Category Archives: employment law

Employee Handbooks Under Scrutiny

OK, pop quiz: What’s the difference between these two employee-handbook policies?

  1. “Be respectful to the company, other employees, customers, partners, and competitors.”
  2. “Each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers and vendors.”

One, according to the National Labor Relations Board, is legal. The other is not. (I’ll tell you which was which in a minute.)

Don’t fret if you have trouble seeing the difference. That’s why we have lawyers. And that’s why there’s plenty of work for them as the ThinkstockPhotos-517631808NLRB cracks down on employee-handbook language — including provisions that once were standard — that it says is too broad.

In a series of rulings the agency has told companies to revise policies that infringe on rights of workers — unionized or not — to talk to each other about the company in person or through social media.

“Employers are really waking up to this,” says Lauri F. Rasnick, a member of the firm at Epstein Becker Green of New York. “For a long time, nonunionized employers didn’t give a lot of thought to NLRB decisions.”

The U.S. Chamber of Commerce contends the effort is part of an anti-employer crusade. In a highly critical December report titled “Theater of the Absurd: The NLRB Takes on the Employee Handbook,” the trade group argues that the agency “has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies.”

Worse, according to the chamber: the NLRB’s guidance to employers often is contradictory, creating “a morass of confusion that leaves employers wondering just how they are to exercise effective control over their workplaces.”

Rasnick agrees. “I do think that’s part of the challenge for employers,” she says, noting that NLRB decisions aren’t always consistent. And they are continuing to evolve, with confidentiality provisions attracting more scrutiny in recent rulings, she says.

The latest headline came this month after an administrative law judge ruled that Quicken Loans and five related companies had illegal rules in its employee handbook, which it calls “The Big Book.” (Despite the Quicken name, the companies are not owned by software company Intuit; they’re led by Dan Gilbert, majority owner of the Cleveland Cavaliers.)

To the untutored eye, many of the rules seem pretty standard stuff. An example: “Think before you Tweet. Or post, comment or pin. What you share can live forever. If it doesn’t belong on the front page of The New York Times, don’t put it online.”

The problem with this rule, wrote judge David I. Goldman in his April 7 ruling:  Although the policy doesn’t tell workers they can’t bad-mouth the company online, “an employee considering this suggestion would reasonably feel chilled by this rule from expressing negative (but protected) information” about the employer.

The companies are appealing the decision to the full board. But there’s little indication that the NLRB is letting up on the effort.

Back to our pop quiz. Of those two employee-handbook policies, the first (“be respectful”) is illegal, according to the NLRB’s general counsel. The second (“work in a cooperative manner”) is OK.

The problem is in telling workers they must be “respectful” to management, as well as customers and others, wrote Richard F. Griffin Jr. in a memo last year. An employee might reasonably see that as a ban on complaining about the company, he wrote.

The second example is legal, Griffin wrote. “Employees would reasonably understand that it is stating the employer’s legitimate expectation that employees work together in an atmosphere of civility.”

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Reflecting on Uber’s Classification Settlement

Worker classification can be a major headache for companies of all shapes and sizes, but for employers embracing the shared-economy business model, it can be one of migraine proportions.

Uber_ride_Bogota_(10277864666)No one knows this better than Uber, which has been facing an onslaught of lawsuits from drivers seeking employee status. Were the drivers to win that battle in the courts, the implications for the firm’s business would be huge.

Well, as you may have heard, Uber avoided that potential outcome in California and Massachusetts when it settled two class-action lawsuits: O’Connor vs. Uber and Yucesoy vs. Uber, respectively.

In the settlement, the parties agreed that …

  • Drivers will remain independent contractors, not employees;
  • Uber will pay $84 million to the plaintiffs (and there would be a second payment of $16 million if Uber goes public and its valuation increases one-and-a-half times from its December 2015 financing valuation within the first year of an IPO);
  • The firm will provide drivers with more information about their individual rating and how it compares with their peers. (It would also introduce a policy explaining the circumstances under which it deactivates drivers in these states from using the app); and
  • The parties would work together to create a driver’s association in both states, with Uber helping to fund these two associations.

In a post about the settlements, Uber CEO Travis Kalanick wrote that Uber is “pleased that this settlement recognizes that drivers should remain as independent contractors, not employees,” noting that drivers value their independence—the freedom to push a button rather than punch a clock.

Kalanick admitted that, as Uber has grown, “… we haven’t always done a good job working with drivers.”

