Congratulations! It’s a . . . pregnancy discrimination guidance.

What-to-Write-in-a-Baby-Shower-Card

The Equal Employment Opportunity Commission (EEOC) has issued its first comprehensive update of a 1983 Compliance Manual chapter on the subject of the Pregnancy Discrimination Act (PDA) and related issues. The Guidance, which was not submitted for public comment prior to its issuance, also discusses the application of the Americans with Disabilities Act (ADA), as amended in 2008, to individuals with pregnancy-related medical impairments, consistent with the EEOC’s Strategic Enforcement Plan priority of addressing the overlap between the PDA and the ADA.

The document – which, at over 30 pages of text and 181 footnotes is more than a “quick read” – focuses on four areas: an overview of the PDA’s statutory protections; the ADA’s protections for pregnant workers; other issues affecting pregnant workers (including the Family and Medical Leave Act, caregiver laws, break times for nursing mothers, and applicable state laws); and “best practices” for employers.

The EEOC’s intended take-aways from the initial section are clear:

  • The PDA’s protections extend beyond pregnancy, and include potential/intended pregnancy (i.e., fertility treatment), past pregnancies, caregiving responsibilities, and lactation/breastfeeding;
  • An employer is obligated to treat a pregnant employee the same as it treat others similarly unable to perform their jobs, whether by modifying job tasks, reassigning the employee (including to light duty), or providing leave;
  • Harassment, disparate impact, and disparate treatment all are prohibited under the PDA. 

The second section of the Guidance details the EEOC’s view of pregnancy-related conditions as disabilities. It includes the specific statements that “[u]nder the ADAAA, there is no requirement that an impairment last a particular length of time to be considered substantially limiting,” and that “the ADAAA includes the operation of bodily functions [including the reproductive system] as major life activities.” These statements are followed by series of examples that illustrate the EEOC’s view of what does – and does not – constitute a disability with regards to pregnant women, and a list of “examples of reasonable accommodations that may be necessary for a disability caused by pregnancy-related impairments.”

The third section of the Guidance mentions the FMLA, Executive Order 13152 (prohibiting discrimination in federal employment based on an individual’s status as a parent), mandated break time for nursing mothers, and the interplay of state laws wither federal pregnancy discrimination obligations. In that section, the EEOC quotes a 1987 California case in which the court stated that Congress intended the PDA to be a “floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise.” The import is clear: employers must comply with all laws, including state and local, regarding pregnant employees, even if those laws are more expansive than the PDA itself.

In its final section, the Guidance addresses five separate topics, and provides guidelines to assist employers “to reduce the chance of pregnancy-related PDA and ADA violations and to remove barriers to employment opportunity.” In other words, the EEOC lists the areas in which it will be looking in the event that a charge of discrimination is filed against an employer. The five areas, along with EEOC suggestions for employer action, are:

  • General Policy Requirements – developing, disseminating and enforcing a strong policy, and training managers on that policy;
  • Hiring, Promotion, and Other Employment Decisions – focusing on job-related qualifications and assuring that job opportunities are communicated to all eligible employees;
  • Leave and Other Fringe Benefits – assuring that there is no disproportionate impact on pregnant workers, and reviewing policies periodically to confirm that;
  • Terms and Conditions of Employment – monitoring compensation, light duty, reassignment, employee training, and access to workplace networks to assure equal opportunity for participation by pregnant employees; and
  • Reasonable Accommodation – having a process in place for “expeditiously considering reasonable accommodation requests . . . and for granting accommodation where appropriate,” and training managers to recognize such requests.

Of the issues addressed in the Guidance, the one that has received the most attention is the EEOC’s assertion that employers are required to treat a pregnant employee (who temporarily is unable to perform the functions of her position) in the same manner that it treats other employees similar in their ability or inability to work. According to the EEOC, such treatment could include modified tasks, alternative assignments (including light duty), or fringe benefits in the form of disability leave or leave without pay.

The reason for the attention is the fact that recently, the U.S. Supreme Court agreed to hear a case (Young v. UPS, Inc.) during its 2015 term that is centered on the question of whether pregnant women are entitled to light duty simply because of their pregnancy, absent any other physical impairment. Because that case has not yet been decided, and because there is a split among the federal court circuits on the issue, the EEOC’s published guidance is viewed by many (including two of the five EEOC Commissioners, who dissented from the language of the Guidance) as premature.

However, the primary take-away from this Guidance is that the EEOC is training its attention on the issue of pregnancy discrimination, and is providing a roadmap for the path that it plans to take to review and investigate employers against whom PDA and ADA complaint are made.  Employers would be wise to review the Guidance, and its associated Q&A page, and to consider the “best practices” suggested, because although the Guidance does not have the force of law that a statute does, it will be viewed by courts as an expression of the EEOC’s interpretation of the applicable statutes. Small business should review the EEOC’s Fact Sheet for Small Businesses that accompanies the Guidance.

Employee’s profanity-laced outburst may not preclude protection under the National Labor Relations Act.

