Wednesday, January 29, 2014

A lesson on union avoidance


Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and perhaps emboldened by a favorable ear at the NLRB, labor unions have become more active in trying to organize workers. Even the players on Northwestern University’s football team are trying to organize.

Do you know what to do if a labor union comes knocking at your door? Do you know what you can say to your employees if you hear the whispers of unionization floating through your workplace?

More importantly, do you know what you cannot say to your employees about labor unions and their organizing efforts? Take, for example, Phillips 66 (1/15/14) [pdf], in which the NLRB recently concluded that the employer unlawfully interrogated an employee when a supervisor asked him, “What’s your opinion of this union thing?”

Interrogation is one of the four cardinal sins of employer opposition of labor unions. The other three? threats, promises, and spying. The four are easy to remember. They spell the well-used acronym TIPS (Threats, Interrogation, Promises, Spying).

PolicyMic recently published an internal Wal-Mart slide deck (hat tip: The HR Capitalist), which discusses the TIPS strategy in detail. Wal-Mart uses these slides to train its managers and supervisors on the right way, and the wrong way, to respond to union organizing.

PolicyMic took Wal-Mart to task for “encouraging managers into repeating anti-union talking points.” To the contrary, I applaud Wal-Mart for being proactive in ensuring that its managers know what they can, and cannot, say about unions, and for implementing a tactical, measured, and lawful response to union organizing.

Your managers and supervisors are your front-line defense against unions. They will hear the scuttlebutt among the employees. They will know whether your employees are happy and content, or dissatisfied and eager for change. They will be the ones to whom your employees communicate via your Open Door Policy (you have an Open Door Policy, right?) when they have a gripe or concern? And, they will be your mouthpiece to communicate to your employees your lawful corporate stance on labor unions, and the impact a union will have on your workplace.

The Wal-Mart slide deck is a great starting point for you to formulate and communicate your corporate philosophy and message on labor unions. Your friendly neighborhood labor and employment lawyer (nudge, nudge) is another. The point, however, is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire. Otherwise, you might just find yourself at the bargaining table discussing that first collective bargaining agreement.

For more on my ideas on strategic union avoidance, head over to a post I wrote all the way back in 2009, Adopt the TEAM approach to fight unions, or check out Chapter 8 in my book on workplace laws, The Employer Bill of Rights, which covers this topic in much greater detail.

Tuesday, January 28, 2014

Are temporary impairments ADA-protected disabilities? You bet.


When Congress amended the ADA in 2009, it’s goal was to bring the statute back to its original intent — the protection of the legitimately disabled from suffering discrimination in the workplace.
Suppose an employee suffers a serious injury to his legs that prevents the employee from walking and restricts him to a wheelchair, but with surgery and lots of physical therapy the employee will regain the us of his legs at some point in the future. Is this employee “disabled” under the ADA? More specifically, if the employer refuses even to consider any reasonable accommodation that will permit the injured employee to return to work, and instead fires the employee, has the employer violated the ADA?

According to the 4th Circuit’s decision late last week in Summers v. Altarum Institute, the answer is a resounding “yes.”
The EEOC’s decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC’s interpretation — that the ADAAA may encompass temporary disabilities — advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less “dramatic” than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.…
In sum, nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.
Employers should not hold out hope that other circuits will interpret the ADAAA’s application to temporary impairments differently. The 4th Circuit is one of the more notoriously conservative circuits. More employee-friendly circuits (our 6th Circuit, for example) should have little difficulty reaching the same conclusion.

The takeaway for employers is no different from that which I have been cautioning for years. Disability discrimination cases will no longer focus on whether an employee is legally “disabled,” and instead will focus on whether an employer engaged the employee in the interactive process towards a reasonable accommodation. If you focus on the former and ignore the latter, as Summers illustrates, you will be fighting a severely uphill battle in defending your actions in court.

[Hat tip: Workplace Prof Blog and Eric Meyer’s Employer Handbook Blog]

Monday, January 27, 2014

High praise for The Employer Bill of Rights


It’s always nice for someone to post a five-star review of your book on Amazon, but it’s even nicer when one of the most well-respected and insightful HR bloggers writes an entire column singing your book’s praises.

Suzanne Lucas (otherwise known as the Evil HR Lady), at Inc.com, wrote a review of The Employer Bill of Rights that made me blush. Thank you, Suzanne, for such kind words:
If you want to make sure you avoid getting [sued] in the first place, I highly recommend not only getting an employment lawyer, but reading Hyman’s book. It will give you the information you need to make better choices regarding your employees and your business.
I couldn’t agree more. For those who’ve yet to find my tome, it’s available at the following:
I’ll be back tomorrow with new information to help keep from getting sued, discussing how one court just ruled that the ADA covers temporary impairments.



Friday, January 24, 2014

WIRTW #305 (the “encore” edition)


In case you haven’t seen the latest and greatest band sweeping Cleveland’s western suburbs, I bring you Norah and the Troopers, courtesy of the Strongsville School of Rock blog (okay, now I’m flat-out shilling like an exuberant dad — full video here: http://youtu.be/IAxcUCleMtg).

And, while I’m shilling, it doesn’t get any better than some from Rhett Miller, the lead singer of The Old 97's (isn't Twitter great?)
Here’s the rest of what I read this week:

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations







Thursday, January 23, 2014

The workplace ethics of class-segregated bathrooms—the results


Two weeks ago I posed this question: Is it acceptable for a company to prohibit warehouse workers from using office bathrooms?

The results? By a margin of two to one, my readers expressed that it is not acceptable for a business to segregate its restrooms by class of workers.

This issue is not one of management rights versus worker rights. Or one of employer versus employee. Instead, this issue is about setting the correct tone for your workplace to send the right message to your employees. Do you want to be workplace of harmony and teamwork, or secularism and division? Do you want everyone to work towards a common goal, or fight amongst themselves based on their perceived station?

Yes, there are certain situations in which separate restrooms will be necessary (safety and cleanliness come to mind). But, telling certain employees, for no good reason, that certain bathrooms are off limits plants seeds of disharmony and segregation that will not help your business achieve its best. Openness and inclusion breed teamwork and dedication. You want your employees to perceive management as part of the team, not as feudal overlords. your policies should reflect this goal.

As for me, I’m off to use my golden key to use our executive washroom. Enjoy your day.

Wednesday, January 22, 2014

When is 1,250 not 1,250? Hours worked versus hours paid for FMLA eligibility


For an employee to be eligible to take leave under the FMLA, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

Hours of service means hours actually worked by the employee. It does not mean hours paid. Thus, paid non-working time—such vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise)—does not count for purposes of calculating one’s FMLA eligibility.

What does this rule look like in practice? Saulsberry v. Federal Express (6th Cir. 1/10/14) provides an example. In support of his claim that Fed Ex wrongfully denied leave under the FMLA, Pernell Saulsberry relied upon a document entitled, “Federal Express Corporation Employee Monthly Trend Report.” That report listed his “HR PAID TOT” for the previous 12 months as”1257.29.” The same report, however, listed Saulsberry’s “HR WKD TOT” as “1109.29.” At deposition, Salsberry admitted that the “Paid Tot” included paid time off during which he performed no services for Fed Ex, and the “Wkd Tot” accurately reflected the number of hours he had actually worked. Thus, because he worked less than the required 1,250 hours, the 6th Circuit concluded that Fed Ex legally denied his request for FMLA leave.

This case illustrates the importance of accurate time records. Whatever time tracking and payroll system you use, it must the ability to differentiate between time paid and time worked. It saved Fed Ex from an FMLA claim in Saulsberry, and it could likely save you too if an employee is on the 1,250-hour FMLA bubble.


Tuesday, January 21, 2014

Why I don't like most non-disparagement clauses (and 3 tips to fix them)


Will Blythe recently penned an op-ed in the New York Times entitled, Fired? Speak No Evil. In this piece, Mr. Blythe chronicled his recent job loss, and why he refused to sign a separation agreement that included a non-disparagement clause.

Like Mr. Blythe, I don’t like most non-disparagement clauses. Theses causes are exceedingly common in separation and settlement agreements. But, familiarity does not breed sensibility. These clauses are hard to control, hard to enforce, and encourage more litigation, not less.

Yet, most employers will insist on including these clauses in their agreements to hedge against the dead speaking ill of them. For your consideration, here are a three drafting points for your next non-disparagement clause:

     1. Hard to control? Who does a non-disparagement clause bind? If it just says, “Employer,” how does the agreement define “employer?” Even if you’re a small organization, can you control what Joe-coworker says about your departing employee, and do you want to have to advise every employee in your organization about potential non-disparagement obligations, and control what they say? I have two suggestions to help ease the pain of this issue. First, define who, specifically, the clause covers; don’t leave it open-ended to bind your entire organization. Second, at least as job references are concerned, put some controls in place. Define who is to be contacted, and what that contact-person is permitted to say. Even consider a predetermined script to limit any potential violations.

     2. Hard to enforce? Most non-disparagement clauses say something like, “Employer [and Employer] agree not to disparage, or make any negative comments about, the other,” which simply begs the question, what do “disparage” and “negative comments” mean? If you are serious about including this clause, define the terms. For example, your state will have a well-developed body of case law discussing and defining the meaning of defamation. This case law is a great starting point (and, maybe, end point) for this definition.

     3. Encouraging litigation? If a separation leaves bad blood between the parties, a non-disparagement clause is an easy way for a spiteful ex-employee or ex-employer to drag the other back into court. Separation and settlement agreements are supposed to end the parties’ relationship and cease litigation, not act as a breeding ground for more. To cure this ill, tie a loser-pays clause to this provision. If a losing parties has to pay the other’s attorneys’ fees, one will think long and hard before exercising the right to sue for a breach of a non-disparagement clause.

Non-disparagement clauses are ripe for sloppy and vague drafting, which can result in parties ending up where they wanted to avoid—the courthouse. Following these three tips will help you shore up your language to create non-disparagement clauses that you can actually rely upon, and, if necessary, enforce.