As a story in the Los Angeles Times points out, the settlement still needs to be approved by a judge in the District Court of Northern California, which could take months.

“If approved,” the paper reports, “the payment will be distributed among drivers in California and Massachusetts who performed at least one trip up until the date of the preliminary settlement approval. Distribution will be based on miles driven while a passenger was in the car.”

The plantiffs’ attorney, Shannon Liss-Riordan, released a statement to various press outlets saying the settlement was the right move, considering the risk of having a jury rule against the plaintiffs.

Earlier today, I spoke to Thomas Lewis, a shareholder in the Princeton, N.J., office of Stevens & Lee, who told me it was probably a smart move for Uber, too.

“What’s interesting about the Uber case is that the class-action settlement came just short of effectively giving certain rights to these independent contractors that should belong to employees,” he said. “So this is telling me that Uber is clearly aware that there could be a push to classifying independent contractors as employees were it to go through the court system and there was an adjudication.”

And it’s no secret, of course, that, were Uber to come up on the losing end of a court battle, it would be costly, considering the company’s business model.

Of course, there’s no way to know if this will put an end to the worker-classification issue at Uber. Lewis noted if a new class action is filed, it would be need to be filed with a different set of facts or issues that were brought forth.

But at least for the time being, you would think Uber executives should be able to rest a little easier.

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Supreme Court Rejects Union-Fees Challenge

The U.S. Supreme Court just rejected a legal attack on a vital source of funds for organized labor, splitting 4-4 in a challenge that had appeared to be on the path to victory until Justice Antonin Scalia’s February death, according to Reuters.

The outcome in the case, titled Friedrichs v. California Teachers Association, affirmed a lower-court ruling that allowed California to force non-union workers to pay fees to public-employee unions.

The decision left intact a 1977 legal precedent that allowed such fees, which add up to millions of dollars a year for unions.

The court’s action, the Reuters piece notes, came after a lawsuit brought by a group of non-union public school teachers from California who objected to paying fees to the California Teachers Association union. (A California law requires non-union workers to pay fees to public-sector unions representing workers such as police, firefighters and teachers to fund collective bargaining efforts.)

The decision means the status quo remains, with the unions able to collect fees from non-union workers.

“The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession,” said Lily Eskelsen Garcia, president of the National Education Association.

About 5 million public-sector employees are subject to union contracts that include mandatory fee provisions, according to the National Right to Work Legal Defense Foundation, which backed the non-union teachers.

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NLRB Rules Against Chipotle

In yet another case of a corporate social media policy found to have violated employees’ rights to engage in protected concerted activity, an administrative law judge of the National Labor Relations Board has ordered Chipotle Services LLC to rehire former employee James Kennedy, pay him back wages and post signs in its workplaces notifying employees that its former social media policies violated labor law.

Kennedy, who worked at a Chipotle restaurant in the Philadelphia suburb of Havertown, Pa., found himself under management’s spotlight after he replied to a customer who tweeted “Free chipotle is the best thanks” with “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?”

After viewing the tweet, Chipotle national social media strategist Shannon Kyllo alerted regional manager Thomas Clark, who oversaw the location where Kennedy worked. Clark subsequently asked Kennedy to review Chipotle’s social media policy and delete the tweet, which he did.

Kennedy was later fired for what his supervisor, Jennifer Cruz, said was insubordination during a meeting at which he was asked to stop collecting signatures on a petition that addressed allegedly poor working conditions at Chipotle, including a lack of adequate meal and break times. Cruz later testified at the board proceedings that she feared for her safety during the meeting because Kennedy (an Army veteran who’d served three tours of combat duty) raised his voice and she feared he would become violent due to his diagnosed post-traumatic stress disorder.

Administrative Law Judge Susan A. Flynn found in her ruling that the corporate social media policy Kennedy had been asked to review was outdated at the time, as Chipotle had revised its policy to better comply with the National Labor Relations Act, which forbids employers from interfering with employees’ rights to engage in protected concerted activity. However, Chipotle could still be found liable for violations under the old policy, as that policy was the one referred to by Clark, the regional manager.

“I find that Clark’s implicit direction not to post tweets concerning wages or working conditions constitutes a violation of [the NLRA],” said Judge Flynn, reports Law360.

