Category: Legal

If you’re on the Showtime TV feature “Homeland” and operating a covert, CIA backed, sock-puppet misinformation operation, where do you hang your workplace posters? In your interrogation room, of course.

What posters are you required to post? There are a bunch, although your mileage will vary based on which statutes cover your business and which do not.

• Employee Polygraph Protection Act (all employers)
• Employee Rights for Workers with Disabilities/Special Minimum Wage (all employers with disabled workers employed under special minimum wage certificates)
• Equal Employment Opportunity is the Law (all employers with 15 or more employees, and all federal contractors and subcontractors wtih contracts of $10,000 or more)
• Equal Employment Opportunity is the Law Supplement (all federal contractors and subcontractors wtih contracts of $10,000 or more)
• E-Verify Participation and Right to Work (all employers participating in E-Verify)
• Fair Labor Standards Act (all employers)
• Family and Medical Leave Act: Your Rights Under the FMLA (all employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year)
• Federal Minimum Wage for Contractors (all employer who contract with the federal government)
• Notification of Employee Rights Under Federal Labor Law (all federal contractors and subcontractors)
• OSHA Job Safety and Health: It’s the Law (all employers)
• OSHA Form 300, 300A, and 301 (most employers with 10 or more employees)
• Uniformed Services Employment and Reemployment Rights Act: Your Rights Under USERRA (all employers)
• State Minimum Wage (all employers)

Additionally, states have their own additional posting requirements. The good news is that all of these posters are available for free from state and federal agencies. Just make sure they are posted conspicuously, which, “Homeland” not withstanding, is likely not in your locked interrogation room.

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

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.

Which turns my attention to the more interesting aspect of this case — the court’s discussions of the role of judges in interpreting statutes. Much was made about this issue in the recent Senate hearing on the nomination of Neil Gorsuch to fill Justice Antonin Scalia’s Supreme Court seat. On this issue, this court has a lot to say.

Let’s start with the concurring words of Judge Richard A. Posner (which include a not-so-veiled shot at Fox News and its view of originalism in statutory construction), who astutely explains that one can act the judicial conservative and interpret original statutory intent as changing with the times.

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness toward the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

Eichinger “stopped saying good morning” to him; Sec “totally change[d]” in the way he spoke to him and spoke to him without a “warm welcome” in his voice; Sec continually monitored him at work; Sec asked him about two instances in which he incurred employee overtime without prior approval; and Sec and Eichinger talked to him like he was a criminal.

Donald Bush worked as a chef manager for Compass Group. According his written job description, his duties included routinely lifting more than 10 pounds. Bush informed his employer that he suffered from rapidly progressing cervical/thoracic spondylosis (a degenerative back condition), and requested a transfer to a less physically demanding job. Ultimately, Compass Group fired him because his illness prevented him from heavy lifting of over 50 pounds.

So, who wins Bush’s disability discrimination claim? Bush (based on the 10 pound limit in his job description), or Compass Group (based on its estimation of the practical realities of his job’s lifting requirements)?

The answer? In Bush v. Compass Group (6th Cir. 3/23/17), the appellate court affirmed the trial court’s dismissal of Bush’s claim.

Uncontroverted evidence shows that lifting up to fifty pounds was an essential part of Bush’s job duties. During his deposition, Bush confirmed that the written job description did not accurately reflect his actual job duties. Specifically, when asked about the description’s statement that candidates needed to be able to lift up to ten pounds, Bush stated that he “was lifting and moving quite a lot more than that.” Bush confirmed that he was required to move cases of meat and fifty-pound bags of potatoes and sugar. Moreover, Bush stated he was lifting heavy weights “for quite a bit of my employment” because he would have to assume the duties of less senior cooks when they did not show up for work. When asked if lifting heavy weights “was essential” to his job, Bush responded “Yes. Yes.”

1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; or
7. The current work experience of incumbents in similar jobs.

Thus, written job descriptions are important, but are not dispositive of a job’s essential functions. Just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors show otherwise, then they will carry the day, and not the written job description.

Please do not, however, mis-assume that you should not have written job descriptions. To the contrary, you should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also help set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions. The point is that a job description is only part of the story of whether a job functions is essential; it is rarely ever the whole story.

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

In AT&T Mobility v. Concepcion, the United States Supreme Court held that a business could compel a group of individuals to waive their right to file a class-action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage-and-hour class actions. 

The National Labor Relations Board, however, had different ideas.

