Employment Law Lookout

National Organization for Onboarding and Training of New Employees Industry Wide in the Oil and Gas Industry Provides Example for Others

Posted in Environmental, Safety, & Toxic Tort, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

iStock_000060649530_MediumSeyfarth Synopsis: The National STEPS Network provides a working model of an industry wide employee onboarding and safety training program.

We attended the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week. A Keynote address at the Symposium, presented by Rick L. Ingram of BP America and Elizabeth A. Haley of the  Petroleum Education Council, discussed the National Service, Transmission, Exploration & Production Safety (STEPS) Network.

The STEPS Network was organized in the face of oil and gas (O&G) industry wide injury and fatality statistics that were alarming to both OSHA and the industry. In response, in 2003, OSHA invited industry representatives and safety consultants from all associated fields to attend a meeting to make a change.  STEPS set-up and implemented an employee onboarding and training system that is applicable across the industry.

The National STEPS Network includes operators and contractors in the O&G Exploration, Production and Product Transmission industry as equally valued members in partnership with OSHA, NIOSH, other trade associations, and educators across the country. The Network’s goal was to serve all producing regions of the United States and to eventually share the program internationally.

The STEPS system as established provided three tiers of training:

  • Tier One: New employee onboarding, a 7 1/2 hour safety orientation program;
  • Tier Two: OSHA 5810, Hazards Recognition and Standards for On-Shore O&G Exploration and Production; and
  • Tier Three: Leadership Course for O&G Leaders.

The STEPS leadership indicates that the effort has been successful, providing over 940,000 Tier One orientation sessions through 2010. The National STEPS program has continued to grow, with now twenty-two independent regional networks serving twenty O&G producing states. Eight of the networks have signed formal alliances with OSHA, and the National STEPS Network signed a formal Alliance with OSHA and NIOSH on December 2, 2014.

For other industry segments, and for employers, the STEPS Network provides a working model for safety industry-wide onboarding and training. It is a model that may provide other industries and employers with food-for-thought.

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.

NLRB Administrative Judge Finds Employee Facebook Post Was Protected Speech

Posted in NLRB

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: A new NLRB decision that attempts to define further the boundaries of protected speech under the NLRA.

In Laborers’ International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB September 7, 2016) the initial question in the case was whether the Union restrained or coerced Frank Mantell in the exercise of a Section 7 right.

The initial question raises another question of whether Mantell engaged in any activity protected by Section 7. Mantell’s Facebook posts concerned perceived unfairness affecting apprentices. Mantell was a journeyman, however, not an apprentice.

Mantell, who was a member of the Union Local 91, posted comments on a Facebook page that criticized the Union for allowing a Niagara Falls city councilman, running for mayor, to obtain a journeyman’s book. The Facebook page was accessible to about 4,000 people, some of whom were members of Local 91.

Local 91’s Business Manager, Richard Palladino, filed internal charges against Mantell. The Union’s executive board conducted a trial on the charges focused on the Facebook posts. The executive board found Mantell guilty of the charges and made a decision to fine Martell $5,000 and suspend his membership for 24 months. This decision was ratified at a monthly Union membership meeting. The Union removed Mantell from the hiring hall’s out-of-work list the next day. Mantell then appealed the decision to the International Union. The International subsequently informed Local 91 that it needed to dismiss the charges against Mantell.

The NLRB Administrative Law Judge (ALJ) noted that the National Labor Relations Act Section 7 provides that, “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The ALJ found that Mantell’s Facebook posts were protected under the Act. The decision noted that “issuing a journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment.” As seen in NLRB v. Peter Cailler Kohler Swiss Chocolate Co., 130 F.2d 503, 505-506 (2d Cir. 1942), employees raising concerns about a common cause with fellow employees are, in fact, engaged in protected activity. “Even though the immediate quarrel may not concern them they may be assured that if their ‘turn ever comes,’ they will have the support of those they are then helping.”

The ALJ also rejected the Union’s assertion that Mantell forfeited his protection of the Act by maliciously defaming the Union and the Business Manager. The Union complained that one of Mantell’s comment, in which he suggested that gifts were being given the person running for mayor, was untrue. However, the ALJ concluded that nothing Mantell said in his Facebook posts was maliciously and knowingly untrue, citing MasTec Advance Technologies, 357 NLRB 103, 107 (2011), and allowing the protection of the Act to remain intact.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

 

 

 

 

Switching off: making sense of working time laws in Europe

Posted in Employment Law Lookout

By Ming Henderson

In the last five years, with the development of information technology and mobile devices, the distinction between being “at work” and “off work” has been profoundly altered.

