NLRB judge’s analysis of T-Mobile’s handbook is of note for the provisions she concluded to be lawful

Yesterday, I examined, in detail, the NLRB’s General Counsel’s memo on employer policies. Today, I’m going to examine a recent decision by an NLRB judge putting those principles to use.

The opinion [pdf] consolidated seven different unfair labor practice complaints against T-Mobile, challenging 17 different provisions in T-Mobile’s employee handbook, Restrictive Covenant and Confidentiality Agreement, and Code of Business Conduct.

More interesting than the work rules that the ALJ concluded violated employees’ section 7 rights are the work rules that the ALJ concluded did not.

Recording in the Workplace

Recall, yesterday, the NLRB-approved clause in the Wendy’s employee handbook, which provided employees a roadmap to their local NLRB regional office. In the T-Mobile case, the ALJ confirmed as legal the same type of policy—a workplace recording policy—without the NLRB boosterism.

Here’s the policy the ALJ approved in T-Mobile:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recording of work-related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Apart from customer calls that are recorded for quality purposes, do not tape or otherwise make sound recordings of work-related or workplace discussions without the permission of all participants and Human Resources or the approval of the Legal Department. Failure to request and receive such permission violates Company policy and may violate the law.

Because of the risk presented by employee’s surreptitiously recording the workplace, the ALJ concluded that this policy did not impinge in employees’ section 7 rights:

The policy explicitly sets forth valid, nondiscriminatory, rationales for its existence. Concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions are all valid reasons for promulgating the rule. The policy expresses a rationale narrowly tailored to address these concerns; and there is no evidence of it being applied in a discriminatory manner.  It is not unreasonable for the Employer to fear that a workplace with surreptitiously recorded conversations would foster hostility, suspicions, low morale, and impede free and open discussion among members of its work force.  It would certainly hinder the open lines of communication between supervisors and employees because of fears that discussions could be secretly recorded for use against them at a later date.

Workplace Conduct

The ALJ also concluded that the following “Workplace Conduct” Policy was lawful:

Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

Why?

Within the context of the policy, all employees would understand a prohibition against fighting to mean a physical altercation and by any standard, including the Act, fighting would be inappropriate in the workplace. I do not believe that the rule can reasonably be read as pertaining to Section 7 activity. In the words of the Board, “To ascribe such a meaning to these words is, quite simply, farfetched. Employees reasonably would believe that this rule was intended to reach serious misconduct, not conduct protected by the Act.”

Conclusion

Reading this decision in conjunction with the NLRB General Counsel’s Report confirms what I have believed for a long time—the NLRB is splitting hairs in drawing fine distinctions between employment policies that violate employees’ section 7 rights and those that don’t. Regardless of whether the Board and its judges are splitting hairs, you need to have these issues on your corporate radar. The T-Mobile issues got to the Board through efforts by the Communications Workers of America, which has been pushing for years for T-Mobile’s employees to join its union.

Don’t assume that a) your policies are good enough, or b) a labor union will not target your company. Unions are using the current pro-employee regulatory environment to ramp up their organizing efforts. If your company becomes a target, a union will use overly broad work rules as an inroad to the NLRB and to your employees. Act now to make sure your handbook and other policies pass NLRB muster, before someone (or something) else makes that decision for you.

Analysis of the NLRB’s guidance on employer rules (or, meet the new boss … same as the old boss)

It’s been nearly two years since then-acting NLRB General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. At the time, I called the Board’s position “a bungled mess.”

Last Wednesday, current NLRB General Counsel Richard Griffin issued his 30-page missive on employer policies under Section 7 of the NLRA [pdf]. I’m sad (but not surprised) to report that not much has changed in the NLRB’s misguided approach to facially neutral employment policies. The NLRB continues to take facially neutral policies, spin a parade of non-existent anti-union horribles, and conclude that because some hypothetical employee could under the exact proper set of circumstances, that the policy could restrict an employee’s right to communicate with a labor union or complain about work, said policy violates all employees’ section 7 rights.

Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non)distinctions the NLRB is drawing:

 

Confidentiality

Unlawful: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

– vs –

Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

Conduct Towards the Company and Supervisors

Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

– vs –

Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.”

 

Conduct Towards Fellow Employees

Unlawful: “Do not send unwanted, offensive, or inappropriate emails.”

– vs –

Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.”

 

Interaction with Third Parties

Unlawful: “Associates are not authorized to answer questions from the news media…. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”

– vs –

Lawful: “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry…. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’”

 

Use of Company Logos, Copyrights, and Trademarks

Unlawful: “Company logos and trademarks may not be used without written consent.”

– vs –

Lawful: “[I]t is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”

 

Restricting Photography and Recording

Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

– vs –

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”

 

Restricting Employees from Leaving Work

Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.

– vs –

Lawful: “Entering or leaving Company property without permission may result in discharge.”

 

Conflict-of-Interest

Unlawful: “Employees may not engage in any action that is not in the best interest of [the Employer].”

– vs –

Lawful: Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from ‘activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

How does the NLRB spell splitting hairs? Wow, the Board’s GC is drawing some very narrow distinctions, based on little more than the use of few different words.

 

One More Thing

If you’ve seen any of the recent Marvel movies, you know to stick around though the credits, because there’s always an extra scene hinting at what will happen next in movies to come. Is General Counsel Griffin is taking his cue from Marvel? If you stick around to the end of his report, you’ll find revised policies that the NLRB approved as part of a settlement with Wendy’s. The devil, however, is in the details. Consider this policy on Phones, Cameras, and Recording Devices, given the NLRB’s seal of approval:

Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

How do you feel about policies that provide employees with a roadmap to your local NLRB regional office? Guess what? I’m not a huge fan either.

Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time to have your friendly neighborhood employment lawyer do so.

Come back tomorrow for a real-world example of how NLRB judges are applying these rules.

WIRTW #360 (the “one shining moment” edition)

March Madness is now if full swing, with 20 games down, and 47 to go (at least as this post goes live). How’s your bracket doing? The always awesome Rhett Miller feels your pain (in song).

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

Discrimination

• Starbucks ‘Race Together’ promotion sparks controversy — via Ragan.com
• What’s your workplace retaliation IQ? — via Robin Shea’s Employment & Labor Insider
• Why Does the EEOC Make Mistakes (Part I) — via Workplace Fairness
• A How-To Guide to Understanding the Americans with Disabilities Act (ADA) and Reasonable Accommodation — via Blogging4Jobs
• Sweeping ADA Ruling By The Fourth Circuit Should Make Employers Anxious — via Fitzpatrick on Employment Law
• Is Ban the Box Legislation Out of Control? — via employeescreenIQ Blog
• Federal judge reincarnates atheist’s religious bias claims — via Eric Meyer’s Employer Handbook blog
• Parental Leave Can’t Just Be for Mothers — via Harvard Business Review

Social Media & Workplace Technology

• Believe This? Poor Performing Employees Use Internet Explorer — via The HR Capitalist, Kris Dunn
• Employee fired via Twitter–before she even starts — via Business Management Daily
• Instant Messaging at Your Company: Convenient, but Problematic — via In House
• Biometric Time Keeping — via Employment Essentials
• Blogging Law I — via HR Examiner with John Sumser

HR & Employee Relations

• Vacation Daze: Leave ‘Em Alone — via Dan Schwartz’s Connecticut Employment Law Blog
• March Madness and Employment Law — via Workplace Prof Blog
• Collateral Estoppel and Unemployment Compensation Hearings — via Phil Miles’s Lawffice Space
• Backlash To Sandwich Noncompetes: Three States Propose Bills To Limit, Ban Noncompetes — via Donna Ballman’s Screw You Guys, I’m Going Home
• “Professional” Distinction: A New Approach To Bans On Non-Competes? — via Trade Secret Insider
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Nine: Be Pro-Active and Preserve Evidence — via netWORKed Lawyers

