NLRB offers further guidance on confidential workplace investigations

Last July, I cautioned employers about the NLRB’s decision in Banner Estrella Medical Center. In that case, the NLRB held that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. At the time, I wrote the following:

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

I’m not certain that the NLRB heeded my warning, but last week it did signal that it is backing off its unreasonable position. In a recently published advice memorandum, the NLRB’s Office of General Counsel clarified the Board’s position on confidential workplace investigations.

The GC considered the following policy:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In the opinion of the NLRB’s Office of General Counsel, this policy’s blanket confidentiality restrictions placed on workplace investigations violated employees’ rights to engage in protected, concerted activity. The Office of GC believed that while the first paragraph is perfectly legal, the second is overly restrictive. In its place, the Office of GC suggested provided substitute language that would pass muster under Section 7. Specifically, he suggested that replacing the last two sentences of the policy with the following language would render the policy legal:

[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In other words, if an employer makes confidentiality discretionary, on an investigation-by-investigation basis, the policy would pass Section 7 scrutiny.

Some may herald this opinion as a victory for employers. To me, its a difference without a distinction. All workplace investigation should be confidential. Otherwise, an employer can lawfully carry out its obligation to conduct an untainted investigation. Even if you have the suggested “discretionary” language in your harassment or workplace misconduct policy, you should nevertheless exercise that discretion in every investigation.. So, I ask, if every investigation should be confidential, what is the harm in providing for mandatory confidentiality in a policy?

I applaud the NLRB’s Office of General Counsel for offering employers suggested language. I still believe, however, that the NLRB fails to understand the importance of confidentiality in workplace investigations, and further fails to understand the realities of how workplace investigations work.

[Hat tip: Lorene Schaefer’s Win-Win HR]

WIRWT #270 (the “… and the home of the brave” edition)

Have you seen the video of the National Anthem at last night’s Boston Bruins’s game? Do you want to get choked up watching 17,565 Bostonians sing their collective hearts out? Well, here you go [h/t: The 700 Level]

 

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

Discrimination

• Case Of Muslim Employees Denied Time For Prayer To Go To Trial — from Employment Discrimination Report
• ADA accommodation talk should occur before employment decision — from EmployerLINC
• It Is All About How You Handle an Equal Opportunity Harasser — from Employer Law Report
• A reminder: retaliation claims can (and often do) succeed even where the Underlying Claim Fails — from Warren & Associates Blog
• Dear Evil Skippy: Is It Harassment To Call An Employee “Stupid”? — from Evil Skippy at Work
• Playing with the Cards Your Dealt Is Critical to Resolving Employment Discrimination Claims — from Jason Shinn’s Michigan Employment Law Advisor
• “Looks” discrimination can be a problem even if you're in retail, fashion, or marketing — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Workplace Issues Now Grow on “Vines”; Why Employers Need a Policy More Than Ever — from Dan Schwartz’s Connecticut Employment Law Blog
• Survey Says: Why Doesn’t HR Believe in Social Media Employment Background Checks? — from employeescreenIQ Blog
• The New Résumé: It's 140 Characters — from the Wall Street Journal
• Instagram Post Lands Delaware Restaurant Manager In Hot Water — from Molly DiBianca’s Delaware Employment Law Blog
• You’ve Got (No) Mail! Major Law Firm Blocks Employee Email Access — from Above the Law
• The Computer Fraud and Abuse Act and Disloyal Employees: A Narrow Bridge To Nowhere? — from Trading Secrets
• TimeRescue Joins Market for Time and Productivity Tools — from Workforce

HR & Employee Relations

• Why Courts Like Non-Solicits over Non-Competes — from Smooth Transitions
• A whopper of a resignation — from Passive Aggressive Notes
• Pregnant at Work — from Lawyerist
• The Do’s And Don’ts Of Discussing National Tragedies At Work — from Workplace Diva

Wage & Hour

• DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA from Jeff Nowak’s FMLA Insights
• Supreme Court Vacates 7th Circuit Class Certification Ruling, Signaling Shift In The Landscape Of Wage-And-Hour Litigation — from Wage & Hour Defense Institute
• Use Of Preemption Defense In Wage-Hour Lawsuit May Kill Entire Action — from Wage & Hour - Development & Highlights
• Guess What We Got With the Acquisition? A $500,000 FLSA Bill — from TLNT

Labor Relations

• In dust of Strongsville teachers strike is myriad of legal questions — from Cleveland.com
• House Votes To Freeze NLRB — from Workplace Prof Blog
• 3 Things Employers Need to Know About the NLRA — from Workplace Insights
• Circuit Court Affirms Healthcare Facilities' Single Employer Status Under NLRA — from Labor Relations Counsel

There is no such thing as a “license to harass”

To establish an unlawful hostile work environment, an employee must prove, among other factors, that the workplace was subjectively offensive. Some employers misinterpret this requirement as meaning that an employee who participates in sexual banter, off-color jokes, or shares intimate details of her personal life is asking to be harassed.