Swearing boy

Here are the basic facts of a case (Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA-022256, May 28, 2014) that has raised a question regarding the inherent conflict between “protected activity” under the National Labor Relations Act (NLRA) and insubordinate behavior by employees:

• Nick Aguirre became employed by Plaza Auto Center in Yuma Arizona in August 2008 as a car salesman and held that position for two months;

• During his brief tenure, he complained to both fellow employees and company managers about company policies, breaks, and compensation;

• On October 28, 2008, Aguirre was called to a meeting with Tony Plaza, the owner of Plaza Auto Center, and two sales managers;

• Plaza began the meeting by telling Aguirre that he was “talking a lot of negative stuff” and asking too many questions;

• Plaza told Aguirre that he should not be complaining about pay, and that if Aguirre didn’t trust him, he need not work there;

• At that point, Aguirre lost his temper, and in a raised voice called Plaza a “f***ing crook” and an “a**hole,” and told Plaza that he was stupid and that no one liked him;

• During his tirade, Aguirre stood up in the small office, pushed his chair aside, and told Plaza that if Plaza fired him, Plaza would “regret it.”

Plaza then fired Aguirre. In an evidentiary hearing on the charge filed by Aguirre, an Administrative Law Judge (ALJ) found that Plaza Auto Center had violated the NLRA by inviting Aguirre to quit in response to his protests regarding working conditions. However, the ALJ also found that Aguirre lost the protection of the NLRA by his “belligerent” behavior in speaking to Plaza in “obscene and personally denigrating terms accompanied by menacing conduct and language.”

The Acting General Counsel appealed the decision to the full National Labor Relations Board (NLRB), which determined that Aguirre’s conduct was not severe enough to cause him to lose the NLRA’s statutory protections and, therefore, that his firing violated the Act.

At the point, Plaza Auto Center appealed to the 9th U.S. Circuit Court of Appeals, which found that Aguirre’s behavior was insubordinate and “counted against” his retaining the Act’s protection. It found that the NLRB’s rejection of the ALJ’s findings that Aguirre’s behavior was “belligerent,” “menacing,” and “at least physically aggressive,” created an internal inconsistency in the Board’s decision. It then remanded the case back to the NLRB for further review.

On re-review, the NLRB determined that while Aguirre’s behavior was obscene and personally denigrating, other factors “compellingly favor Aguirre’s retaining the protection of the NLRA.” First, the Board found that Aguirre’s conduct was not menacing, physically belligerent, or aggressive, and that “it seems clear” that Aguirre’s statement that Plaza would “regret it” if he fired Aguirre was a simple threat of legal action, and not a threat of physical violence.

As for the ALJ’s finding that Aguirre’s action in pushing his chair aside was menacing, the Board found that in Plaza’s small office, “it likely would have been difficult for Aguirre to stand up without pushing his chair aside.” Also, because Aguirre had no prior history of violent or threatening behavior (in the two months within which he worked at Plaza Auto Center), and because there was “no evidence that Aguirre tried to hit Plaza, or even made a fist,” the Board rejected the ALJ’s finding that Aguirre’s behavior was menacing, physically aggressive, or belligerent.

The Board’s decision that Aguirre’s behavior did not cause him to forfeit the protections of the NLRA are based – according to the Board – on a balancing of an employee’s right to engage in concerted activity and an employer’s need to maintain order and respect in its establishment.

Employers should take notice of this case when making decisions to discipline or fire an employee who has complained about the terms and conditions of employment, even if that employee uses obscenities and acts in what could be viewed as a threatening manner.

However, there is one factor which is mentioned numerous times in the Board’s opinion, and which could provide some additional direction to employers: Aguirre’s outburst occurred immediately after Plaza’s inference that Aguirre could quit if he didn’t like the company’s policies. Labeling that comment a “provocation” of Aguirre’s reaction, the Board determined that Aguirre’s firing was in violation of the NLRA.

The remedy for Plaza Auto Center’s violation of the Act was immediate reinstatement of Aguirre with back pay and benefits paid to him, along with reimbursement for any “adverse tax consequences” of that repayment; Aguirre’s personnel file was to be cleaned of any reference to his firing, and the company we required to post a Notice which requires a link and a QR code to the Board’s full decision, along with statements related to employees’ right to form a union and engage in activities protected by the NLRA.

Employers take note: Plaza’s implication that he was refusing to change the company policies related to wages and breaks, and his statement that Aguirre may as well leave if he was dissatisfied clearly worked against Plaza in this circumstance. The Board viewed Plaza’s statement as a refusal to hear Aguirre’s concerns or give them any attention, and viewed the firing as a reaction to Aguirre’s protected activity in making the complaints. This case provides one piece of usable advice to managers: a don’t-let-the-door-hit-you-on-the-way-out statement in response to an employee’s concerns related to working conditions can create unintended risk and liability under the NLRA.

 

Employment Law Carnival – The A to Z List

Plate 2

Law Partners Maria Danaher, Editor of Employment Law Matters, and Mary Wright, Guest Blogger (both of Ogletree Deakins), offer up this month’s Employment Law Carnival.

Here is our A to Z list of legal pickings from around the ‘Net.

 

Slide1is for the ADA

Eric B. Meyer, The Employer Handbook, The Firefighter Afraid of Fighting Fires Loses His ADA claim.  Right, you guys? Right?!?

 

Slide2is for Basketball Bargaining

Nate Duncan, The Team Rebounds, NBA Collective Bargaining Agreement Flashcards.

 

Slide3is for Car

Chris Ceplenski, Compensation and Benefits Daily Advisor, How to Calculate Employee Reimbursements for Mileage Expenses

 

 Slide4is for Diversity

Heather Bussing,  HR Examiner,  Diversity: Tampering with Certainty

 

Slide5is for English Only Policies

Philip Miles, Lawffice Space, “English Only” – Discrimination or Legit Job Requirement?

