The NLRB was a busy beaver last week

Late last week, the NLRB made huge news. In Purple Communications, the NLRB ruled that employees have a right to use their employers’ email systems during non-working time to communicate about union issues. For more on this case, I suggest checking out the write-ups by my friends Dan Schwartz and Seth Borden, both of whom did an excellent job summarizing the decision and its import.

In response to Purple Communications, employers should be reviewing, and, if necessary, revising, their email and electronic-communications policies to ensure that they do not prohibit employees from engaging in conversations about union issues during non-working time.

To cap its week, the Board next issued its rules for ambush elections in representation proceedings.

While the email ruling is the sexier of the two issues, the election rules will likely have the more significant impact on your business. In fact, I agree with Eric Meyer that Purple Communications is not that big of deal. Yes, it is troubling that the NLRB is ignoring the property rights employers have in their own email systems. But, in reality, I wonder if employees are using their company’s email systems for this purpose. There are so many other modes of communications available to employees. They can text each other. They can message on Facebook. The fact is that unions are increasingly more technologically sophisticated in their organizing tactics, and I wonder how many are relying on corporate email systems for communication. Moreover, if employees are using your email systems for organizing, then you have the right and the ability to read those emails. If you can have access to unions’ organizing secret sauce, is this access all that bad for employers.

In response to the election rules, employers need to adopt what I call the “TEAM” response to union organizing:

• Train supervisors
• Educate employees
• Accessibility
• Modernize policies

You can read more about this philosophy of union avoidance here. The point is that once a union files its petition seeking a representation election, you will have scant time to respond. You will not have time to launch a full-blown counter-campaign. If your supervisors do not know how to spot potential organizing before it becomes an issues, and if you don’t have a game plan in place long before its needed, you will have a difficult, if not impossible, time engaging in a meaningful response to the union. If you can’t effectively communicate your message to your employees, you will have a difficult time convincing those employees to vote against the union.

WIRTW #348 (the “blackheart” edition)

Twice a year, my kids’ school invites any students in grades K – 5 who take private music lessons to perform in a recital for the entire Lower School. On Thursday, 16 students displayed their musical talents. We heard Christmas carols, standards, and classical pieces. And then Norah took the stage with Joan Jett’s Crimson and Clover:

If you're in Cleveland, you can see Norah perform this (and other Joan Jett songs) with her full band on Sunday, January 18 and Saturday, January 24, at the Music Box Supper Club.

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Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here.

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Here’s what I read this week:

Discrimination

• The “Association” Game: How a Spouse’s Cancer May be Covered by the ADA — via Dan Schwartz’s Connecticut Employment Law Blog
• Role reversal! EEOC must disclose its own background check policy to the employer it's suing — via Eric Meyer’s The Employer Handbook Blog
• ENDA Getting a Turbocharge — via Wisconsin Employment & Labor Law Blog
• What Not to Do If an Employee Requests an Accommodation — via Blogging4Jobs
• White People and Political Correctness — via Fistful of Talent
• Is It Religious Discrimination To Have A Christmas Tree At Work? — via Evil Skippy at Work
• The Origins of Sexual Harassment — via Workplace Prof Blog
• Is a dumb joke sexual harassment? — via Evil HR Lady, Suzanne Lucas
• Expand pregnancy-bias law to include accommodation rights? — via Walter Olson’s Overlawyered
• Does Title VII Prohibit Sexual Orientation/Gender Identity Discrmination? Definitely, Maybe. — via The Emplawyerologist

Social Media & Workplace Technology

• Instagram is now bigger than Twitter — via The Verge
• Lawyers Left to their Own Devices — via Clio

HR & Employee Relations

• Man has 8 minutes to convince prostitutes to quit in new reality show — via Entertainment Weekly’s Ausiello Files
• FTC and EEOC Publish Background Check Guide for Job Applicants — via EmployeeScreenIQ Blog
• Why would I want to offer a severance benefit to a terminated employee? — via Employment Law Bits
• 10 oddest Christmas and holiday gifts given by co-workers, says Harris Poll — via Cleveland.com
• Can you keep your HR lady from moonlighting as an exotic dancer? — via Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Changing Face of Paid-Time-Off ERC Insights Blog
• Buccaneers Will Stop Using Unpaid Homeless People To Sell Beer — via Deadspin
• States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation — via Donna Ballman’s Screw You Guys, I’m Going Home
• When an Employee Falls Off a Ladder at Work, is His Absence Covered by FMLA? An Employer's Misstep Discussed… — via Jeff Nowak’s FMLA Insights
• Unanimous Supreme Court Rules Employer Need Not Pay for Worker Security Screenings: Integrity Staffing Solutions, Inc. v. Busk— via Wage & Hour Insights

Labor Relations

• NLRB Again Attempts to Invalidate Mandatory Arbitration Clauses for Employment Claims — via Employment Matters Blog
• Senate Confirms New Member of the National Labor Relations Board — via TLNT
• NLRB: Mercedes Violated Labor Law by Restricting Distribution of Union Material — via Joe’s HR and Benefits Blog
• Board ALJ Hits Walmart With ULPs — via Labor Relations Today

Even Santa needs an employee handbook

The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s buildings preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture, such as Rudolph the Red-Nosed Reindeer and Elf, portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, with not even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

• Employees are called “cogs.”
• Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
• Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
• Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
• Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
• Discipline can include weeks of work without pay.
• Cogs receive the generous allotment of one five minute break and one 11.5 minute lunch break for every 11 hours worked.

Other topics covered include the dental plan (administered by Herbie), how to participate in reindeer games, and what the 12 days of Christmas mean to you. Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.

If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend The North Pole Employee Handbook.

Also, don’t forget after January 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.

#SCOTUS unanimously holds that post-work security checks are unpaid

Integrity Staffing Solutions v. Busk asks the question of whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company with employee theft issues. To combat the problem, the company implemented mandatory (and time consuming, but unpaid) post-shift security checks.

When I wrote about this case following oral argument, I commented that “I would be surprised … if the employees walk away with a win. This case will hinge on whether the security screenings are key to the nature of the employment…. [T]he employer has the better of this agreement.”

I love it when I’m right.

Yesterday, the Court handed employers a unanimous victory (opinion [pdf] here):

The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.

The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers…. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.

Shortly after the Court delivered its opinion, I read the following tweet:

#SCOTUS OKs #WageTheft at Amazon http://t.co/DvSuWmLEqO

— N. William Metke (@metkelaw) December 9, 2014

While I understand that employee advocates are trying to make a point by using the phrase, “wage theft,” their continued use of this misnomer does their cause a disservice. It is not wage theft if a court concludes that time is not compensable. In fact, it’s the opposite of wage theft. Labeling every instance that an employer does not pay an employee as “wage theft” waters down the plight of the minimum-wage worker (which, I understand, is the point of labor’s wage-and-hour efforts). If you want us to take you seriously, you can’t cry thief every time you see an employer carrying a stack of pay envelopes.

EEOC 0-2 on severance-agreement lawsuits … but does it matter?

Recall that in October, a Chicago federal court dismissed a lawsuit filed by the EEOC against CVS, claiming that the pharmacy retailer’s severance agreements violated Title VII by employing allegedly retaliatory language. That court, however, failed to reach the merits of the case, instead dismissing the EEOC’s claims on procedural grounds (the agency’s failure to engage in pre-suit conciliation), thereby depriving employers guidance on whether certain garden-variety provisions in employment agreements violate Title VII’s anti-retaliation provisions. I held out hope that the practical guidance employers seek on this issue would come from a similar lawsuit pending in Colorado.

Last week, a Denver federal court dismissed that other EEOC severance-agreement-as-retaliation lawsuit. Like the earlier CVS dismissal, however, the dismissal in EEOC v. CollegeAmerica Denver was on procedural grounds, and offers little practical import for employers moving forward on this important issue.

Perhaps if there is any solace for employers looking to sue separation agreements to halt future litigation, and not to buy a future lawsuit by the EEOC, employers can look to footnote 3 in the EEOC v. CVS decision:

The “covenant not to sue” provision prohibits an employee from “initat[ing] or fil[ing] … a complaint or proceeding asserting any of the Released Claims.” The general release of claims is set out in ¶ 7 of the Agreement, but that section also includes the caveat that the release does not limit “any rights that the Employee cannot lawfully waive.” However, there is a specific carve out for an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws”; and further provides, “nor shall this Agreement prohibit [the employee] from cooperating with any such agency in its investigation.” … The verb participate is defined as “to be involved with others in doing something” and “to take part in an activity … with others.” http://www.merriam-webster.com/dictionary/participate. It is not reasonable to construe “the right to participate in a proceeding with any appropriate federal … agency,” to exclude the right of the employee from filing an EEOC charge. And, even if the Separation Agreement explicitly banned filing charges, those provisions would be unenforceable and could not constitute resistance to the Act.

In other words, the CVS court, albeit in dicta, believes that the EEOC is chasing an unsupportable claim by arguing that covenants not to file charges violate Title VII’s prohibitions on retaliation.

Employers, however, should not lull themselves into a false sense of security. Neither employer won either of these cases on the merits. For whatever reason, this issue is on the agency’s radar, and it will likely seek another case to prove its point regarding these agreements.

For now, the prudent course of action is to make sure that your agreements clearly and unambiguously, in a provision separate and distinct from the release, waiver, and covenant not to sue, state that employees retain their federally protected rights. I am using something like the following:

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of any of the provisions of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

1.2 million reasons to fight harassment

According to an EEOC press release, a Wyoming federal judge has approved a $1.2 million settlement with three well-servicing companies on behalf of a dozen employees who claimed that they suffered regular and repeated racially derogatory comments and jokes:

Employees regularly used terms like “wetback” and “beaner” to refer to Hispanic employees, “wagon burner” to refer to Native American employees, and the “N-word” to refer to black employees…. According to the EEOC’s amended complaint, minority employees on the rigs regularly heard racist terms … such as “n----r-rigging” and telling employees to “n----r a pipe down” were also common.