Working time is no longer confined to being in an office and working days are both more intense and infinitely extendable, making monitoring working time even more complex.

Coupled with a global economy, many employees feel that they are permanently connected to their work, irrespective of time zones and local laws.

EU working time laws are rapidly developing to deal with this trend and the negative impact it’s having on employee health and wellbeing. The sanctions for employers breaching these laws are potentially serious. This means that one of the most challenging issues facing global companies today is juggling time zones effectively and responding to business 24/7 without falling foul of working time laws.

Trying to figure out the local time of employees based in different time zones is a complex task in itself. Thankfully, there are a variety of user-friendly apps that can do the maths for you. But understanding the labour law rules when employees are operating in a different time zone is even more daunting, and unfortunately, no app is available to crunch this data for us.

For example, employees working on global projects will often be expected to dial into calls outside their regular local business hours and/or to respond to emails late at night. Though most internationally-minded employees may be willing to accommodate the requirements of their manager or client based overseas, in the EU, asking employees to work beyond their standard hours poses many challenges for employers in complying with working time regulations.

The EU Directive on Working Time (2003/88/EC) of 4 November 2003, directly connects working time to health and safety matters. For this reason, it specifies a series of principles employees should respect to preserve their sanity:

  • a maximum of 48 working hours per week;
  • a minimum rest period of 11 hours, every 24 hours;
  • a minimum weekly rest period of 24 uninterrupted hours for each 7-day period (in addition to the 11 hours above); and
  • paid annual leave of at least 4 weeks per year.

There are additional working time arrangements for specific industries such as the transport sector and sea workers, and to make things more complex, each jurisdiction within the EU has supplemented the Directive with its own laws and sector specific agreements, so the variations are quasi-infinite.

The potential sanctions for non-compliance are high-stakes for employers. They include penalties and claims for overtime payments (sometimes over several years prior) and can extend to criminal records for the company’s representatives, damages for breach of contract or liability for work-related injury and harassment. In recent debates, it has been suggested by the EU commission and selected EU countries that not recording all workers’ working hours might constitute an offence of undeclared work, which in turn is connected to modern slavery, and can have a severe impact on an organisation’s reputation and brand.

In recent debates, it has been suggested by the EU commission and selected EU countries that not recording all workers’ working hours might constitute an offence of undeclared work, which in turn is connected to modern slavery, and can have a severe impact on an organisation’s reputation and brand.

France, a pioneer in intricate working time laws, introduced a new Labour Law on 2 August 2016, safeguarding an employee’s ‘right and duty to switch off from work’. This right was previously found in the Syntec collective bargaining agreement governing most software companies in France and was utilised in a handful of workplace agreements of major French groups and even some German groups. They have made this part of the labour code, thus obliging all employers in France to include this topic in their annual negotiations effective January 2017.

In practice, French employees will still be allowed to occasionally join late calls or work with colleagues in different time zones, but employers should avoid expecting this routinely from their employees and managers. Though it is still unclear how the reform will fully play out, we anticipate employers will, beyond the negotiation obligations explained above, need to implement a mechanism, and, for those employing more than 300 employees, launch a corporate policy, ensuring such a right is effectively recognised and takes into account specific business working patterns and requirements.

Some employers may choose to simply pay lip service to the reform, yet it clearly states that from 1 January 2017 companies will have a duty to actively support the employee’s right to switch off their devices: this will include, as a strict minimum, verifying employees comply with rest periods and stating that they are allowed not to respond to emails during rest periods – or even ensuring software supports compliance.

A straightforward approach could be to adopt a policy allowing employees who work internationally to start work later or earlier, raising awareness of the virtues of having a healthy work life balance, creating group discussions to propose practical solutions to achieve work life balance, and monitoring with employees’ input any issues relating to excessive connections to their work device.

For companies who have a health and safety committee, they must be closely involved in the design and monitoring of the company’s plans.

Ming Henderson is a partner in our International Employment Law practice based in the London office. She is a qualified practitioner in both France and the UK.