 

Slide6is for Freedom of Speech

Stuart E. Rudner, Rudner McDonald Blog,  Freedom of Speech Doesn’t Mean Freedom from Consequences

 

Slide7is for GINA

Latosha Dexter, HR Professional Magazine, The Genetic Information Nondiscrimination Act – Takes Steps Now to Ensure Compliance

 

Slide8is for Harassment

Shaun Bernstein, Rodney Employment Law Blog, No Place for Discrimination:  Workplace Harassment and What to Watch For

 

 Slide9is for Identity Theft

Mary Wright, Blogging for Jobs, With Big Data Comes Big Responsibility:  Protect Data on Your HRIS

 

Slide10is for Jokes

Charlice Hurst, Karen Macmillan and Thomas Watson, Ivey Business Journal, Deconstructing Donglegate:  Lessons from an HR Fiasco

 

Slide11is for Kinfolks

Kaitlyn Jakubowski, BT Currents, Flextime Consideration is Now Law in Some Places

 

Slide12is for LGBT

David Badash, The New Civil Rights Movement, Obama Executive Order is “Single Largest Expansion of LGBT Workplace Protections”

 

Slide13is for Minimum Wage

Christopher J. Near, Leigh M. Nason, Alfred B. Robins, Jur. And Dara L. DeHaven, Ogletree Deakins Blog, Your Guide to the Proposed Rules Under Executive Order 13658:  Setting a Minimum Wage for Federal Contractors

 

Slide14is for the NLRB

Lindsay M. Bouffard, Employment Essentials, The NLRB Doesn’t Like Your Attitude

 

Slide15is for Officer

Aarti Maharaj, The FCPA Blog, Does the Compliance Officer Own Corporate Character?

 

Slide16is for Punitive Damages

Randy J. Manilofff, LexisNexis Legal Newsroom, Punitive Damages:  Insurable in 38 States – The Sometimes Oversimplified Issue

 

Slide17is for Quota

Lyle Denniston, ScotusBlog, Opinion Analysis:  Affirmative Action – Up to the Voters

 

Slide18is for Recordkeeping

Ari Rosenstein, Small Biz HR Blog, Record Keeping Best Practices – A Quick Guide 

 

Slide19is for Sensitivity to Smells

Tiffani McDonough, The Legal Intelligencer, April Showers Bring May Flowers and Other Workplace Irritants: Must an Employer Provide a Fragrance-Free Workplace Under the ADA?

Slide20is for Time Keeping

Jennifer Palagi, California Public Agency Labor & Employment Blog, Favorable Decision For Employers Reinforces Importance Of Clear Policies Regarding Off-the-Clock Work

 

Slide21is for Unclothed

John Hyman,  Ohio Employer’s Law Blog: If You’re Caught Sunbathing Nude, On the Roof of Your Elementary-School-Employer, Don’t Sue for Retaliation

 

Slide22is for Violence

John S. Gannon, The Law @ Work, OSHA Clamping Down on Workplace Violence

 

Slide23is for Wage and Hour (Times 2!)

Brandon T. Willenberg, JD Supra Business Advisor, California Employers Catch One of Those Rare Wage and Hour Class Action Breaks form the California Supreme Court

Robin Shea, Employment & Labor Insider, Beware of Employees Too Eager to Please!

 

Slide24is for Xeroxed (or Copied) Trade Secrets

Jason T. Murata, John M. Tanski and Brooke J. Oppenheimer, Risk Management, Are Your Secrets Safe?

 

Slide25is for Youngster

Joe Ross, First Reference, Creating a BYOD Policy for Millennials

 

Slide26is for Zealot

Frederic Leffler, JD Supra Business Advisor, EEOC Issues New Guidance on Religious Garb and Grooming in the Workplace

 

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And as Mary’s sainted mother would add –

And a “pinch to grow an inch!”  A little extra from the always refreshing Donna Ballman, Screw You Guys, I’m Going Home, The Criminalization of Employment Law.

 

Mary and Maria want to thank all their friends in Big Law, Little Law, Plaintiff’s Law, or downright No Law for all their contributions.  We like the fact that the Internet is making our legal community smaller every day.

Continued Employment is Insufficient Consideration for Non-Compete Agreement in PA.

This article was written by John H. Riordan, Jr. Of Counsel in Ogletree Deakins’ Pittsburgh Office.

In general, contracts “in restraint of trade” have been considered to be illegal. One exception under most state laws is the “Non-Compete Agreement,” wherein an employee agrees – typically upon being hired – not to compete with his/her employer for a reasonable period of time after that employment relationship ends. This restriction, however, typically is disfavored by the Pennsylvania Courts because it is viewed to limit the employee’s professional mobility.

Nonetheless, such agreements have been enforced where the Non-Compete Agreement has been entered into properly, where the restriction on an employee’s ability to work elsewhere is reasonable in prohibited territory and duration, and where the restriction is reasonably necessary for the protection of a legitimate business interest of the employer.

With the arrival of the Digital Age, when large amounts of data can be stored on a small, portable device, and with the corresponding shift in emphasis in the American economy to knowledge-based businesses, the use of Non-Compete Agreements has become relatively commonplace. The result has been an increase in litigation over the enforceability of these Agreements.

