Category Archives: employment law

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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The Feds’ War on Employee Misclassification

Seeking to clarify the issue of just what it is that distinguishes an independent contractor from an employee, the Department of Labor yesterday  issued its first Administrator’s Interpretation (AI) of the issue as it pertains to the Fair Labor Standards Act. The issue has only grown more heated in recent months with the rise of “gig economy” companies such as Uber and Lyft, along with long-running disputes between companies and workers such as FedEx Ground’s dispute with its drivers, who claim they were misclassified as independent contractors.

Written by the DOL’s Wage and Hour Division Administrator, David Weil, the 15-page memo states that the misclassification of employees as independent contractors “is among the most damaging to workers and our economy.” It emphasizes the WHD’s six-factor economic realities test that’s used to determine a worker’s status along with what a just-released briefing from law firm Seyfarth Shaw describes as “an extremely expansive reading of the FLSA’s ‘suffer or permit to work’ definition of ’employ.'”

“Combined,” the Seyfarth Shaw briefing says, “WHD’s efforts indicate a significant hostility towards the use of independent contractors.”

An agreement between an employer and a worker stating that the worker is an independent contractor “is not indicative of the economic realities of the working relationship and is not relevant to the analysis of the worker’s status,” Weil’s memo states. The true measure of whether a worker is an employee or an independent contractor, Weil writes, is the extent to which the worker is economically dependent on the employer. A worker who is really in business for him-or-herself is an independent contractor, he notes; a worker who is economically dependent on the company is an employee.

Weil’s AI serves as a reminder to employers to regularly question their independent-contractor classifications as a part of their global risk audits, writes Michael Droke, a partner in the labor and employment division of Dorsey and Whitney. They should also be keeping records on the process used to determine whether one is an independent contractor or employee, and ensure that those classified as independent contractors aren’t given rights or access that may call their status into question, he writes: “For example, contractors should not have internal email accounts, should not be given server access, and should not be invited to employee functions.”

Weil’s AI is yet one more piece of evidence that the federal government is aggressively seeking out employers that misclassify (either deliberately or by mistake) employees as independent contractors and that businesses must proceed very carefully in this area, according to the Seyfarth Shaw memo.

“The guidance now makes it likely that DOL investigations and enforcement actions and private litigation contesting the classification of such workers will intensify,” the Seyfarth Shaw attorneys write. “Businesses should, therefore, carefully evaluate the DOL’s guidance and its potential impact on their operations.”

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H-1B: Disney Retreats; DOL Investigates

The Walt Disney Co.’s Disney ABC Television Group appears to be backing off from a layoff announcement two weeks ago, in which it had told a group of approximately 35 of its IT workers that their jobs were being outsourced to Cognizant Technology Solutions, a New Jersey-based company with large overseas operations. But now, reports Computerworld, those IT workers have been told that the layoff has been canceled.

Some of the IT workers who were to be laid off were told by Disney/ABC managers they would have to train their replacements before leaving, Computerworld reports. This is, of course, reminiscent of the move by Disney’s Parks and Resorts division to outsource 250 IT jobs to workers allegedly brought in under the H-1B visa program and have many of those employees train their replacements in order to receive severance. The furor this created when it was reported recently by mainstream publications such as the New York Times may have led Disney to cancel the latest layoffs, a source told Computerworld.

“They [Disney officials] want this to go away — right now,” said the source, a Disney/ABC IT employee who asked not to be named.

A source at Disney confirmed to Computerworld that the layoff had been rescinded. Although Cognizant is a major user of H-1B visas, it is unclear whether any of the workers in the Disney/ABC project had been brought in under the program.

Other companies besides Disney have come under fire for replacing their IT workers with H-1B visa holders, including Southern California Edison. The Department of Labor has announced it will investigate two outsourcing companies, Infosys and Tata Consultancy Services, for possible violations of rules for H-1B visa holders in conjunction with work they did for Southern California Edison. Those two companies, along with several others, are the biggest recipients of H-1B visa allotments each year. Sen. Bill Nelson, D.-Fla., has also called for an investigation of the H-1B program.

The fracas continues to focus more negative attention on the H-1B program. In a post on his blog, longtime tech observer and consultant Robert X. Cringely labels the  H-1B program “a scam” and says the argument that it’s necessary due to a shortage of technical talent here in the United States is false. He quotes an anonymous source, identified as a former chief technology officer at several companies, who said that — throughout his career — H-1B visa holders were routinely brought in by companies as a cheaper alternative to hiring more-expensive American tech workers: “The reason of course was $$$.  The H1B’s cost approx. 1/3rd or 1/4th the cost of the comparable American in the same job.”

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Clearing the Haze Around Medical Marijuana

smokeEarlier this week, the Colorado Supreme Court handed down a ruling that one attorney says “may serve as a roadmap” for other courts—and employers—navigating the gray areas surrounding medical marijuana laws.

On Monday, the state high court’s 6-0 decision in Coats v. Dish Network determined that an organization can terminate an employee for using medical marijuana, even if said marijuana use occurs while off-duty.