“Convincing Mosaic” Busted: Seventh Circuit Shatters Summary Judgment Standard for Discrimination Claims

Posted in Discrimination

By Abigail Cahak

Background of a street light reflection on broken windowSeyfarth Synopsis:  In a recent decision, the Seventh Circuit clarifies that plaintiffs need not present a “convincing mosaic” of direct or indirect evidence of discrimination to withstand summary judgment.  Rather, the evidence considered as a whole must permit a reasonable factfinder to find that discrimination caused the adverse employment action.

On August 19, 2016, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Ortiz v. Werner Enterprises, Case No. 15-2574, which clarifies the standard it applies to discrimination claims on a motion for summary judgment.

In the decision, Judge Easterbrook takes aim at a line of case law which required a plaintiff to present a “convincing mosaic” of either direct or indirect evidence of discrimination in order to withstand summary judgment. Under this standard, district courts had previously separated the two “types” of evidence, assigning “[a]dmissions of culpability and smoking-gun evidence” to the “direct” category, while assigning “suspicious circumstances that might allow an inference of discrimination” to the “indirect” category, before determining that the plaintiff was unable to present a “convincing mosaic of discrimination” with respect to each category and without consideration of the evidence as a whole.

Judge Easterbrook concluded that the district courts’ concern with categorizing evidence distracted courts from the key issue: “whether the evidence would permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Instead, Judge Easterbrook emphasized that “[e]vidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the ‘direct’ evidence does so, or the ‘indirect’ evidence.”

The opinion blames district courts for seizing on dicta [non-precedential statements by the Court] contained in the Seventh Circuit’s 1994 decision in Troupe v. May Department Stores, Inc., 20 F.3d 734 (7th Cir. 1994) to create the “convincing mosaic” analysis that was never intended to be a “test,” but rather a helpful “mental picture.”  The decision notes that more recent Seventh Circuit decisions attempted to clean up the confusion while others contributed to it by treating “convincing mosaic” as a legal requirement.  As a bit of legal housekeeping, the opinion overrules a number of the Seventh Circuit’s prior decisions to the extent that they either applied “convincing mosaic” as a legal standard or separated evidence into “direct” and “indirect” categories.

However, despite using language that will likely confuse many summary judgment briefs in the future, the Seventh Circuit made clear that its “decision does not concern” “[t]he burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), [that] sometimes is referred to as an ‘indirect’ means of proving employment discrimination.”  And although the Seventh Circuit’s decision is intended to streamline the analysis, it remains to be seen whether it will, in fact, simplify summary judgment on discrimination claims, particularly where parties may attempt to rely on the still-valid holdings of its prior decisions, which performed the now defunct analysis.

If you have any questions regarding this article, please contact the author or your Seyfarth attorney.

An Aging America and the Future of Paid Family Leave

Posted in FMLA, Workplace Policies and Processes

By Lucas Deloach

Seyfarth Synopsis: Recent research suggests employers will manage an increasing number of employee requests for caregiving leave.

The U.S. Department of Labor’s Chief Evaluation Office has issued research briefs discussing two commissioned studies that examined paid family leave programs in California, New Jersey, and Rhode Island. Those studies reveal trend lines in paid family leave and may assist employers in anticipating future compliance challenges.

Currently, requests for leave to care for infirm relatives (“caregiving leave”) pale in comparison to requests for leave to care for newborn children (“bonding leave”), but that could change. In one of the studies examining the use of paid family leave in caregiver and parental groups, the researchers found that “[u]tilization of paid family leave programs in both California and New Jersey has grown steadily since implementation,” but claims for bonding leave far outweighed claims for caregiving leave.  Russell Tisinger et al., L&M Policy Research, LLC, Understanding Attitudes on Paid Family Leave: Discussions with Parents and Caregivers in California, New Jersey and Rhode Island 8 (July 2016). For example, in 2014, 88 percent of claims in California were for bonding leave. Id. at 9.  However, in summarizing the second study — focused exclusively on the effect of paid family leave benefits on adult child caregivers — the researchers noted that one in five individuals will be 65 or older by 2030, foretelling an upswing in the percentage of workers who may find it necessary to take leave and care for an aging relative.  Brant Morefield et al., L&M Policy Research, LLC, Leaving it to the Family: the Effects of Paid Leave on Adult Child Caregivers 3 (July 2016).  Of course, any increase in such requests could be mitigated by employees who choose to forego or limit leave and request the services of paid caregivers.  In fact, the Bureau of Labor Statistics projects employment of home health aides will grow of 38 percent from 2014 to 2024 and notes “[a]s the baby-boom population ages and the elderly population grows, demand for the services of home health aides to provide assistance will continue to increase.”

