The “I”s have it: NLRB says don’t shred those at-will disclaimers just yet

If you are a non-union employer, you likely have an employee handbook that sets forth the policies and procedures that guide your relationship with your employees. And, if you have an employee handbook, it likely contains a disclaimer stating that employees are at-will, that employees can be fired at any time for any reason, and that nothing in the handbook alters that at-will status. Indeed, employers commonly deploy these disclaimers to avoid claims by employees that the handbook creates a binding and enforceable contract.

Consider the following three at-will disclaimers, taken from real, live employee handbooks:

1. I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

2. The relationship between you and Mimi’s Cafe us referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

3. Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

What’s the difference between these three policies? According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law Judge, #1 is an illegal and overly broad restraint on the right of employees to engage in protected concerted activity. According to two advice memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, #2 and #3 pass muster and are not illegal.

What’s the difference? According to Mr. Solomon, the distinction lies in the use of the personal pronoun, “I.”

The ALJ found that the signing of the acknowledgement form, whereby the employee—through the use of the personal pronoun “I”—specifically agreed that the at-will agreement could not be changed in any way, was “essentially a waiver” of the employee’s right “to advocate concertedly … to change his/her at-will status.” Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here.

By comparison, the Mimi’s Cafe and Rocha Transportation disclaimers merely serve to reinforce the unambiguously-stated purpose of the employers’ at-will policies, and do not require employees individually to agree never to alter their at-will status.

These distinctions are nuanced, and the NLRB recognizes their unsettled nature. From the NLRB’s website:

Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.

It is refreshing (surprising? relieving?) to see that the NLRB’s Office of General Counsel is backing off the position that any at-will disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case basis.

For now, you should take a look at your handbook disclaimers and consider scrubbing them of personal pronouns. Instead, consider using the examples from either Mimi’s Cafe or Rocha Transportation as a template.

Of course, the validity of that template to avoid a binding contract under state law could vary from state to state. For this reason, you are best served running any disclaimer by your employment counsel before rolling it out to your employees.

What scares employers? How about a union organizing campaign

Oooh, Scary!

Since today is Halloween, I thought it appropriate to theme today's post around that which scares employers. Something of which I know most employers live in undying fear is a union organizing campaign.

Do you know what one of the best tools employers have at their disposal to combat this fear? A no-solicitation policy, which prevents employees from discussing union-related matters in work areas and during work time.

These policies, however, have to be both lawfully drafted and lawfully enforced. For example, two weeks ago a federal court in Cleveland entered an injunction preventing an employer from enforcing a no-solicitation policy against its employees who were engaged in a union campaign. The policy, which was non-discriminatory on its face, read as follows:

During work time, each associate is to be occupied with his or her assigned responsibilities. Engaging in the distribution of literature during work time or in working areas or soliciting support of other associates for any group, cause or product on work time is prohibited.

On its face, there is nothing wrong with that work rule. It non-discriminatorily and equally applies to union and non-union activities, and only prohibities solicitations during work time or in working areas. 

The court, however, did not limit its examination to the face of the policy. It also looked at statements made by the employer's CEO about the policy. He allegedly told a non-employee union organizing representative that "the facility would neither recognize nor bargain with the Union." Then, in an employees-only meeting, the CEO bragged about the number of nursing homes he owned, "that none of them are union, and none of them will be union," and that there would be no union solicitations on the premises.

Based on those series of comments, the court concluded that the CEO's statements were sufficient to transform a facially lawful no-solicitation policy into an overly broad illegal policy.

What's the lesson for employers from this scary tale? It is not enough merely to have a no-solicitation policy. You must also take seriously the NLRA's rules against applying policies to single-out labor unions and the employees who support them. 

If you only enforce your no-solicitation policy when faced with a union organizing campaign or to ban union-related activity, no amount of vanilla in your policy will save you from an unsavory trick when your enforcement is challenged.

Whether your managers should “friend” subordinates may be gender based.

I’ve written before about whether you should allow your employees to connect with each across the various social networks (here and here).

