New pregnancy discrimination legislation is unneeded, redux

On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

EEOC goes nuts as its fiscal year closes

How do you know that last Friday marked the end of the EEOC’s fiscal year? Because it filed over two dozen lawsuits that week. The filings provide a glimpse into the agencies enforcement priorities:

• 14 of the cases allege disability discrimination
• 5 allege race discrimination
• 3 allege retaliation
• 3 allege pregnancy discrimination
• 2 allege sexual harassment
• 2 allege racial harassment
• 1 alleges age discrimination

What’s more interesting than the flurry of filings, however, is the fact that only 6 allege systemic discrimination—discrimination against a group of employees based on a common policy or practice. Earlier in September, the EEOC published its draft strategic enforcement plan for the next 5 years. Its number 1 claimed priority is “eliminating systemic barriers in recruitment and hiring.” Yet, only approximately 20 percent of its flurry of filings strike at these systemic barriers.

What does this activity by the EEOC mean for employers?

• You have to remain vigilant in your efforts to rid your workplaces of all kinds of discrimination. The EEOC is watching, and, where the facts warrant, will litigate on behalf of an aggrieved individual.
• Disability discrimination is a prime enforcement target. Invest some time and money (i.e., training) to ensure that your managers and supervisors understand their obligations under the ADA to reasonably accommodate disabled employees. Review your policies to ensure that they do not single-out disabled employees or operate to deny them reasonable accommodations.

[Hat tip: Dan Schwartz]

Pay attention: NLRB issues its second social media decision in a month (Knauz BMW)

Late last week, the NLRB issued its second decision in a case involving employee use of social media. In Karl Knauz BMW, the Board concluded that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. For the background on this case, please go here to read my post from a year ago discussing the Administrative Law Judge’s earlier decision.

The case hinged on whether Knauz BMW terminated a salesperson for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event, or for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership. The NLRB concluded that it was the latter, which did not invoke the Act’s safeguards for protected concerted activity:

It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

This case, however, is not a total victory for employers. In addition to ruling on the legality of the termination, the NLRB also ruled on the illegality of the employer’s “Courtesy” rule, which stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

As was the case in the Costco case decided last month, the NLRB took issue with a facially neutral workplace policy that, if taken to its illogical extreme, could potentially chill employees’ conversation about workplace conditions:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.

As was the case in Costco, Member Hayes dissented. He criticized the majority for making a stretched and tortured interpretation of the work rule at-issue. He instead called for a reasoned reading of the rule as a whole:

Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees…. Nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages); rather the rule concerns the tenor of any conversation. In short, by its “Courtesy” rule the Respondent sought to promote civility and decorum in the workplace and prevent conduct that injures the dealership’s reputation—purposes that would have been patently obvious to Respondent’s employees, who depend on the dealership’s image for their livelihoods.

Unfortunately for employers, Member Hayes was out-voted 2 – 1.

What now for employers, as we are starting to receive some clarity on these issues from actual Board decisions instead of advice memoranda?

• Unfortunately, the rationale of these decision on the legality of workplace communication policies is as strained as that suggested by the Office of General Counsel earlier this year. For now, the best course of action is to tread cautiously when dealing with these issues (and hope that November’s election brings some relief to the American business community from activist federal agencies).
• In the meantime, however, employers need to pay careful and diligent attention to this issue. Social media and other employee communication policies remain on the forefront of the NLRB’s hit parade. No matter how this issue ultimately shakes out, and no matter how ludicrous this result seems, this case, Costco, and Fresenius USA Manufacturing (giving employees a right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) deserve the attention of every company doing business in America.

[Hat tip: Workplace Prof Blog]

Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous)

Hopefully you’re not getting tired of me railing against the National Labor Relations Board for its parade of opinions designed to undermine the rights of employers to regulate the workplace. As long as the NLRB keeps pumping out these opinions under the generic umbrella of “protected concerted activity,” I feel a moral obligation to continue writing about them.

