6th Circuit volunteers gift to volunteer employees in coverage under Title VII

Lots of people work for free—volunteers, interns, students, and others all provide their time to businesses without receiving any pay in return. Last week, the 6th Circuit, in Bryson v. Middlefield Volunteer Fire Dep’t, decided whether a “volunteer” (a presumably, the other categories of unpaid workers) qualifies as an employee covered by Title VII. The trial court had concluded that Bryson, a volunteer firefighter, did not qualify under Title VII solely because the Department did not pay him.

The 6th Circuit concluded that merely looking at whether or not a volunteer is paid is insufficient. Instead, employers must also examine the degree of control exercised by the employer over the manner and means by which the work is accomplished. In evaluating the degree of control, employers must look at all of the following factors:

• The skill required
• The source of the instrumentalities and tools
• The location of the work
• The duration of the relationship between the parties
• Whether the hiring party has the right to assign additional projects to the hired party
• The extent of the hired party’s discretion over when and how long to work
• The method of payment
• The hired party’s role in hiring and paying assistants
• Whether the work is part of the regular business of the hiring party
  Whether the hiring party is in business
• The provision of employee benefits
• The tax treatment of the hired party

Because Bryson expands Title VII’s coverage, this case reinforces the idea that employers should not use unpaid help without legal guidance. The DOL is looking over your shoulders. The EEOC is looking over your shoulders. Courts are looking over your shoulders. And, your unpaid help is looking over your shoulders. A misstep in how you categorize employees could be a costly mistaken on these multiple fronts.

---

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.

NLRB finally gives some real-world guidance on social media as protected, concerted activity

In the NLRB's final act before the long Labor Day weekend, an Administrative Law Judge in Buffalo, NY, issued his decision in Hispanics United—the first written decision in an NLRB case involving social media to result in an ALJ decision following a hearing.

In Hispanics United, five employees claimed that their terminations—on the heals of a Facebook discussion critical of another employee’s job performance—violated their rights under the National Labor Relations Act to join together to discuss the terms and conditions of their employment. The ALJ agreed:

I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected.

The ALJ made several key observations about the Board’s treatment of social media posts as protected, concerted activity:

• “It is irrelevant to this case that the discriminatees were not trying to change their working conditions and that they did not communicate their concerns to Respondent…. I find that the discriminatees’ discussions about criticisms of their job performance are also protected.”
• “[A]n employer violates Section 8(a)(1) in disciplining or terminating employees for exercising this right—regardless of whether there is evidence that such discussions are engaged in with the object of initiating or inducing group action.”
• “Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted.”

This case stands for the proposition that social websites are akin to a digital water cooler. If you wouldn’t discipline for water-cooler talk, then you shouldn’t for social media posts. The difference, though, is that social websites leave a digital trail that makes them tempting fodder for the types of retribution that will result in unfair labor practice charges.

Last month, the NLRB’s Office of General Counsel began to provide some clarity on when and how employees' social media activities are protected. Hispanics United provides added clarity, and should give employers added concern over their ability to regulate their employees’ use of social media inside and outside of the workplace. This case likely will now head to Washington, DC, for disposition by the NLRB. Perhaps we will finally receive some needed guidance from the Board on what has become a beguiling issue for businesses.

(In the meantime, if you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

---

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.

Pregnancy as disability discrimination: New ADA vs. Old ADA

A year ago, the 6th Circuit concluded that pregnancy-related impairments that are not part of a “normal” pregnancy—such as miscarriage susceptibility—can qualify for protection under the ADA. Late last month, the 7th Circuit—in Serednyj v. Beverly Healthcare—took up the same issue with a different result. Employers looking for help in dealing with pregnant employees should not celebrate too quickly. Because Serednyj’s termination occurred before the ADAAA took effect, its impact will be short-lived.

Serednyj involved a non-FMLA-eligible employee terminated after her doctor placed her on light duty for pregnancy-related complications. The court agreed that Serednyj’s complications constituted a “physical impairment” under the ADA. It upheld the dismissal of her ADA claim, though, because the short-term nature of her pregnancy meant that it did not “substantially limited a major life activity.”

Serednyj claims that her physical impairment substantially limited her major life activities of reproduction and lifting…. Pregnancy is, by its very nature, of limited duration, and any complications which arise from a pregnancy generally dissipate once a woman gives birth. Accordingly, an ADA plaintiff asserting a substantial limitation of a major life activity arising from a pregnancy-related physiological disorder faces a tough hurdle…. Serednyj’s pregnancy-related complications did not last throughout her pregnancy or extend beyond the time she gave birth.

