Legal – Page 15 – Workforce

September 24, 2019June 29, 2023

Girl Scouts Good, Union Organizers Bad

What rights do you have to ban union organizers from your property?

A lot. Your property is your property.

What if, however, you allow your employee’s daughter’s Girl Scout troop to set up a table outside and sell cookies? Have you just opened yourself to an argument that allowing cookie sales unlawfully discriminates against the banned union organizers?

Historically, yes, but currently, no. Or at least not under the NLRB’s most recent pronouncement on the issue of employer property rights, in Kroger Mid-Atlantic.

To establish that a denial of access to nonemployee union agents violated the Act …, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.

Since the Girl Scouts (or the Salvation Army, or the American Cancer Society, or any other charitable, civic, or commercial activity) is nowhere near “similar in nature” to union organizing activities, an employer should be safe permitting the former while banning the latter.

September 24, 2019June 29, 2023

Beware the ‘Religious Exemption’ Plan

Warning: This month’s column is not for everyone. If, however, you are offended by what I am about to say, then this is specifically for you.

In August, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

By way of background, Executive Order 11246, signed by President Lyndon B. Johnson in September 1965, “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” It’s been amended over the years, including its 2014 addition of LGBTQ protections to the list of prohibited discrimination.

Section 204(c) specifically exempts from coverage any “government contractor or subcontractor that is a religious corporation, association, educational institution, or society.”

The Trump administration seeks to expand section 204(c) to permit religious organizations with federal contracts to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”

It makes clear that religious organizations can discriminate because of religion, and that religious organizations can require employees’ behavior to meet the organization’s religious rules.

What has people, including me, up in arms about this rule is its proposed change to what qualifies as a “religious organization.” The EEOC has long taken the position that for-profit companies cannot qualify as “religious organizations.” This proposal deviates from that long-standing rule for purposes of the OFCCP. Indeed, according to two senior Labor Department officials, the exemption would apply to “closely held companies acting in accordance with an owner’s religious beliefs.”

In other words, if someone organizes a closely held business for a religious “purpose” and holds itself out to the public as such, it would be exempt from the OFCCP’s anti-discrimination provisions if it operates its business consistent with its religious purpose.

What would this change mean practically? As the American Civil Liberties Union tweeted, “The Department of Labor just proposed a rule that aims to let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views.”

This is not “religious freedom.” It’s government-sanctioned discrimination. And it’s just plain wrong.

Private businesses can’t hold religious beliefs. Extending to them these protections based on their owners’ religious beliefs is dangerous. And scary. And abhorrent. We should all be troubled by a rule that permits an employer to opt out of an employment law because of a religious belief.

Religious freedom as an opt-out from the law is a dangerous construct. Our Constitution guarantees freedom of religion. We irreparably damage this important principle when we permit a private business, under the guise of religious freedom, to opt-out, without penalty, from an employment law with which it disagrees or finds offensive.

If you stand with me, and against government-sanctioned discrimination of any kind and in any form, write or call your senator and congressperson and tell them that this proposed rule cannot stand. That as a nation we are better than this. That all private businesses should be held to the same non-discriminatory obligations, regardless of the religious beliefs of their owners.

And, don’t forget about the comment period required by the rule-making process for any proposed regulations. The public gets to chime in, and everyone who opposes this rule should do so.

To conclude, I’ll make this as clear as possible.

Racism is wrong.

Sexism is wrong.

Homophobia is wrong.

If you disagree, you’re a bigot, period.

And, if you hide behind your religion to protect your views, then you’re a hypocritical bigot. There is nothing religious about bigotry, no matter what some might want you to believe.

September 19, 2019September 9, 2019

Arbitration Clauses Can Cause a Rift

In Latif v. Morgan Stanley & Co., plaintiff Mahmoud Latif complained to defendant Morgan Stanley’s HR department about his co-workers’ inappropriate comments regarding his sexual orientation and religion, inappropriate touching and sexual advances.

Latif also complained of a female supervisor sexually assaulting him. Morgan Stanley terminated him one year after he first complained. Latif brought suit in federal court alleging discrimination, hostile work environment and retaliation in violation of Title VII.

Morgan Stanley moved to compel arbitration under Latif’s employment agreement. In response, Latif argued the agreement was not enforceable as to his sexual harassment claims in light of a recently adopted New York law.