The latest victim is Fresenius USA Manufacturing [pdf], which concluded that an employer cannot discipline or terminate employees who make vulgar, offensive, or threatening statements.

In this case, an open and active supporter of the union, employee Kevin Grosso, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters left in an employee breakroom. The anonymous notes included “Dear Pussies, Please Read!” and “Warehouse workers, RIP.” No one disputed that Grosso was attempting to encourage his fellow employees to support the union in an upcoming decertification election.

In a good-faith response to female employees’ complaints about those statements, Fresenius investigated the statements. The investigation included questioning Grosso, during which he lied about writing the statements. Upon confirming Grosso’s authorship, the company suspended and discharged him for making the statements and lying about writing them.

The NLRB concluded that the employer was within its rights to investigate the statements and question Grosso, but could not suspend or discharge him as a result.

[A]lthough we find that Fresenius did not violate the Act by investigating and questioning Grosso, we find … that Fresenius did violate the Act by suspending and discharging him…. Grosso’s handwritten comments encouraged warehouse employees to support the Union in the decertification election. We therefore conclude that, in writing them, Grosso was engaged in protected union activity…. Fresenius discharged Grosso for writing those comments.

You might be thinking to yourself, why can’t we circumvent all this nonsense with a simple conclusion that the employer was within its rights to terminate Grosso for his dishonesty? Well, the NLRB has an answer to that question, too … and you’re not going to like it either:

Fresenius’ discharge letter to Grosso also cited his false denial of responsibility for the comments, but Fresenius could not lawfully discipline him on that ground…. Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity, which Board precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business…. As a result, although Fresenius had a legitimate interest in questioning Grosso and lawfully did so, Grosso had a Sec. 7 right not to respond truthfully.

Do you read that quote the same way I do? Did the NLRB really say that investigating complaints of harassment, consistent with an employer’s obligations under Title VII, is “unrelated to the employee’s job performance or the employer’s ability to operate its business.”

Perhaps the dissenting opinion put it best:

Notwithstanding their disavowals, my colleagues thereby impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

The business community needs to pay careful attention to cases such as Fresenius USA Manufacturing. The NLRB continues to dangerously regulate employers rights to control and remedy workplace misconduct, all in the name of “protected concerted activity.” Forcing employers into a Hobson’s Choice between the NLRA and Title VII is just plain silly. If the NLRB continues its path, employers will be left with little recourse against misbehaving employees, and at-will employment may become an historical relic.

WIRTW #244 (the recap edition)

All week, I’ve be posting the one question I’d ask each of the Presidential and Vice Presidential candidates during the upcoming debates:

• President Obama: protections for working families
• Mitt Romney: LGBT civil rights
• Vice President Biden: union rights and the National Labor Relations Act
• Paul Ryan: Ayn Rand and fiscal conservatism

I’m not the only one who has been posting these questions this week. My fellow employment law bloggers have also been chipping in: Dan Schwartz (who came up with the idea at his Connecticut Employment Law Blog), Eric Meyer (The Employer Handbook Blog), Robin Shea (Employment and Labor Insider), and Donna Ballman (offering a perspective from the plaintiffs’ bar at Screw You Guys, I’m Going Home).

If nothing else, we’ve been consistent with our themes:

• Family Leave Rights: Eric’s question to Mitt Romney
• Paycheck fairness and pay equity: Donna’s question to Barack Obama, Eric’s question to Joe Biden, Eric’s question to Barack Obama
• LGBT Rights: Robin’s questions to Joe Biden; Dan’s question to Barack Obama; Dan’s question to Paul Ryan
• Union issues: Dan’s question to Joe Biden, Eric’s question to Paul Ryan, Donna’s question to Joe Biden, Robin’s question to Paul Ryan

Suffice it to say that these four issues comprise some of the biggest issues facing employers now and for the next four years. Let’s hope we get some clarity on these from the candidates as we get closer to November 6.

