BREAKING: NLRB publishes final rule on mandatory posting of labor rights

Last December, the NLRB proposed a rule requiring employers to post notices informing their employees of their rights as employees under the National Labor Relations Act. This morning, the NLRB published its Final Rule [pdf] mandating this posting. The notice (pages 185 – 190 of the Final Rule) provides a comprehensive list of employee’s rights under the NLRA, including their right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also provides examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

Here is what the NLRB wants employers to know about the mechanics of this new posting requirement:

• It takes effect November 14, 2011.
• It is mandatory for all employers who are subject to the NLRA—union and non-union (which is nearly all private sector businesses).
• Beginning November 1, each NLRB regional office will be able to provide a copy of the notice free of charge, or employers can print it directly from www.nlrb.gov.
• The NLRB will also make translated versions available, which must be posted at workplaces where at least 20% of employees are not English-proficient.
• Employers also must post the notice on an intranet or an internet site if they customarily post personnel rules and policies there.
• The rule has no record-keeping or reporting requirements.
• The NLRB may treat any failure to post as an unfair labor practice.

Non-union employers, how do you feel about having to tell your employees that they have the right to form a union? That’s what I thought.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Keeping head in sand risky to employers in discrimination cases

I’ve written before about the honest-belief rule—if an employer honestly believed in the proffered reason for its action, an employee cannot establish pretext, even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless. Jones v. Nissan N. Am. (6th Cir. 8/19/11) [pdf] illustrates that an employer’s honest belief, though, cannot coexist with a disregard of the cold, hard facts.

In Jones, the employer argued that it could not be liable for an ADA violation by refusing to return an injured employee to work because it held an honest belief that an order of the workers’ compensation court prohibited the employee’s return. The Court disagreed:

Nissan’s defense … was based on the premise that Nissan imposed unsubstantiated medical restrictions on Jones because it believed the chancellor’s decision and order required it to do so…. In the instant case, however, notwithstanding Nissan’s arguments to the contrary, it is clear beyond peradventure that the chancellor’s order did not direct Nissan to restrict Jones from continuing in the trim-fit position he was performing at the time of the workers’ compensation trial. The order only directs Nissan to pay certain benefits…. Most glaringly, Nissan concluded that Jones was restricted from using “hand tools,” despite the fact that the chancellor did not make a single finding with regard to Jones’s ability to use hand tools in his job.

Courts give wide latitude to employers who make informed decisions based on all available facts and circumstances. As this case illustrates, employers who ignore the facts, or fail to make a thorough investigation to uncover all reasonably available facts, don’t fair so well. Strive to be the former; do not succumb to the ease of the latter.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Why people hate lawyers

Suppose you apply for a job. The job has certain dress code requirements for all employees. You, however, think the mandatory clothing will look unflattering on your over-40-year-old body. Do you…

1. Look for a different job?
2. Apply anyway and deal with the requirements?
3. Sue for age discrimination?

If you’re most people, you choose either of the first two options. If you’re attorney Roy Lester, however, you opt for number three.

When the New York Office of Parks, Recreation, and Historic Preservation refused to hire 58-year-old Lester as a lifeguard, he sued, claiming age discrimination. The lawyer-by-day claims that the job requirement that he wear certain swimwear discriminates against him because of his age. From CNN.com:

The rule, still in operation, requires that to be re-hired as a lifeguard, participants must wear either “boxers, briefs or board shorts” when completing a qualifying swim test…. Lester who believes that “as you age you should show less skin” prefers jammers; tight lycra shorts that end a couple of inches above the knee. The bankruptcy attorney claims “Speedos are not appropriate for a 61-year-old” and refused to wear loose-fitting shorts because they would slow him down.

According to the Wall Street Journal’s Law Blog, “Peter Brancato, spokesman for New York state’s Office of Parks, Recreation and Historic Preservation, [said] that there never was a policy specifically requiring lifeguards to wear Speedos. For the annual swim test, lifeguards are required to wear regular work gear, which for men could be a Speedo, a boxer-type swimsuit or a board suit.”

In other words, the employer subjected Lester to the same dress code as every other employee and applicant. Guess what? That’s not age discrimination, even according to the EEOC: “In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.” Exceptions include dress codes that conflict with an employee’s religious practice or disability. The law makes no such exception, however, for an employee’s age.

(An appellate court just reinstated Lester’s claim, following a dismissal by the trial court. That fact does not make me think his claim is any less ridiculous).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

EEOC garners $2.6 million fee award … but not how you think

A Michigan federal judge has slammed the EEOC for its “reckless sue first, ask questions later strategy.” After 11 years of litigation, the court awarded the EEOC’s target, Cintas Corporation, $2,638,443.93 in attorneys’ fees, costs, and expenses from the agency.

The court justified its astronomical award based on the EEOC’s failure to investigate before filing suit, and dilatory tactics before and after filing suit:

• The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
• The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
• The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.
• The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action….