Contributing to that increase is the fact that there is no single “standard” form of non-compete clause. Instead, so long as the non-compete restraint is reasonable in duration and territorial reach, each employer, with an awareness of its own business needs, can script its own language. As a consequence, the controlling legal principles to be applied when evaluating the validity of these agreements have been developed by the Pennsylvania Courts over the last 50 years on more-or-less a case-by-case basis.

One of the controlling legal principles in the Non-Compete Agreement arena is the requirement that such an agreement be supported by “consideration.” Even where an employee is hired at-will – meaning that the parties have no agreement for a definite duration of employment, and that the employee can be terminated at any time, unless for a discriminatory reason – the Non-Compete Agreement is interpreted as a legally binding contract, so long as “consideration” exists.

The benefit to the employer from a Non-Compete Agreement is clear; and in the case where the employee is a new hire, the benefit to that employee clearly consists of the employment relationship itself. However, where the employee already is on the payroll, the benefit received for his or her agreement to limit future employment opportunities is less clear.

Over the years, Pennsylvania Courts have decided that merely allowing a current employee to continue in at-will job is not valid consideration for a promise not to compete. Instead, the employer must confer some additional benefit upon the employee (e.g., a raise) or a beneficial change in status (e.g., a promotion). However, in difficult economic times, or for small enterprises, this additional benefit may not make financial sense. Might there be a less expensive solution, a so-called “Easy Button”?

Within the last decade there have been two opinions from the U.S. District Court for the Western District of Pennsylvania suggesting that no consideration is necessary to support a non-compete with an existing employee if the agreement is in writing and contains certain specific language. These cases cite to the Pennsylvania version of the Uniform Written Obligations Act (“UWOA”), a 1927 law which provides that a written release or promise, signed by the person releasing or promising, will not be invalid or unenforceable for lack of consideration, if the writing also contains an express statement that the signer “intends to be legally bound.” This provision has been referred to as the “Easy Button.”

However, on May 13, 2014, a three judge panel of the Pennsylvania Superior Court disapproved of using the UWOA as the Easy Button. Socko v. Mid-Atlantic Systems of CPA, Inc., 2014 Pa. Super. LEXIS 702.

In that case, the Court made clear that an employer failed to provide any “fresh” consideration/beneficial change in status upon an existing employee in return for a new Non-Compete Agreement. There, the Court distinguished between non-compete contracts (disfavored by the law) and the more ordinary kind of contracts, and held that held that the Easy Button is insufficient consideration in circumstances where a non-compete agreement is required from an existing employee without additional actual consideration:

The reasons for this differing approach are clear, as restrictive covenants are disfavored in Pennsylvania because they are in restraint of trade and may work significant hardships on employees agreeing to them. For these reasons, our Supreme Court, as reviewed hereinabove, has held that only valuable consideration will support their enforcement, and has rejected as inadequate various forms of consideration that would support the enforcement of other types of contracts, including the benefit of the continuation of at-will employment, contracts under seal, and nominal consideration.

The Court further concluded that:

When the restrictive covenant is contained in the initial contract of employment, the consideration is the job itself. But when the restrictive covenant is added to an existing employment relationship, however, to restrict himself the employee must receive a corresponding benefit or a change in job status. Contractual language satisfying the UWOA does not provide the employee with any actual benefit, and thus cannot suffice as a form of consideration that is adequate to support the later enforcement of the covenant not to compete against the employee.

The employer in Socko has filed a request for re-argument with the Superior Court. If that request is denied, the employer then can request allowance of appeal to the Pennsylvania Supreme Court. Therefore, it may be several months until the panel’s decision is fully final. However, the panel’s opinion will be published and is precedential, meaning that unless vacated or reversed it will apply in both state and federal court cases in which Pennsylvania law provides the rule of decision.

 

OSHA and NLRB referral agreement could extend NLRB’s reach into workplace safety issues.

The Occupational Safety and Health Administration (OSHA) is an arm of the U.S. Department of Labor, and is the federal agency charged with the enforcement of legislation related to the health and safety of workers.

OSHA’s primary enforcement tool is the Occupational Safety and Health Act of 1970 (OSH Act). Section 11(c) of the OSH Act provides that:

“no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”

An employee who believes him- or herself to have been retaliated against under Section 11(c) of the OSH Act has 30 days after the alleged adverse action within which to file a charge with OSHA. According to OSHA, hundreds of such complaints are dismissed each year because the complainant has failed to file a timely charge.

The National Labor Relations Board (NLRB) is an independent agency of the U.S. government charged with investigating and remedying unfair labor practices.

Section 7 of the National Labor Relations Act (NLRA) provides the right to employees to “engage in concerted activities” for “mutual aid or protection.” Section 8 of the NLRA prohibits “unfair labor practices,” and allows an employee who feels that he or she has been adversely treated after engaging in protected concerted activity to file a charge within 180 days of the alleged adverse treatment.

In 1975, a Memorandum of Understanding (MOU) was signed by OSHA and the NLRB which outlined procedures for handling worker safety retaliation complaint filed with one or both agencies. That MOU provided that where a complaint was filed with both agencies, enforcement actions would be taken primarily by OSHA.

Since that MOU, the number of Section 11(c) complaints has continued to rise, and more and more of those complaints are being filed outside of the OSH Act’s 30-day limitation period.

