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Category: Commentary & Opinion

Posted on October 25, 2017June 29, 2023

Not All Swearing at Work is Created Equal

Jon Hyman The Practical Employer

According to a recent survey, 57 percent of American employees admit to swearing at work. (To me, that seems low. Also, count me in the “yes” column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful, unlawful harassment?

Consider these two examples.

In Passananti v. Cook County, the 7th Circuit overturned a $4.2 million jury verdict in favor an employee who claimed that her boss had subjected her to sexual harassment by calling her a “bitch” on “numerous occasions” over a “progressive period of time.”

The court started its analysis of whether the use of the word “bitch” constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:

We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.

The court concluded that even though “bitch” is sexually based, its use must be examined in context to determine whether it constitutes harassment “because of sex.”

As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “[c]ommon sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff’s position would find severely hostile or abusive.

In Griffin v. City of Portland, the U.S. District Court for the District of Portland faced a similar issue — whether an employee of deeply religious convictions could claim religious harassment based on her co-workers’ repeated taking of the Lord’s name in vain.
Like the 7th Circuit in Passananti, the Griffin court concluded that context matters:

Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With salty language, context most definitely matters. For example, when I was 12 years old it was okay ask for the “f**king salt” among a group of other 12 year old boys at summer camp; not so much with my parents at the dinner table at home.

Yet, in the day-to-day management of your employees, you should not get bogged down in the legal minutia of whether one employee calling another employee a “bitch” is actionable unlawful harassment. Employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees about appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees. Otherwise, the context in which you might find yourself is that of a lawsuit.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on October 24, 2017July 25, 2018

Bill O’Reilly Claiming Victim Status Is WHY We Have a Harassment Problem

Jon Hyman The Practical Employer
Over the weekend, the New York Times reported that Bill O’Reilly paid $32 million to settle a claim of sexual harassment brought against him by a former co-worker.

Yesterday, in an interview with the New York Times, O’Reilly let his accusers have it:

It’s horrible what I went through, horrible what my family went through. This is crap. It’s politically and financially motivated. We can prove it with shocking information. We have physical proof that this is bullshit.

You can listen to the entire interview here (O’Reilly’s blowup starts at 19:30):

Dude, I’m going to put this as nicely as possible.

YOU ARE NOT THE VICTIM HERE.
In the same interview, O’Reilly claimed, “I’ve never had one complaint filed against me by a co-worker in any human-resources department in 43 years. That encompasses 12 different companies.”

One of those former co-workers, Megyn Kelly (who settled her own claims of harassment against Fox News), tells a very different story.

Bill O’Reilly playing the victim card is exactly why we still have such a huge problem with sexual harassment. If someone accuses you of harassment, there are two things you absolutely cannot do.

  1. You cannot blame the victim (or God, which O’Reilly also did).
  2. You cannot claim victim status yourself.

The American corporation has a large harassment problem. From Bill O’Reilly, to Harvey Weinstein, to Roy Price, to Uber, to the small business down the street from you, to maybe even your own shop, sexual harassment is a massive issue.

When a harasser claims that he is the victim, he exacerbates the myth that sexual harassment in the workplace is not a problem. When you sexually harass women, when you send women unsolicited and unwanted pornography, when you force women into non-consensual sexual relationships, you are not the victim, they are. And to say anything else perpetuates the falsehood that harassment can be ignored and swept under the rug.

As an advocate for employers, let me say that this is not acceptable. It never was (despite the long history of harassment to which women have been subjected), and it is certainly no longer is. This shameful misbehavior, the corporate cultures that enable it, and the after-the-fact actions that attempt to justify it, must stop.
So shame on Bill O’Reilly and anyone making excuses for him.
I only wish he understood his disgraceful misconduct and his role in enabling that of others.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on October 18, 2017June 29, 2023

No, You do not Need a Workplace Emoji Policy

Jon Hyman The Practical Employer

I read a blog yesterday that asked the following question? “Do you need a workplace emoji policy?”

They say yes, I say an unequivocal no.

They argue that inappropriate emoji use might lead to misunderstandings and harassment liability.

You may want to look into having a custom set of emojis defined for use throughout the company (and leave out the easy to misinterpret emojis, like the winky face, tongue out, kissy face, or racially diverse options). It’s not that some emojis are inappropriate on their own, but the context makes a big difference. Also, if an employee is not fluent in emoji, they might misunderstand what they are saying, or being told/asked, if an emoji is used. Using the wrong emoji could be seen as evidence of a hostile work environment, discrimination, or sexual harassment. As such, if you are going to allow the use of emojis, you may want to have training available to employees on what the emojis mean.

