the Court said that while this evidence was “useful,” it was not enough to establish that Hayes was present for this specific vote, that there was no evidence that Hayes’ employees were authorized to vote or abstain in his place, and that there was no evidence that the Board waited to send the Rule to publication until after Hayes’ staff member opened the task at 12:37 p.m.  The Court found nothing in the final rule stating that Hayes abstained.  Instead, the Court held that Hayes was under the “misimpression” that by opposing the rule in the previous days he had effectively voted against the rule.

Ultimately, the Court held that the NLRB’s new evidence was “too little too late.”  As a result, the NLRB’s new election rules are still invalid.

Two recent harassment cases are attention-getters because they illustrate the potentially high stakes damages to which employers are exposed.

The EEOC recently announced a final judgment of over $1 million against Whirlpool Corporation, which dropped its appeal to the U. S. Court of Appeals for the Sixth Circuit in Ohio in a sexual and race harassment case.  The case, which had been pending for over six years, included testimony that a white male coworker subjected an African-American female worker to repeated verbal abuse and gestures, as well as an assault resulting in injuries.

In a second case, a jury in federal court in New York awarded $25 million to a former steel plant employee who was found to have been subjected to a hostile work environment, filled with incidents of racial slurs, graffiti, signs, a noose and other racially offensive props.  The employer and individual defendants failed to investigate or take corrective action with respect to repeated claims.  In addition to the Title VII violations, the jury found the actions amounted to intentional inflection of emotional distress.  Turley v. ISG Lackawanna, Inc., d/b/a Arcelor-Mittal Steel, Case No. 06-cv-794S (W.D.N.Y. 2012).

These cases reinforce the importance of employers having anti-harassment policies, as well as promptly investigating complaints and remedying those that are bona fide.

An employee has requested a religious accommodation – do you need to grant it?  Federal and state anti-discrimination laws require employers to provide reasonable accommodation for the religious practices and beliefs of employees, but relieves companies of the obligation if doing so will cause an undue hardship on the business.

Accommodations might include modified schedules, such as exempting employees from work on their Sabbath, waiver of dress and appearance standards (such as to permit an observant Jewish employee to wear a yarmulke), or relieving an employee of objectionable duties (e.g., excusing a waitress who is Jehovah Witness from singing “happy birthday” to a patron with other servers because it is against her religion).  An accommodation that would unduly burden others (such as requiring others to work every Saturday) or require the employer to bear extra expense (such as paying overtime to a replacement), need not be provided.  Before denying an accommodation, however, legal counsel should be sought.

Many employers are aware that, before filing a discrimination lawsuit in federal court, an employee must file a timely charge of discrimination with the Equal Employment Opportunity Commission.  The charge filing, which must occur within 180 days of the allegedly discriminatory act (or 300 days where there is a state agency with whom the charge can be co-filed), is an administrative prerequisite to bringing a lawsuit.  But employers can be subject to suit by the EEOC on the employee’s behalf, even where the employee has not filed a charge, as demonstrated in the case of EEOC v. Fry’s Electronics, Inc.

In this case, a female store employee was subjected to sexually harassing conduct (including sexual text messages, leering, and an instance of groping) by the Assistant Store Manager.  Despite her requests to stop, he continued the conduct.  The employee complained to her department supervisor and department manager.  The department supervisor reported her complaint to the corporate office.   The store manager, who was a close friend of the harasser, was directed to conduct an investigation.  The store manager did not take any notes of his interviews and did not complete an investigation report, although he had done so in other investigations.  The department supervisor was terminated within weeks of reporting the harassment and soon after his interview by the store manager.  The harassment of the female employee continued until she was terminated less than a year later.

The department supervisor filed an EEOC charge of discrimination, but the female employee did not.  In the course of its investigation into the supervisor’s charge, the EEOC determined that the female employee had also been subjected to retaliation, as well as sexually harassed.  It subsequently brought suit for violations of Title VII against the company on behalf of both the employee and the supervisor.  The company asked the federal district court to dismiss the claims asserted by the EEOC on behalf of the employee, because she had not met the administrative prerequisites for bringing a claim.  While the court agreed that she could not bring her own claims, it found that “the procedural limitations that apply to private claims do not necessarily apply to the [EEOC].”  The court held that the EEOC can bring suit on behalf of employees who did not file a charge if it discovers violations affecting those individuals during the course of a reasonable investigation into a valid charge.  The EEOC must then provide notice to the employer of the additional claim, determine that reasonable cause exists to support the additional claim, and attempt to resolve the claim with the employer prior to filing suit – all of which happened here.

So employers should be aware that the EEOC’s abilities to pursue litigation on behalf of employees is more extensive than the employee’s abilities to pursue their own rights.  EEOC litigation arising from a charge of discrimination filed by one employee may end up encompassing more than that one individual.