The New York law, N.Y. C.P.L.R. § 7515, prohibits employers from requiring employees to arbitrate claims of sexual harassment, except where inconsistent with federal law. The court found the New York law was inconsistent with federal law — specifically, the Federal Arbitration Act (the FAA), which states that arbitration clauses shall be valid, irrevocable, and enforceable, unless grounds exist for the revocation of any contract.

Similar to AT&T Mobility v. Concepcion, where the Supreme Court held the FAA preempts state laws prohibiting waivers of class-wide arbitration, this court found that the FAA preempted the New York law because it attempted to prohibit arbitration of a particular type of claim. Latif v. Morgan Stanley & Co. LLC, 2019 U.S. Dist. LEXIS 107020.

IMPACT: Employers should carefully craft arbitration clauses to comply with state law unless and until a court determines that the law is preempted by the FAA.

September 9, 2019June 29, 2023

NLRB Asks for Help to Overturn Some Foul-Mouthed Bad Decisions

Editor’s note: This post contains extremely graphic language in the context of the case described here.

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

Except, in the first example, the employee ended his obscene tirade with, “Vote YES for the UNION!!!!!!!”

The latter example was directed by striking workers walking a picket line to African-American replacement workers crossing that picket line. According to the National Labor Relations Board, the employees’ rights to engage in protected concerted activity trumps all.

The NLRB, however, might be changing its mind on these rules. Last week, the agency invited briefs on the issue of how far the law should go to protect profane or obscene workplace statements.

The National Labor Relations Board requests briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature. In a notice issued today, the Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).

In the specific case at issue, a union committeeperson, while arguing about employee cross-training, told a supervisor that he did not “give a fuck about [his] cross-training” and that he could “shove it up [his] fucking ass.”

Specifically, the board is looking for input on five issues:

Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
How much leeway should employees engaged in section 7 activity be given, when their language if profane or otherwise offensive to others on the basis of race or sex?
Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated, in judging the legality of these profane or obscene outbursts?
To what extent, if any, should the Board continue to consider context — e.g., picket-line setting — when determining whether racially or sexually offensive language loses the Act’s protection?
What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

I find all of the examples above to be abhorrent. The NLRB’s current rules require employers to suborn the worst degree of insubordination, or permit horrific racial or sexual harassment, all in the name of “protecting” employees section 7 rights under the NLRA.

These rules must change, and I am very optimistic that the board will craft a much fairer and equitable rule on this issue.

August 26, 2019

Is a Vacation During an FMLA Leave Inconsistent With an Employee’s Serious Health Condition?

A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

Richard DaPrato, an IT manager for the Massachusetts Water Resource Authority, took an approved FMLA leave of absence to have a tumor removed from his right foot. During the last few weeks of his leave, DaPrato took a previously scheduled vacation to Mexico with his family, a trip he took every year. According to DaPrato, he limited his activities during his trip based on the limitations imposed by his foot surgery.

When the employer learned of DaPrato’s Mexican vacation, its HR director launched an immediate investigation, which included obtaining video of DePrato lifting luggage out of a car at the airport. DaPrato maintained that he did nothing that was inconsistent with the limitations set forth in his FMLA medical certifications. Nevertheless, the company fired him for misrepresenting his disability.

Also read: Does the FMLA Protect Organ Donation Surgery as a ‘Serious Health Condition?’

DePrato sued for FMLA retaliation, which resulted in a $1.3 million judgment.

On appeal, the court affirmed, and had this to say about whether and when an employee on FMLA leave can take a vacation.

We clarify today that an employer may validly consider an employee’s conduct on vacation — or, for that matter, anywhere — that is inconsistent with his or her claimed reasons for medical leave, when the employer has such information at the time the employer is evaluating whether leave has been properly or improperly used.

Here, DaPrato took FMLA leave to allow his foot to recover fully from surgery. Such recovery could take place in a warm climate as well as in a New England winter. That being said, vacationing while on FMLA leave may take either permissible or impermissible forms. An employee recovering from a leg injury may sit with his or her leg raised by the sea shore while fully complying with FMLA leave requirements but may not climb Machu Picchu without abusing the FMLA process. Careful consideration of the reasons for the medical leave and the activities undertaken, including the timeline for rehabilitation and recovery, are required to determine whether FMLA leave has been abused.

What can employers learn from this case? Don’t make a knee-jerk decision to fire an employee who does something recreational during his or her FMLA leave. Gather the facts and make a reasoned decision over whether the activity is, or is not, consistent with the medical reason(s) for the leave. Fishing while recovered from hernia surgery might be a tough sell for the employee. Convalescing on the beach while recovering from foot surgery, however, might be a different story. Without all of the information and facts coupled with a careful deliberation of their consistence or inconsistency with the FMLA leave, however, you might have a difficult (and costly) time justifying a decision if challenged in court.