Demographic shifts are not the only driver of the potential increase in requests for caregiving leave. Legislative and administrative action may also influence caregiving leave utilization rates, as well.  As we have discussed, California recently decided to increase the level of benefits provided to individuals in its Paid Family Leave program, and only days later, New York passed a Paid Family Leave law that will go into effect on January 1, 2018.  As paid family leave benefits expand into other jurisdictions, so may employees’ willingness to take leave and care for an infirm relative.  As the researchers note, “the most commonly cited reason for unmet leave was an inability to afford it.” Morefield et al., at 3.

Many employers, in jurisdictions with paid family leave or otherwise, have developed robust bonding leave policies and/or policies addressing unpaid leave pursuant to the Family and Medical Leave Act. However, due to its comparative infrequency, employers may not have devoted particular attention to caregiving leave.  For the reasons above, employers should scrutinize their policies related to paid time off, leaves of absence, and family and medical leave.  As noted in the aforementioned studies, there may be important practical differences between requests for bonding leave and leave for adult caregiving purposes, insofar as “[e]ldercare givers typically hold a different place in the earnings life cycle than new parents and face leave spells that likely differ from a maternity- or paternity-type leave.” Id. at 4.  Thus, caregiving leave requests likely require individualized attention and employers should evaluate their related procedures to ensure they reflect that reality.  Of course, policies and procedures should also be crafted in harmony with other employee benefits, should address the interplay between paid and unpaid leave, where applicable, and should satisfy the particular requirements of state or local law.

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.

New Illinois Law Requires Unpaid Child Bereavement Leave

Posted in FMLA, Illinois, States, Workplace Policies and Processes

By Megan P. Toth

Seyfarth Synopsis: Illinois enacts child bereavement leave, requiring employers provide paid leave should an employee experience the loss of a child.

On July 29, 2016, Illinois became one of only two states (the other being Oregon) to require certain employers provide unpaid leave to employees who suffer the loss of a child. Under the Illinois Child Bereavement Leave Act (CBLA), Illinois employers with 50 or more employees must provide covered employees with up to two weeks (10 work days) of unpaid leave.

Who is Covered? The CBLA defines “employer” and “employee” in the same manner as the Family Medical Leave Act (FMLA). Therefore, any employer subject to the FMLA is covered by the CBLA and any employee eligible to take leave under the FMLA is eligible to take leave under the CBLA.

How Can Employees Use Bereavement Used? Employees must use CBLA leave within 60 days after the employee receives notice of the death of a child. “Child” is defined as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”

Employees may use child bereavement leave for the following purposes: (1) to attend the funeral, or an alternative to a funeral, of a child; (2) to make arrangements necessitated by the death of the child; or (3) to grieve the death of the child.

Employees may elect to substitute paid leave for unpaid leave under the CBLA, but unlike the FMLA, employers may not require employees to do so. Employees are not entitled to more unpaid leave beyond what is available under the FMLA.  In other words, once an employee exhausts their 12 weeks of leave under the FMLA, they are not permitted to take an additional 10 days for the loss of a child (unless the employer opts to provide such additional leave).

If an employee loses more than one child in any 12-month period they are entitled to take up to six weeks of unpaid bereavement leave in that 12-month period.

What are the Employees’ Obligations? For leave under the CBLA, an employee must provide at least 48 hours’ notice of their intention to take leave under the CBLA, unless it is not reasonable and practicable.  An employer may require the employee requesting leave provide reasonable documentation, including a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or government agency.

What Should You Do if You Are a Covered Employer?

  • Review and revise your employee handbooks and/or leave policies as necessary to ensure a child bereavement leave policy is included.
  • Notify employees that Illinois has enacted the Child Bereavement Leave Act, inform them of their rights and obligations under the CBLA, and tell them that if they lose a child that they should contact Human Resources for more information regarding the company’s child bereavement leave policy.
  • Ensure management-level employees should understand employees’ rights and obligations under the CBLA, as well as the company’s obligations, including the CBLA’s no-retaliation provision.

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

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.