Wage & Hour

• Don’t Touch Me or I’ll Sue: Another Huge Win for Unpaid Interns — via The L•E•Jer
• February Comes and Goes with No Action by DOL on New FLSA Regulations — via Wage & Hour Insights
• Another Step In The Right Direction: W.D. Ark. Permits Certain Types of Private FLSA Settlements — via Hunton Employment & Labor Law Perspectives™
• 525,600 Minutes of Overtime Consideration — via The Wage and Hour Litigation Blog
• What Are the Changes to the New FMLA Ruling? — via ERC Insights Blog
• Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us — via Jeff Nowak’s FMLA Insights
• Suspension without pay may be a COBRA qualifying event — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB High On Marijuana Labor Relations — via Above the Law
• NLRB Wants Former Employers to Pay for Job Search Expenses of Former Employees — via Matt Austin Labor Law
• More Unionization, More Employee Rights Coming — via Cleveland Employment Law Blog
• Teamsters and Technology II – Labor’s “Silicon Valley Rising” Campaign — via Management Memo
• Shockingly Dumb NLRB Political Move of the Year? — via Labor Relations Institute

An über-huge lawsuit for the employee/contractor distinction

Last week, two different California federal judges reached the same conclusion in two different lawsuits brought against two different ride-hailing companies, Uber and Lyft.

O’Connor v. Uber Technologies, Inc. and Cotter v. Lyft, Inc. are putative class actions alleging that the drivers of each company are employees, and not, as the companies claim, independent contractors. The distinction is monumental, since employees receive a wealth of legal protections, not the least of which is a guaranteed minimum wage and overtime for hours worked in a week over 40, while independent contractors serve with virtually no legal protections at all.

In each case, the judge concluded that the issue was too close to call on summary judgment, and punted the issue for a jury to decide. According to the judges, the drivers resemble contractors in some regards, such as their ability to choose their work hours and their passengers, and yet resemble employees in other regards, such as the degree of control the companies exercise over both the drivers’ interactions with customers and their tenure serving the company.

For more on the important issue of the employee/contractor distinction, and why you should err on the side of “employee” unless it is abundantly clear that the worker is an independent contractor, I recommend the following from the archives:

• Employee vs. independent contractor: do you know the difference
• Is this the end of the independent contractor as we know it?

BREAKING: NLRB Office of General Counsel issues report on employer rules

Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

OSHA and pro sports—are concussions the NFL’s black lung?

San Francisco line backer Chris Borland rocked the sports world yesterday by announcing his retirement from pro football at the age of 24 after playing only one NFL season. His reason: concerns about the long-term impact of football-related head trauma.

The news comes even as the NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012. Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers? If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.

OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA used this general duty clause to cite Sea World of Florida following  a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then? Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill. The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

When loose lips sink defense ships

“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.

WIRTW #359 (the “think outside the box” edition)

Last night my family and I went out to dinner. The following is Donovan’s (age 6) solution of the kids’ menu word search.

His creative thinking should serve him well in life.

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

Discrimination

• Jury awards $150K to employee who feared scanner as “Mark of the Beast” — via Walter Olson’s Overlawyered
• Tackle Bias in Your Company Without Making People Defensive — via Harvard Business Review
• Transgender employees and the so-called bathroom conundrum — via Eric Meyer’s The Employer Handbook Blog
• GCs: Does Your Company Have (or Need) a Non-Discrimination Policy? — via In House
• What do you do when your pregnant employee is too big? — via Mike Haberman’s Omega HR Solutions
• Is Paternity Leave for Lawyers an Oxymoron? — via Attorney at Work
• State of the Union” on substance abuse and the workplace — via Robin Shea’s Employment & Labor Insider
• What is a “hostile educational environment”? — via Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Learning From Hillary: Using Your Private Email for Black Ops at Your Company — via The HR Capitalist, Kris Dunn
• How Hackers Get Their Big Breaks: The Video — via Ride The Lightning
• What Would You Do If an Employee Tweeted Something THIS Detestable? — via Inc.com
• Should I post about work on my social media accounts? — via Genesis HR Solutions
• Sample Social Media Policy for Small Businesses — via Acacia HR Solutions
• Who Will Update My Status When I’m Dead?: The Biggest Social Media Platforms’ Policies on Deceased-User Accounts — via Socially Aware Blog
• Apple Watch and the Enterprise: Oh, God. This is Kinda Dumb. — via YourHRGuy