The judge also concluded that Cruz violated Kennedy’s rights when she fired him. Cruz’s fear that Kennedy would lash out “was neither justified nor true, and was fabricated after the fact,” Flynn said. Kennedy was fired because he had refused to stop collecting signatures for his petition, she said.

Kennedy has since found new employment working in a unionized position for American Airlines at Philadelphia International Airport and told the Philadelphia Inquirer he’s not interested in going back to work at Chipotle, although, he added, he’ll miss the free meals.

“If you want to tweet something about your personal experience at your job, do it,” he told the Inquirer, cautioning against libel and slander. “Tweet at your bosses and your bosses’ bosses.”

 

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A Word of Caution This Election Year

In case you didn’t notice, the 2016 presidential election season officially kicks off next Tuesday, when Iowa caucus-goers cast their votes for their favorite Democrat or Republican.

ThinkstockPhotos-476244660At this point, it’s anyone’s guess who will eventually win their party’s nominations. But this much is for sure: Contentious debate about the upcoming election around the workplace watercooler (and a host of issues associated with it) is only going to intensify in the coming months.

If the back-and-forth on social media today is any indication, HR leaders will want to brace for the worse. (In today’s environment, that means civil political discussions among employees escalating into heated discussions about issues involving race and religion.) But as Cozen O’Connor attorney Michael C. Schmidt recently reminded me, employers need to be careful not to overreact when things seem to be getting out of hand.

Just as employers have the right to ensure that the workplace is safe and productive, Schmidt said, employees similarly have certain rights that need to be appropriately balanced.

Schmidt, vice chair of Cozen O’Connor’s Labor and Employment Department, points out that “many states have some form of a ‘legal activities law,’ which prohibits employers from taking adverse action against an employee because he or she engages in certain types of political-related activities off premises and outside of working time.”

At the same time, he said, employers need to be “mindful of not imposing the company’s particular political views (and, especially, those of the company’s principals) on employees, and suggesting any link—positive or negative—between an employee’s expressed political views and compensation.”

Schmidt added that HR professionals need to “communicate to all employees that company policies prohibiting discrimination, harassment and violence in the workplace also extend to political discussion in the workplace.”

The bottom line: Employers would be well advised to tread carefully as they navigate what’s increasingly looking like one of the more volatile election seasons in recent memories.

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Coming to the Aid of Unpaid Interns

The U.S. House of Representatives passed a bill last night that would extend new protections to unpaid interns in the federal government, but it’s anyone’s guess whether the legislative branch will enact a similar law for unpaid interns in the private sector.

According to the Huffington Post:

The bill would close a loophole in federal law that carves unpaid interns out of the Civil Rights Act. Current law does not acknowledge unpaid interns as employees, leaving them without remedies if they encounter discrimination based on race, sex, age or religion. The proposed legislation would allow unpaid interns to sue the government in federal court if their rights were violated.

The bill, the Post notes, is one of a trio introduced by Democrats looking to extend civil rights protections to unpaid interns in all U.S. workplaces. The other two would apply to unpaid interns working in congressional offices and to the private sector at large. The bills are being sponsored by Rep. Elijah Cummings (D-Md.) and Reps. Bobby Scott (D-Va.) and Grace Meng (D-N.Y.)

Of course, the legislation aimed at private businesses would have the biggest impact on employers, as well as the tallest hurdles to overcome. Republicans in both chambers have been reluctant to impose any new regulations on businesses, particularly ones that can lead to lawsuits from workers.

Scott said yesterday that, given the passage of the federal portion of the legislation, he was calling on leadership of the Education and the Workforce Committee to take up the private-sector companion bill.

There’s no word on when (or even if) Congress will take up the other two pieces of legislation aimed at unpaid interns, but if your company operates an “unpaid intern” component within  its workforce, then you would be well-served to keep an eye on the status of this proposed legislation.

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NLRB Helping Nonunion Employees Protect Rights

Having followed and posted earlier about the Triple Play Sports Bar and Grille case — namely, the Second Circuit Court of Appeal’s 116040122 -- labor unionupholding of a National Labor Relations Board finding that posting and “liking” a criticism of Triple Play’s income-tax-withholding policies constitutes protected concerted activity —  this more recent post on LinkedIn caught my eye.

Especially its title: Why Union-Free Companies Should Be Very Concerned About This Particular Website … . For the record, here’s the actual site in question, coworker.org.

