Employment Law Lookout

Texas District Court Enjoins Federal Gender Identity Protection Of Students

Posted in Absence Management & Reasonable Accommodation, Title IX

By Sam Schwartz-Fenwick and Kylie Byron

Seyfarth Synopsis: In State of Texas v. United States, a District Court issued a nationwide injunction to enjoin the Department of Education and Department of Justice from enforcing their guidelines on accommodations for transgender students.  The injunction does not prevent states from permitting accommodations.

In a setback for the Obama Administration, and supporters of transgender inclusion, a U.S. District Court for the Northern District of Texas issued a preliminary injunction as to enforcement of the federal government’s Title IX guidance on transgender bathroom policies in schools. Under the departmental guidance, schools to comply with Title IX’s prohibition on sex-discrimination were required to permit transgender students to use bathrooms consistent with their gender identity, regardless of their sex assigned at birth.

The Court found the departments prematurely issued the guidance, as before issuance they did not comply with the notice and comment period required by the APA for “final agency action.” The Court found these steps necessary as it determined the guidance necessitates added regulatory compliance such as reconstruction of existing restrooms. The Court further disagreed with the administration’s position that “sex” in Title IX extends to gender identity, finding that “sex” under Title IX is not “fungible” and does not encompass the claims of transgender persons.  The Court declined to follow the Fourth Circuit’s affirmation of the departmental guidance in G.G. v. Gloucester County School Board, holding the Fourth Circuit wrongly found the definition of “sex” capable of encompassing transgender claims, and further noting the Supreme Court indicated its intent to overturn G.G. by issuing a stay.

The Court rejected the notion that non-inclusive bathroom policies gravely endanger transgender students. It instead found that in light of the Supreme Court stay in G.G., no irreparable harm would arise to students if federal guidance were enjoined.

The injunction is nationwide in scope, though it does not apply to states or cities that have already passed laws that require transgender-inclusive restrooms outside of the context of Title IX. In addition, no portion of the injunction holds that transgender-inclusive restrooms violate Title IX or are themselves illegal. In short, even if the district court decision is upheld, a school may still lawfully choose to implement an inclusive restroom policy; however, the federal government may not require a school to do so.

That said there is an active question as to whether the district court’s ruling will apply in the Fourth Circuit, given that the Court of Appeals ruled in in G.G. that Auer deference, and federal guidance on transgender inclusion, are appropriate.  It is also of course uncertain whether the injunction itself will be upheld on appeal.  If the Fifth Circuit affirms the injunction, there will be a circuit split with the Fourth Circuit thus making review by Supreme Court likely.  The Supreme Court has not yet decided whether it will review the Fourth Circuit’s injunction in G.G., and if the Supreme Court does not do so, or does not overturn G.G, the Fourth Circuit will be required to follow federal guidance on Title IX.

The injunction in State of Texas predicts a period of significant uncertainty in the law regarding gender identity protection under Titles VII and IX , beginning with contradictory rulings in various district courts, potential circuit splits, and culminating with the need for legislative or Supreme Court action.  Schools and employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye towards potential discrimination claims.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.

 

Minister or Not? Gay Bias Case Turns on Employee’s Role

Posted in EEOC, Employment Law Lookout

By Megha J. Charalambides

Seyfarth Synopsis: A federal judge has allowed a discrimination lawsuit to proceed against the Archdiocese of Chicago. The plaintiff alleges that his engagement to another man resulted in his termination.  The church sought to dismiss the case under the ministerial exception doctrine.  The District Court ruled that the ministerial exception, as an affirmative defense, does not render plaintiff’s claims meritless, and ordered the parties to proceed to discovery on the issue of whether plaintiff was, indeed, a minister such that the exception could apply.

The “ministerial exception” implicates both employment law and religious freedom by essentially barring workplace bias suits by church employees who act as “ministers” to their denominations. Most famously, the Supreme Court’s unanimous holding in Hosanna-Tabor Evangelical Lutheran Church v. EEOC ruled for the first time that religious employers were permitted to discriminate against employees deemed to be ministers under the “ministerial exception” implicit in the Free Exercise and Establishment Clauses of the First Amendment.  In doing so, the Court essentially gave religious employers carte blanche to hire (and fire) their ministers.  Yet the Court chose not to provide a precise definition of “minister”–a key, if not the key, component to determining the applicability of the “ministerial exception.”  Instead, the Court ruled that ministerial status is a fact-specific inquiry (though the plaintiffs formal title given by the Church, the substance of her work, and religious functions she performed guided their decision), leaving open the question of when and to whom the ministerial exception can and does apply.