HR & Employee Relations

• 15 workplace behaviors that could get you fired — via Ragan.com
• Employer Can Be Found Liable For Misappropriating An Employee’s Trade Secrets — via Trading Secrets
• Non-Compete Agreements Are The New Black, Part 1 — via Texas Employment Law Blog
• Can Employers Prohibit Secret Workplace Recordings? — via HR Law Matters
• an employee made an anonymous complaint to OSHA — how can I stop it from happening again? — via Ask a Manager
• “You’re getting laid off! You’re getting laid off! Everybody’s getting laid off!” — via EntertainHR
• Employers, employees see work-life balance through different lenses — via HR Hero Line

Wage & Hour

• Wait! Stop! Is Your Severance Arrangement Subject to ERISA? and Should You Create an ERISA Severance Plan? — via The Emplawyerologist
• Can Your Company Require an Employee to Buy Health Insurance? — via TLNT
• Armored Car Drivers Who Drove Vehicles Weighing Less Than 10,000 LBS as Well as CMVs Non-Exempt and Entitled to Overtime — via Overtime Law Blog
• The Overtime Fight For Document Review Continues — via Above the Law
• Ineligible Employee Still Gets FMLA Leave Due To Incomplete Policy — via Minnesota Employment Law Report

Labor Relations

• The NLRB is Changing the HR Game in April — via Blogging4Jobs
• NLRB to Begin Training Staff on New Quickie Election Rules — via Labor Relations Today
• Avoiding Union Avoidance — via Workplace Prof Blog
• Good roundup of Right to Work — via Labor Relations Institute
• Teamsters and Technology : Developing Labor Issues for Technology Industry Employers — via Management Memo

When the government comes knocking, don’t forget not to retaliate

Last week, I wrote about what to do when OSHA comes knocking. One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government.

Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle reminder:

Employee cooperation and candor are crucial to these efforts. Just as important, employees who give testimony are protected … from retaliation or discrimination of any kind on account of their cooperation.

Whether it’s the EEOC, the DOL (Wage and Hour or OSHA), or the NLRB, employees not only have the right to file complaints or charges, but they also have the right to provide information to the investigating agency or otherwise cooperate in the investigation. For example, if OSHA is coming into your business, the inspector will almost certainly want to interview some of your employees. If they are non-management employees, you have no right to participate in or observe the interview.

It is critical that both before and after the investigation you communicate to your managers and supervisors that retaliation will not be tolerated. It’s also a good idea to communicate the same to your employees. Having, and documenting, this communication will be your best friend in the event that you have to take a legitimate adverse action against an employee on the heels of his or her participation in a government investigation.

Company expands leave benefits for working mom, but what about the dads?!

The Washington Post’s On Leadership blog reports that global telecomm company Vodafone is establishing a new global maternity leave policy for all 30 of its operating companies: 16 weeks of paid maternity leave, plus a 30-hour work week with no reduction in pay for the first six months after retuning from maternity leave.

This policy is very generous, and, for its American operations, is a big step in the right direction towards aligning American maternity leave policies with those around the world (something on government has been unwilling, or unable, to accomplish). However, in rolling out this policy, Vodafone should not forget about the dads. We want flexibility too. A policy that offers parental leave, or reduced work schedules, other family-related benefits to women but not to men violates Title VII on its face.

Gender-neutral policies (those that extend the same benefits to moms and dads) are not safe from legal scrutiny. These policies must be neutral in their drafting and their application. An employer cannot overtly or subversively punish a dad who avails himself of such a benefit out of some stereotyped notion that family issues are the woman’s responsibility. Sexual stereotyping is illegal sex discrimination under Title VII.

