Welcome to the Wild West of paid sick leave laws in the United States. Considering the nearly 41 million workers without access to paid leave, and with no federal coordination in sight, many states and localities have taken it upon themselves to enact their own legislation. This has created a melee of sick leave laws that employers must now track.
As summarized by our fellow bloggers, the early adopters of paid sick leave laws have created an array of legislation with different requirements for, among other things: coverage, accrual, and usage. Navigating these laws can cause headaches for employers and make it imperative that employers with existing operations in these localities review their sick leave policies closely to ensure compliance. Moreover, employers considering opening up new facilities nationwide must be cognizant of this ever-changing, ever-more complicated area of the law.
In 2014 alone, four paid sick leave laws have newly become effective: Jersey City, NJ; New York City, NY; Newark, NJ; and Portland, OR. What’s more, paid sick leave campaigns or legislation exist in Alaska, Arizona, California (for both the State and in the City of San Diego), Florida, Hawaii, Illinois (for both the State and in the City of Chicago), Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Oakland, Oregon, Pennsylvania, Philadelphia, South Carolina, Vermont, Washington (for both the State and the City of Tacoma), and Wisconsin. As localities are increasingly kicking aside the tumbleweed and brandishing their weapons in this wild workplace environment, they are creating a veritable maze of rules and regulations for employers with nationwide operations.
In this untamed landscape of varying and increasing state and local laws, the Department of Labor has also joined the showdown. On September 24, 2014, the U.S. Department of Labor’s Women’s Bureau and Employment Training Administration announced that it had awarded $500,000 to fund feasibility studies on paid leave laws in the District of Columbia, Massachusetts, Montana, and Rhode Island. Specifically, according to the DOL’s news release:
The District of Columbia Department of Employment Services received $96,281 “to produce an economic impact analysis, financing and benefit models, and a cost-benefit study to assess the feasibility of enacting a paid family leave program;”
The Massachusetts Department of Labor Standards received $117,651 “to conduct research and develop a microsimulation model that will help the state estimate eligibility, take-up and benefit costs of a variety of proposed paid family and medical leave programs;”
The Montana Department of Labor and Industry received $124,651 “to research the feasibility and economic impact of creating a state paid family leave program — including providing financing, eligibility and benefit recommendations — and to conduct public opinion research for communications and implementation purposes;” and
The Rhode Island Department of Labor and Training received $161,417 “to determine the effectiveness of the Rhode Island Temporary Caregiver Insurance Program and its benefits for Rhode Islanders, as well as the public’s awareness of the program.”
In response to this ever changing landscape of paid sick leave laws, employers are wise to review their current policies and consider how they will record and monitor employees’ hours for purposes of determining accruals and eligibility. While the list of regulations employers face continues to increase and business considerations mount, one thing is certain: out on the range in the Wild West of paid sick leave laws, it’s still a very uncertain world.
For additional information on paid sick leave laws, contact the authors, any member of Seyfarth’s Absence Management and Accommodation Team, or your Seyfarth attorney.
As reported in the news recently, the Ebola virus is a significant health hazard. There are now reported cases of the virus in at least two locations in the United States. Certain industries, such as healthcare, emergency responders and transportation, particularly the airline industry, are already identified as areas where there is a higher probability of infection. As of yet, there is no reported case in a workplace in the continental United States. As recently blogged about by our colleagues in our Environmental, Safety and Toxic Torts Practice Group, click here for a primer on the disease for a discussion of the Federal employment laws that may be impacted. The article also provides recommendations on how to preplan and develop a response plan. Should you have additional questions, please contact the authors Mark Lies or Kerry Mohan, any one of the attorneys in our Environmental, Safety and Toxic Torts Practice Group, or your Seyfarth attorney.
The federal district court in Chicago last week issued its much-awaited opinion in EEOC v. CVS Pharmacy, Inc., No. 1-14-cv-00863 (N.D. Ill. Oct. 7, 2014). The decision was anticlimactic. Given the issues at stake, however, as well as some pro-employer signals from the court, every employer that provides severance in exchange for a release should take note. At bottom, the decision means EEOC can and will continue attacking heretofore routine separation agreements.