Earlier this month, Judge Charles P. Kocoras of the Northern District of Illinois seized on this ambiguity in denying the Archdiocese of Chicago’s motion to dismiss the complaint of John Collette, its former Director of Worship and Director of Music.

According to Mr. Collette’s complaint, the Archdiocese terminated his employment after learning of his engagement to another man. He alleges that the Archdiocese’s Cardinal indicated in emails that his “non-sacramental marriage” was the reason for his termination, and that a weekly church bulletin specified that he was being terminated for “participating in a form of union that cannot be recognized as a sacrament by the Church.”  Mr. Collette therefore claimed that his termination discriminated against him on the basis of “his sex, sexual orientation, and marital status.”

The Archdiocese sought dismissal of the case on the basis of its First Amendment Right under the ministerial exception. It argued that Mr. Collette’s titles as Director of Worship and Director of Music sufficiently defined his role as a “minister” within the meaning of the ministerial exception.  The Court, however, disagreed.

In his opinion, Judge Kocoras explained that a formal title given to an employee by a religious institution, while relevant, is not dispositive under Hosanna-Tabor.  Indeed, he added that additional factors to be considered include the plaintiff’s religious training and the religious mission of his or her position.  Judge Kocoras concluded that a “factual record focus[ing] on Collette’s functional role . . . is therefore needed to determine whether that role was ministerial.”  He thus denied the Archdiocese’s motion to dismiss and allowed the case to move forward to discovery.

It remains to be seen what factors the Court will ultimately consider in deciding whether Mr. Collette is a minister under the law. His case, however, makes it clear that religious employers no longer have a carte blanche when it comes to employees they consider ministers.  Religious employers may be subject to scrutiny in their employment decisions where discrimination is at play.

Tenth Circuit Orders Truck Driver Who Abandoned Trailer on Interstate Highway to be Reinstated with Backpay

Posted in Administrative Procedure Act, Transportation, Whistleblower

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Tenth Circuit held that a trucking company unlawfully retaliated against a truck driver after he abandoned a trailer on a public highway, finding that his actions constituted a protected refusal to operate a vehicle in unsafe conditions.

The Tenth Circuit Court of Appeals denied a petition for review of a retaliation finding by the Administrative Review Board (ARB), finding that the employee had been retaliated against in violation of the Surface Transportation Assistance Act (STAA). TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016),

The Court explained that the driver parked a tractor-trailer on the shoulder of an interstate highway. After sitting in sub-freezing temperatures, the brake lines on the trailer froze and rendered the trailer immobile. When a service vehicle failed to arrive and the driver’s heating unit stopped functioning, the driver detached the trailer and drove away in the tractor.

After his termination, the employee filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor (DOL) that administers STAA claims, asserting that the employer violated the whistleblower provisions of the STAA when it discharged him. After OSHA dismissed the driver’s complaint, the employee requested a hearing before a DOL administrative law judge (ALJ).

The employer argued that the driver’s actions were not protected under the STAA, which only creates a whistleblower claim for an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition,” 49 U.S.C. § 31105(a)(1)(B)(ii). Because the trailer was inoperable and the driver drove off without it, the employer argued that the driver could not have refused to “operate” in unsafe conditions; but, rather, he abandoned company property.

The ALJ concluded that the driver had engaged in protected activity when he reported the frozen brake issue to the employer, and again when he refused to obey the instruction to drive the truck while pulling the trailer. The ALJ further concluded that the protected activity was a contributing factor in the employer’s decision to terminate his employment because his refusal to operate the truck while pulling the trailer was “inextricably intertwined” with the employer’s decision to terminate him for abandoning the trailer at the side of the highway. The employer appealed to the DOL Administrative Review Board (ARB) (which affirmed the ALJ’s decision) and then to the Tenth Circuit Court of Appeals.

In denying the employer’s appeal, the Tenth Circuit noted that the Administrative Procedure Act (APA) “standard of review is narrow and highly deferential to the agency.” Compass Envtl., Inc., v. Occupational Safety & Health Review Comm’n, 663 F.3d 1164, 1167 (10th Cir. 2011).  The Court concluded that the driver had refused to operate the vehicle when he left the trailer behind.  Consequently, the Court upheld the ARB decision and ordered the driver to be reinstated with backpay.