In March of this year, the Acting Director of OSHA’s Directorate of Whistleblower Protection Programs raised the issue of untimely 11(c) complaints, pointing out the overlap between those complaints and NLRB Section 8 issues. Based on that overlap, he suggesting that OSHA refer complainants who have filed untimely OSH Act retaliation/whistleblower complaints under Section 11(c) to the NLRB, under that agency’s 180-day time limitation.

On May 22, 2014, an agreement was reached between the two entities in which OSHA agreed to advise all complainants who have filed or attempted to file an untimely Section 11(c) retaliation charge to contact the NLRB to inquire about filing an unfair labor practice charge under Section 8 of the NLRA.

The agreed-upon policy requires OSHA personnel to first discuss with the complainant his or her rights under Section 11(c) of the OSH Act, and make that employee aware of the fact that the untimely complaint will be screened out or dismissed.

After that, OSHA will advise the complainant of the right to file a charge with the NLRB, and of that agency’s 180-day time limit. Contact information will be provided regarding the appropriate NLRB field office. Closure letters for untimely OSHA complaints also will include this information.

It is of interest that while only claims regarding safety-related “concerted” activity actually are appropriate for referral to the NLRB, this resource-sharing agreement applies to all untimely retaliation claims to OSHA. However, given the nature of most safety-related issues, and the fact that they rarely apply to only one employee, it seems likely that the NLRB is going to view most, if not all, safety-related retaliation issues as precluding the banding together of employees and, therefore a potential violation of Section 8 of the NLRA. Another important point is that the protections offered by this arrangement apply to both unionized and non-unionized employers.

While this arrangement ostensibly was instigated by OSHA, it is another in a pattern of actions that has broadened the presence and effect of the NLRB in employment discrimination and retaliation issues.

According to John Artz, a Pittsburgh shareholder and member of Ogletree’s Workplace Safety & Health Practice Group, “As has already become apparent by its activism in other arenas, this Administration is toiling diligently for workers. We continue to see a greater emphasis on workplace safety enforcement with a more adversarial focus. What this agreement with the NLRB means is that even if OSHA dismisses a complaint as untimely filed, the issue may not really be over if the longer limitations period of the NLRA breathes new life into it.”

Does your employee handbook violate the National Labor Relations Act? Based on recent NLRB decisions, it’s likely.

Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to: “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” 

More and more frequently, the National Labor Relations Board (NLRB) has deemed that policies and procedures included in employee handbooks constitute “unfair labor practices,” and has expanded its interpretation of the types of actions that constitute such practices. In the past year, the NLRB has criticized and struck down handbook language including “at-will” disclaimers, social media policies, mandatory arbitration provisions, and requirements to keep internal investigations confidential.

Last month, in a move away from that trend, a panel of the Board reversed the decision of an Administrative Law Judge (ALJ), and found that two handbook policies did not explicitly restrict protected concerted activity, nor could employees reasonably construe those policies to prohibit Section 7 activity. First Transit, Inc. and Amalgamated Transit Union Local #1433, 360 N.L.R.B. No. 72 (April 2, 2014).  However, it also found a work rule related to employee conduct to be in violation of Section 8.

In 2011, an ALJ initially determined that a number of company policies violated Section 8. Those policies were:

  • a verbal rule prohibiting employees from discussing their wages with other employees;
  • a handbook rule requiring management’s authorization for distribution of literature during non-work time in non-work areas;
  • another verbal rule prohibiting employees from meeting with union representatives on the facility premises at any time; and
  • a handbook provision prohibiting employees from “using Company property for activities not related to work anytime”; and
  • a work rule prohibiting “[p]oor work habits, including loafing, wasting time, loitering, or excessive visiting.”

In addition, the same ALJ found that a prohibition on “[d]iscourteous or inappropriate attitude or behavior” which also precluded “[p]rofane or abusive language where the language is uncivil, insulting, contemptuous, vicious, or malicious” not to have been a violation of Section 8 of the NLRA.

The first two bullet points were not appealed and, therefore, were conceded to have been in violation of Section 8. However, exceptions to the remaining points were filed.

On review, an NLRB three-member panel (consisting of Chairman Pearce and Members Johnson and Schiffer) upheld the ALJ’s determination regarding the prohibition of meeting with union reps on facility premises (based on the fact that one of the union representatives also was a current employee, with rights to have been on the premises), but reversed the remaining designations, for the following reasons:

  • The Board panel determined that, contrary to the ALJ’s interpretation of the Company policy – that the term “using Company property” encompassed a physical presence in non-work areas where employees lawfully could engage in protected activities during non-work time – the policy, which was titled “Stealing/theft,” dealt strictly with the unauthorized removal of property or funds belonging to the Company and, therefore, did not violate the NLRA.
  • Contrary to the ALJ’s interpretation that the Company’s no-loitering rules could be interpreted as prohibiting protected activities during non-work time in non-work areas, the Board panel found that employees would reasonably construe the “poor work habits” cited in the rule to refer to a failure to perform job duties, also consistent with the rule’s heading: “Work rules and employee performance.” Therefore, the policy did not violate the NLRA.
  • However, the Board panel reversed the ALJ’s decision related to the Company’s “Personal conduct rule, and determined that one section of the rule was in violation of Section 8. While the Board accepted the legality of the rule’s phrase prohibiting “uncivil, insulting, contemptuous, vicious, or malicious” language, it reversed that finding with respect to the rule’s initial phrase (prohibiting “discourteous or inappropriate attitude or behavior”), which it found to be “overly broad” and, therefore, capable of interpretation as precluding disagreement or conflict among employees that could fall within Section 7 of the NLRA. Therefore, the language was in violation of the NLRA.