They are also corporate killjoys. (And we wonder why people can’t stand lawyers.)

This might be silliest thing I’ve read in a long time. Most employers already have an emoji policy. It’s called your harassment policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication. Heck, even courts are starting to use emoji in opinions.

We can have a healthy debate over the professionalism of emoji use in business communications (like this one). Indeed, according to one recent survey, “nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said it’s fine, at least in some situations.” My sense is that your view of this issue will depend on a combination of your age, your comfort with technology, and the age of your kids.

As for me, I use emojis all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a ? into an email to convey intent than to tone down my sarcasm.

In other words, ?. Emojis are ?, and its perfectly fine to ❤ them at work. ✌

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on October 16, 2017June 29, 2023

Do You Know What to do When an Employee Dies on the Job?

Jon Hyman The Practical Employer

It’s news an employer never wants to deliver.

“I’m sorry, but your spouse (or partner, child, or other family member) had an accident at work and unfortunately passed away.”

But it happens. In fact, according to OSHA it’s happened 357 times already this year.

Indeed, it happened just yesterday, at Cleveland State University. A piece of sheet metal fell and killed a construction worker.

Do you know what to do if one of your employees dies on the job?

Here are nine steps to follow:
1. Call 911, ASAP. There is never a reason to wait to inform the authorities, period.

2. Immediately thereafter, notify the employee’s emergency contact person, preferably in person. This news should not be delivered over the phone if at all possible. If you must deliver the news via a phone call, arrange for a company representative to meet the family, likely at the hospital.

3. If the death is work-related, contact your nearest OSHA Area Office, or OSHA’s national 24-hour hotline at 1-800-321-OSHA. All fatalities must be reported to OSHA within 8 hours.

4. Notify executives and HR, and other employees with a need to know what happened.

5. Notify your remaining employees of the fact of the fatality, and let them know that details will follow.

6. Follow your internal procedures for contact with the media. If you do not have any such internal procedures, or if you are not comfortable with anyone in your organization facing the media, engage a public relations firm, as soon as possible. You will need someone to say something. “No comment” is not a good statement under these circumstances; it will look like you’re hiding something.

7. Show extreme sensitivity to the family of the deceased. Who do they want to be their contact person? Who will disseminate funeral arrangements and how? What are the family’s wishes regarding flowers, donations, calling, visitations, and other contact? How and when does the family want to handle necessary employment issues (medical benefits, life insurance, workers’ comp, retirement accounts, etc.)?

8. Designate one internal contact person to disseminate information to employees, and for employees to ask any questions. Unless the family directs otherwise, instruct employees not to contact the family.

9. Arrange for grief counseling or other mental-health services for those employees who witnessed the accident, or are otherwise impacted.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on October 2, 2017June 29, 2023

Just Try to Curb Your Enthusiasm About This Post on the ADA and Attendance

Jon Hyman The Practical Employer

On last night’s season nine premier of HBO’s “Curb Your Enthusiasm,” Larry David was faced with this age old problem.

How does an employer handle an employee who skips work because she’s constipated?

Larry handled it by foisting his problem employee (his personal assistant) onto someone else.

What should you do?

It depends.

First, is constipation an ADA-protected disability?

Likely, the answer is yes.

The ADA defines an “actual disability” as “a physical or mental impairment that substantially limits one or more major life activities.”

Major life activities not only include the handling of day-to-day manual tasks, but also the operation of major bodily functions, including the digestive system and the bowel. As a result, severe constipation likely qualifies.

Assuming that constipation that is severe enough to keep one home from work qualifies as an ADA disability, what does one do with an employee who simply fails to come into work, without notice, because of the disability?

Take a look at your attendance policy. Does it penalize employees who no-call/no-show? A protected disability (or FMLA qualifying event, if you are FMLA-covered) does not justify an employee to ignore your attendance policy, or its requirements. If your policy requires that an employee call out (when feasible), then you can enforce that policy even if the absence is related to a medical condition.

Assuming the employee asks for a few days off to get things moving, you likely have to grant the request as a reasonable accommodation. For the record, I would not recommend Larry’s offered accommodation, a desk chair that doubles as a toilet.