This case should remind employers that the DOL takes an expansive view of the whistleblower statutes enforced by OSHA, and the kind of actions that constitute protected activity under those statutes. In this case, the employer advanced a seemingly non-retaliatory reason for the termination — abandonment of company property — as the reason for the challenged decision.  However, the close connection between the trailer abandonment and the report that the brakes had frozen/refusal to pull the trailer was enough to tip the scales in the employee’s favor.  Employers should exercise extreme caution when making employment decisions under circumstances in which a legitimate reason for discipline bears a close relationship to conduct that may constitute protected activity under a whistleblower statute.

OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations. For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the OSHA Compliance, Enforcement & Litigation Team.

 

 

 

Guns and Motorcycle Clubs Oh My! – What’s an HR Manager To Do?

Posted in Mississippi, NLRB, Oregon, Workplace Policies and Processes

By Erin Dougherty Foley and Craig B. Simonsen

Compliance Concept on İnterface Touch ScreenSeyfarth Synopsis: A couple of Circuit Court decisions last week may cause some trepidation for your company’s HR managers as they shuffle through the off-duty activities of company employees that get brought onto the company’s property and into its business. This blog offers some comments on the decisions, and recommendations for employers.

Last week, we had decisions from two federal circuit courts that may be concerning to employers. In Robert Swindol v. Aurora Flight Sciences Corp., No. 14-60779 (5th Cir. Aug. 8, 2016), the employer had what it thought was a legal company policy that banned firearms from company property, including the employee parking lot. The employee had a firearm in his automobile, which was discovered by the employer, who then terminated the employee for violation of the no firearms policy.

In Swindol, the plaintiff argued that the employer wrongfully terminated him for keeping a firearm locked inside his car in violation of company policy. He alleged his action was protected by Mississippi Code Chapter 9, Section 45-9-55 (which states that an employer is not permitted to prohibit transportation or storage of firearms on employer property). The employer responded that the plaintiff could not assert wrongful discharge because Section 45-9-55 did not create an exception to the employment-at-will doctrine; however, the Mississippi Supreme Court weighed in on that argument in an earlier, related decision, Robert Swindol v. Aurora Flight Sciences Corp., No. 2015–FC–01317–SCT, 2016 WL 1165448, at *6 (March 24, 2016), and held that the State statute could make an employer liable for wrongful discharge.  Thus, the Fifth Circuit concluded that the plaintiff had stated a claim for wrongful discharge under Mississippi law where he alleged he was terminated when the employer enforced a legally impermissible firearms policy against him.

In Ronald Godwin v. Rogue Valley Youth Corr. Fac., et al., No. 14-35042 (9th Cir. Aug 10, 2016), that employer terminated the employment of that plaintiff for wearing a motorcycle club insignia and expressing that association. The district court held that the plaintiff “was not wrongfully terminated in violation of his First Amendment rights to association and free speech.”  On appeal the plaintiff challenged that ruling arguing that his association with the motor cycle club would be protected under the First Amendment, which in this context “required that his expression/association relate to a matter of public concern.”

On appeal, the Ninth Circuit Court of Appeals found that “public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Citing City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam). As such, the Court stated, “[a]n employer may not interfere with an employee’s First Amendment rights unless there is evidence that the employee’s actions have actually disrupted the workplace or are reasonably likely to do so in the future.” Citing Nichols v. Dancer, 657 F.3d 929, 931 (9th Cir. 2011).

The Court reversed and held that nothing in the record before the Court indicated that the plaintiff’s expression “impeded the performance of his job duties, adversely affected discipline or personnel relationships, or interfered with the work of the [employer]. Nor does the record indicate that his expression would be reasonably likely to disrupt the workings of the [employer] in the future.”

While these cases are both pretty unique from a factual perspective, they do suggest that it’s a good idea to dust off your employee policies and determine whether they are current, in conflict with any specific state laws in which your company does business, or whether it’s an opportune time to give those policies a tune-up. Additionally, before disciplining or terminating an employee, remember that the courts, the U.S. Department of Labor, and the National Labor Relations Board have consistently and regularly been updating and revising what they consider to be “clearly legal.”  So, stay tuned for further updates on other “things that make you go…. huh???”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

Seventh Circuit Holds That Title VII Does Not Cover Sexual Orientation

Posted in EEOC, Title IX

By Sam Schwartz-Fenwick and Kylie Byron

Seyfarth Synopsis: The Seventh Circuit has ruled that Title VII does not provide protection from discrimination on the basis of sexual orientation. However, the reasoning behind the Court’s ruling seems calculated to bring the question before the Seventh Circuit on en banc review or before the Supreme Court itself.