The take-away for employees comes in the final paragraphs of the Board’s decision in the Board’s decision, in which it addresses the fact that the Company’s handbook included a “Freedom of Association” (FOA) policy, which specifically stated that management “shall support the employee’s individual right to choose whether to vote for or against union representation without influence or interference from management.”

That policy, according to the Company, should have precluded employees from believing that any of the Company’s rules or policies unlawfully restrict Section 7 rights.

However, the Board panel disagreed and, in the process, provided a bullet point list of the factors that it considered (and, presumably, will consider in the future) when determining whether a “safe harbor” FOA provision is effective:

  • First, the FOA policy should be broad enough to include behavior other than union organizational rights, and should “address the broad panoply of rights protected by Section 7.”
  • In addition, placement in the handbook should be prominent and/or “proximate to the rules it purports to inform.”
  • If a stand-alone FOA policy is included in a handbook, it should expressly reference the rules that it effects, just as the rules should reference the FOA policy.

Following the Board panel’s suggested points can help to assure that a company’s handbook and policies cannot reasonably be construed by employees to prohibit Section 7 activity and, presumably, will be upheld as acceptable upon NLRB review.

Don’t panic about your telecommuting policy . . . unless you’re in the Sixth Circuit.

A recent decision by the 6th U.S. Circuit Court of Appeals seems to have sent many employers into a tailspin on whether and how often to allow employees to telecommute to fulfill job responsibilities. EEOC v. Ford Motor Company, 6th Cir., No. 12-2484, April 22, 2014.  (FindLaw.com link.) However, at this point, it is too early to tell what kind of effect the decision will have on a wider basis.

Here are the facts of the case:

  • Jane Harris was hired by Ford Motor Company as a “resale buyer,” where her job responsibilities including serving as an intermediary between steel suppliers and “stampers” (the companies that use the steel to produce parts for Ford).
  • According to Ford, the essence of Harris’ job was “group problem-solving” where it was necessary for Harris to “interact with members of the resale team, suppliers and others” to resolve supply problems.
  • Harris suffered from Irritable Bowel Syndrome (IBS), a condition that causes fecal incontinence.
  • During period between 2005 and 2009, Harris took intermittent FMLA leave, and also could work on a flex-time telecommuting schedule.
  • That solution was not effective, as Harris began to make mistakes because she could not engage in team problem-solving or access suppliers to obtain information during off-hours.
  • In 2009, Harris formally requested to be permitted to telecommute on as as-needed basis as an accommodation for her IBS.
  • Ford utilized such a policy, but reserved the right to decide for which jobs it was appropriate.
  • At the time of Harris’ request, several other buyers telecommuted on one scheduled day per week.
  • Harris believed that an as-need telecommuting schedule would “relieve her stress and alleviate her IBS symptoms.”
  • Ford felt in-person attendance was an essential function of the resale buyer position, and refused Harris’ request; however, Ford suggested several alternate accommodations (office closer to rest room, lateral move to job with more schedule flexibility).
  • When Harris refused the alternate accommodations, she was terminated for performance issues, and filed an EEOC, then federal court lawsuit, alleging violation of the Americans with Disabilities Act (ADA).
  • The district court granted summary judgment in favor of Ford, stating that it would not second-guess Ford’s business judgment regarding the essential functions of the job, and holding that Harris was not a “qualified individual” because of her excessive absenteeism.
  • Harris appealed to the Sixth Circuit, which reversed the lower court’s decision, and remanded the case for a trial by jury.

In determining whether a case should be dismissed at the summary judgment stage, a court need only find a question of “material fact” to deny the motion.  That is because juries are the “fact finders” in a lawsuit – the courts cannot step into that role and make factual determinations. A case only can be dismissed at the summary judgment phase if there is no issue of material fact, and the court can determine that a plaintiff cannot support his or her legal position sufficiently.

Here, the Sixth Circuit determined that issues of fact existed as to whether a telecommuting arrangement can be a reasonable accommodation for an employee suffering from a debilitating disability. That determination, in itself, is not noteworthy.

What is noteworthy, however, is that Ford presented evidence that the essential functions of the resale buyer position required in-person attendance at the worksite for problem-solving sessions, business meetings, and interaction with suppliers.

Typically, courts will defer to an employer’s business judgment when determining the essential functions of a position. However, in this case, in spite of Ford’s assessment of the resale buyer position as one requiring in-person attendance, the Sixth Circuit held that evidence existed to dispute the fact that physical attendance was an essential function of that job. It based that holding on its own impression and understanding that recent technological developments have created more opportunities for interaction among workers, whether or not those individuals are physically present in the workplace.

In addition to the Court’s insertion of itself into Ford’s business decision regarding the functions of the job, more troublesome is the fact that the Court specifically stated that “the telecommuting arrangement proposed by Harris was a reasonable means of accommodating her disability.” While Courts are arbiters of the law, and not of the facts, this statement could lead one to believe that the Court was making a factual – and somewhat conclusory – factual determination regarding the proposed accommodation.