Your homework assignment? Dust off your attendance policy and review its requirements for sick employees missing work. If you do not have call-in/call-out procedures in place, consider adopting them so that you are sufficiently positioned to discipline your AWOL employees.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Posted on September 20, 2017June 29, 2023

The Latest Nominee for the Worst Employer of 2017 is … the Nepotism Harasser

Jon Hyman The Practical Employer

Just when I think I’ve hit rock bottom with my survey of the year’s worst employers …

The EEOC reports that it has sued a downstate Illinois IHOP franchisee for sexual harassment. While the allegations are bad, what makes this case worse is the allegation that the store owner ignored his employees’ complaints because the accused harasser was a close relative.

From the EEOC:

According to the EEOC’s suit, … more than 11 female employees at the Glen Carbon (Illinois) IHOP were subjected to unlawful sexual harassment including regular and repeated sexual touching and grabbing, lewd sexual comments and requests for sex, and offensive and threatening gestures. The general manager at the Alton (Illinois) restaurant made lewd and offensive comments to a male cook about his genitals and propositioned him for sex. Although the owner and managers were aware of the pervasive and egregious sexual harassment at both restaurants, they failed to investigate or take any action to prevent or stop the unlawful harassment, according to the suit.

A lawsuit is merely a collection of unproven allegations, and the EEOC could be pursuing false leads, but these allegations are horrific.
Indeed, as stated by James R. Neely, Jr., the district director of the EEOC’s St. Louis District, “The sexual harassment in this case is particularly disturbing because it involved the general managers of both restaurants, both of whom were close relatives of the owner, and the owner declined to take any action.”
If you ignore pervasive and egregious harassment complaints because the accused happens to be your close relative, you might be the worst employer of 2017.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on September 19, 2017June 29, 2023

What It’s Like to Be Sued By Your Employee

Jon Hyman The Practical Employer

When you litigate, you’re losing.

This is an odd statement for a litigator to make. But it’s true.

When you litigate, the only people that “win” are the lawyers. It’s for this reason that I believe that every claim or potential claim should settle. The two key considerations are when and for how much.

Understanding this fundamental truth, the only way to survive as an employer is to draw a reasonable line in the settlement sand and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.

Yet, it many cases, one party, or the other, or both, are not reasonable, or not willing to meet the other’s demand or somewhere in the middle and resolve a claim pre-suit. At that point, you are in the litigation game.

If you’ve never been sued as an employer, congratulations. You are likely just lucky, and not just good at employer-ing. You will be sued, eventually, and when you are, there are certain things you should expect.
Please also read: Take It Easy on the Boss; There’s a World to Save
Here’s eight of them.
1. It will cost, a lot. An employer should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee.
2. It will be time consuming. Lawsuits eat a lot of time. You will spend time gathering documents, meeting with your attorney to provide facts and background information, answering discovery requests, attending pretrials and settlement conferences, and making employees available for depositions (including the extensive pre-deposition preparation). In addition to the fees you pay your attorney, there is significant additional cost in the lost productivity hours that goes into litigation.
3. It will last longer than you think it should. Litigation is a marathon, not a sprint, and the finish line is often a moving target. Deadlines are usually far in the future, and often extended through no fault of your own. And, the longer it takes, the more expensive it usually is.
4. Your employees will not be perfect witnesses. No witness is perfect. In fact, most are far from it. All will make mistakes. Some will be small and insignificant (a date here or there), some larger (a key fact forgotten under the scrutiny of a deposition), and some will be devastating (In an age case I once had a CEO admit age discrimination on the witness stand; case closed). You can prepare and over-prepare your witnesses (see numbers 1 and 2 above), but you cannot prepare for how someone will hold up under the pressure of a deposition or trial, and the pressure filled scrutiny and cross examination that come with them.
5. You are not as good of record keeper as you think you are. “I know I took notes during that meeting.” “Where did that email go?” “That document must have been mis-filed; I know it’s here somewhere.” You didn’t. You probably deleted it. If it’s lost or mis-filed, good luck finding it.
6. You may fight more than one battle. Does your business have Employment Practice Liability Insurance? Great, the lawsuit just filed against you may be covered. “May?! What the hell am I paying for?!” Did you put the insurance company on notice as soon as you learned of the claim or potential claim? No? Then it might not be covered. It’s a wage-and-hour or labor claim? Read your policy exclusions, because it might not be covered. You have a high deductible? You might have coverage, but you’ll pay a significant amount out-of-pocket until you meet said deductible. You want to choose your own attorney? Read your policy, because you might be limited in selecting from a panel of pre-selected lawyers you’ve never heard of or met. As a result, you may end up fighting two fights, one against the plaintiff and one against your insurance carrier.
7. Decisions will not all go your way. You will win some motions, and you will lose some motions. Some will matter more than others. You need to understand that if your side was always right, there’d be nothing to litigate. Don’t get mad at me. Don’t get mad at the judge. Litigation is a process, and losing some issues is part of that process.
8. Every case has risk. Every client always asks, “How strong is our case? What are our odds?” Look, I’m not a bookie, I’m an attorney. On your best day, with your strongest case, I only give you a 2 out of three chance of winning. We cannot control the judge or the jury, and they ultimately decide that case, sometimes on issues that have nothing to do with the facts or the law. If you can’t stomach risk, settle.
What pain points did I miss? Let me know in the comments below.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Posted on September 15, 2017June 29, 2023