During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation…. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, “There appears to be no purpose for [the EEOC’s] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas.”

Employers, if you’ve ever been sued by the EEOC, you know it is never fun to be in its crosshairs. Unlike you, the agency does not pay lawyers to litigate for it, and has seemingly unlimited resources to make your lives a living hell. Take heart, though, that there are judges who will hold the EEOC’s feet to the litigation fire. As this case illustrates, it is possible to beat the EEOC at its own game. But, it’s going to take perseverance.

A copy of the Court’s 31-page opinion is available here.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

LexisNexis nominates the Ohio Employer’s Law Blog for consideration as one of the top 25 Labor & Employment Blogs

I am pleased to announce that LexisNexis has honored me by naming the Ohio Employer’s Law Blog to its list of nominees for the Top 25 Labor and Employment Law Blogs:

Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. This year, we’ve expanded Top Blogs to our Labor and Employment Law Community. We’ve been fortunate to host the content of a number of distinguished legal professionals who have shared their insights and expertise with our Community, and through the process of seeking what we consider to be “top blogs,” we have discovered many more.

Here’s where the hard part comes in. LexisNexis is asking for your help to whittle the initial list of 59 down to the final list of the top 25 labor & employment blogs. If you have something nice to say about my blog, or any of the other deserving nominees (including my six contributors to Think Before You Click…), please take a minutes to submit your comments to LexisNexis. LexisNexis will consider all comments submitted through September 12 in compiling its top 25 list. At that point, LexisNexis will open the top 25 to voting to select the Top Labor and Employment Blog of the Year.

Thank you, LexisNexis, for including me. And, thank you to any of my readers who take the time to drop LexisNexis a note on my behalf. And, lastly, thanks too to anyone who has taken the time to nominate my blog to the 2011 ABA Blawg 100.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Vaporizing employment laws? The results

On Monday, I asked my readers the same question posed by Walter Olson at Overlawyered: “If I could press a button and instantly vaporize one sector of employment law…”? The results are in, and the FLSA (my choice) and the FMLA are the clear winners.

Dan Schwartz, on his Connecticut Employment Law Blog, chose “leave” laws:

Right now, particularly in Connecticut, there are multiple laws an employer must consider when an employee is absent, particularly for an injury on the job. Among them: ADA, CFEPA (Connecticut’s version of the ADA), FMLA, CTFMLA (Connecticut’s version of the FMLA), Connecticut Workers Compensation laws, and Connecticut’s new Paid Sick Leave law…. Trying to figure those out shouldn’t take a law degree, and yet, they do.

On Twitter, Pat Richter agrees:

Suzanne Boy, at Southwest Florida HR Law & Solutions, agrees with me that the FLSA needs to go:

I despise the FLSA for my clients…. There are so many complicated requirements, classifications, exemptions, etc., employment lawyers can barely get them straight. How do you think that struggling small business owner down the street who is truly doing his best to do the right thing, but made a simple, honest mistake on record-keeping or classification or calculating overtime feels? Even when employers do everything right (which, because the law is so complicated and detailed, is admittedly rare), it’s too expensive to fight the case. It’s also too risky to fight it, since one tiny slip up could result in a large attorneys’ fee award for the plaintiff.

Tim Eavenson, at Current Employment, agrees with the choice of the FLSA:

By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA—a law whose sole purpose is to protect the American workforce—is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees, and the FLSA people had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work—cramming workers into classifications that didn’t really fit. Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.

Agree? Disagree? Comment away.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Federal court takes EEOC to task for its work-life-balance agenda

In a 64-page opinion, a New York federal court issued a scathing indictment of the EEOC’s sue-first-ask-questions-later litigation tactics. In EEOC v. Bloomberg L.P., the agency accused the financial news giant of engaging in a pattern and practice of discriminating against pregnant women and mothers. The court strongly disagreed:

“J’accuse!” is not enough in court. Evidence is required.

The court also lobbed a grenade against those who pursue a work-life-balance agenda in the name of sex discrimination:

At bottom, the EEOC’s theory of this case is about so-called “work-life balance.” Absent evidence of a pattern of discriminatory conduct—i.e., a pattern that women or mothers were discriminated against because of their pregnancy as compared with others who worked similar schedules—the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance…. The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs—and they are tradeoffs—when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward-thinking.” But they are not required by law. The law simply requires fair treatment of all employees. It requires holding employees to the same standards.

In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers…. Bloomberg’s standard operating procedure was to treat pregnant employees who took leave similarly to any employee who took significant time away from work for whatever reason. The law does not create liability for making that business decision.

In other words, family responsibility discrimination is only unlawful if it treats genders differently. It is not unlawfully discriminatory for a company to discriminate against those who chose family over their jobs, so long as men and women suffer the same consequences. The failure to provide what makes business-sense (promoting a family-friendly work environment) does not, in an of itself, equate to sex discrimination (despite what the EEOC may tell you).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.