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

Discrimination

• Changing Attitudes: Why Employers Need to End Pregnancy Discrimination — from TLNT
• Employer’s “Shockingly Thin” Response to Anonymous Harassment = $3.5 Million in Punitive Damages — from Lorene Schaefer’s WinWinHR
• EEOC Announces Plan for Class Warfare — from Molly DiBianca’s Delaware Employment Law Blog
• EEOC’s Multifaceted Effort To Aggressively Target Employer Policies Potentially Having “Disparate Impact”  — from Stoel Rives World of Employment
• Rhode Island bans discrimination against homeless persons — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• 13 Things That Will Disappear From the Workplace In Five Years — from Workplace Diva
• Law and Order: Human Resources Unit — from HR idiot
• Time for the Right Discussion About Social Media in the Office — from Social Media Today
• Will Gen Y Have Professional Regret for Embedding Facebook? — from The HR Capitalist, Kris Dunn
• Read My Hips: Is the Trade Secret Litigator Waffling on a Key Provision of the Protecting American Trade Secrets and Innovation Act of 2012? — from Trade Secret Litigator Blog
• Pondering damages under the federal Computer Fraud and Abuse Act — from Work Matters
• “Reply All” Claims Another Victim — from Phil Miles’s Lawffice Space
• Social Media Training [infographic] — from Sharlyn Lauby’s hr bartender

HR & Employee Relations

• Mindy Kaling on Chronicling the American Workplace — from Harvard Business Review
• Background Checks That Don’t Invite Employment Litigation — from i-Sight Investigation Software Blog
• Employers: Meet members of the next generation of your workforce — from John Holmquist’s Michigan Employment Law Connection
• What can I do about a coworker who never wears a bra? — from Ask a Manager
• What Do You Say To A Naked Co-Worker? — from Evil Skippy at Work
• Politickin’ in the World of HR — from HR Schoolhouse

Wage & Hour

• Beware Draconian USDOL Settlement Terms — from Wage and Hour Laws Blog
• 7 Paycheck No-No’s the Department of Labor is Focusing On — from Wisconsin Employment & Labor Law Blog

Labor Relations

• Replacement employees: how not to do it — from Andrew Scott-Howman’s WorkFace
• Telling An Employee “Don’t Discuss It” Can Be Illegal — from Troutman Sanders HR Law Matters
• NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies — from Jason Shinn’s Michigan Employment Law Advisor

My one question for Paul Ryan: Are you a real fiscal conservative?

Today ends my series of debate questions for the Presidential and Vice-Presidential candidates. On the hot seat is Paul Ryan. Here's my question:

You cite Ayn Rand as your inspiration for getting involved in politics. You even gave copies of her novel Atlas Shrugged as Christmas gifts to your staff. Among other philosophies, Atlas Shrugged endorses the belief that a society's best hope rests on adopting a system of pure laissez-faire government. Philosophically, you would seem opposed to government economic intrusions, yet you voted in favor of both the TARP bank bailout and the auto industry bailout. How do you reconcile your claim to be a fiscal conservative with your pro-regulatory Congressional votes on these two key federal bailouts?

Tomorrow I'll wrap up this series by discussing the posts of my fellow blawgers: Dan Schwartz, Eric Meyer, Robin Shea, and Donna Ballman.

My one question for Joe Biden: labor unions and the NLRB

Today, I continue my series on the one debate question I would ask each of the Presidential and Vice-Presidential candidates. Today’s target—Vice President Joe Biden. Here’s my one question:

Mr. Vice President, Governor Romney has accused your administration of supporting a partisan, pro union National Labor Relations Board. Historically, you have been outspoken of your support of the Employee Free Choice Act, which would provide employees the right to form a labor union without the benefit of a secret ballot election. At a Labor Day rally in Detroit earlier this month, you publicly stated that organized labor is one of the reasons why American is recovering. The American business community would not-so-respectfully disagree with you, and believe that activist federal agencies and labor unions are dangerously holding us back.

What would you say to business owners of all sizes who believe that your administration’s labor policies have stifled their ability to operate in today’s economic climate?