It’s Evident That Paid Family Leave Has Bipartisan Agreement

Andie Burjek, Working Well blog

Between 2015 and 2017 there was a boom in the number of employers announcing paid family leave policies.

Workforce writers have covered many angles regarding paid leave. Speaking from my own personal experience, I’ve enjoyed writing about the gender divide of leave policies. Naturally, birth mothers will get a little more time to recover physically from a birth. But any other discrepancies, such as leaving out fathers and adoptive parents from baby-bonding leave or assuming that the father isn’t the primary caregiver, is just ridiculous. Workforce employment law contributor Jon Hyman has covered that in his Practical Employer blog, as well.

[Related article: “Dads Are Parents, too — Baby Bonding and Sex Discrimination”]

The gender differences in paid family leave policies are significant. However, there’s another significant gap in coverage: low-wage workers vs. high-wage workers.

The nonprofit organization Paid Leave for the United States, which cleverly goes by PL+US, recently released a report titled, “The Have and the Have Nots of Paid Family Leave,” which goes into the class difference of paid family leave. It cites that 94 percent of low-income working parents have no access to paid family leave, according to the U.S. Department of Labor and U.S. Bureau of Labor Statistics. Many paid family leave policies “are only accessible for people who work in white-collar corporate jobs, leaving out hourly employees who compromise the vast majority of a company’s workforce,” stated the report.

The other major takeaway of these findings was that many of the policies of many of the country’s largest employers are unequal. They may only apply to salaried employees rather than hourly employees, or they might only apply to birth mothers rather than fathers or adoptive parents. There are some exceptions. It singled out some employers that have managed to offer paid family leave to both salaried and hourly employees,

including Ikea, Levi’s, Nordstrom, Bank of America, Chase, Apple and Hilton Hotels.

Now, of course, from a financial perspective, it makes sense for a business to be wary of offering leave to everyone, hence any inequalities in policies. But it does leave a lot to be lacking for a majority of a company’s workforce.

That’s why I enjoyed learning about the AEI-Brookings report “Paid Family and Medical Leave” through a conversation with one of its main contributors, Isabel Sawhill. She and many others formed a diversified group of conservatives and liberals to discuss paid family leave.

 

They came up with a suggestion for a compromised paid family leave policy, which no one was 100 percent happy with, said Sawhill. But the fact that these different people were able to agree on something was promising. Also promising? That everyone agreed we really need a paid family leave solution in this country.

I’ll go more into the meat of this conversation in a later story. The major takeaways from Sawhill was that a diverse group of people want this, any federal legislation regarding paid family leave probably won’t happen any time soon, and it has potential to happen, though, given the bipartisan support. What’s noteworthy is, like research has shown, this push for paid family leave has mostly applied to high-skill jobs. Will the same momentum trickle down to companies that employ more mid-level and low-wage workers?

From the perspective of the larger economy, more attainable and widespread paid family leave could also benefit the country as a whole. Since 2000, labor force participation rates have been declining, said Sawhill, and one possible agent for economic growth could be to better allow parents to handle work vs. family tensions.

I’m currently working on a larger feature about the U.S. paid family leave landscape for the November/December issue of Workforce, and as I do so it’s valuable to keep these discrepancies, inequalities and realities in mind.

The more I research the topic, the more it becomes obvious that most employers would like to offer paid parental leave, only certain challenges hold them back. I’ll address this in the print article. Meanwhile, my colleague Lauren Dixon, who primarily writes for Workforce’s sister publication Talent Economy, has created a 10-step guide to creating a paid parental leave policy. This could be helpful for any HR professionals looking for practical advice.

https://www.youtube.com/watch?v=YR8jBmJP-2E&t=5s

Andie Burjek is a Workforce associate editor. Comment below, or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

Posted on September 14, 2017June 29, 2023

Engagement, Apathy and Benefits Plans

We all walk around with unbelievably powerful computers in our pockets. An incredible 77 percent of Americans across income levels have a smartphone, and that number will continue to grow. The data our phones collect helps to personalize the world around us in so many ways, from the information we see in personalized ads, to the news we consume, to the brands we interact with. This highly personalized and targeted consumer experience is so ingrained in our daily lives that most of the time we don’t even realize it.