Court documents indicate that former Dish Network employee Brandon Coats has been confined to a wheelchair since he was a teenager, as a result of injuries sustained in a car accident. Court records indicate that Coats registered for and obtained a state-issued license to use medical marijuana in 2009, as a way to treat leg spasms brought on by his quadriplegia.

On June 7, 2010, however, Coats was fired from his job as a telephone customer service representative with the Dish Network, after testing positive for tetrahydrocannabinol—a component of medical marijuana—the previous month.

At the time, Coats informed the company that he was a registered medical marijuana patient, and planned to continue using medical marijuana, according to court records. After being fired for violating the organization’s drug policy, Coats filed a wrongful termination claim against Dish, alleging the company was prohibited from firing an employee based on his or her engagement in “lawful activities” off the employer’s premises during non-working hours. Coats argued that his off-the-clock and away-from-work medical marijuana use was lawful under the Medical Marijuana Amendment and its implementing legislation.

In affirming lower court rulings, the Colorado Supreme Court found the term “lawful” applies only to those activities that are legal under both state and federal law. Ergo, employees engaging in activities such as medical marijuana use that are permitted by state law but forbidden by federal law are not protected by the statute.

While not binding in other states, this Colorado ruling could hold lessons for employers elsewhere, John DiNome, a Philadelphia-based labor and employment attorney and partner at Reed Smith, told HRE this week.

“The short takeaway,” says DiNome, “is that Federal law trumps state law. The Federal Controlled Substance Act lists marijuana as an illegal substance. As such, use of marijuana is not a lawful activity in Colorado.”

For employers, “this seems to confirm that, if they choose to have a ‘zero-tolerance’ policy with respect to drug use, they are on fairly solid ground in doing so.”

As such, “even if an employer is operating in a state where marijuana is either legal for medical or recreational use, the employer may ban use of illegal drugs and take the position that marijuana is not legal at the federal level,” he says.

DiNome notes that, while the Justice Department has said it will not prosecute certain marijuana use offenses, “the fact remains that Congress has not addressed the topic, and marijuana is still an illegal substance under federal law.”

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Increased Skepticism Around EEOC Claims?

lawsuitAccording to at least one attorney, a recent Sixth Circuit appeals court ruling in a disability discrimination case underscores the federal courts’ increasingly cynical view of EEOC claims.

An overview of what led to the April 10 decision in EEOC v. Ford Motor Co.:

Jane Harris, a now-former Ford employee with irritable bowel syndrome, sought a job schedule of her choosing, which would allow her to work from home as needed, up to four days a week. Ford denied her request, determining that “regular and predictable on-site attendance” was essential to Harris’s “highly interactive” job as a resale buyer with the company.

Early in her career with Ford, Harris—who joined the automaker in 2003—earned awards and accolades for what court documents describe as her “strong commodity of knowledge” and “diligent work effort.” Her performance soon deteriorated, however, and by her fifth full year with the company, Harris ranked in the bottom 10 percent of her peer group within Ford. By 2009, her last year with the organization, she “was not performing the basic functions of her position,” according to court records.

In addition, Harris missed an average of 1.5 work days per week in 2008, and frequently arrived at work late and left early, court records indicate.

Harris’ irritable bowel syndrome naturally exacerbated the situation, with her symptoms contributing to greater stress. In turn, the added stress worsened her symptoms and made it more likely for her to miss work.

Court records suggest that Ford “tried to help” Harris, adjusting her work schedule and allowing her to work from home on an ad hoc basis, for instance. But, despite these measures being taken, Harris was still “unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.”

After Ford attempted to offer alternative accommodations—some of which Harris rejected—she was terminated in September 2009, as a result of what the company called “several years of subpar performance and high absences.”

In August 2011, the EEOC sued Ford under the Americans with Disabilities Act. While the Sixth Circuit ruled against Ford in an April 2014 decision, an appellate panel voted to rehear that ruling. The court ultimately reversed that decision, noting that an employee with a disability is not qualified for a position if he or she cannot perform the necessary functions of the role with or without reasonable accommodation. The court noted that telecommuting may be a reasonable accommodation per the ADA, except in a scenario in which regular attendance is essential to performing the job’s critical functions.

The EEOC “has been pursuing telecommuting claims on a regular basis,” says Mark Girouard, a Minneapolis-based labor and employment attorney with Nilan Johnson Lewis.

This decision, however, figures to make establishing these claims more difficult for the organization, says Girouard.

“Obviously, each position must be analyzed individually, but the Sixth Circuit’s description of the job at issue in this case could be applied to many other positions.”

In other words, there are many jobs where availability to participate in face-to-face interactions should necessitate regular and predictable performance, he says, adding that “the en banc decision makes clear that courts should defer to employers’ business judgment on that issue.”

Last week’s decision “adds to the list of recent major losses for the EEOC,” says Girouard. “Separate and apart from the substance of the decision, the fact that the EEOC lost another major lawsuit highlights the increasing skepticism applied to the EEOC by the federal courts.”

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