What’s At Issue
As has been widely reported, EEOC argues in the case that CVS’s standard separation agreement not only is unenforceable, but also violates Title VII’s anti-retaliation mandate. Specifically, EEOC claims: (i) the agreement’s general release language chills individuals from filing charges with the agency (and is not saved by language protecting the “right to participate in a proceeding with any federal … agency enforcing discrimination laws” and to “cooperat[e] with any such agency in its investigation”), and (ii) the agreement’s non-disclosure and non-disparagement language further prevents individuals from filing charges and otherwise exercising Title VII rights.
Employer advocates view EEOC’s position as extreme, to say the least. Virtually every separation agreement contains something EEOC might find objectionable. CVS’s agreement may have contained more such passages than some, but it’s hardly extraordinary. Thus, many employers’ agreements may be in jeopardy unless and until: (i) enough courts reject EEOC’s attenuated theories, such that the agency decides against further pursuing them in litigation; (ii) EEOC issues reasonably clear guidance in this space, so employers know what EEOC views as acceptable; and/or (iii) the balance of viewpoints represented on the 5-person Commission shifts in employers’ favor.
Court Rules Against EEOC For Failure To Conciliate
Without addressing the substantive “retaliation” questions under Title VII, the court (Judge Darrah) instead granted summary judgment for CVS on the ground that EEOC had failed to attempt conciliation before filing suit. The agency admitted it had engaged in no conciliation procedure whatsoever before the lawsuit. It argued conciliation is not required before a pattern or practice suit under Section 707(a) of Title VII. Because this power had previously been vested in the Attorney General, who was not required to bring a charge or engage in conciliation, and because that authority was later transferred to EEOC, the agency argued it too was exempt from Title VII’s usual conciliation requirements. Judge Darrah, however, read Section 707(a) as authorizing EEOC to bring charges alleging a pattern or practice of discrimination, and not as creating a separate Title VII cause of action (more specifically, one altogether exempt from administrative prerequisites to suit).
In reaching this conclusion, the CVS court relied in part on Mach Mining, LLC v. EEOC, 738 F.3d 171 (7th Cir. 2013). That case is pending before the Supreme Court. There, the Seventh Circuit considered EEOC’s duty to conciliate in good faith before suing an employer. The appeals court held that EEOC’s failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit, provided EEOC pleads and can prove some attempted conciliation. Because EEOC refused to make even this minimal showing in the CVS case, Judge Darrah gave it the judicial boot.
Agency Taken To Task On the Merits
Beneath what some view as a technical ruling, the district court derided EEOC’s case on merits. Like many lawyers, Judge Darrah put the good stuff in the footnotes. He first explained that any Title VII retaliation claim, including one filed by EEOC under Section 707(a) pattern or practice theory, must involve “some retaliatory or discriminatory act.” By this, Judge Darrah clearly signaled that CVS’s standard form separation agreement and practice lack the requisite retaliatory act. He next noted the caveat to CVS’s general release language – the passage protecting the individual’s right to participate in agency proceedings. That language, Darrah reasoned, plainly encompasses the right to file charges – the right with which CVS purportedly interfered.
Regrettably for employers, these passages are dicta – points unnecessary to the court’s holding, and thus not binding (or even very persuasive) authority. Still, they are a start: the first judicial retort to EEOC’s efforts to unsettle the repose for which corporate America every day pays millions of dollars in severance.
Next up: EEOC’s lawsuit in Denver against CollegeAmerica, a company that likewise insisted on non-disparagement as a condition of paying severance. CollegeAmerica further required that employees represent they have no pending claims (including administrative actions) against it. That seems only fair, if it was to pay severance to avoid the cost of defending against such claims. To EEOC, however, that provision too inevitably “chills” employees from filing charges. (Ironically, the charging party in CollegeAmerica filed three charges after she had signed the putatively chilling agreement.) That didn’t keep EEOC from holding her out as a victim of retaliation. Which means EEOC will likely find more such victims, and thus file more such suits.
Hard to say whether EEOC will appeal against CVS. They might, just in case the Supreme Court upholds the Seventh Circuit’s Mach Mining decision, and in so doing provides some support for EEOC’s “no need to conciliate” stance in CVS. But as Judge Darrah recognized, the latter does not follow from Mach Mining. One thing is certain: we haven’t heard the last from EEOC as regards separation agreements; while the agency is all for employees receiving the “quid” upon terminating from employment, it doesn’t much like the [pro] “quo” most employers want in return.
For more, contact the authors or your Seyfarth attorney.
