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Global Developments In Labor & Employment Law

Federal court strikes down NLRB’s new election rules

By Justin Keith on Posted in Labor

In a decision issued a few minutes ago, the United States District Court for the District of Columbia struck down the NLRB’s new election rules because the Board lacked a quorum when it attempted to adopt the final rule. On December 16, 2011, Chairman Pearce and then-Member Becker voted to approve the final version of the rule. However, Member Hayes did not vote, nor was he asked to record a vote. The Board majority took the position that, because Member Hayes had previously voted against initiating the rulemaking at issue, he had “effectively indicated his opposition.”

Applying the Supreme Court’s holding in New Process Steel, L.P. v. NLRB, the court held that the failure to include Hayes in the adoption of the final rule ran afoul of the Board’s quorum requirement. Because the Board lacked a quorum when it attempted to adopt the final rule, the final rule is not effective and representation cases will “continue under the old procedures.”

We will continue to follow this important development as it unfolds.

More States Introduce Legislation Prohibiting Employer Requests for Social Media Passwords; Feds Join In

By Daniel Pasternak on Posted in Legislation

Earlier this year, following a highly-publicized case in Maryland we discussed in this post in which the Maryland Department of Corrections refused to hire an applicant after reviewing his private Facebook page, which it accessed by requiring that the applicant provide the employer with access, Maryland passed a law — currently the only law in the nation — prohibiting employers from requesting that employees provide login or password information to their private, personal social media accounts.  Although Maryland is so far the only state to have passed such measures into law, yesterday the California Assembly unanimously passed A.B. 1844, which would prohibit employers from requesting user name or password information from applicants and employees.  The bill now moves on to the California Senate for its review.  A number of other states are in the process of reviewing similar legislation, including a bill in New Jersey that would go even further than California, and prohibit employers from asking employees or applicants if they have social media accounts, as well impose fines as penalties for violations.  Other states with similar password-protection legislation in the works include Illinois, New York, Texas, and Washington.  And on May 9, Congress joined in, introducing the Password Protection Act of 2012 in the House and Senate, which would apply to more  than  just social media accounts, and would prohibit employers from requesting access to any private information about an employee or applicant maintained on any non-employer computer.  Other pending social-media federal legislation includes the also-recently-introduced H.R. 5050, the Social Networking Online Protection Act (SNOPA).  We will continue to monitor and report on developments in this area, but given the growing number of states introducing this type of legislation, employers would be well advised to avoid asking employees or applicants to provide password information to any private accounts.

Sandifer v. U.S. Steel Corp: 7th Circuit Disagrees with Sixth Circuit and DOL; Clothes-Changing Subject to FLSA Section 203(o) is not a Principal Activity that Starts the Continuous Workday

By Jim Boudreau on Posted in FLSA

On May 8, 2012, the 7th Circuit, in an opinion authored by Judge Posner, issued its much anticipated ruling in Sandifer v. U.S. Steel Corp., __ F.3d __, 2012 WL 1592543 (7th Cir. May 8, 2012). Sandifer was on interlocutory appeal from the Northern District of Indiana. The Seventh Circuit was asked to determine, among other things, whether clothes-changing time which is non-compensable by virtue of Section 203(o) of the FLSA may nonetheless be a principal activity that starts the continuous workday, thereby rendering any subsequent time spent walking from the locker room to the work station compensable work time. In short, the court had to answer whether employers must pay for walk time or waiting time that follows or precedes non-compensable donning and doffing activities as part of the continuous work day. The Seventh Circuit answered the question no, labeling a contrary ruling “paradoxical.” “If clothes-changing time is lawfully not compensated, we can’t see how it could be thought a principal employment activity, and so section 254(a) [of the Portal-to-Portal Act] exempts the travel time in this case.” This ruling directly conflicts with a 2010 Sixth Circuit decision, as well as the Department of Labor’s most recent stance on the issue, a fact that the Court itself acknowledged, thus teeing the issue up for potential Supreme Court review. Continue Reading

Bullying in the Workplace

By Eric Sigda on Posted in Workplace Safety

BullyingWith a greater concentration of resources being placed on eliminating bullying at school and incorporation of anti-bullying themes in television shows, it should be no surprise that attention is being focused on bullying in the workplace. In a 2010 survey by the Workplace Bullying Institute, 35 percent of the American workforce reported being bullied at work. Bullying occurs at all levels within an organization and can originate from both men and women.