In its seminal 2012 decision, D.R. Horton Inc., the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straightforward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

To submit all disputes and claims relating to their employment to final and binding arbitration.

That the arbitrator “may hear only … individual claims,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.”

To waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

In the four years since they decided D.R. Horton, the NLRB has invalidated too many similar arbitration agreements and class-action waivers to count, and further expanded D.R. Horton to make it nearly impossible for any class-action waiver to pass muster. The board has even gone so far as to invalidate agreements that expressly carve out the right for employees to pursue claims with state and federal administrative agencies such as the NLRB.

In the board’s opinion, even those agreements are illegal because rank-and-file employees aren’t lawyers and aren’t capable of reading and understanding the agreement: “Viewed from an employee’s perspective … it would take ‘specialized legal knowledge’ to determine whether employees’ right to file Board charges is permitted or precluded by these caveats.”

On appeal, however, not all federal circuit courts have been kind to D.R. Horton. The 5th Circuit overturned D.R. Horton itself, while other circuits have sided with the NLRB on this important issue.

Now, however, the Supreme Court is poised to have the final say. It has agreed to hear the appeal of three cases, which should put this issue to bed once and for all.

In NLRB v. Murphy Oil USA (5th Cir., holding that the “corporation did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court.”); Lewis v. Epic Systems (7th Cir., holding that an arbitration agreement that “precludes employees from seeking any class, collective, or representative remedies to wage-and-hour disputes” violates the NLRA); and Morris v. Ernst & Young LLP (9th Cir., agreeing with Lewis, holding that “an employer violates the National Labor Relations Act by requiring employees to sign an agreement precluding them from bringing, in any forum, a concerted legal claim regarding wages, hours, and terms and conditions of employment.”), the justices agreed to decide whether agreements to require employees to forgo class actions or collective proceedings, and instead resolve employment disputes via individual arbitration, violate the NLRA.

How the Supreme Court decides this issue is of critical importance to employers. Wage-and-hour class actions are one of the biggest risks that employers face.

The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is more than 70 years old. It shows every bit of its age.

Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all.

Since most employers are experts in running their businesses but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. And the prize for noncompliance is the cost of defending a class-action lawsuit.

Employers desperately need the Supreme Court to overturn D.R. Horton so that they can recapture a key weapon against the wage-and-hour class actions.

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

“Jon, you write a management-side blog. Why are you running a contest to find the worst employer of 2017?”

Because of employers like this one (via Courthouse News):

Plaintiff was diagnosed with kidney cancer and required immediate surgery to remove the tumor. Defendant Slutskaya denied his request for a 10-day leave of absence and told plaintiff she doesn’t “need people with cancer working in her office” and further stated, “this is America and in America you have to work even if you’re sick.” After berating him because of his illness, she finished by informing him that “with your illness [cancer], people die and I cannot keep you as a worker not knowing what is going to happen to you.”

Using the worst employers to teach those who are better intentioned regarding the correct (and legal) way to manage employees is an invaluable tool. I have a strong suspicion that this employer will have a strong showing when we sort out the worst from the really worst at year’s end.

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.

There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

What is the FVRA (besides a statute I had never heard of until yesterday)? It provides the succession plan for certain federal appointments (such as NLRB general counsel), and authorizes the President to override its automatic succession via temporary appointments (as President Obama did when he appointed Mr. Solomon acting general counsel). The FVRA also prohibits someone from serving as an acting officer if the President has nominated that person to fill the vacant office permanently (as President Obama did with Mr. Solomon on January 5, 2011).

The specific question SCOTUS answered in SW General is whether the FVRA equally applies to individuals already serving in that same position (as Mr. Solomon had been since June 2010) at the time of his or her official nomination to fill the vacancy permanently. SCOTUS held that the FVRA’s prohibition applied to Mr. Solomon even though he had already been serving as NLRB acting general counsel at the time of his nomination.

This is all very interesting reading on the inner workings of our federal government, and the power, ability, and willingness of the Supreme Court to check presidential powers (a very important issue about which I predict we will be hearing a lot over the next four years).

The deeper question, however, is what this case means to decisions rendered by the NLRB on complaints authorized by Mr. Solomon during his unlawful tenure as NLRB general counsel. The answer is likely very little. And the key to why it means very little hides in footnote 2 of the opinion:

The FVRA exempts “the General Counsel of the National Labor Relations Board” from the general rule that actions taken in violation of the FVRA are void ab initio. 5 U. S. C. §3348(e)(1). The Court of Appeals “assume[d] that section 3348(e)(1) renders the actions of an improperly serving Acting General Counsel voidable” and rejected the Board’s argument against voiding Solomon’s actions. The Board did not seek certiorari on this issue, so we do not consider it.