The bottom line—moms and dads deserve to have careers and families. Balancing the two is hard enough without employers piling on.

For more on this important issue, I cannot more highly recommend reading An Apology to Dads Working, Too?, on Rob Schwartz’s Dad Working blog.

#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.

 

WIRTW #357 (the “proud papa” edition)

My kids go to an amazing school. Part of what makes it amazing is that beginning in third grade the second parent-teacher conference is student led. Last night, my wife and I experienced our first Norah-led conference.

The conference blew me away. I knew that Norah would be presenting her PowerPoint on Neptune, the culmination of weeks of research and hard work. I was not prepared, however, for the conference to be 100% student led. My wife and I watched and listened for nearly 45 minutes as, working off a prepared agenda, Norah ran the meeting and walked us through all she’s done for the past four months. She presented a dramatic monologue. She shared a story she had written in her creative writing journal. She demonstrated how she’s learned 3x2 multiplication. She displayed her self-assessed progress report (she’s much tougher on herself than her teacher would have been). The conference capped with Norah’s Neptune PowerPoint, which, with her permission, I’m sharing with you.

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

Discrimination

• Can Your Severance Agreements Withstand an EEOC Challenge? — via The Emplawyerologist
• Walmart Settles EEOC Age, Disability Discrimination Suit for $150K — via In House
• Is retaliation such a big deal? — via Mike Haberman’s Omega HR Solutions
• Cabbie’s Fear of Dogs Doesn’t Trump Requirement to Allow Service Dogs — via Dan Schwartz’s Connecticut Employment Law Blog
• Is Non-Pregnancy a BFOQ for Exotic Dancers? — via Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• The Apple Watch is coming: Do you have a Wear Your Own Device (“WYOD”) policy? — via Employer Advocate
• Legal Ethics and Social Media: What Pre-Litigation Advice May an Attorney Provide to His or Her Client? — via Above the Law
• A social media lesson to share with your workforce — via Eric Meyer’s The Employer Handbook Blog

HR & Employee Relations

• Should an employer fight unemployment? The debate continues… — via Robin Shea’s Employment & Labor Insider
• 3 Facts about Measles and the Workplace — via ERC Insights Blog
• Litigation Update: Transportation Firm Served With FCRA Class Action — via employeescreenIQ Blog
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Eight: Make the Most of the Exit Interview — via netWORKed Lawyers
• What Counts As An Appropriate Workplace Hug? — via Evil Skippy at Work
• Why Workplace Accidents Tend to Happen Late in a Project — via Harvard Business Review

Wage & Hour

• Can the Employer Legally Cut an Employee’s Pay? — via Evil HR Lady, Suzanne Lucas
• When Do Bonuses Get Included In Non-Exempts’ Regular Rate for OT Calculations? — via Wage & Hour - Development & Highlights
• “Rises In The Minimum Wage Really Do Destroy Jobs” — via Walter Olson’s Overlawyered
• Eleventh Circuit Rules That Employer Cannot Assert Worker Misconduct Equitable Defenses in FLSA Unpaid Overtime Claim Where Employer Knew Employee was Under-reporting Time — via Employment Matters Blog
• Defendant Barred from Unilateral Meetings With Putative Class Members Outside of Formal Discovery Process, Absent Detailed Disclosures to Alleviate Concerns re Chilled Participation and/or Retaliation — via Overtime Law Blog
• Exemption Changes: A Possible "Plan B" For Retailers — via Wage and Hour Laws Blog
• Recovers $240 Million for More Than 270,000 Workers — via The Wage and Hour Litigation Blog

Labor Relations

• NLRB Ambush Election Rule Weakens Worker Privacy — via Labor Relations Institute
• Teamsters “Liking” First Labor Contract for Facebook Drivers — via All in a Day’s Work
• ERISA at 40: A Time to Assess Multiemployer Defined Benefit Pension Plans — via Management Memo
• NFIB Files Amicus Brief Ripping NLRB Facebook Ruling — via Labor Relations Today

 

Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.