Also read: Which Mental Health Service Does the FMLA Not Cover?

August 13, 2019June 29, 2023

The Law Is a Floor, Not a Ceiling: Granting FMLA for Individualized Education Program Meetings

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends — Jeff Nowak, Suzanne Lucas, and Eric Meyer — each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.

What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.

Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.

Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.

Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.

I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”

Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.

But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.

Employers, we should be better than this. We have to be better than this. We are better than this.

Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.

August 7, 2019June 29, 2023

NLRB Streamlines Process for Employers to Withdraw Union Recognition

The National Labor Relations Board has relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement.

In the July 3 Johnson Controls Inc. decision, the NLRB upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.

The 3-1 decision found that such actions would not form the basis of unfair labor practice charges even if the union were to subsequently reestablish majority support through the filing of a new representation petition (within 45 days thereafter).

In so holding, the NLRB overruled conflicting aspects of prior precedent in 2001’s Levitz v. Furniture Co. of the Pacific, which evaluated an employer’s “anticipatory withdrawal” by application of a “last in time” rule that relied extensively on union evidence establishing that it had regained majority support. A NLRB majority also suggested that it remained open to reexamining other forms of existing precedent governing the decertification process.

The Levitz Standard for Anticipatory Withdrawal

Under Levitz, the receipt of objective evidence prior to CBA expiration that a majority of unit employees no longer desired union representation allowed an employer to withdraw recognition and refuse to bargain, but only “at its peril.” If the union subsequently produced evidence (typically in the form of recent signatures) that a majority had either changed their minds or otherwise wished to retain representation, however, then the employer was subject to unfair labor practice charges for refusing to bargain in the interim.

In the recent Johnson Controls Inc., decision, the NLRB found this back-and-forth test to be unworkable. It opined that the test failed to properly safeguard employee free choice, while undermining labor relations stability by subjecting employers to legal exposure for circumstances that arose after a good faith decision to withdraw.

The New Standard

Under the NLRB’s new test as articulated in Johnson Controls, you will now be privileged to withdraw recognition from an incumbent union and refuse to bargain commencing within 90 days of CBA expiration upon receiving evidence that the union has in fact lost majority support.

Although the union may still respond with unfair labor practice charges, the NLRB will no longer evaluate the merits of those charges by considering evidence that it has reacquired majority status. Instead, the union may present such evidence by filing for a new representation election within 45 days from the date on which you first gave notice of your anticipatory withdrawal.

Under those circumstances, you may lawfully continue recognizing the union without exposure to additional unfair labor practices charges in the absence of another representation petition from an intervening union. As the NLRB pointed out, “such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”

What Does This Mean for Employers?

Johnson Controls provides employers with a road map for lawfully withdrawing union recognition before CBA expiration. While the NLRB has removed some impediments to the “at your peril” nature of the Levitz anticipatory withdrawal standard, you will want to at least take the following considerations into account if you are exploring such a strategy:

The NLRB left other aspects of the Levitz standard in place, including a requirement that employers rely upon objective evidence (as opposed to good faith subjective belief) that the union has actually lost majority support. Such evidence has traditionally derived from a proper disaffection petition containing validated signatures (and dates) from a majority of bargaining unit employees; although employee polls or other objective evidence may suffice in limited circumstances.
Unilateral changes in wages or working conditions implemented during the intervening period between CBA expiration and an ensuing representation election conducted under the Johnson Controlsstandard could still subject you to additional unfair labor practice exposure.

Any withdrawal of recognition implemented during the pendency of bad faith bargaining or other unfair labor practice charges deemed to have caused the underlying employee disaffection will likely taint (and therefore invalidate) the withdrawal itself.

August 1, 2019June 29, 2023

When an Employee’s Religion Clashes With an Employer’s Dress Code

A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Title VII requires that an employer reasonably accommodate an employee’s sincerely held religious belief. This accommodation includes exceptions to an employer’s dress code or grooming policy.

According to the EEOC, an employer may not “automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. … For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.

There are limits, however, and an employer may “bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns … but only if the practice actually poses an undue hardship on the operation of the business.”

The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

While we have no idea how the Boyd case will play out, it nevertheless serves as a great illustration of the need for employers to consider exceptions to dress codes as reasonable accommodations for employees’ sincerely held religious beliefs, and the risks that occur when employers skirt this obligation.