The NLRB continues to take action designed to help unions organize employees.  The latest step is the Board’s recently established web page designed to inform employees of their right to engage in protected concerted activity.  The web page, located at www.nlrb.gov/concerted-activity, begins with the statement: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.”  The web page includes a map of theUnited States with various points marked on the map which the user can click on to show approximately a dozen descriptions of recent NLRB cases involving protected activity by non-union employees.

The cases described include, among others, (1) a construction crew member who was fired after refusing to work in the rain near exposed electrical wires; (2) a customer service representative who lost her job after discussing her wages with a coworker; (3) an engineer at a vegetable packing plant who was fired after reporting safety concerns affecting other employees; (4) a paramedic who was fired after posting work-related grievances on Facebook; and (5) poultry workers who were fired after discussing their grievances with a newspaper reporter.  All of the cases involved a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.

Of course, the Board’s web page does not mention that the law it enforces also gives employees the right not to join a union.

When can an employer ask about an employee’s health?  Multiple federal laws restrict when and what may be asked of applicants and employees.  In a recent letter, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for the enforcement of federal antidiscrimination laws, offered some guidance on medical inquiries under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), Title VII, and the Age Discrimination in Employment Act (ADEA).

Under the ADA, the EEOC notes the following restrictions on medical inquiries and examinations:

  • No disability-related inquiries or examinations are permitted before a job offer is made, even if job-related.
  • After a job offer is made, an employer can ask disability-related questions and require medical examinations, as long as it does so for all employees entering the same job category.
  • Withdrawing a job offer based on medical information “will almost certainly result in regarding an applicant as having a disability.”  Therefore, the employer must establish that the impairment makes the applicant unqualified to perform the essential job functions of the position or that the applicant poses a direct threat to the safety of himself or others based on the impairment.  Reasonable accommodations must be considered in determining whether the applicant can perform the essential functions of the job, or whether any direct threat can be reduced to an acceptable level/
  • After employment begins, any disability-related questions and medical examinations must be job-related and consistent with business necessity.

Under GINA, the EEOC affirms that employers cannot ask applicants about family medical history or other genetic information.  Specifically, medical history forms should not include such inquiries.

The EEOC also notes that asking only applicants in certain protected groups to provide post-offer medical information can violate age and sex discrimination laws.  For example, requiring women over 50 to submit information about their mammogranms, all women to provide information about Pap smears, and all individuals over 50 to provide colon cancer screening information targets women and individuals in a protected age group.  According to the EEOC, these inquiries are problematic under Title VII, which prohibits differential treatment on the basis of sex, and the ADEA, which prohibits age discrimination.

Bottom line – employers should be thoughtful about when and why to ask for medical information from applicants and employees.

The NLRB General Counsel’s office has released its third report on recent social media cases. The GC reviewed social media and confidentiality policies from several companies and found most policies unlawful.  In particular, the GC found the following portions of various social media and confidentiality policies unlawful:

  • “Don’t release confidential guest, team member or company information. . . .”

 

  • “You must also be sure that your posts are completely accurate and not misleading”

 

  • “When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea. Failure to stay within these guidelines may lead to disciplinary action.”

 

  • “Respect proprietary information and content, confidentiality, and the brand, trademark and copyright rights of others. Always cite, and obtain permission, when quoting someone else.  Make sure that any photos, music, video or other content you are sharing is legally sharable or that you have the owner’s permission. If you are unsure, you should not use.”

 

  • “Get permission before posting photos, video, quotes or personal information of anyone other  than you online.”

 

  • “Do not incorporate [Employer] logos, trademarks or other assets in your posts.”

 

  • “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.”

 

  • “Think carefully about ‘friending’ co-workers . . . on external social media sites.”

 

  • “Report any unusual or inappropriate internal social media activity to the system administrator.”

 

  • “Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone. . . . This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”

 

 

  • “Employees are prohibited from posting information regarding [Employer] on any social networking sites (including, but not limited to, Yahoo finance, Google finance, Facebook, Twitter, LinkedIn, MySpace, LifeJournal and YouTube), in any personal or group blog, or in any online bulletin boards, chat rooms, forum, or blogs (collectively, ‘Personal Electronic Communications’), that could be deemed material nonpublic information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules. Employees should avoid harming the image and integrity of the company . . .”

 

The Report contains an example of a policy that the GC found lawful.   Aside from copying that policy verbatim, however, it is difficult to figure out how much guidance that policy provides.   Many employers would probably contend that the GC’s “approved policy” is not sufficiently strong enough to protect employer rights in social media.

This report represents only what the GC’s office believes is unlawful, not the full NLRB, an Administrative Law Judge, or a federal appeals court.   Yet, the GC’s opinion is important because that office has the power to issue complaints against employers.  Furthermore, the GC’s office often attacks social media and confidentiality policies as infringing on the right of employees to engage in protected concerted activity, a right which applies in both union and non-union settings.   As a result, both union and non-union employers must be aware of the GC’s position.