Workplace bullying is often exhibited in the form of verbal abuse and offensive conduct or behavior, which can be threatening, humiliating or intimidating. In some instances, bullying conduct can prevent work from being performed. Indeed, besides being harmful the physical, emotional and mental health of the targeted employees, bullying damages the business by leading to decreased productivity and increased absences and attrition.

As with many workplace situations, the best way to prevent or address bullying in the workplace is to have effective policies in place and to enforce them. By all accounts, workplace bullying is underreported. An effective policy should at a minimum provide clear examples of unacceptable behavior and working conditions, state in clear terms that the organization is committed to the prevention of workplace bullying, state the consequences of acting in a bullying manner, and encourage reporting of all incidents of bullying or other forms of workplace violence. Organizations should also make available Employee Assistance Programs (EAP) to allow employees who have been bullied at work to seek help.

Consider FMLA Implications When Disciplining an Employee for Unauthorized Absences

By Tiffany Fordyce on Posted in FMLA

A recent Middle District of Florida decision highlights the need for employers to consider implications under the Family and Medical Leave Act (FMLA) when disciplining an employee for unauthorized or excessive absences. In Hoopingarner v. Corinthian Colleges, Inc., an employee fired for excessive absences claimed the employer interfered with his FMLA rights by characterizing FMLA qualifying leave as unauthorized absences.

The court rejected the employee’s claim with respect to time he took off to care for his sick wife. Although his wife indisputably suffered from several serious health conditions, the record showed that she largely was capable of caring for herself (e.g., she could bathe, eat, drink and dress herself on her own; she could drive to her own doctors’ appointments unassisted), and did not request or desire assistance from her husband. The court concluded that plaintiff’s wife “frequently got by without any care” provided by the plaintiff, and any such care could be given after work hours. Continue Reading

Employers Can be Held Liable for Failing to Protect Employees From Sexual Harassment Based on Sexual Orientation

By Jack Gearan on Posted in Discrimination, Harassment, Litigation, State Law

In a unanimous decision due to be published on May 15, the Connecticut Supreme Court has ruled that employers can be held liable for failing to protect employees from harassment based upon sexual orientation. 

In Patino v. Birken Manufacturing Company, a former employee of the jet engine component maker Birken Manufacturing, Co. accused the company of failing to take reasonable steps to prevent his coworkers from harassing him based on his sexual orientation over a period of many years.  The state’s highest court rejected the employer’s argument that hostile work environment claims are limited to sexual harassment cases.  Importantly, the decision appears to be the first supreme court decision from any state to expressly hold that harassment based on sexual orientation is actionable to the same extent as sexual harassment or racial harassment.  The court also rejected the company’s claim that the jury’s award of $94,500 in damages was too high.

Employers in all states should take notice of this significant decision.  Connecticut is one of 20 states, along with the District of Columbia, whose anti-discrimination laws cover sexual orientation.

Arrest and Conviction Records in Employment Decisions: EEOC Issues Enforcement Guidance and Best Practices

By Nikki Lewis Simon and Jay Lechner on Posted in EEOC

The Equal Employment Opportunity Commission (EEOC) recently issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, which goes some distance in creating potential liability for discrimination by employers for their carte blanche use of criminal record exclusions.

See our GT Alert — Arrest and Conviction Records in Employment Decisions: EEOC Issues Enforcement Guidance and Best Practices – for more information.

California Supreme Court’s Kirby Decision: If Money Talks, is This Another Post-Brinker Blow to Meal and Rest Period Claims?

By Mark Kemple and Tiffany Fordyce on Posted in Litigation, State Law

On April 30, 2012, the California Supreme Court issued a decision holding that the fee shifting provisions of California Labor Code sections 128.5 and 1194 do not apply to claims for wages made pursuant California Labor Code section 226.7 for failure to authorize meal and/or rest periods.  Kirby v. Immoos Fire Protection, Inc., ____ Cal. 4th ___ (2012).