Employers with facilities in the Sixth Circuit (which includes KY, MI, OH, and TN) should be aware of this decision and should follow further developments in this area of the law. This includes reviewing and updating telecommuting policies to accurately reflect the parameters of such work, and to assure that essential functions of key positions are adequately assessed to determine whether telecommuting is appropriate.

Other employers should carefully investigate, document, and respond to similar requests for accommodation, and assure compliance with existing ADA law and cases. The fact that Harris’ case was brought by the EEOC could mean that the EEOC will be looking for parallel cases in other jurisdictions, in order to create an opportunity for additional federal appellate circuit courts to rule similarly.

Handbook’s prohibition on “negative comments” about team members found to have violated the NLRA.

Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.” 

Recently, a three-member panel of the National Labor Relations Board (NLRB) determined that those provisions were unlawful, because the language could be construed as keeping employees from exercising their rights under Section 7 of the National Labor Relations Act (NLRA). Hills and Dales General Hospital, 360 N.L.R.B. No. 70 (April 1, 2014).

Section 7 protects the right of employees to engage in “concerted activities” with each other for collective bargaining purposes or in efforts to improve working conditions and terms of employment.

NLRA precedent holds that if a work rule does not explicitly restrict Section 7 activity – which work rules rarely do – it still could be found unlawful if employees reasonably would construe the rule to prohibit concerted activity. The current NLRB has set the bar for that level of activity much lower than in the past, which has led to a recent increase in decisions in which employers have been asked to modify or rescind policies found to have violated Section 7.

In this case, the Board determined that the policy provisions at issue could reasonably be viewed by employees as proscribing them from engaging in activity or making public statements not perceived as “positive” toward the hospital on work-related matters. This could, according to the Board, “discourage employees from engaging in protected public protests of unfair labor practices, or from making statements to third parties protecting their terms and conditions of employment” – activities protected by Section 7.

As a penalty for this, the hospital was ordered to rescind or reword the policies.  In addition, however, the hospital was required to post a “Notice to Employees” which included language informing employees of their right to “Form, join, or assist a union” and to choose representatives to bargain with the hospital. 

Of particular interest is the fact that this Notice to Employees is essentially the same language required by a proposed rule that was struck down by two separate federal appellate circuits last year. That rule would have required most U.S private-sector employers — including most of the 6 million small businesses in the U.S. — to post a written notice of employee rights regarding unionization, including specific language informing individuals of their rights not to unionize, with penalties attached for employers who failed to post the notice under the conditions required by the NLRB. However, under the proposed rule, the Notice would have been required whether or not an unfair labor practice charge had been filed against the employer.  

Both unionized and non-unionized employers should stay abreast of the NLRB decisions on the issue of work policy language, and should review and update employee handbooks and manuals to assure that the language used in those policies is specific and focused, and cannot be interpreted as discouraging employees from public discussion of unfair labor practices.

Employee’s speculation related to basis of his firing is insufficient to support a claim of retaliation.

To prevail on a claim of retaliation under federal law, an employee must prove he or she engaged in a “protected activity” under an anti-discrimination statute, and subsequently suffered an adverse employment action. In addition, the employee must establish that the protected activity was “causally connected” to the employer’s adverse action.

The 4th U.S. Circuit Court of Appeals has held that a deaf employee whose intimidating, disrespectful, and personally offensive behavior with co-workers and contractors was documented as the basis of his firing could not show that those reasons were pretextual, or that the true reason for the adverse employment action was the fact that he had complained about the quality of his interpreters. Pearlman v. Pritzker, 4th Cir., No. 13-1563, April 3, 2014 (unpub’d).

Michael Pearlman sued the Secretary of the U.S. Department of Commerce, a department which oversees the National Oceanic and Atmospheric Administration (NOAA). Pearlman, a deaf person, was hired as a program analyst at NOAA in June 2010.

During his tenure there, Pearlman’s request for the services of an interpreter was granted as a reasonable accommodation. However, Pearlman found twelve of the fourteen interpreters – all of whom had been provided by an outside contractor – as substandard, placing them on his personal “do not call” or “black-list.”

In 2010, coworkers complained about Pearlman’s workplace behavior. According to reports provided by the NOAA to the Deputy Director of Workforce Management for NOAA, Pearlman was reported to be “abrupt and demanding,” and was reported to have engaged in interactions with co-workers that were “intimidating, disrespectful, or personally offensive.”

In December 2010, Pearlman was warned about his conduct, and agreed to take action to improve his relationship with coworkers. His behavior failed to improve, and included an incident in which he took a hostile tone in an e-mail to the president of the company providing the interpreters. Pearlman was fired in May 2011, shortly after that incident.

Pearlman sued under the Rehabilitation Act, a law analyzed under the standards of the Americans with Disabilities Act (ADA). He alleged that rather than firing him for his conduct, the NOAA fired him for complaining about the caliber of the interpreters provided for his deafness.

The lower court concluded that Pearlman had made out a prima facie case of retaliation by showing that he took a protected action, suffered an adverse employment action, and that the time period between his complaints and his firing was sufficient to create a causal nexus between the two.

However, the lower court also found that there was a legitimate, nondiscriminatory, and nonpretextual reason for Pearlman’s termination: his “disruptive, rude, sarcastic” behavior. The Fourth Circuit agreed, finding that “Pearlman has produced no evidence other than his own speculative assertions to raise an inference suggesting the falsity of the proffered nondiscriminatory bases for his termination. Speculation is not enough [to avoid summary judgment].”