Most employers must either revamp their social media policies to conform to this new report, or be willing to take the risk that the GC could find their policy unlawful and bring a complaint.

While the rest of America was busy celebrating the long Memorial Day weekend, internal turmoil at the NLRB finally resulted in action when, on May 26, NLRB Board Member Terrence Flynn submitted his resignation.   The resignation is effective July 24, but Flynn stopped conducting all agency business immediately.

As we discussed on this blog in March, Flynn has been the subject of a NLRB Inspector General investigation into “leaking” confidential Board materials to former Board Member Peter Schaumber.   After the first report was released in March, Flynn proclaimed his innocence, leading to a second IG Report released this past May.   Part II of the Flynn investigation produced some instances where he leaked dissenting opinions to Schaumber before formal Board votes.   Evidence also surfaced that Flynn had some editorial input on a few of Schaumber’s op-eds that appeared in major newspapers and were critical of Board decisions.

It is interesting to read Flynn’s lawyer’s response to the May report.   He does not necessarily deny all of the charges, but basically says that the disclosures are much ado about nothing as Schaumber and Flynn are close personal friends, former professional colleagues, that Schaumber was a former Board member himself, that Schaumber is not actively involved in representing any clients, and that Flynn did not do anything that harmed the “deliberative process.”   In essence, these were just emails between two personal and professional friends, no harm, no foul.

That explanation certainly did not fly with House and Senate Democrats, nor did it apparently carry much weight with the full NLRB.   In a statement released May 29, the four remaining NLRB members—including usual Flynn ally Brian Hayes—stated that the “recent events have created a distraction” from the Board’s mission, and that, “these events also caused us to reflect on the extremely high value we as Board Members place on the deliberations we have with each other . . . .  Hopefully, we can all come away from this difficult experience and the threat it posed to our deliberative process with a greater appreciation for that process.”

Since Flynn was a Republican appointee to the Board, he will be replaced by another Republican appointee, almost certainly with similar views on labor policy and law.   The controversy will have little impact on the final outcome of pending cases.   However, the case will certainly make Board members and staff more cautious in how they communicate with friends on the outside.   While Terrence Flynn appears to be the first to be caught, it is hard to believe that he was the only Board employee to ever share information in this fashion.   Board members and staff will presumably be more careful in the future about sharing NLRB information with outsiders.

The U.S. Court of Appeals in D.C., in Stephens Media, LLC v. NLRB, just upheld a finding by the NLRB that an employer in Hawaii unlawfully punished protected concerted activity when it interrogated four employees and discharged one of them for surreptitiously recording a meeting with a management representative. The employer had no policy against secret recordings. Moreover, no state law was violated.

Recordings without all party knowledge and consent are illegal in a number of states, including Maryland.  Still, employers in Maryland and states with similar laws should consider stating that they prohibit any recording of conversations in violation of state law.  Further, employers in states where all party consent is not required when recording conversations should consider implementing the additional prudent step of expressly prohibiting secret recordings of meetings or any conversation in the workplace.

An employee calls out for two days for a stomach complaint.  He then calls out for FMLA-covered condition of cellulitis (a skin infection causing pain and inflammation) in his leg that keeps him out for two weeks.  Most employers would assume that the stomach complaint is unconnected to the leg infection, and not look any further.   His employer did just that – and it got the Company into potential trouble.

In McLaughlin v. Autozoners, LLC, the employer had an attendance policy under which points were accrued for absences other than FMLA-covered absences, and termination occurred when an employee reached 12 points in a 12-month period.  The employee in this case had accrued 8 points as of July 2010.  He went to the doctor on July 29, complaining of abdominal pain and loose stools.  The doctor wrote him a note excusing him from work on Thursday and Friday, July 29-30, which the employee provided to his supervisor.  On Sunday, the employee informed his supervisor that he would miss work on Monday, August 1, because of leg problems that had arisen during the weekend.  He was diagnosed with cellulitis, and remained out of work through August 15 because of that condition.

The cellulitis-related absence was covered by FMLA, and was not counted under the attendance policy.  The employer, however, counted the July 29-30 absences as attendance violations because the employer assumed they weren’t connected to the FMLA-covered condition and they didn’t seem to meet the requirements for a serious health condition under the FMLA (overnight stay in a hospital or an illness/injury lasting more than 3 days involving at least two visits to a doctor).  This resulted in the employee’s reaching 12 points and termination.

The problem was that the employer made assumptions about the illnesses without getting all the information.  The Court found that there was some evidence that the cellulitis-related symptoms started on July 30, as the employee had reported to his doctor, and therefore there was the possibility that the entire period of absence perhaps should have been considered a continuous serious health condition protected by the FMLA.  The Court determined that there were fact issues that must be decided by a jury – whether the stomach ailment was a serious health condition and whether the cellulitis may have started earlier and overlapped the July 29-30 absences.

Lesson for employers – don’t assume that different illnesses are automatically unrelated for purposes of FMLA.  More information may be available and should be considered.