What also caught my eye was the fact that, according to the post (complete with an analysis by Fast Company worth reading), the NLRB has even dedicated a page on its own website explaining, for nonunion employees, what their rights are under the National Labor Relations Act. As that page states:

“The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended or otherwise penalized for taking part in protected group activity, the [NLRB] will fight to restore what was unlawfully taken away. These rights were written into the original 1935 [NLRA] and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.”

On the NLRB page, recent cases involving a range of industries and employees are highlighted on a map via pins that visitors to the site can hover over for summaries or — by clicking on the pins — full stories about the cases.

Workplacereport.com puts out this warning, that “as coworker.org garners more attention, it continues to grow; and, the more it grows, the more ability it has to do more than merely help nonunion employees with their nonunion issues.” It goes on:

“With coworker.org’s ability to collect data from any employee of any company who logs onto the site, it appears to be a ready-made tool for the co-founders’ former employer, the SEIU (or any other union, for that matter).”

Of course, as the website notes — similar to what many employment lawyers and workplace experts have said over the years — “one of the simplest strategies for any employer of any size to negate the effects coworker.org (or unions) might have on their company would be to identify and try to eliminate workplace issues before employees turn to the outside for change.”

But ask any of them, as well as your fellow HR practitioners, and it becomes apparent that anti-union proactivity is often easier to describe than carry out.

At the very least, Jeff Harrison, a Minneapolis-based Littler shareholder, tells me in this earlier post, “gather your bragging points now; conduct vulnerability assessments,” with special focus on employees being treated fairly, with dignity and respect, and with robust employee-appreciation programs … those catch phrases “you often find in union petitions.”

His parting shot back in that April post is worth repeating here:

“[Bottom line, look closely at your people issues.] Are your people treating your people right? [Because it’s those types of complaints — treatment ones — that] are almost always behind [employees being driven to unionize].”

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Avoiding Legal ‘Hot Spots’ in 2016

The Equal Employment Opportunity Commission’s Fiscal Year 2015 was another year of blockbuster decisions that significantly changed the landscape of EEOC-initiated litigation.

That’s according to Seyfarth Shaw, which has just released its annual report on EEOC legal activities and court rulings, entitled EEOC-Initiated Litigation: Case Law Developments In 2015 And Trends To Watch For In 2016.

Authored by Seyfarth lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year’s report compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2015.

Notably, FY2015 saw the EEOC nearing the end of its 2013-2016 Strategic Enforcement Plan. This year, the report has been arranged in to four main parts:

  • Part I of the book is structured as a “Corporate Counsel’s Guide to EEOC Litigation: Developments in FY2015.” In this section, the authors address the important developments in FY2015 as they relate to each stage of an EEOC enforcement action, from the filing of a charge of discrimination through settlement or a determination on the merits. The Guide includes a special section devoted to the pivotal Supreme Court ruling in Mach Mining, LLC v. EEOC, which arguably changed the game with respect to the conciliation phase, a crucial phase of any EEOC matter.
  •  Part II provides a broad overview of the substantive theories that the EEOC has focused on in FY2015, paying particular attention to how those theories relate to the enforcement priorities set out in the SEP. Again this year, the authors have analyzed the EEOC filings in FY2015 by statute and by discrimination type under Title VII. This year, the report takes a closer look at those trends as they relate to particular industries, aka the hot spots. The “Industry-By-Industry” section collects the number and types of filings that affect particular industries, and analyzes what this reveals about what particular industries must keep top of mind going into 2016. In FY2015, the breakdown of filings by industry was Hospitality (34); Healthcare (31); Business Services (25); Manufacturing (20); Retail (19); and Construction and Natural Resources (14).
  •  Part III examines important legislative and political developments, and takes a look at what may be on the horizon for EEOC litigation. The EEOC has increasingly focused its energies on the strategic use of large, high-profile “systemic” cases to drive its mission. These are cases that address policies or patterns or practices that have a broad impact on a region, industry or entire classes of employees or job applicants.
  •  Part IV contains every significant court decision that came down in 2015 regarding EEOC-initiated litigation. The decisions are categorized according to subject matter so as to provide practitioners with an easy reference manual for those decisions.

The full report is available at Seyfarth’s Workplace Class Action Blog.

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Beware What Constitutes Concerted Activity

You may not “Like” this much, but the warning shot from a recent ruling broadening the definition of protected concerted activity is 179693002 -- Likestill reverberating and worth keeping front of mind as you go about your 2016 planning when it comes to social-media approaches and policies.