That same level of tailoring and data-driven personalization is quickly making its way into the employee benefits and HR space. We see incredibly smart tools and resources that provide personalized views of benefits, work and life. For instance, there are wellness apps that push out notifications about upcoming health screenings, fitness challenges and other wellness events for employees. Financial apps automate bill paying and saving money. And benefits enrollment platforms customize enrollment options to make choices easier for employees.

As we look ahead, advanced analytics will play a big role in benefits and HR. That means companies will be using techniques and tools such as data mining, statistics, predictive modeling and machine learning to analyze current data and make predictions about future events. And, we’ll start to see personalized health and financial experiences that mirror those used in the consumer marketing world and (hopefully) motivate meaningful behavior change.

All this technology is impressive, and its potential is tremendous. We know engagement in health, financial and work-life programs is a real challenge for employers. Most large employers invest millions in benefits to help employees and their families make good health care decisions, get the best care, change their habits for the better, save for their futures and enjoy today. And, most of these programs go unused, despite their value to the employee.

Health care tech company Accolade partnered with Harris in a poll last year and found that 43 percent of Americans say they have not used employer-sponsored programs such as wellness apps, condition management programs, provider cost transparency tools and second opinion services program within the past year. Only 13 percent have used them once, and 18 percent have used them two to three times. This engagement gap — and the business cost associated with it — is precisely the reason so many technology companies have developed smart technology to get employees the right resources at the right time.

Using data to make employee benefits and HR programs relevant and sticky is a great idea, of course, and it meets a real need. But it isn’t without challenging privacy and comfort-level issues.

Whether employees welcome these new efforts or are suspicious of them comes down to trust, culture and communication. There’s no question that employers want to improve outcomes and reduce costs. And, they also have their employees’ best interests at heart. Better health and financial outcomes create a positive impact for the business and for individual employees. Those two goals are not inconsistent with one another.

But this positive, employee-focused framing isn’t often the way large organizations approach these efforts — and the media generally doesn’t help make this case with its focus on exceptions, instead of best practices.

As technology gets more sophisticated, employers can’t do enough to educate employees about their privacy and protections. Employees need to understand the considerable effort their companies take to offer programs and resources that help them improve their health and their lives — why you make that effort, how the programs work, and how employees are protected. We must remind employees that there are stringent laws in place to safeguard individual employee data from employers. Benefits and HR leaders get aggregate data about employee health, but no one gets access to individual heath data.

Engagement with health programs will continue to lag — even with the best policies in place — until employers put resources, creativity and consistency into marketing their programs. The onus is on the employer to position programs so they are relevant, valuable and actionable for employees and their families, just like the consumer products we all know and love. Until we do that, suspicions will remain and valuable programs will go unused.

Posted on September 14, 2017June 29, 2023

The More Things Change … the NLRB and Weingarten Rights for Non-union Employees

Jon Hyman The Practical Employer
Today, a joke.
“How is the National Labor Relations Board like the weather?”
“I don’t know, Jon, how?”
“If you don’t like either, just wait and they’ll change.”
[groan]
Not my best material, I know. But, it does illustrate an important point, driven home by an Advice Memo [pdf] just released by the NLRB Office of General Counsel on the issue of Weingarten rights for non-union employees.
In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the board has vacillated on the issue of whether Weingarten rights also extend to non-union employees.
For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the board would no longer find that employees in non-union workplaces have the right to a coworker representative.

Which brings us to September 2017, and the NLRB Office of General Counsel’s aforementioned advice memo.

We conclude that the … Board … extend Weingarten rights to unrepresented employees and find that the Employer violated Section 8(a)(1) by forcing one employee to submit to an investigatory interview without the assistance of a coworker and by forcing another employee to submit to an investigatory interview in the presence of an anti-Union employee witness unilaterally designated by the Employer.

Practically speaking, this call for action will mean little to nothing. Richard Griffin, the Obama-appointed NLRB General Counsel, only serves until his term expires on Nov. 4, 2017. Thereafter, President Trump will appoint a new NLRB General Counsel, presumably one who will have a more management-friendly view of federal labor laws (including the non-expansion of Weingarten rights to non-union employees).

Nevertheless, this advice memo is a solid reminder of how our federal administrative agencies can, and often do, sway in the political breezes.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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