Said EEOC General Counsel David Lopez, “This type of outrageous discrimination sadly still exists. Employers in the oil and gas industry should heed this settlement and renew their efforts to ensure that employees are treated equally regardless of race or national origin.” EEOC Regional Attorney Mary Jo O’Neill added, “The type of blatant racist conduct alleged in this case has no place in the workplace. We believe that our lawsuit and the significant relief obtained in this settlement will send the message, not only to the defendants, but to the entire industry that the EEOC will not this kind of misconduct - or retaliation for complaining about it.”

Over the past couple of weeks, our country has been hyper-focused on race. It’s pathetic that employees still have to suffer workplaces with any degree of racism. While I believe that not every mishandled situation is because of race, this EEOC settlement shows that we still have a ways to go with race relations, and employers that shirk or ignore their responsibilities in this regard do so at their peril.

WIRTW #347 (the “bad santa” edition)

A big thank you to NPR’s Yuki Noguchi, who interviewed me for a story on office holiday parties gone badly, which ran on Wednesday’s Morning Edition. You can listen here:

I love my money-quote as the story’s main call-out. I should emboss it on my business cards.

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Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here. (And a hearty and heart-felt thank you to Casey Sipe for the kind words in nominating me this year).

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Here’s what I read this week (and last week):

Discrimination

• Cancer and the Workplace: Tips for Employers and A Thanksgiving to Remember: When Cancer Strikes — via Dan Schwartz’s Connecticut Employment Law Blog
• Do you have a “super” anti-harassment contract with your employees? — via Eric Meyer’s The Employer Handbook Blog
• Accommodating service animals in the workplace — via HR Hero Line
• “Oh Wow, You Look So Pretty I Can’t Even Concentrate” (Part II) — via Employment Discrimination Report
• Sexual Harassment Investigations — via Employment Essentials
• The EEOC and wellness programs: coming home to roost? — via Michigan Employment Law Connection
• EEOC promises guidance on wellness programs in February — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Issue of Threats via Facebook Heads to the Supreme Court — via Molly DiBianca’s Delaware Employment Law Blog
• Googling Candidates: Ray Rice Version — via The HR Capitalist, Kris Dunn
• The Key to Managing Cyber Monday: Just Be Generous With Employees — via TLNT
• Will “Facebook at Work” be a LinkedIn Killer? — via The Tim Sackett Project
• Fitbit Data May Become Evidence in the Courtroom — via Ride The Lightning
• The Newest Field of E-Discovery: You — via Above the Law
• Is Your Company on Instagram? 3 Things GCs Should Watch For — via In House

HR & Employee Relations

• The One Where Evil HR Lady Gets Fired — via Evil HR Lady, Suzanne Lucas
• Are old ways of treating employees coming back? — via Mike Haberman’s Omega HR Solutions
• News Flash: My Background Check and I Am Boring — via employeescreenIQ Blog
• Disgruntled Employee’s Alleged Parting Shot Leads to Federal Indictment — via Suits by Suits
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Three: Create a Culture of Confidentiality — via netWORKed Lawyers
• Doggy Day Care Chain Makes Pet Sitters Sign Noncompetes To Protect “Trade Secrets” — via Huffington Post
• I Want it Now: Entitlement in the Workplace — via HR Schoolhouse
• Unconscionable Employment Arbitration Agreements — via Phil Miles’s Lawffice Space

Wage & Hour

• Wage Theft Costs American Workers as Much as $50 Billion a Year — via Texas Employment Law Blog
• Report: Buccaneers Employ Indentured Servants As Concessions Workers — via Deadspin
• No FLSA Overtime Recovery For What Employer “Should Have” Paid — via Wage and Hour Laws Blog
• Avoid Being the Next Unpaid Intern Headline — via Wage & Hour Defense Institute
• FLSA Rules For Exempt Employees During Snow Days — via Minnesota Employer
• Happy Thanksgiving from my Lovable FMLA Abuser, Albuquerque Turkey — via Jeff Nowak’s FMLA Insights

Labor Relations

• 2014 Union Win Rates Increase Over Same Period in 2013 — via Matt Austin Labor Law
• Board ALJ Hits Phillips 66 For Media Gag Policy — via Labor Relations Today
• Franchise arrangements pose legal problem for NLRB’s proposed joint-employer standard — via Ohio HR Law
• NLRB General Counsel on Joint Employment: “The More (Employers) The Merrier” — via The Emplawyerologist
• Facebook Bus Drivers Join Teamsters — via Labor Relations Today