This case is an illusory victory for employers. Under the ADAAA, which took effect January 1, 2009, the effects of a short-term impairment (one lasting fewer than six months) can be substantially limiting. Employers no longer can expect to be helped by the limited duration of any medical condition (including pregnancy). As the ADAAA’s regulations make clear: “the threshold issue of whether an impairment substantially limits a major life activity should not demand extensive analysis.”

Under a current ADA analysis, I have no doubt that Beverly Healthcare should have accommodated Serednyj’s pregnancy complications by granting her light duty. Despite the employer’s victory in this case, businesses should heed it as a warning that the rules for handling all employee medical conditions—including pregnancy—have radically changed.

[Hat tip: The Employer Handbook]

---

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.

Happy Labor Day

Like most, I’m off today. The Department of Labor, though, never sleeps. It has an entire micro-site that celebrates today’s holiday:

http://www.dol.gov/laborday/

Happy Labor Day. Enjoy your BBQs. I’ll be back tomorrow with a story on the treatment of pregnancy as a disability under the ADA.

---

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.

WIRTW #191 (the “Come on Irene” edition)

Bad puns aside, last weekend was not a good one for the Northeast. Other than an extended power outage, Irene’s worst spared my family in suburban Philly. Others were not so lucky. A Lesson In Social Media from Hurricane Irene, from Dan Schwartz’s Connecticut Employment Law Blog, is a must read for everyone.

As for other stuff to read this week, how about:

• The ABA website, to enter your nominations for the ABA Blawg 100 (until Sept. 9)
• LexisNexis, to enter your nominations for the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12)

You don’t need to vote for me (although it would be nice) but you should vote. I think I can speak for all of my fellow bloggers when I say that we appreciate it.

Here’s the rest of what I read this week:

Discrimination

• 10 steps to take when responding to an EEOC complaint – from Business Management Daily
• Will the EEOC Limit Employers from Using Criminal Background Checks? – from i-Sight Investigation Software Blog
• Does Discrimination Still Exist? Of Course It Does – from Donna Ballman at the Huffington Post
• EEOC: drinking history no reason to withhold heavy trucking jobs – from Walter Olson’s Overlawyered
• “Ugly” Ain’t a Protected Class – from Texas Employer Handbook
• 11 Employer FAQs (No. 5): Is there any difference between light duty and reasonable accommodation? – from Robin Shea’s Employment & Labor Insider
• Employer-Sponsored Wellness Programs under GINA – from Employment Matters Blog
• Eyewitness Evidence Critique May Help In Harassment Defense – from Employer Defense Law Blog
• Thou Shalt Not—When Can Religion Be Considered in Employment? – from Iowa Employer Law Blog

Social Media & Workplace Technology

• FINRA Addresses Smart Phone Use by Brokers – from Rob Radcliff’s Smooth Transitions
• If Lady Gaga tweets your trade secret, is it still a trade secret? – from Eric Meyer’s The Employer Handbook Blog
• Trade Secrets on the Internet – from Russell Beck’s Fair Competition Law
• Truthful Blogging = Tortious Interference with Contract? – from Philip Miles’s Lawffice Space
• Employer Blind-Sided by Employee's Inglorious Web Usage – from Case In Point
• Adult Use of Social Media Soars – from Sarah Needleman at the Wall Street Journal’s In Charge Blog
• Do You Do Social Media Background Checks? – from fyiscreening.com
• Private Schools and Social Media – from Brian Wassom’s Augmented Legality
• Social Media Policies are Critical for Managing Online Legal Issues – from Richman Greer Blog

HR & Employee Relations

• What’s the Harm in a Little Workplace Porn? For Starters, Unemployment Benefits. – from Jason Shinn’s Michigan Employment Law Advisor
• Kissing on the Job – from Workplace Prof Blog
• Would You Take A Polygraph To Get A Job? – from Workplace Diva
• Background Checks Gone Wild Hurt Us All – from Nick Fishman at employeescreenIQ Blog
• Don’t Send Conflicting Messages to Employees – from KnowHR
• When Entitlement Meets Unemployment – from Harvard Business Review
• Legal Considerations When Terminating An Employee – from Virginia Employment Law Journal
• You “Tolled” Me My Non-Compete Only Lasts a Year!! – from Trade Secrets & Non-Compete Blog