In a defeat for proponents of an expansive interpretation of Title VII, the Seventh Circuit in Kimberly Hively v. Ivy Tech Community College, affirmed the district court’s ruling that Title VII does not provide protection from discrimination on the basis of sexual orientation. However, language in the opinion suggests that the staying power of this ruling might be short-lived.

While noting Circuit precedent such as Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, (7th Cir. 2000) finding that Title VII does not extend to claims of sexual orientation discrimination, the Court focused the bulk of its 42 page decision on whether this precedent can stand now that the EEOC has taken the position that sexual orientation discrimination is per se sex discrimination under Title VII.

The Court appeared friendly to the reasoning of the EEOC. It noted that the line between sexual orientation discrimination and impermissible gender stereotyping is difficult to define, when it exists, and that separating sexual orientation claims from sex and gender stereotyping claims has the “illogical” result of protecting heterosexual individuals who make gender stereotyping claims but not gay, bisexual or lesbian individuals who make the same claims.  The court also noted that there is “no rational reason” for protecting LGB employees from gender stereotyping claims only if that employee acts “stereotypically gay” enough that their behavior can be seen as flagrantly defiant of gender norms.

The Court then noted that, despite the difficulty in separating sex stereotyping claims from sexual orientation claims, some discrimination claims are themselves discrimination on the basis of sexual orientation rather than on the basis of sex discrimination, such as stereotypes about lifestyle. As such, the Court stated that not all sexual orientation claims are sex stereotyping claims, and thus despite the “unsatisfactory” results and disagreements in district courts, Title VII could not be extended to cover sexual orientation absent further clarification from the Supreme Court.

The Circuit’s ruling in Hively is yet another indicator – as noted by the Court of Appeals itself, and by our previous blogs – that a unified prohibition on sexual orientation discrimination will almost certainly have to come from the Supreme Court or through legislative action such as the Equality Act.  With the Court’s order of a stay of the Title IX case G.G. v. Gloucester Cty. Sch. Bd. (a case involving the scope of the definition of “sex” under Title IX), the Court may be indicating that it considers the matter ripe for adjudication

The Seventh Circuit’s ruling in Hively predicts a period of significant uncertainty in the law regarding sexual orientation protections in employment, beginning with contradictory rulings in various district courts, potential circuit splits, and culminating with the need for legislative or Supreme Court action.  Employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye towards sexual orientation claims.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.

Employers Should Move Beyond Mere ADA Compliance

Posted in ADA

By David J. Rowland

Seyfarth Synopsis: Please enjoy a recent op-ed piece written by Seyfarth attorney David Rowland, entitled “Employers Should Move Beyond Mere ADA Compliance.”  The piece originally ran on August 5 in Law360 and discusses why embracing the ADA is the future. Rowland writes that the ADA requires compliance, but, more importantly, the ADA also provides us the opportunity to increase the ranks of individuals with disabilities in our workforces. You can view the article by clicking through [here].

 

New Eye-Popping Statistics: Multinationals Operating in China Should be Aware of Increased Enforcement of Chinese Environmental Laws as Well as the Potential for Blacklisting

Posted in China, Environmental Compliance, Investigations/Inspections

By Wan Li, Andrew S. Boutros, Kay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: The Chinese Ministry of Environmental Protection has just announced criminal, civil, and administrative enforcement statistics, and put companies on notice that those who violate environmental laws and rules may face blacklisting, including restrictions to their future business endeavors.

We have previously written about the need for multinational companies operating in China to comply with Chinese environmental and workplace safety laws and regulations. See for instance Multinationals in China Should be Aware of Increased Enforcement of Environmental Law, Monitoring Requirements – and Fraud, and International Employers Watch Out: China Will Assign Hefty Fines for Worker Safety Violations.

Now more recently, in the last thirty days, the Ministry of Environmental Protection (MEP) in the People’s Republic of China (PRC) has been publishing notices and warnings to “polluters” and industries about their potentially non-compliant business activities.

For example, the MEP’s just-released news announcement summarizing enforcement actions makes clear just how serious China is taking compliance failures of environmental laws and rules. Specifically, the August 1, 2016, notice, Supreme People’s Court Releasing White Paper on China’s Environmental Resource Trial, provides a progress report “since the establishment of Environmental Resource Courts.” In this regard, the notice provides the following eye-popping statistics about China’s enforcement activities from January 2014 to June 2016 by its courts nationwide:

  • A total of 37,216 criminal cases of first instance trial involving air, water and soil pollution that brought 47,087 people to justice;
  • A total of 195,141 civil cases of first instance trial involving resource ownership, environmental infringement and contract disputes; and
  • The conclusion of 57,738 administrative cases of first instance trial involving the environment and its resources.