In other words, because the NLRB did not appeal the void-versus-voidable issue, SCOTUS did not consider it. And this distinction is huge. If the actions of an improperly serving Acting General Counsel are void, then all Board decisions that flowed from those actions automatically become invalid. Because, however, they are merely voidable, the losing party must do something (i.e., file some sort of court action to vacate the decision) to secure the undoing of the otherwise unlawfully rendered decision. And, because these cases are up to six years old, many, if not most, are going to be closed, and statutes of limitations will foreclose any further action. (I’ll leave to others who have more free time on their hands than me to categorize the voidable cases as “closed” or “subject to further action”.)

Thus, while SW General is intellectually interesting, it will likely have little impact on President Obama’s NLRB legacy, a legacy that President Trump’s NLRB will likely undo over the next four years anyway.

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

The EEOC last June issued a comprehensive, bipartisan report on harassment in the workplace. The report’s stated purpose was to “reboot workplace harassment prevention efforts” by focusing on efforts employers can take “in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace “risk factors” for harassment.”

One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.

• Leadership and accountability.
• Anti-harassment policies.
• Harassment reporting systems and investigations.
• Compliance training.

At last week’s SHRM Legislative Conference, EEOC Commissioner, and one of the co-chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, Chai Feldblum, reiterated the importance and usefulness of these checklists. Because the EEOC feels so strongly about the utility of these lists for employers, I’m sharing them in full.

• Leadership has allocated sufficient resources for a harassment prevention effort
• Leadership has allocated sufficient staff time for a harassment prevention effort
• Leadership has assessed harassment risk factors and has taken steps to minimize those risks

Based on the commitment of leadership, check the box if your organization has the following components in place:

• A harassment prevention policy that is easy-to-understand and that is regularly communicated to all employees
• A harassment reporting system that employees know about and is fully resourced and which accepts reports of harassment experienced and harassment observed
• Imposition of discipline that is prompt, consistent, and proportionate to the severity of the harassment, if harassment is determined to have occurred
• Accountability for mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment
• Regular compliance trainings for all employees so they can recognize prohibited forms of conduct and know how to use the reporting system
• Regular compliance trainings for mid-level managers and front-line supervisors so they know how to prevent and/or respond to workplace harassment

Bonus points if you can check these boxes:

• The organization conducts climate surveys on a regular basis to assess the extent to which harassment is experienced as a problem in the workplace
• The organization has implemented metrics for harassment response and prevention in supervisory employees’ performance reviews
• The organization conducts workplace civility training and bystander intervention training
• The organization has partnered with researchers to evaluate the organization’s holistic workplace harassment prevention effort

Checklist Two: An Anti-Harassment Policy

An anti-harassment policy is a key component of a holistic harassment prevention effort. Check the box below if your anti-harassment policy contains the following elements:

• An unequivocal statement that harassment based on any protected characteristic will not be tolerated
• An easy-to-understand description of prohibited conduct, including examples
• A description of a reporting system – available to employees who experience harassment as well as those who observe harassment – that provides multiple avenues to report, in a manner easily accessible to employees
• A statement that the reporting system will provide a prompt, thorough, and impartial investigation
• A statement that the identity of an individual who submits a report, a witness who provides information regarding a report, and the target of the complaint, will be kept confidential to the extent possible consistent with a thorough and impartial investigation
• A statement that any information gathered as part of an investigation will be kept confidential to the extent possible consistent with a thorough and impartial investigation
• An assurance that the employer will take immediate and proportionate corrective action if it determines that harassment has occurred
• An assurance that an individual who submits a report (either of harassment experienced or observed) or a witness who provides information regarding a report will be protected from retaliation from co-workers and supervisors
• A statement that any employee who retaliates against any individual who submits a report or provides information regarding a report will be disciplined appropriately
• Is written in clear, simple words, in all languages commonly used by members of the workforce

Checklist Three: A Harassment Reporting System and Investigations

A reporting system that allows employees to file a report of harassment they have experienced or observed, and a process for undertaking investigations, are essential components of a holistic harassment prevention effort. Check the box below if your anti-harassment effort contains the following elements: