6th Circuit’s definition of “supervisor” under the NLRA has broad implications

In Vance v. Ball St. Univ., the U.S. Supreme Court held that for purposes of vicarious liability for harassment under Title VII, a supervisor must have taken a tangible employment action (i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits) against the victim.

In footnote 7 to the opinion, the Court noted that the meaning of supervisor can vary depending on the federal statute being applied:

Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.... The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect.

Indeed, the NLRA applies a less strenuous definition than Title VII to determine supervisors status. The question is how much less strenuous.

In GGNSC Springfield LLC v. NLRB (7/2/13), the 6th Circuit concluded that charge nurses who have the authority to exercise their independent judgment to discipline subordinate employees are supervisors under the NLRA. In reaching this conclusion, the 6th Circuit rejected the Board’s argument that the power to discipline must involve an immediate suspension, termination, or other employment action:

The Board’s position on discipline is essentially that, to be considered “discipline,” the employee must suffer some immediate adverse employment action as a result of receiving an employee memorandum, such as suspension or termination, and because RN charge nurses cannot suspend or terminate a CNA’s employment unilaterally, they lack authority to discipline.... The term discipline must capture something less....

Generally, where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors....

The larger question is whether the RNs must consult with a superior and obtain approval before issuing a memorandum; if they must, their judgment is unlikely “independent.” The record shows that consultation and approval is neither required nor typical.

Thus, as a general rule, an employee who possesses sufficient authority to issue any disciplinary action (even warnings that could lead to later suspension or termination) without consulting with a superior, qualifies as a “supervisor” under the NLRA. The immediate decision need not result in a tangible employment action.

Make no mistake, this holding is significant. The NLRA does not cover or protect “supervisors.” Given the scope of the NLRA’s current agenda to further employees’ rights to engage in protected concerted activity, broadening the scope of who qualifies as a supervisor removes those employees from the Act’s protections. Thus, for example, a “supervisor” fired for complaining on Facebook about wages, benefits, or other goings-on in the workplace cannot claim that the termination violated the NLRA’s prohibitions against adverse actions for engaging in protected concerted activity.

In a political environment that is broadening the NLRB’s power, GGNSC Springfield’s broad interpretation of the definition of “supervisor” is a big win for employers.

Is your company looking at the wrong info to screen candidates using social media

According to recent survey by CareerBuilder.com (hat tip: The Employer Handbook Blog), 39 percent of companies use social media sites to research job candidates, up only two percent from last year. Yet, there was a nine percent jump (from 34 to 43 percent) in the number of hiring managers who report using information found on a social media site to disqualify a candidate from consideration.

Among the types of disqualifying information found on social media sites:

• Provocative/inappropriate photos/info — 50 percent
• Info about drinking or drug use — 48 percent
• Bad mouthing a previous employer — 33 percent
• Poor communication skills — 30 percent
• Discriminatory comments related to race, gender, religion, etc. — 28 percent
• Lying about qualifications — 24 percent

Interesting, North Carolina State University’s Journal of Cyberpsychology, Behavior, and Social Networking just published an article entitled, “Big Five Personality Traits Reflected in Job Applicants’ Social Media Postings.” According to a press release announcing the article’s publication, “Companies may have a fundamental misunderstanding of online behavior and, as a result, may be eliminating desirable job candidates.”

To compile data for the article, researchers tested 175 people to measure the personality traits that companies look for in job candidates (such as conscientiousness, agreeableness and extraversion), and then surveyed their Facebook behavior to link it to the specific personality traits.

The findings were eye-opening:

• There is no significant correlation between conscientiousness and Facebook posts about alcohol or drug use.
• Extroverts are significantly more likely to post about drugs or alcohol of Facebook.

In other words, the 48 percent of the companies in the CareerBuilder survey that reported disqualifying a job candidate because of social media posts about drinking or drug use may have done themselves a disservice. That disservice might be compounded if the position for which the company is hiring favors extroverted personalities (such as a sales position).

All is not bad news from the NC State survey. Study participants who rated high on both agreeableness and conscientiousness were also very unlikely to “badmouth” other people on Facebook, including their former bosses. So, the one-third of companies in the CareerBuilder survey who reported disqualifying a job candidate for bad mouthing a previous employer are likely making a good hiring decision.

Stats are just stats, and should not be taken as the bible on the issue on which they are reporting. Indeed, there are reasons other than agreeableness and conscientiousness for which a company might consider disqualifying a candidate who posts about drug use or drinking. For example, I would question the judgment of anyone posting any info or pictures of drug use, and question the judgment of active job seekers posting photos or other information on excessive drinking.

These two surveys, however, make for an interesting juxtaposition, and show that there might be some science behind how employers are using social media posts to screen applicants and hire employees.