The Court quickly disposed of the argument that Section 1194’s prevailing plaintiff fee shifting provision applies to Section 226.7 claims because Section 1194 pertains to payment of minimum wages and overtime, an issue not implicated in meal and rest break cases. The Court then considered the applicability of Section 218.5’s prevailing party fee-shifting provision. The Court focused on the requirement of Section 218.5 that, in order to be within its reach, the claims must be one for “the nonpayment of wages.” The Court held, however, that the crux of a meal/rest period claim is not for “nonpayment of wages,” but is for “the non-provision of meal or rest periods.” The Court found that the wage payment due upon a finding of liability is the remedy, but not the basis for liability. As such, the Court concluded, Section 218.5 was not intended to apply to meal and rest break claims, and that such claims, when pursued pursuant to Section 226.7, must “be governed by the default American rule that each side must cover its own attorney’s fees.” Continue Reading

NLRB Judge Finds Employees Wrongfully Terminated for Facebook Postings

By Julia Emfinger on Posted in Labor

On April 27, 2012, an NLRB Administrative Law Judge issued another decision in the growing body of cases involving employee use of social media. In Design Technology Group, LLC d/b/a Bettie Page Clothing (“Bettie Page”) and Vanessa Morris, Case 20-CA-3551, the ALJ found that the employer violated the National Labor Relations Act when it fired three employees after they posted messages on Facebook complaining about their working conditions.

The employees at issue in this case worked at a retail store in the tourist area of Haight-Ashbury in San Francisco. The store closed later than other stores in the area, and employees allegedly felt unsafe closing the shop and leaving when the area was deserted. The manager said she would discuss the store’s closing time with the owner, but the closing time did not change. The same employees then brought their concerns directly to the owner. The owner agreed that the store could close earlier, and informed the manager. The manager was upset that the employees had gone directly to the owner, and several verbal altercations and arguments ensued between the manager and the employees. In response to these altercations, the employees posted comments from their home computers on Facebook about the incidents. The posts included comments like “tomorrow I’m bringing a California Worker’s Rights book to work … BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow.” Another employee, who was friends with the employees on Facebook, forwarded screen shots of their posts to Bettie Page’s owner. After seeing the posts, Bettie Page fired the three employees. One of the employees filed an unfair labor practice charge with the NLRB, which issued a complaint alleging that the employees were unlawfully discharged for engaged in protected activity. The complaint also alleged that the employer maintained an overly-board and unlawful confidentiality rule.

The ALJ concluded that the employees’ posts on Facebook were a continuation of their concerted efforts to change the store’s closing time. The ALJ rejected the employer’s argument that it terminated the employees for other misconduct and found that they were terminated for engaging in protected activity in violation of the Act. Finally, the ALJ concluded that the employer’s policy restricting employees’ rights to discuss their compensation with third parties violated the Act. This result is in keeping with a long line of NLRB decisions holding that employees have a right to discuss their wages with other employees and third parties under Section 7 of the Act.

As we’ve reported on in the past, there have been several other ALJ decisions involving employee-use of social media. Several social media cases are currently pending before the NLRB, but it has yet to issue a decision in any of them. We will continue to monitor this case and the others as they work their way to the Board and report on developments as they occur.

EEOC Says That Criminal Screens Must Be Job-Related

By Jack Gearan on Posted in Discrimination, EEOC

Yesterday, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued ”Updated Enforcement Guidance,” reminding employers that screen applicants’ criminal backgrounds that they must prove that any use of information acquired through such screens is job-related to avoid potential discrimination suits.  

The Enforcement Guidance states that an employer accused of violating Title VII will have to carry the burden of proving it followed the standards and did not discriminate against minorities or employees with criminal records who could adequately perform the necessary job tasks. 

The EEOC maintains that the updated guidelines do not reflect a change in the Commission’s policies, but rather that additional legal analysis and factual background was needed to support the Commission’s stance, particularly after the Third Circuit Court of Appeal’s ruling in 2007 in El v. Southeastern Pennsylvania Transportation Authority, which called for the Commission to provide more legal analysis and updated research on the issue.

Commenting on the new Guidance, EEOC Chairwoman Jacqueline A. Berrien stated that it “clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

Commissioner Constance S. Barker, however, who cast the lone dissenting vote against issuing the Guidance, voiced concern that the Guidance goes beyond the jurisdiction of the EEOC, will negatively affect business owners, and did not receive sufficient public comment.

Notably, Section VIII of the Guidance offers examples of best practices for employers considering criminal record information when making employment decisions.  Employers who screen applicants’ criminal backgrounds should take note of the new Guidance and consider some of the best practices suggested therein.