In this case, it was the employer’s written record that painted a picture of events that could not be contradicted by Pearlman’s speculations. Objective documentation, supported by witness testimony or other evidence can help to provide the basis for dismissal of an employee’s claims of retaliation, when those claims are based on speculation and unsupported evidence.

Interactive process is crucial element of analysis in disability discrimination cases.

Most employers recognize the fact that in addition to federal anti-discrimination laws, state and local laws – which often are more expansive – must be taken into account when making disciplinary and termination decisions related to protected individuals.

In a case decided under New York state laws, that state’s highest court reversed summary judgment for an employer who, it said, had failed to engage in an individualized interactive process with a medically impaired employee, even though the employer’s actions may have been sufficient under federal law. Jacobsen v. N.Y.C. Health & Hospitals Corp., N.Y., 2014 BL 83161 March 27, 2014.

William Jacobsen began working with the New York City Health and Hospitals Corporation (HHC) in 1979 as an assistant health facilities planner. In that job, he visited construction sites, met with project directors, inspected buildings, and supervised construction projects. Throughout the years of Jacobsen’s employment with HHC, Jacobsen’s responsibilities continued to include visits to construction sites once or twice a week. In August of 2005, Jacobsen was reassigned to HHC’s Queens Hospital Center (QHC), where he oversaw projects that included extensive renovations and asbestos abatement, and visited construction sites more frequently.

In September 2005, Jacobsen was diagnosed with pneumoconiosis, a lung disease caused by repeated prolonged inhalation of asbestos and other dust particles. In October of that year, Jacobsen took a 3-month medial leave of absence to undergo an open lung biopsy.

In December 2005, Jacobsen was released to return to work with the restriction that he could not return to construction sites or “be further exposed to any type of environmental dust.” In response, HHC simply asked for an “exact date” on which Jacobsen would be “medically cleared to fully perform the essential functions of his duties” which, according to HHC, included 75% of his time on construction projects in the field, and 25% of his time in the office.

In January 2006, Jacobsen’s union requested that, as a reasonable accommodation, Jacobsen be assigned to return to office work. In March 2006, Jacobsen’s doctor informed HHC that Jacobsen was ready to return to work, and could attend meetings in the field. However, the doctor warned that any further exposure to environmental dust must be avoided.

Jacobsen returned to his QHC assignment and, until May 2006, performed regular site visits. However, throughout this period, Jacobsen had difficulty breathing and requested a respirator “fit tested by an industrial hygienist” and “specifically designed to filter the particulates [that were present in] asbestos abatement project.” Instead, HHC provided a standard “dust mask” that could be found in any hardware store. Because the mask’s poor fit interfered with communication, Jacobsen did not wear it on a consistent basis.

In May 2006, Jacobsen again requested a transfer back to the central office, saying that he could perform all of the duties that he had held prior to his transfer to QHC. In reply, HHC refused to remove him from the QHC responsibilities, stating that it was “imperative” that Jacobsen cover that project.

On or about June 5, 2006 Jacobsen filed a disability discrimination complaint. Two days later, HHC placed Jacobsen on 6-month unpaid medical leave, offering to return him to work if his condition improved. Jacobsen’s employment was terminated in March 2007, when he was unable to return to his full responsibilities at the QHC position.

Jacobsen filed a complaint in state court in New York in March 2008, alleging disability discrimination under the New York State Human Rights Law (State HRL) and the New York City Human Rights Law (City HRL).

The state Supreme Court granted HHC’s motion for summary judgment and dismissed the complaint, reasoning that no accommodation was available for Jacobsen because he could not spend time at construction sites and, therefore, could not return to his old duties. The Appellate Division affirmed the Supreme Court’s order, finding that HHC had engaged in a “good faith interactive process,” pointing out that Jacobsen had failed to consistently where the dust mask provided to him and, therefore, could not complain about its inadequacy as an accommodation.

On review, the Court of Appeals of the state of New York – that state’s highest appellate level court – reinstated Jacobsen’s State HRL and City HRL claims for trial.

In its analysis, the Court pointed out the difference between the provisions of the Americans with disabilities Act (ADA) and the state laws. Under both the State HRL and the City HRL, however, an employee’s request for an accommodation is relevant. The Court of Appeals concluded that an employer’s decision to engage in or forego an interactive process is just one factor – albeit a critical one – to be considered in deciding whether a reasonable accommodation is available.

Jacobsen’s request to be transferred to the central office, a position that he had held successfully for decades, created a triable issue of fact, as there was no evidence of HHC’s investigation into whether that transfer was possible, or whether it would create an undue hardship for HHC; second, Jacobsen raised a material factual issue for trial as to whether HHC’s failure to provide a “fit tested” respirator was a failure of the interactive process.

While the Court was careful not to intimate that Jacobsen had a winning case for trial, the lengthy, detailed, and well thought-out opinion makes clear the fact that both the State and City statutes require a somewhat more detailed approach to analysis of the case than the “Old” Americans with Disabilities Act (ADA). However, in light of the fact that the amended ADA – under which more recent cases are being analyzed – focuses less on the statutory definition of “disability” and more on whether an accommodation is possible, employers in both state and federal court cases would be wise to document any interactive efforts at accommodation, and should include in that documentation an employee’s proposed accommodation (whether or not implemented) along with any discussions on and analysis of that proposal.
 

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