Moreover, regardless of how you use the information you find online, the guidance for the process you should be using the obtain the information remains the same — companies need to ensure that the information upon which they are making hiring decisions is lawful, and that appropriate screens are in place to prevent protected information (such as EEO information) from leaking into the hiring process.

Why Paula Deen loves gay marriage

Lost amid the news of salacious allegations of workplace misconduct, historically bad depositions, a food empire going down in flames, and the meaning of the N-word in 2103 American society is the fact that the employee suing Paula Deen and accusing her of racial harassment is White. 

The fact a White employee is complaining about harassment against African-Americans, in and of itself, does not bar the plaintiff’s harassment claim. As the 6th Circuit held in Barrett v. Whirlpool Corp., a White employee can bring a lawsuit asserting racial harassment against an African-American co-worker, but only if the employee claiming the harassment was also discriminated against because of his or her race.  In other words, it’s not enough for the plaintiff in the Paula Deen case to show that Ms. Deen created a racially hostile work environment in her restaurant. She must also prove that Ms. Deen discriminated against her because of her race (White).

Last week, Ms. Deen’s lawyers supplemented an earlier-filed motion seeking the dismissal of, among other claims, the racial harassment claim. They claim that the plaintiff cannot seek the protections of Title VII because she is not claiming that she was discriminated against, but merely that a racially hostile work environment existed targeting other races.

In support of this argument, Ms. Deen cites to Hollingsworth v. Perry, the recent U.S. Supreme Court case that dismissed, on the basis of a lack of standing, the challenge to the illegality of California’s gay marriage ban. Ms. Deen claims that per Hollingsworth, the plaintiff lacks standing to claim racial harassment. Per Hollingsworth:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision…. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.”

In other words, Paula Deen argues that a White employee lacks standing to claim racial harassment against her African-American co-workers because she is not seeking a remedy for a harm personally against her.

Regardless of how the court decides this issue, employers should not use the standing issue as carte blanche to ignore certain harassment complaints. When an employer handles a harassment complaint, the race, gender, religion, national origin, etc. of the employee complaining should not matter. An employer should still investigate and take prompt and appropriate remedial measures to ensure that any harassment that occurred ceases.

The Constitutional argument raised by Paula Deen’s legal team is a nice weapon to have once you are in the thick of litigation, but following my practical tip will help keep you out of litigation in the first place.

Hat tip: Deadline

A reminder about holiday pay

Tomorrow’s July 4th holiday is a paid day off for many American workers. Last year, I wrote a post entitled, “8 things you need to know about holiday pay.” In light of tomorrow’s holiday, I thought it was a good idea to revisit that list.

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1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.

2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.

3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

4. Can we require employees to work on holidays?Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

7. Do you have to provide holiday pay for employees on FMLA leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimers. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel. Also, these 8 tips assume that your company lacks a collective bargaining agreement.

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Friday, July 5 is also a paid holiday for me. WIRTW will not run this week, and will return on Friday, July 12, with WIRTW #280.

The FMLA, the ADA, and no-fault attendance policies

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

• In Green v. Wal-Mart Stores (S.D. Ohio 6/25/13), the district court denied the employer’s motion for summary judgment on an employee’s FMLA claim because the employer admitted to counting FMLA-days for purposes of progressive discipline under its no-fault attendance policy.
• In July 2011, the EEOC reached a $20 million settlement with Verizon Wireless over claims that the wireless company denied reasonable accommodations to disabled employees by disciplining or firing them pursuant to its no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy,however, employers must carefully to balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

Today’s post is brought to you by the letters W, A, R, and N

Last week, CNNMoney reported that the Sesame Workshop is laying off approximately 10 percent of its employees. The layoff will not affect enough employees to trigger the WARN Act, the federal statute that governs advance notice for certain plant closing and mass layoffs. It does, though, provide a good jumping-off point for a short discussion about the WARN Act and its requirements.

WARN Act is shorthand for the Worker Adjustment and Retraining Notification Act. In general, it requires 60-day advance notice of either a plant closing or a mass layoff.

It covers all employers with 100 or more employees, not counting those who worked less than 6 months in the last 12, and those who work less than 20 hours per week. Even though short-term and part-time workers are not counted for purposes of determining WARN Act coverage, they still must receive notice if affected by an otherwise qualifying plant closing or mass layoff.

For purposes of WARN Act notice, a plant closing is the shut-down of an employment site that will result in an employment loss for 50 or more employees during over 30-day period.

The WARN Act covers a mass layoff that will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33 percent of the employer’s active workforce.

An employment loss for purposes of the WARN Act means either (1) a termination, other than a discharge for cause, voluntary departure, or retirement; (2) a layoff longer than 6 months; or (3) a reduction in an employee’s hours of work of more than 50 percent in each month over any 6-month period.

The WARN Act requires employers to provide 4 different notices—to the affected employees, to the employees’ union representative (if any), to the State dislocated worker unit, and to the chief elected official of the unit of local government. The Act’s regulations detail the information that must be included in each notice.

An employer who violates the Act by closing a plant or affecting a mass layoff without providing sufficient notice is liable to each aggrieved employee for back pay and benefits for the period of violation, up to a maximum of 60 days. An employer can reduce its liability, however, by paying employees during the period of the violation. For example, if an employer is worried about employee sabotage after announcing a layoff, the employer can lay off the employees immediately and pay in lieu of providing the WARN notice.

The Act provides exceptions for faltering companies, unforeseeable business circumstances, and natural disasters that, if met, would excuse an employer from providing the 60-day written notice required by the WARN Act.

If you are near or above the WARN Act’s 100-employee threshold, and you are considering closing a plant or laying off a large number of employees, it behooves you to check with employment counsel to determine whether the WARN Act will be triggered, and, if so, what specific notices you must provide and to whom.

photo credit: Looking Glass via photopin cc

WIRTW #279 (the “stand your ground?” edition)

Having recently settled a nasty harassment case on the day of trial, I read with great interest Molly DiBianca’s post, Why Employers Settle Lawsuits, at her Delaware Employment Law Blog. One of the key reasons Molly provides to consider settlement is the employer’s ability to return to normal:

Often times, employers find that the most attractive part of settlement is the ability to put an end to the drain on resources that litigation absolutely involves. Litigation is costly in attorney’s fees and other expenses. But there are other critical costs, too, including the time key decision makers must devote to the case and the general distraction that it causes in the workplace. Every hour spent in depositions and discovery is an hour that cannot be devoted to achieving the organization’s objectives. I’ve never had a client who didn’t take a deep sigh of relief once the case was resolved and they realize they’re able to return to running their business.

Molly’s thoughtful post is worth reading by any business facing the decision of whether to stand its ground and litigate, or move on and settle.

I’ve also previously covered this issue, in Fight or flight? When an employee sues you, should you litigate or settle?

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

Discrimination

• Vance v. Ball State: the press miscoverage begins — from Walter Olson’s Overlawyered
• Are Employers Racist for Conducting Employment Background Checks? — from employeescreenIQ Blog
• The Government Checks Criminal Records. Why Can’t Private Employers? — from Forbes
• When a hostile work environment isn’t a hostile work environment — from Eric Meyer’s The Employer Handbook Blog
• Breast Feeding on the Job — Is a Mother Protected? — from Maryland Employment Law Developments
• What Not To Do When An Employee Is Pregnant — from Employer’s Corner Blog
• Q&A: Five Areas of Employment Discrimination Law Sparking Scholarly Interest — from Bloomberg BNA
• The Employment Non-Discrimination Act might actually pass in 2013 — from Employment Law Bits
• Paula Deen, Racism and Employment Lawyers — from The Cynical Girl

Social Media & Workplace Technology

• Facebook Introduces Instagram Video Which Promises New Social Media Headaches for Corporations — from from Technology Law Source
• Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
• “Tweet” becomes an official word — from Ragan
• The Five Rudest Things You Can Do Online — from Wall Street Journal
• Laid-Off ESPN Employee Of 26 Years Fights Back On Facebook — from AOL Jobs

HR & Employee Relations

• Can I fire an employee by phone or email? — from Ask a Manager
• The Internal Struggle When We Must Make Make Ridiculous Terminations — from TLNT
• The New Rules of Tattoos In the Workplace — from The HR Capitalist, Kris Dunn
• How to “Listen In” to Workforce 2.0 — from Fox Business
• Rogue Employees - What to do? — from Smooth Transitions

Wage & Hour

• If Unpaid Interns Don’t Like Their Bosses, They’ll Hate Justice Alito — from Above the Law
• Smartphone Overtime: The FLSA Knows No Bounds — from Corporate Counsel
• The Perils of “Rewarding” FLSA Exemption — from Compensation Force
• Why the New Internship Ruling is Bad For College Students — from Inc.
• Employer Obligations Under the Affordable Care Act — from Inhouse Blog
• How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits? — from Jeff Nowak’s FMLA Insights

Labor Relations

• The Next Frontier for NLRB: Videos & Photos in the Workplace? — from Dan Schwartz’s Connecticut Employment Law Blog
• Union 2.0: how a browser plug-in is organizing Amazon's micro-laborers — from The Verge
• SCOTUS to Decide Noel Canning (NLRB Recess Appointments) — from Phil Miles’s Lawffice Space
• Cheat Sheet: A guide to the NLRB recess appointment controversy — from Inside Counsel