Wage & Hour

• Interesting Wage & Hour Enforcement Statistics – from Wage & Hour Insights
• Wage & Hour Lawsuits Cost Both Big and Small Companies – from Mike Haberman’s Omega HR Solutions
• You Can’t Make Someone Salaried to Avoid Overtime Payments – from Evil HR Lady, Suzanne Lucas
• Unusual Resume Stories Include Wage and Hour Item – from Wage & Hour Tips
• World’s Scariest Employment Law – from Manpower Employment Blawg
• Survey: Workers Frequently Call in Sick When They Aren’t Sick at All – from TLNT

Labor Relations

• What You Don’t Know About the NLRA Might Hurt You – from Patrick Smith’s Iowa Employment Law Blog
• How Walmart Avoids Unions by Cracking Down on Baby Shower Committees – from Workplace Fairness
• Ohio union law ballot issue faces Monday deadline – from Businessweek
• NLRB Issues Decisions Barring Decertifcation Petitions Following Voluntary Union Recognition, Mergers or Acquisitions – from Seth Borden’s Labor Relations Today
• Blizzard part 2: NLRB Reverses Dana and MV Transportation – from Labor Relations Update

---

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.

Can a handbook policy bind an employee to arbitration? 6th Circuit says no.

We spend a lot of time debating the respective merits of fine point of the law. The reality, however, is that judges are people too. Despite their training, robes, and gavels, the decision of many cases comes down to one key fundamental question: did one side treat the other side fairly? Courts don’t like litigants that try to pull a fast one.

Hergenreder v. Bickford Senior Living Group [pdf] provides a perfect example. It also illustrates why arbitration of employment disputes often is a losing battle.

Bickford filed a motion to compel Hergenreder to arbitrate her disability discrimination case under an arbitration clause buried in its employee handbook. Section 12 of the 16-section handbook—for which Hergenreder had signed an acknowledgment that she had read and understood its terms—provides as follows: “Dispute Resolution Process  Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” The separate, 20-page DRP, in turn, required that employees submit all claims to arbitration. The employee testified that she never saw the DRP, let alone signed for it.

The court concluded that simple inclusion of a reference to the DRP in the handbook did not constitute a binding and enforceable contract between Hergenreder and Bickford to arbitrate all employment claims:

The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]”

[T]here is no evidence that the DRP was “posted” in a place—either physical or electronic—available to Hergenreder, that there were meetings at which Hergenreder was notified of the policies, or that Hergenreder was aware of the DRP at all…. Bickford does not argue that it actually distributed or made the DRP available to Hergenreder.

Employers, if you are going to require employees to arbitrate their claims against you, do yourself a favor and at least have the employee sign a separate arbitration agreement. You might succeed on enforcing an alternative form of an alternative dispute resolution agreement (such as a handbook clause). But, you will spend the money you perceive you are saving through arbitration by trying to enforce your right to arbitrate.

---

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.

NLRB gifts huge victory to unions, and against secret-ballot elections (Lamons Gasket)

Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign.

In Dana Corp., decided in 2007, the NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”

Yesterday, however, in Lamons Gasket Co. [pdf], the NLRB reversed Dana Corp. and did away with post-card-check decertification elections.

In reaching its conclusion, the majority relied upon statistical evidence of requests for Dana notices and resulting decertifications:

• As of May 13, 2011, the Board had received 1,333 requests for Dana notices.
• In those cases, employees filed 102 election petitions, resulting in 62 elections.
• In 17 of those elections, the employees voted against representation by the voluntarily recognized union.

The Board argued that Dana is unnecessary because employees successfully decertified the voluntarily recognized union in only 1.2% of the total cases in which Dana notices were requested. I look at the numbers differently. Dana is needed because 27% of cases in which elections were held resulted in decertifications. It is intellectually dishonest to draw conclusions from the 98.8% of cases in which no further action was taken and which we know nothing about.

I can also offer anecdotal evidence of the need for Dana. I was one of the successful Dana elections. In my case, the employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. The entire unit voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice.

For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice about unionization through a secret ballot election. If we can use a Dana election to ensure that employees have the right to have their voices heard in a secret ballot election, what’s the harm?

---

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.