Only a few days earlier, on July 28, 2016, the MEP, together with 30 other government agencies, issued another announcement warning companies that those who seriously violate environmental laws and rules will face restrictions to their future business endeavors. Specifically, companies may be barred from entering certain businesses, blocked from applying for business permits, or disqualified from loans. In the words of the MEP, “[t]hey will not qualify for preferential policies.” The MEP also highlights 14 serious violations, including operating or engaging in construction work without environmental assessments or permits, and illegally discharging pollutants.

The MEP notes that it will manage a blacklist of companies with “bad environment records” and will share it with other government agencies.

In fact, in what can be viewed as a prospective “industry sweep,” on July 28, 2016, the MEP announced a “national-scale environmental inspection” in the iron and steel industry. The notice states that local areas will be required to strengthen enforcement activities and inspections in this industry, as well as “make effort to reveal, solve, and expose a batch of prominent environmental violations in this industry.”

According to Tian Weiyong, Director General of the Ministry’s Bureau of Environmental Supervision and Inspection, under this program, local areas are required to organize inspectors and inspections involving the “main firms in the iron and steel industry” within their administrative regions. The inspections will also assess how well the iron and steel makers have “attained emission standards and installed and run the automatic monitoring equipment.”  The inspections are slated to occur between June and October 2016.

Multinational businesses and industries that have interests and facilities in China–especially now in the iron and steel industries– may wish to examine the extent of any potential liability in their holdings, in particular since companies with “bad environment records” may be subject to business-disrupting (if not ending) blacklisting.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the International Employment Law Team, the Environmental Compliance, Enforcement & Permitting Team, or the White Collar, Internal Investigations, and False Claims Team.

 

 

 

 

NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers

Posted in Environmental, Safety, & Toxic Tort, Workplace Policies and Processes, Workplace Violence

By Adam R. Young, Kylie Byron, and Craig B. Simonsen

shutterstock_178475264Seyfarth Synopsis: NIOSH releases a comprehensive training curriculum that home healthcare employers can use to minimize safety risks and prevent OSHA citations.

We had blogged previously about OSHA’s “Strategies and Tools” to “Help Prevent” Workplace Violence in the Healthcare Setting. Now the National Institute for Occupational Safety and Health (NIOSH) has recently announced the availability of a “free” web-based training curriculum for home healthcare agencies and workers.

NIOSH indicates in its press release that the curriculum is intended to help employers communicate recognized hazards encountered in homecare workplaces, explain safety concerns, as well as provide “practical solutions to manage risks and improve safety.” The curriculum, Caring for Yourself While Caring for Others, is available in both English and Spanish. It comprises seven “flexible modules” that “allow for customization to meet the individual training needs of home healthcare workers.”

Each training module includes a trainer’s guide, customizable PowerPoint slides, and participant handouts. The modules include:

  • Introduction to Homecare Health and Safety;
  • Reducing Strains, Sprains and Falls;
  • Reducing Risk from Environmental Exposure;
  • Reducing Exposure to Bloodborne and Other Infectious Diseases;
  • Staying Safe When Working With Clients With Dementia;
  • Setting Healthy and Safe Boundaries to Reduce Stress; and
  • Safely Handling Threatening Behavior When Providing Homecare.”

In addition to the modules, the NIOSH curriculum comes with a Homecare Workers’ Handbook that is an “easy-to-read overview of some of the topics covered in this course as well as topics that are not covered” which “should be provided to all participants.” The Handbook includes safety checklists and to-do lists that can be used by home healthcare employers and agencies, their workers, and their clients, in order to help keep these workers injury free.

Employers and agencies in the home healthcare and social service industries can use these NIOSH materials to develop their own employee safety and training programs, or to update their existing programs as appropriate. At a minimum, employers who have a written program in place may wish to make sure that they covered all of the topics highlighted in these NIOSH materials. Coordinating employer written materials with the NIOSH curriculum may improve employee safety and reduce the likelihood of workplace incidents. Moreover, compliance with the NIOSH training recommendations also may reduce the employer’s liability for an OSHA citation, should OSHA conduct an onsite inspection.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or OSHA Compliance, Enforcement & Litigation Team.

NLRB Tells Employers to Mind their Own Business

Posted in Social Media, Workplace Arbitration, Workplace Policies and Processes

By Howard Wexler, Esq. and Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

 

Wave of Shootings Puts Workplace Violence Back in the Spotlight

Posted in OSHA Compliance, Workplace Violence

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries (CFOI) reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.