#SCOTUS ambushes employers on agency rulemaking

Yesterday, the U.S. Supreme Court unanimously held that the Department of Labor’s Wage and Hour Division had the authority to alter its prior interpretation of the FLSA’s administrative exemption and exclude mortgage-loan officers from its coverage. The decision—Perez v. Mortgage Bankers Assn. [pdf]—is an interesting read if you are into administrative law, agency rulemaking, and the difference between “legislative rules,” which an agency only can issue through formal notice-and-comment rulemaking, and “interpretative rules,” which do not carry the force and effect of law and which an agency can adopt on a whim.

The Supreme Court could have used the opportunity presented by Perez v. Mortgage Bankers Assn. to rein in federal agencies that are emboldened with power. It did not take that bait, even though Justice Scalia, who concurred in the result, had some harsh words for federal agencies that legislate instead of regulate:

Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.

This issue is of critical importance, considering the NLRB’s “ambush election” rules, which take effect on April 14. These rules will:

• Require that most union representation elections be held 10 – 21 days after a petition has been filed, robbing employers of the opportunity to deliver their message to employees.
• Defer disputes over voter eligibility until after the election.
• Expedite pre-election hearings.
• Mandate that employers provide more expensive employee contact information.

If federal courts must show broad deference to administrative rulemaking, as Perez v. Mortgage Bankers Assn. suggests, employers do not stand much of a chance to block these “ambush election” rules, even as lawsuits are filed and legislation pushed.

If these ambush rules are a fait accompli, what can employers do to minimize the risk of being on the losing end of a union organizing campaign? I advocate the TEAM approach to union avoidance.

          Train supervisors
          Educate employees
          Affirm the open door
          Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Affirm the open door. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. These ambush election rules are the perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.

Because employers will no longer have the opportunity to run an meaningful campaign after a union files its representation petition, it is essential that employers address these issues proactively before a union talks to even one of your employees.

To learn how to deploy this critical strategy in your workplace, contact one of Meyers Roman’s labor and employment attorneys.

Is your company ready for WYOD?

At 1 pm today, Apple will formally unveil its Watch to the public. While other companies have launched smartwatches, because it’s Apple, today’s launch of the Apple Watch will officially herald the beginning of the era of wearables.

If the era of wearables is upon us, it means that as soon as your first employee wears a smartwatch to work, your HR, legal, and IT departments have a whole host of new issues with which to deal.

Better stated, the issues aren’t new, but their application to an evolving technology is.

If your organization already has a BYOD (Bring Your Own Device) policy, then you are well ahead of the game. You will, however, have to adapt that policy to account for WYOD (Wear Your Own Device). All you’ll have to do is extend your BYOD to expressly cover wearables. These devices will bring email, text messages, financial information, and health data to a smaller, even more portable form. And, the more avenues your employees have to access your network and data, the more ingresses hackers have to steal information and do other bad things. In other words, you need to understand wearables, and account for them in your policies, because your employees aren’t going to wait for an official green light to start using them.

If you don’t have a BYOD policy, what are you waiting for? These issues aren’t going away. What should you be considering? Here is a good starting point.

WIRTW #358 (the “appreciation” edition)

o your employees feel appreciated? Today is Employee Appreciation Day. However, if you limit your appreciation efforts to 0.38% of a year’s working days, I can flat-out guarantee that your employees do not feel appreciated (even on their “special” day). Employee appreciation needs to be a year-round effort, not a one-off to-do to check off your corporate calendar.

Here are some thoughts, from the archives, to make employee appreciation part of your corporate culture.

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

Discrimination

• Job blackmail is not the quickest way to a girl’s heart — via Mike Haberman’s Omega HR Solutions
• The Pregnancy Discrimination Laws You Never Knew About — via Dan Schwartz’s Connecticut Employment Law Blog
• OFCCP Updates Sex Discrimination Guidelines — via Newton Software Blog
• Is Anyone Else Fascinated by the Abercrombie and Fitch Supreme Court Case? — via The HR Capitalist, Kris Dunn
• In-House Counsel: Is Transgender Discrimination on Your Radar? — via In House
• Transgender Discrimination is Illegal — via Cleveland Employment Law Blog

Social Media & Workplace Technology

• Is Big Brother Watching? When Big Data Meets HR — via employeescreenIQ Blog
• Law firms clash over laptops taken by departing lawyers — via ABA Journal Daily News
• Compliance concerns for 2015 and beyond, Part 1: Social media — via InsideCounsel
• The Emergence of Cybersecurity Law — via Ride The Lightning
• What Does the Anthem Breach Mean For You? — via Minnesota Employer
• Twitter is surveying users about how much they get harassed online — via The Verge