On October 2, 2014, the U.S. Supreme Court agreed to weigh in on the long-running litigation between EEOC and Abercrombie & Fitch over the retailer’s decision not to hire a Muslim teenager who interviewed for a position in a headscarf that violated its “Look” policy.
The Court’s much-anticipated decision may clarify when an employer is on notice that an applicant or employee may need a religious accommodation from a workplace policy under Title VII.
Samantha Elauf, who self-identifies as Muslim, applied for a “model” (salesperson) position in an Abercrombie store. She alleges that she had long worn a hijab—a traditional Muslim headscarf—for religious reasons. The hijab conflicted with Abercrombie’s “Look Policy,” which required salespeople to wear “classic East Coast collegiate style of clothing” and forbade head-coverings.
At the job interview, Ms. Elauf wore the headscarf, but did not say anything about it or her religion, or request any accommodation. Her interviewer testified that she assumed that Ms. Elauf was Muslim and wore the head-covering for religious reasons. Evidence suggested that the headscarf influenced Ms. Elauf’s interview scores, and the decision not to hire her.
The Lower Court Rulings
The district court granted summary judgment to the EEOC on its claim for failure to accommodate Ms. Elauf’s religion. In 2013, the Tenth Circuit reversed (see our previous post), and granted Abercrombie summary judgment.
The Tenth Circuit held that the burden is squarely on the applicant or employee to advise the employer that her religious practice conflicts with a job requirement. Since it was undisputed that Ms. Elauf had not notified Abercrombie that her religion required that she wear a head scarf and that she would need a religious accommodation for this observance, the EEOC’s religious accommodation claim failed as a matter of law.
The Court reasoned that the burden of notice belongs with the applicant or employee, because religion is an inherently personal and individual matter. The applicant or employee is uniquely qualified to know whether a practice is religiously motivated and an accommodation is necessary. Moreover, Abercrombie had no actual knowledge of the conflict.
The Court rejected the EEOC’s argument that “something less than an employer’s particularized, actual knowledge would suffice.” The Court explained that the employer should not be held liable for failure to have “guessed, surmised, or figured out from the surrounding circumstances” that the practice was religiously-based and required accommodation. The Court pointedly noted that the EEOC itself cautions employers against asking about religion in the hiring process, or making assumptions about religious practices based on stereotypes.
What Can We Expect from the Supreme Court?
The Court is poised to decide what is legally sufficient to put an employer on notice that a religious practice may conflict with a job requirement, and therefore trigger the employer’s duty to engage in an interactive process to explore accommodations.
The Court could decide to affirm the Tenth Circuit’s ruling that the duty to inform the employer rests with the employee. Or the Court could hold that at least actual notice of the conflict (from any source) is required before an employer can be liable for failure to accommodate. Or the Court could agree with the EEOC that even something less than actual notice will suffice.
The Court may look to disability law regarding when an employer is on notice that an accommodation is required. In opposing the cert. petition, Abercrombie argued that a requirement that the employee request a religious accommodation would be consistent with authority in the ADA context that an employer’s obligation to accommodate does not arise until the employee makes an adequate request. But at least some courts have held that an employer may not bury its head in the sand when it is clear that an employee requires an accommodation for his disability to perform her job, and have required employers to engage in the interactive process with employees in that situation. If the Court reasons that the same holds true with religious accommodations, it could hold that Abercrombie was on notice that they needed to engage in the interactive process with Ms. Elauf.
What Does The Case Mean for Employers?
As we have reported before, the EEOC has doubled down on its view that something less than actual notice is required, including in its 2014 guidance on religious attire and grooming. But this position leaves the employer in a quandary, as the employer could be penalized for failing to act on mere assumptions regarding an applicant or employee’s religious practice, even as it is advised to avoid asking about religion or engaging in religious stereotyping.
If the simple act of an employee wearing something that can be (but is not necessarily) associated with a particular religion is enough to put the employer on notice, then many forms of attire could arguably trigger notice, from a yarmulke, to a cross necklace, to a tattoo. And the implications may go beyond mere attire. For example, should the employer assume from religious attire, like a Star of David necklace, that the applicant may need a certain day off to observe the Sabbath?
Clarification from the Court will provide employers welcome guidance. Until then, employers should generally continue to avoid asking applicants about religion, or making assumptions based on stereotypes. At the same time, an employer who has reason to believe that accommodation may be necessary—even if applicant has not asked—should seek guidance from counsel. Employers should also make sure to follow state or local religious discrimination laws, which can vary from federal.
For additional information on religious accommodations, please contact Ms. Solowey or Ms. Kappelman in Seyfarth Shaw LLP’s Boston office, or your Seyfarth attorney.
No federal statute explicitly prohibits employment discrimination based on gender identity or expression. Nevertheless, in recent years, the EEOC has advocated — including as part of its strategic plan — that it would pursue protections for transgender workers under Title VII’s prohibition against “sex” discrimination and harassment. Indeed, on April 20, 2012, the agency issued a landmark administrative ruling titled Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012) in which it held that transgender individuals may state a claim for sex discrimination under Title VII. Read our prior analysis of the Macy decision here.
Following Macy, on September 25, 2014, the EEOC filed two separate lawsuits—EEOC v. Lakeland Eye Clinic, P.A. (Middle District of Florida, Tampa Division) and EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (Eastern District of Michigan, Southern Division) — on behalf of transgender workers. The crux of the EEOC’s theory is that Title VII protects transgender workers based on “sex.”
Facts And Claims Alleged
In EEOC v. Lakeland Eye Clinic P.A., the EEOC asserts that the employer fired its director of hearing services, Brandi M. Branson, after she began wearing feminine clothing to work and informed the clinic she was transitioning from male to female. Managers and employees allegedly made derogatory comments about Branson’s appearance, and Branson was thereafter deprived of her client base by the employer. Branson was terminated, and the EEOC alleges that, two months after Branson was terminated, the clinic hired a male worker in the same position who conformed to traditional gender norms.
In R.G. & G.R. Harris Funeral Homes, the EEOC alleges that a Detroit-based funeral home illegally fired a funeral director and embalmer named Aimee Stephens, weeks after Stephens gave the funeral home a letter saying she was undergoing a gender transition from male to female. She was allegedly terminated, and told by the owner of the employer that what she was “proposing to do” was “unacceptable.”
In both cases, the EEOC alleges various theories of “sex” discrimination on behalf of the claimants. The EEOC alleges that the decision to terminate each of these employees was motivated by “sex-based” considerations because the employee is transgender, because of the employee’s transition from male to female, and/or because the employees did not confirm to the employers sex- or gender-based preferences, expectations or stereotypes.
Implications For Employers
The theories of liability articulated in these lawsuits clearly follow the EEOC’s prior ruling in Macy, in which the EEOC found that discrimination against a transgender worker was — per se — sex discrimination. See Macy at *6. The EEOC also uses as a basis for liability the decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989), in which the U.S. Supreme Court held that Title VII bars discrimination based on gender stereotypes, in other words, failing to act and appear according to expectations defined by gender — a form of sex discrimination that has since been described as “sex stereotyping,” and one alternative way of proving sex discrimination. The EEOC has made clear that, while gender identity and/or expression are not independent classifications for protection under federal law, the agency will attempt to establish a case of sex discrimination through a variety of different formulations.
In order to avoid potential pitfalls in this emerging area of law, employers must be mindful of issues related to gender identity and/or expression that might arise during interviewing, hiring, discipline, promotion and termination decisions. Employers should be particularly vigilant when an employee identifies as transgender, or announces a plan to undergo a gender transition. Moreover, the theories articulated in these cases are not just limited to transgender employees—many forms of “sex stereotyping” may give rise to actionable claims, not just discrimination or harassment against individuals who identify as transgender. Employers must also be aware that transgender individuals may be affirmatively protected under state or local laws (see our analysis of a recent California case here), and that any allegations concerning transgender discrimination, gender stereotyping or gender identity, require the same analysis, investigation and response as a traditional sex discrimination complaint. Finally, employers should consider whether to implement gender transition guidelines for human resources and/or management that define a process through which employees and management approach an employee gender transition in the workplace.
Readers can also find this post on our EEOC Countdown blog here.
On Tuesday we wrote about OSHA’s September 11, 2014, announcement of its Final Rules that revised current recordkeeping standards. Today, we provide you more information regarding what the changes to those rules will mean.
Increased Reporting Of Injuries And Incidents Will Lead To Increased OSHA Inspections
Under the current rule, all employers are required to report to OSHA “[w]ithin eight (8) hours of the death of an employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident.” 29 C.F.R. § 1904.39(a). This requirement applies to all employers, regardless if they have 10 or fewer employees and regardless of if they are exempt from maintaining recordkeeping logs.
Under the new standard, all employers are required to report to OSHA:
20 C.F.R. § 1904.39(a) as amended.
OSHA’s new reporting rule raises several questions as to what it even means. For instance, what constitutes an amputation? Under the new rule, an amputation does not require bone loss. Thus, does the cutting-off of the very tip of a finger, no matter how small, constitute an amputation? Also, what constitutes the loss of an eye? Does it require an immediate incident resulting in the loss of an eye? The fact that these questions exist means that OSHA may have a different interpretation of the rule than the employer, which could result in a citation.
Moreover, the new standard’s implications are significant. As you may expect, the reporting of a death or serious injury often leads to an OSHA inspection, which brings its own set of issues. Thus, by requiring employers to now report more injuries and illnesses, the number of OSHA inspections, and citations issued as a result, will certainly increase.
As this rule unfolds, it will have implications relating to OSHA’s “multi-employer” worksite doctrine which is applicable when there are multiple employers engaged in performing work at the same worksite.
Section 5(a) of the Occupational Safety and Health Act broadly requires employers to furnish each of its employees a workplace free from recognized hazards and to comply with all occupational safety and health standards developed by OSHA. Thus, the Act creates two types of obligations: 1) a “general duty” obligation running only to the employer’s own employees; and 2) an obligation to obey all OSHA standards with respect to all employees, regardless of their employer.
This second obligation formed the basis for OSHA’s “multi-employer worksite policy,” under which the Agency decided it had the authority to issue citations not only to employers who exposed their own employees to hazardous conditions, but also to employers who created a hazardous condition that endangered employees, whether its own or those of another employer. This policy gave OSHA the ability to issue citations to multiple employers even for violations that did not directly affect the employer’s own employees. This policy had particular import in the construction industry, with many different employers having employees at a site at any given time.
Since the early 1980s, OSHA has continuously expanded the scope of its multi-employer worksite policy. Under OSHA’s current enforcement policy, compliance officers are instructed to issue citations to any employer who:
1) exposed its own employees to a hazardous condition;
2) created a hazardous condition that endangered any employer’s employees;
3) was responsible for correcting a hazardous condition even if its own employees were not exposed to the hazard; or
4) had the ability to control to prevent or abate a hazardous condition through the exercise of reasonable supervisory authority.
This fourth category, the “controlling employer,” has historically caused the most consternation among employers as well as courts. The new OSHA enforcement policy regarding reporting of injuries or illness and monitoring the OSHA 300 Log and related documents will raise numerous issues, for example:
As many employers have learned who have been inspected by OSHA, there are respective rights of the employer, employees and OSHA during an OSHA inspection. Unfortunately, most employers are unaware of these respective rights, as well as their employees, and, therefore, may waive important rights regarding the scope of the inspection, what documents the agency is and is not entitled to and how to respond to requests for employee interviews. Since there will be many more inspections generated, it is critical in the next several months that employers train their supervisors and make employees aware of these rights.
Training Of The OSHA Record Keeper
Because many thousands of new employers will now be responsible for maintaining the OSHA 300 Log, the training process must begin now so that the record-keepers can begin to properly document recordable injuries and illnesses on the Log, as of January 1, 2015. The record-keeper will need to learn the various categories of recordable injuries and illnesses, how to evaluate medical records to determine whether an incident is recordable and then become aware of how to insert the data into the correct categories in the Log. The learning curve will be steep since the Log must be completed for each recordable incident within seven (7) calendar days of the employer becoming aware that there has been a recordable injury or illness.
In order to be prepared to meet these new compliance obligations, employers should consider the following:
For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.
As many employers know all too well, the Occupational Safety and Health Administration (“OSHA”) requires them to record work-related injuries and illnesses and to maintain the OSHA 300 Log for five years. Moreover, OSHA requires all employers to report to OSHA certain serious injuries within a short time period. On September 11, 2014, OSHA announced its Final Rule revising the current recordkeeping standard, which will significantly expand the recordkeeping rule’s reach to hundreds of thousands of new employers and place further burdens on employers to report additional workplace injuries and illnesses. Since these new rules become effective on January 1, 2015, employers are being encouraged, but have little time in reality, to modify their practices and prepare for the coming wave of enforcement.
OSHA’s Recordkeeping Regulations
Under OSHA’s recordkeeping regulations, 29 C.F.R. 1904, certain employers with more than 10 employees must record work-related injuries and maintain written records for five (5) years. Those records include the 300 Log, the 301 form, and the 300A annual summary. Though it may sound simple, recordkeeping is not an easy task, as it involves numerous issues including work-relatedness, the nature and scope of an injury or illness, and the counting of employee days off from work or restricted duty, all of which many times involve analysis of incomplete or conflicting evidence. For instance, an employer may disagree with an employee’s claim that his or her injury or illness is work-related. In such circumstances, the employer must evaluate the employee’s claim to determine whether the injury or illness should be recorded on the OSHA 300 Log or should be found to be non-work-related. If the employer finds that the injury is non-work-related, the employer will have to maintain documentation to support its determination in case OSHA were to challenge that decision.
Thousands Of New Employers Are Now Subject To OSHA’s Recordkeeping Requirement
Under OSHA’s current rule, employers with 10 or fewer employees are exempt from maintaining OSHA 300, 301, and 300A records, which track work-related injuries. The current rule also exempts thousands of employers based on their Standard Industrial Classification (“SIC”) codes. Under the new rule, the list of exempted employers will be based on North American Industry Classification System (“NAICS”) codes. As a result, many employers who were once exempted from OSHA’s recordkeeping requirements will now have to begin maintaining OSHA 300, 301, and 300A records. Some of the industries now covered by the recordkeeping rules include:
The first question that comes to mind when seeing this list of industries now covered under the recordkeeping rule is, “What is OSHA even talking about?” Thus, it is important that employers learn what their NAICS code is to determine if they are now covered by the recordkeeping rule. If so, the employer will then have to count its number of employees to see if it has 10 or fewer. There is information available from OSHA at www.osha.gov/recordkeeping2014 on how to conduct this assessment and also identify the employers now subject to the rule.
In short, OSHA’s new rule will encompass hundreds of thousands of employers who never had to keep these records. Moreover, because of the January 1, 2015 implementation date, these employers must take prompt action to ensure that they are prepared to record injuries and illnesses in the future.
LATER THIS WEEK — Information on how these changes impact employers, their reporting requirements and what we can expect from OSHA in the coming new year.
For more information, please contact the authors, a member of the Seyfarth’s Environmental Safety and Toxic Torts Team, or your Seyfarth attorney.
This just in from our CHINA correspondence desk…. Actually, we wanted to make you’re aware that Seyfarth has offices in China, Australia and United Kingdom. From time-to-time we will let you know about topics that are impacting our international counterparts and our clients that do business there. Read on and Enjoy!
The State Council recently announced new Guidelines for pilot programs for trading emissions permits to reduce air and water pollution.
Key pollutants to be traded under the pilot programs include sulfur dioxide and nitrogen oxide in the air, and chemical oxygen demand and ammonia nitrogen in wastewater. Speaking of these pollutants, Huang Xiaozeng, Deputy Head of the Pollution Emission Control Department of the Environmental Protection Ministry, said earlier this year that “all kinds of measures will be implemented to ensure the tough targets are met.”
The pilot programs had begun in 2007, with areas now or soon to be running pilot trading programs for emissions permits including Tianjin, Hebei province, the Inner Mongolia autonomous region, and the provinces of Shanxi, and Hunan. Under the Guidelines the eleven pilot regions must establish mechanisms for the purchase and trading of emissions by 2017, which is then expected to lay a foundation for the program to be rolled out nationwide.
According to the Ministry of Environmental Protection’s website, during the past year, on Shanxi’s provincial emissions permit trading system alone, over $60 million in emissions permits have been traded between 400 companies. Regions may apply the permits to the pollutants that affect them most, with revenues intended to be provided to local governments to further fund pollution control.
According to the recent State Council statement, “trading of emissions rights must be done in a voluntary, fair and environment-oriented way and trading prices will be decided by the buyer and the seller.” Additionally, “the pilots aim to allow the market to play a decisive role in resources allocation, encourage firms to actively cut pollutant discharges, speed up industrial restructuring and clean the environment.”
The State Council statement, though, differs from a statement offered by Ma Zhong, the Dean of the School of Environment and Natural Resources, at Renmin University, in Beijing, to Reuters. “Emission trading in China is not strictly a market activity and it is more like paying for emitting. It is [currently] just a few regions running some test trading.”
Businesses with interests in China, and especially in these pilot trading program areas, may wish to fully investigate and explore their options when dealing with facility and process permitting requirements. The new Guidelines do create a scheme where facilities will be required to pay for their emissions, but doing so will be necessary to avoid even higher potential penalties for not having the required emissions permits. In the meantime, facilities that participate in the emissions trading permits program will be taking steps toward helping to clean the environment.
Employers know that the National Labor Relations Board may scrutinize their policies to determine if they violate the National Labor Relations Act (the “Act”) – and specifically, Section 7’s protections for “concerted activity.”
When searching for clear guidance on what standards to follow, employers soon find that the NLRB’s most recent fact sheet only addressed cases as recent as 2012 – leaving them to the unenviable task of navigating the myriad Administrative Law Judge Decisions (which are not legal binding precedent unless they have been adopted by the Board on review of exceptions), unpublished Board Decisions (also not binding precedent for anyone other than the parties at issue) and Board Decisions. Three recent cases from the summer of 2014 demonstrate that the intersection of social media, employer policies and the Act, are still at the forefront of the NLRB’s agenda. While these decisions do not provide clear standards, they offer valuable take-aways that employers should be aware of when drafting or reviewing their social media policies.
Encouraging Civility Is Not Unlawful
To be protected under Section 7 of the Act, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.” Policies that restrict those activities can violate the Act.
In June 2014, an administrative law judge issued a decision finding that the employer’s social media policy did not violate the Act. The primary policy language at issue was as follows: “While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees, which could lead to morale issues in the workplace or detrimentally affect the Company’s business.”
The judge examined whether employees would reasonably construe the language to prohibit Section 7 activity and concluded that the policy language was lawful. Specifically, it was not the job-related subject matter of the postings that were of concern to the employer, rather it was the manner in which the subject matter was articulated and debated among the employees. The judge found that the language at issue “urged [employees] to be civil with others in posting job-related material and discussions on social media sites” and that such language did not violate the Act. The policy could be understood under common parlance to prohibit posting of personal (not personnel) information about social relationships and similar private matters, which could result in morale problems or which could also constitute “harassment” (to which the social media policy referred). The judge also found that the policy did not prohibit posting of “personnel” information or “payroll information” or “wage-related information,” which would be unlawful under the Act.
The take-away here for employers is to ensure that the purposes of the social media policy (and other policies generally) are clearly articulated to ensure that discussion of subject matter protected by the Act (i.e., wages, work environment, job issues, etc.) are not prohibited.
Avoid Overbroad Confidentiality Rules
On August 11, 2014, the Board issued a decision in which it found that an employee had engaged in concerted, protected activity when she enlisted the help of coworkers to report a claim of sexual harassment.
In a footnote to the decision, the Board found that employer’s handbook violated the Act because it contained an overbroad and discriminatory confidentiality clause. However, the Board also found that the employer’s instruction “not to obtain additional statements from her coworkers in connection with that Complaint” did not, in itself, violate the Act. Specifically, the employer had instructed the employee to let the Human Resources representative obtain additional statements. The company did not prohibit the employee from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in the future. The Board acknowledged that employers have a “legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”
The take-away here for employers is to ensure that company policies, whether related to social media or not, are not so restrictive as to be construed against employees exercising their Section 7 rights.
Savings Clause For Policy Doesn’t Save Policy
On August 22, 2014, the Board issued another decision where it determined that the employer unlawfully terminated an employee who “liked” a comment about their employer. (Click here to read Seyfarth’s One Minute Memo on that decision).
The Board also examined whether the employer’s social media policy violated the Act by analyzing three questions, whether: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”
The Board found that the employer’s prohibition against “inappropriate discussions about the company, management, and/or coworkers” on social media was “sufficiently imprecise” such that employees would reasonably understand it to encompass protected Section 7 activity. The employer’s general savings clause that the policy “is of no force or effect” if “state or federal law precludes it” was not enough, especially because the employer had, in fact, terminated two employees whose Facebook discussion of tax withholding issues was concerted, protected activity. The Board also found it instructive (and harmful to the employer) that the policy provided “no illustrative examples of what the [employer] consider[ed] to be ‘inappropriate.’”
The take-away here for employers is that social media policies (and other policies, generally) should provide fairly specific examples of prohibited conduct under their policies. Savings clauses likely will no longer survive NLRB scrutiny and policies should be crafted to avoid being overly broad, but specific enough to accomplish the protections desired.
Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.
Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here. Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.