Last week, The Washington Post reported on the upcoming publication of a white paper by Wharton School professor Nancy Rothbard, entitled, “OMG My Boss Just Friended Me.” In this white paper, professor Rothbard argues that an employee's decision of whether to accept the friend request made by a manager or supervisor depends on the “creep” factor—the gender of the person making the request:

The boss’s gender plays a role in an employee’s willingness to accept the invitation. In one experiment, Rothbard found that participants were more likely to accept Facebook friend requests from female bosses when the women disclosed more information about themselves online. When male bosses disclosed more information about themselves, however, participants were less likely to want to virtually connect with them.

What does this mean for your business's social media policy? It means you have lots to think about when adopting the right social media policy for your organization. For example, social media use has a generational component. Baby Boomers have a much different conception of how much is appropriate to share online than Gen-Xers, who, in turn, are more guarded than Gen-Yers and Millennials. Your social media policy has to account for these generational differences.

If professor Rothbard is correct, your social media policy also has to account for gender differences. Needless to say, there is no right or wrong answer to this question. As professor Rothbard’s whitepaper illustrates, however, these issues are highly nuanced, and need to be understood and accounted for in your workplace.

Greatest hits: Do you know what to do when severe weather strikes your workplace? #Sandy

I don’t know if you've heard, but there this little storm named Sandy trekking towards the mid-Atlantic and New England. The storm is so potentially dangerous that the National Weather Service is sending out passive-aggressive warnings, just in case people are thinking of riding it out: “If you are reluctant, think about your loved ones, think about the emergency responders who will be unable to reach you when you make the panicked phone call to be rescued, think about the rescue/recovery teams who will rescue you if you are injured or recover your remains if you do not survive.”

Do you know know what to do with your workers when a weather event such as Sandy aims for your workplace? Two winters ago, I offered five suggestions for your workplace extreme weather policy, including how to handle issues such as attendance, wage and hour, and telecommuting. In light of this week’s storm of apparently historical proportions, I thought it best to revisit that post: Do you have a severe weather policy?

In the meantime, for all of my family and friends in the storm’s immediate path, stay safe, and think of a kinder, more gentler Sandy:

WIRTW #247 (the “meet ’n greet” edition)

What does it look like when two behemoths of the blogging world get together in person for the first time?

Dan, hopefully you don’t mind that I cribbed your photo.

As an aside, if you find yourself near Union Square in San Francisco, I recommend Café Claude. Great classically French meal, only outdone by the company. Your mileage may vary on the latter. 

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

Discrimination

• EEOC Cracking Down on Discrimination of Arab and Muslim Workers — from Hiring & Firing
• The Never-Ending Employment Law Case and the Hour-Long Commute — from Dan Schwartz’s Connecticut Employment Law Blog
• Workplace Discrimination Against Pregnant Women Now Being Targeted By The EEOC — from Hunton Employment & Labor Law Perspectives™
• Appeals Court Slams Trial Judge For Not Issuing Injunction Against Egregious Sexual Harasser — from Employment Discrimination Report
• Can Employers Discriminate Against You Because You're Unemployed? Absolutely — from Donna Ballman’s Screw You Guys, I’m Going Home
• Court Dismisses Bachelor Discrimination Suit — from TVLine
• Asperger’s Syndrome in the Workplace — from Workplace Insights

Social Media & Workplace Technology

• Take Your Life Back — from Harvard Business Review
• Six Principles for Reputation Management in a Transparent World — from Social Media Today
• “The Problem with the Internet Is That Nothing Is Temporary” — from Lifehacker
• Fired for “Liking”—Social Media Use at Your Job — from From the Sidebar
• Social Media and Employment: My Name, My Picture, My Info - Why Not My Account!? — from Outten & Golden Employment Law Blog
• An Eye-Opening Termination Of A Former Lingerie Model — from Social Media Employment Law Blog
• Fired for WHAT!? - Jailbait and Creepshots — from Phil Miles’s Lawffice Space
• NY Times social media policy a good model for law firms — from Kevin O’Keefe’s Real Lawyers Have Blogs
• Dear Evil Skippy: What’s The Best Way To Enforce Computer-Use Rules? — from Evil Skippy at Work
• Privacy and Porn on Workplace Computers — from Employment & Human Rights Law In Canada

HR & Employee Relations

• As the Election Nears, Employers Should be Cautious of Politics in the Workplace — from Stoel Rives World of Employment
• Politics at Work: Employer Dos, Don'ts, and Be Very, Very Carefuls — from Robin Shea’s Employment and Labor Insider
• An HR Lesson from the Presidential Debate — from Molly DiBianca’s Delaware Employment Law Blog
• Employment-at-Will: Walking the Fine Line, Part I and Part II — from The Emplawyerologist
• Ohio Background Screening Law Not Perfect, But Deserves Applause — from Nick Fishman’s employeescreenIQ Blog
• Do you know what your references will say? True quotes from reference checks — from Evil HR Lady, Suzanne Lucas
• “Vacation” Rules Around the World — from Compensation Cafe
• Effective Ways to Start and End an Investigatory Interview — from Trade Secret / Noncompete Blog

Wage & Hour

• “No Soup for You!” If An Employee Doesn’t Turn in Medical Certification, FMLA Leave is Not Protected — from Jeff Nowak’s FMLA Insights
• What happens in Vegas, becomes an FMLA claim — from Eric Meyer’s The Employer Handbook Blog
• The DOL’s FMLA Forms Do Not Comply with GINA — from Minnesota Employer
• Changing Workweek to Minimize Overtime Is Not “Evasion” of the FLSA — from Wage & Hour Defense Institute

Labor Relations

• Whiskey Bent and Hellbound: The NLRB May Target Employer Email Systems Next — from Todd Sarver’s Employment Essentials
• Five Actions That Non-Union Employers Should Take to Retain Their Union-Free Status in 2013 — from Management Memo
• Unions Promote State Workplace Anti-Bullying Bills — from Washington D.C. Employment Law Update
• NLRB welcomes “micro-unions” — from Walter Olson’s Overlawyered
• The Real Reason Walmart’s Social Media Policy Survived and Costco’s Didn’t (Hint: It’s Not “Defamation”) — from Augmented Legality

Are you attending the COSE Small Business Convention?

Will you be at Kalahari for the COSE Small Business Convention? If so, I’m speaking at tomorrow—Friday, October 26, at 10:15. My session is entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

What will you learn?

• Why discrimination, breaches of confidentiality, and protected concerted activity are the 3 biggest HR risks facing employers via their employees' use of social media.
• Why you are fighting a losing battle if you try to ban your employees from accessing Facebook and other social sites from work for personal reasons.
• How to limit your risk when you search for information on job candidates online.
• What a "pervy wanker" has to do with concepts such as corporate risk tolerance.
• How to account for who owns official corporate social media channels.
• Whether anyone can make any sense out of the NLRB's position on social media posts as protected concerted activity.

Plus, I promise a prize for at least one person who attends my session. How can you pass up my talk?

If you’re at the convention, please stop by and say hello. I love meeting my readers. I hope to see you there.

 

EEOC opines on domestic violence, sexual assault, or stalking as Title VII and ADA violations

There is no federal law that expressly gives workplace rights to employees who find themselves victims of domestic violence, sexual assault, or stalking. That omission, however, does not unchain employers to discriminate against employees who find themselves in these unfortunate circumstances.

Earlier this month, the EEOC issued a Q&A entitled, Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking [pdf].

While Title VII and the ADA do not expressly protect victims from discrimination, they do protect against employers’ use of stereotypes rooted in protected classes (e.g., sex or mental illness) to treat these employees differently.

The EEOC is kind enough to provide some examples of these stereotypes in action:

Title VII—Disparate Treatment Based on Sex

• An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.” 

Title VII—Sexual Harassment

• An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal emails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

ADA—Disparate Treatment Based on Actual or Perceived Disability

• An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA—Denial of Reasonable Accommodation

• An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”

Retaliation

• An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

The Q&A contains many more examples. It is worth reading, and incorporating into your harassment/EEO training so that managers and supervisors are aware of these issues.

Hat tip to the Workplace Prof Blog for brining this to my attention.