HR & Employee Relations

• Though employees may not balk at signing non-competes, the key is when to use them. — via Eric Meyer’s The Employer Handbook Blog
• The Unholy Trinity of HR: Reference Checks — via Fistful of Talent
• Millennials Want to Be Coached at Work — via Harvard Business Review

Wage & Hour

• Some Thoughts on Employee Appreciation Day, including a Potential Wage and Hour Pitfall — via Employment Matters Blog
• DOL Wage and Hour Division Announces Fiscal Year 2014 Recovery of $240 Million From Employers — via Wage & Hour Insights
• FLSA Changes Could Make Many Retail Managers Non-Exempt Employees — via TLNT
• It’s March 2015. The DOL’s Model FMLA Forms Expired Just Days Ago. Now What? — via Jeff Nowak’s FMLA Insights
• Who Signed that Doctor's Note? — via All in a Day’s Work
• Marriage Equality and the FMLA — via Molly DiBianca’s Delaware Employment Law Blog

Labor Relations

• Your Business Needs a Labor Relations Response Plan — via The Michael VanDervort Blog
• (Video) NLRA and Social Media — via Phil Miles’s Lawffice Space
• Labor Unions are Dinosaurs — via The Tim Sackett Project

Some harassment shouldn't be in the eye of the beholder

A hostile work environment is hostile for one of two reasons—the alleged misconduct is either severe (overtly offensive), or pervasive (repeatedly offensive). The more severe the misconduct is, the less pervasive it has to be.

In this context, consider the following from Satterwhite v. City of Houston [pdf], in which the 5th Circuit affirmed the dismissal an employee’s retaliation claim:

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing …, for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII. We have accordingly rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.

Thus, in Texas, Mississippi, and Louisiana, “Heil Hitler”  is “non-extreme conduct” (insert Southern joke here).

Two points to make.

1. Some harassment shouldn’t be in the eye of the beholder. (Warning, offensive language ahead). Nazi jokes/comments should be sufficiently severe to raise the specter of Title VII’s protections against religions harassment. Similarly, utterances of overtly offensive terms like “nigger,” “kike,” or “cunt” should, in nearly all cases, suffice to state a claim under Title VII. There is no excuse for this stuff in the workplace. Period.

2. If you have any doubt about point number one, it’s time for some harassment and EEO training in your workplace (which is a good idea annually anyway).

My latest column in Workforce: Absolut Commitment to Checking

In addition to my daily blogging, I also write a monthly column in Workforce Magazine. Here’s my latest from the March edition, discussing the import of the Fair Credit Reporting Act on employment background checks—Absolut Commitment to Checking. Enjoy.

	Look inside >
Absolut Commitment to Checking

Transfer as reasonable accommodation?

I once worked for a law firm (that shall remain nameless) that put me in a converted utility closet for my office. It was the only associate “office” open near the partners for whom I worked. It was so cramped that I has to turn sideways to shimmy past the desk to get to my chair.

I thought of this experience yesterday as I read a story on abajournal.com about a law firm associate who is suing her employer for disability discrimination, claiming it failed to accommodate her claustrophobia. She claims that her firm, which had previously permitted her to transfer to its Philadelphia office for different reasons, discriminatorily refused to transfer her to a nearby suburban office after she complained that the 24-floor elevator ride triggered a severe claustrophobic response. The firm initially permitted her to work from home while she sought treatment, and then allegedly fired her after she refused a transfer to an office 120 miles upstate.

Let’s start with some ADA basics. An employer does not have to create a position as a reasonable accommodation for an employee. However, transfer to a vacant position is a reasonable accommodation that an employer must consider when engaging a disabled employee in the interactive process.

These rules only tell part of the story for this case. What is a “vacant” position for a law firm associate? Could she still have serviced the same clients, and worked on the same cases, from a suburban office 10 to 20 miles away? Moreover, why did the employer cease the telecommuting accommodation after only one month, and only after the employee rejected the accommodation that would have required a four-hour daily commute, or for her to move upstate? These are fact issues that the court, or, maybe, a jury will have to work out as this case proceeds.

These questions, though, illustrate the type of dialogue you need to have both internally and with your employee whenever that employee requests a reasonable accommodation. Better to hash them out internally, then in court, right?

Do you know what to do when OSHA comes knocking?

News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, OSHA was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

1. Fall Protection
2. Hazard Communication
3. Scaffolding
4. Respiratory Protection
5. Lockout/Tagout
6. Powered Industrial Trucks
7. Electrical – Wiring Methods
8. Ladders in Construction
9. Machine Guarding
10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.