July 30, 2019June 29, 2023

Labor and Employment Lessons From the World’s Most Combative Stripper

Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide.

She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

Her latest target is the Centerfold Club in Columbus, Ohio. A few weeks into her stint leasing space as an independent contractor to perform at club, she started sending letters to club management complaining that the club was violating her and other dancers’ rights by misclassifying them as 1099 contractors instead of as employees.

During that same time period, the club discovered Campbell’s website, and decided that it would likely be her next lawsuit target. Rather than wait around for that shoe to drop, the club terminated her lease after it discovered that she was touching customers in violation of Ohio’s “no-touching” law, which prohibits dancers from touching patrons while performing.

In Nolan Enterprises, Inc. d/b/a Centerfold Club, an NLRB administrative law judge concluded that the club violated Campbell’s section 7 rights by terminating her.

What lessons can we draw from this termination?

1. If it looks like discrimination, and smells like discrimination, then it’s probably discrimination.

According to the ALJ, there was “ample evidence of employer animus.” The club knew all about Campbell’s website and her prior Board charges and management discussed among themselves concern that was trying to set them up and planning to do to them the same as she had done to other clubs. To compound matters, the club admitted as much in its termination letter to Campbell.

You told people … that they could find “the Truth” about clubs and how to challenge the club on Dancers Stripper Labor Rights, your blog. We then found out your motives and read your web site that showed that your pattern and practice is to sue, destroy and lash out at people as I’m sure you will do to me and others when you read this letter. Please think before you act here. … We wish our lives to go our own directions and hopefully, not cross again. I know this is doubtful, since you invested time and effort to get a lawsuit out of something here for your blog, future newspaper articles or book.

If you tell someone you’re firing them for an illegal reason, then it’s probably the reason your firing them. A pretty easy call for the ALJ.

2. When trying to defend a termination, “show me” always trumps “tell me.”

The club had ample video of Campbell violating the no-touching law. What it did not have, however, was a documented track record of terminating other dancers for similar violations.

As its defense, Respondent contends that even if Campbell was engaged in statutorily protected activities, it still would have terminated her lease for violating Ohio’s no-touching law. … Based on my review of the evidence, I find Respondent falls well short of meeting its burden. … [C]onclusory testimony that other dancers were terminated for “illegal touching” does not satisfy Respondent’s burden, particularly considering all the evidence of animus that exists in this case.

In other words, show me, don’t tell me. It’s not enough to tell a judge or a jury that you don’t discriminate and treat all the same for the same misconduct. Without documentation to back it up, your explanation is likely worthless.

July 23, 2019June 29, 2023

The 14th Nominee for the Worst Employer of 2019 Is … the Horrible Harasser

In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a New York-based housing development and property management company violated Title VII when its owner and top executive repeatedly subjected female employees to crude sexual comments, called them sexually obscene names and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

The complaint that the EEOC filed fills in the blanks with disgusting details about the daily barrage of unwelcome and offensive misconduct.

- The owner made crude remarks about his sexual interests, such as: that his “dick may not always work but my tongue will”; and that he “knows how to satisfy a woman” and “likes the way they [women] taste.”
- The owner made unwelcome and sexualized comments about female employees’ bodies, such as: telling a female employee that her body was curvy and reminded him of his wife’s body, telling another that he admired her breasts, and telling another that he “felt like a kid in a candy store,” when she bent over.
- When angry, the owner called female employees hostile, abusive, and demeaning names, such as: “cunts.”
- The owner repeatedly put his hand down his pants and touched his genitals while speaking to female employees.
- The owner showed female employees pornography on his cell phone.

The women say in the complaint that this egregiously offensive misconduct happened on daily or near-daily basis, that their complaints to the company’s CFO fell on deaf ears, and that it finally compelled them to quit.

I’m speechless, other than to say that if these allegations are true, “Congratulations, Birchez Associates and Rondout Properties Management of Kingston, N.Y., you’re the 14th nominee for the worst employer of 2019!”

Thanks to Janette Levey Frisch for bringing this story to my attention.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

The 7th Nominee for Worst Employer of 2019 Is … the Disability Debaser

The 8th Nominee for the Worst Employer of 2019 Is … the Lascivious Leader

The 9th Nominee for the Worst Employer of 2019 Is … the Fertile Firing

The 10th Nominee for Worst Employer of 2019 Is … the Exorcising Employee