Case in point? In EEOC v. Joe Ryan Enterprises (M.D. Ala. 3/28/13), the employer attempted to defend against a sexual harassment lawsuit by arguing that it had a “license” to harass the plaintiff, presumably because of her earlier participation in similarly offensive misconduct in the workplace. The district court was not having any of that argument, and granted the EEOC’s motion to prohibit the employer from raising that defense:

The Court has come across no authority to support Joe Ryan’s proposition that the defenses of “license” and “ratification” apply in a sexual harassment/constructive discharge context....

Still, even if the Court were to entertain this defense, it is clear that what Joe Ryan has argued is a far cry from the traditional defenses of “license” and “ratification.” Indeed, in its opposition brief, Joe Ryan claims that Ms. Brown’s “eager, enthusiastic and contributory participation to the acts and language she now complains of” evidences her purported “license” and “ratification” of the discriminatory conduct she endured while employed with Joe Ryan.

In Joe Ryan, the employee allegedly hung a sexually suggestive cartoon in a work trailer. Just because an employee engages in some workplace banter, however, does not mean that she acquiesces to all forms of sexual misconduct, such as being called a “whore” (one of the allegations in the case).

Employers need to build these concepts into their workplace anti-harassment training. Employees need to understand that some participation in sex-based workplace hijinks does not create a license to harass in perpetuity. No one can tell where someone draws his or her personal line of inappropriateness, and trying to make that decision for someone else can only result in trouble (i.e., a lawsuit) down the road.

This post originally appeared on The Legal Workplace Blog.

SCOTUS: Picking off individual plaintiffs moots wage and hour collective action

The pickoff is one of the most dramatic defensive plays in baseball. It can single-handedly kill a rally. The tying run on first? One deft move by the pitcher to first base, coupled with a lead that’s one step too cocky? Rally over.

We love baseball in part because it can be a metaphor for much that happens in our lives. Today, it’s a metaphor for wage and hour law.

The issue the Supreme Court faced in Genesis Healthcare Corp. v. Symczyk (4/16/13) [pdf] was whether a case becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims. Last December, I predicted an employer loss in this case (the link also provides all the case background you’ll need).

I’m happy to report that my prediction was very wrong. In a partisan 5-4 decision, the Court held as follows:

Because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction.

In other words, because there was nothing left for the plaintiff to litigate after the rejected offer of judgment, the plaintiff had no right to pursue the remaining collective claims.

Here’s the money quote from the Court:

In this case, respondent’s complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant’s attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff’s alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent’s suit than if her suit had never been filed at all.

There is perhaps no greater threat facing employers than the risk of a wage and hour collective action—both because of the difficulty in complying with the FLSA’s maze of anachronistic rules and regulations, and because of the expense incurred in defending such a claim. Genesis Healthcare confirms that employers have a powerful weapon at their disposal to cut these dangerous claims off at their knees—a Rule 68 offer of judgment.

Much like a baserunner failing to anticipate a deft pitcher’s move to first base, the Court confirmed that a valid offer of judgment can catch your opponent off-guard and end their hopes of a successful collective action.

For more analysis of this decision, please read the thoughts of some of my fellow bloggers:

• SCOTUS Blog — Opinion recap: A “pick off” strategy works
• Phil Miles’s Lawffice Space — SCOTUS Decides FLSA Pick-Off Case 
• Eric Meyer’s The Employer Handbook Blog —Employee caught in a pick, Supreme Court scratches her FLSA claims
• Workplace Prof Blog — Supreme Court Holds That Employer's Offer Moots FLSA Class Action Prior To Certification
• Michael Fox’s Jotting’s By An Employer’s Lawyer — Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?
• Daily Kos — Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it
• The Wage & Hour Litigation Blog — Genesis of A Clearer Distinction Between Class and Collective Actions? Supreme Court Decides Symczyk

photo credit: Chicago Man via photopin cc

Do you have a workplace emergency action plan?

Yesterday’s tragedy in Boston has left me speechless. I’m frankly not sure what to say, other than I’m sick of these horrible events; what to think, other than to offer prayers; or what to feel, other than sadness for those affected.

We will search for answers (How could this happen? Who could do such a thing? How can anyone be capable of such hatred or ignorance? How do we prevent it from happening yet again?) Yet, from this tragedy we can take away one certainty—that no one can predict when or where tragedy will strike, and it pays to be prepared for the worst. Boston seems to have been prepared, and at least by early accounts, the city’s early responders helped save many from suffering a worse fate.