In the ruling, the Second Circuit Court of Appeals — covering Connecticut, New York and Vermont — upheld the National Labor Relations Board’s finding that two employees at the Triple Play Sports Bar and Grille in Watertown, Conn., were wrongfully terminated after one posted on Facebook, and the other “liked,” a disparaging criticism of the company’s income-tax-withholding policies.

An NLRB judge found, and the Second Circuit agreed, that both activities were protected and concerted under Section 7 of the National Labor Relations Act  because they involved multiple employees and were related to workplace complaints.

“It didn’t matter that there was no union to be found on the premises,” Carmon Harvey, a shareholder in national law firm LeClairRyan’s Philadelphia office, writes in a blog post at EPLI Risk.

“It also didn’t matter that customers could see the public employer-bashing,” she writes, “because the content wasn’t directed at customers, was not defamatory and did not tend to disparage the employer’s brand, products or services. This meant that their subsequent terminations were a big NLRA ‘no-no.’ ”

To top it off, the court also affirmed the NLRB’s ruling that the employer’s expansive Internet and social-media policy went too far, unlawfully prohibiting activity protected under the NLRA.

Brian Hall, writing on the Employer Law Report, highlights two interesting points about the case: that the comment and “Like” were protected because they both related to ongoing employee concerns over their employer’s workplace-tax withholding and their resulting tax liabilities, and that the Facebook communications “were not so disloyal or defamatory as to lose the protection of the Act.”

“Specifically,” he writes, “the court found that the employees did not disparage the employer’s products or services and their communications were not ‘maliciously untrue.’ ” He continues:

“The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place ‘in the presence of customers’ could lead to the undesirable result of chilling virtually all employee speech online. [As the ruling states,] ‘almost all Facebook posts by employees have at least some potential to be viewed by customers.’ “

As a result, the court upheld the board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees. It also, as mentioned above, called into question the company’s social-media policy, which states that:

“[W]hen internet blogging, chat-room discussions … or other forms of communication extend to employees … [by] engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.”

So what are the takeaways for employers and HR? Hall says they’re twofold:

“To help avoid liability, employers should:

  • Have their social-media policies reviewed by experienced counsel to eliminate provisions that can be reasonably misconstrued to restrict employees from discussing the terms and conditions of their employment with others; and
  • Understand, before disciplining employees for any communication or activity on social media, that otherwise protected communications or activities will not lose their protection under the NLRA simply because they disparage or are uncomplimentary [to] the employer, [and] contain statements that are not true, or contain profanity.”

Is it just me or has social media made it exponentially harder for employers to protect their reputations and brands? Even if you can’t comment on an employee’s disparaging private Facebook discussion, you’d better start arming yourself with strategies for getting your good word out online, as this recent HRE feature by Staff Writer Mark McGraw explores.

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Acknowledging Intersexuals in the Workplace

Here at HRE, we like to think we’re pretty well-versed in the labyrinthine lingo associated with the world’s workplace, including all manner of obscure HR term and every form of TLA (three-letter acronym).

So it came as quite a shock to me yesterday to discover a previously unknown — unknown to me, at least — term while participating in my company’s mandatory annual training sessions that addressed (among others) the old chestnuts of drugs in the workplace, IT usage, ethics, and gender, ethnic and sexual diversity.

The term in question? Intersexuals.

After some initial research (mostly the Wikipedia page for “intersex”) I found the following:

Like all individuals, intersex people have various gender identities. Most identify as either a woman or man, while some may identify as neither exclusively a woman nor exclusively a man. Some intersex individuals may be raised as a woman or man but then identify with another gender identity later in life.

That same Wikipedia page also notes that in 2015, the UN Office of the High Commissioner for Human Rights described intersex people simply as being “born with atypical sex characteristics” that don’t meet “binary sex stereotypes.”

After learning a little more, the questions started popping up in my head: How can employers best accommodate such workers? How many people in today’s workforce actually identify themselves as intersexual? Which workplace bathroom should an intersexual person use?

I’ve reached out to the Human Rights Campaign as well as other experts in the arena of LGBTI issues, hoping to get some clarity on the issue in terms of how organizations can best accommodate such workers, but I’ve yet to hear back from them.

When I do, though, I’ll pass along their answers to you. In the mean time, I suppose I’ll just be thankful that I work for a company progressive enough to already acknowledge intersexuals in its work policies, even if not everyone (including me) may know they even exist.

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