Employers can learn an important lesson from these ashes and tears—the importance of being prepared. OSHA publishes a booklet entitled, How to Plan for Workplace Emergencies and Evacuations. Not all employers are required to follow it, but all employers should heed its words by taking steps to prepare for the worst.

As OSHA explains it:

Nobody expects an emergency or disaster—especially one that affects them, their employees, and their business personally. Yet the simple truth is that emergencies and disasters can strike anyone, anytime, and anywhere. You and your employees could be forced to evacuate your company when you least expect it.… The best way to protect yourself, your workers, and your business is to expect the unexpected and develop a well-thoughtout emergency action plan to guide you when immediate action is necessary.… Few people can think clearly and logically in a crisis, so it is important to do so in advance, when you have time to be thorough. Brainstorm the worst-case scenarios. Ask yourself what you would do if the worst happened.

You cannot control the idiocy of others, but you can control whether you know how to respond if it happens.

I’ll leave you with the words of stand-up comic and actor Patton Oswald, who, on his Facebook page, held out hope for humanity’s inherent goodness, and perhaps made the most poignant statement in the wake of yesterday’s horrors:

Boston. F*cking horrible.

I remember, when 9/11 went down, my reaction was, “Well, I’ve had it with humanity.”

But I was wrong. I don’t know what’s going to be revealed to be behind all of this mayhem. One human insect or a poisonous mass of broken sociopaths.

But here’s what I DO know. If it’s one person or a HUNDRED people, that number is not even a fraction of a fraction of a fraction of a percent of the population on this planet. You watch the videos of the carnage and there are people running TOWARDS the destruction to help out. (Thanks FAKE Gallery founder and owner Paul Kozlowski for pointing this out to me). This is a giant planet and we’re lucky to live on it but there are prices and penalties incurred for the daily miracle of existence. One of them is, every once in awhile, the wiring of a tiny sliver of the species gets snarled and they’re pointed towards darkness.

But the vast majority stands against that darkness and, like white blood cells attacking a virus, they dilute and weaken and eventually wash away the evil doers and, more importantly, the damage they wreak. This is beyond religion or creed or nation. We would not be here if humanity were inherently evil. We’d have eaten ourselves alive long ago.

So when you spot violence, or bigotry, or intolerance or fear or just garden-variety misogyny, hatred or ignorance, just look it in the eye and think, “The good outnumber you, and we always will.”

A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

WIRTW #269 (the “roshambo” edition)

On Wednesday’s edition of DriveThruHR, Dan Schwartz challenged me to a game of Rock-Paper-Scissors to determine, once and for all, who reigns supreme in the world of employment law blogging. Dan, you’re on (and you’re going down). Just let me know when.

http://roshambo.me/

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

Discrimination

• Fired and told “your a little too old for your job,” Old Rose LOSES her age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• A Refresher Course For Employers On Retaliation — from Employment Discrimination Report
• Should Smokers be a Protected Category? — from Mike Haberman’s Omega HR Solutions
• Is It Religious Harassment To Hand Out Chocolate — from Evil Skippy at Work
• Can I Be Fired for Being Gay? — from Blogging4Jobs
• Five snips on workplace harassment (plus a bonus) — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Should You Fire Employees Who Use (or Misuse, However Defined) Social Media? — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s your opinion of BYOD privacy? — from Consumerization Blog RSS
• Coping With the Rising Mobile Workforce and the BYOD Culture — from TLNT
• Internet and Email Use in the Workplace — from ERC Insights Blog
• The Duty To Preserve Social Media Information — from Social Media Employment Law Blog
• Employees who use social media are more efficient, survey says — from Ragan.com
• Law and Order: Human Resources Unit – LinkedIn Lockout — from HR Idiot

HR & Employee Relations

• Employee Theft Blacklist: What Could Possibly Go Wrong? — from Nolo’s Employment Law Blog
• Think Your Company’s Confidential Information is Safe? Think Again! — from HR Defense Blog
• Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering — from Minding the Workplace
• Cease and Desist Letters: Defamation May Not Be An Issue But Watch Out for Tortious Interference — from Trade Secret Litigator Blog

Wage & Hour

• The Employment Law You Are Probably Breaking — from Evil HR Lady, Suzanne Lucas
• High-Tech Employers Dodge Class Certification In Anti-Solicitation Antitrust Case — from Workplace Class Action Litigation
• What Happened, Dude?: Overtime Hours, Working Time, and Tracking Apps — from The Wage & Hour Litigation Blog

Labor Relations

• Quorum, Heck a Fully Appointed NLRB? — from Michael Fox’s Jottings By An Employer’s Lawyer
• Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB — from Labor Relations Counsel
• White House to Nominate Three NLRB Members — from Workplace Prof Blog