By Ashley Laken

Seyfarth Synopsis: NLRB affirms ALJ’s ruling finding that a union member’s criticisms on Facebook of the union that represented him were protected by the NLRA.

On February 7, 2017, in Laborers’ International Union of North America, Local Union No. 91, 365 NLRB No. 28, the National Labor Relations Board affirmed an NLRB administrative law judge’s ruling that found that the Laborer’s International Union of North America Local 91 violated the National Labor Relations Act by punishing one of its members for criticizing the union’s business manager on Facebook. We had previously blogged about the ALJ’s earlier decision.

The member’s Facebook posts criticized the union’s business manager for allowing a local politician to become a journeyman without first going through the union’s five year apprenticeship program, and the union punished the member by fining him $5,000, suspending his union membership for two years, and taking him off of its out-of-work referral list.

In finding that the union’s actions were unlawful, the Board observed that it is “elementary” that an employee’s right to engage in intraunion activities opposing the current leadership of his union is concerted activity protected by Section 7 of the NLRA, and therefore found that the member had engaged in protected concerted activity by posting his criticisms of the union’s business manager on Facebook.

The Board then examined whether the union’s interests outweighed the member’s Section 7 rights, and found that they did not. The Board reasoned that the member’s Section 7 right to press the union to change its policies outweighed the union’s vague claim that its reputation was damaged. The Board ordered the union to make the member whole for any loss of earnings he suffered as a result of the unlawful action taken against him, including backpay with interest compounded daily and his search-for-work expenses.

The decision highlights that not only are employee criticisms of their employers potentially protected by Section 7, employee criticisms of the labor unions that represent them may also be protected by Section 7.

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

 

By Marshall B. Babson, Katherine Mendez, and Bryan Bienias

Seyfarth Synopsis: Several organizations are planning nationwide strikes and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees’ rights before responding.

Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.

Thursday, February 16: A Day Without Immigrants. The first action, “A Day Without Immigrants,” is currently scheduled for this Thursday, February 16.  The campaign, promoted in Spanish and English, has been spread through Facebook, fliers, and word of mouth and calls on immigrants and their supporters “not to go to work, open businesses, shop, eat in restaurants, buy gas, go to classes, or send children to school.” While the campaign originally focused on the Washington D.C. area, the campaign is expected to spread nationwide. A similar action in Milwaukee, Wisconsin this past Monday, February 13 drew thousands of protesters.

Friday, February 17: National General Strike. Then, on Friday, February 17, a group called Strike4Democracy has called for a national general strike and plans on “over 100 strike actions across the United States, and beyond.” The campaign calls for participants to forgo work on Friday and, instead “plan or take part in an event in your community” and “occupy public space with positive messages of resistance and solidarity.”

The organizers do not plan on stopping there. They intend to use Friday’s national general strike to “build towards a series of mass strikes,” with another mass strike planned on March 8, 2017, another on May 1, 2017 (May Day), and “a heightening resistance throughout the summer.”

So, what does this mean for employers?

While these general strikes and those planned for the future could wreak havoc on an employer’s operations — as employees fail to report to work or leave shifts early — the National Labor Relations Act provides protection for employees who engage in political advocacy that relates specifically to job concerns and to other workplace issues.

Employers have the right to enforce “neutrally applied work rules” to restrict employees from leaving work for political activities unrelated to workplace concerns. As discussed above, whether an employee’s actions are protected or unprotected turns on whether the employee’s absence relates to activity directed at “terms and conditions of employment” which the employer controls or to workplace concerns that affect all employees. If the absence is due to political activity totally unrelated to workplace concerns, employees could be subject to discipline, although discipline is not necessarily the prudent course to take.

Given the myriad issues to be addressed in these strikes, from immigration reform to minimum wage laws to worker’s rights, employers may be hard pressed to show that employees who participate in these strikes in lieu of working have engaged in unprotected activity. Employers could find themselves in further “hot water” with the NLRB if they discipline employees for absenteeism or tardiness related to the employees’ political activities.

If your company is affected by any of the strike activity this week or in the months ahead, contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

By Bryan Bienias

Seyfarth Synopsis: The Court of Appeals for the First Circuit reversed the NLRB, holding that the Board lacked substantial evidence to find that the hospital group unfairly preferred nonunion workers when filling nonunion positions.

The National Labor Relations Board may not invalidate employment policies that accomplish legitimate goals in a nondiscriminatory manner “merely because the Board might see other ways to do it.” Such was the message the U.S. Court of Appeals for the First Circuit delivered to the Board last week in Southcoast Hospitals Group v. NLRB, No. 15-2146 (1st Cir. 2017).

The Court ruled that the Board lacked substantial evidence in finding that the hospital group discriminated against union members by giving nonunion workers a hiring preference for nonunion positions. The union’s contract granted union employees a similar preference when applying for union positions. According to Southcoast, the policy was intended to “level the playing field” and stave off staffing complaints by its nonunion workforce.

The Board argued that the policy tilted the playing field too far in favor of nonunion employees, claiming the number of nonunion positions “pales in comparison” to the number of positions covered by the union hiring policy and that nonunion hiring preference covered two facilities, as opposed to the single facility covered by the union policy.

This was not enough, the Court ruled. While the Court acknowledged that the nonunion policy covered more positions than the union hiring policy, union workers were not disproportionately harmed, given that the ratio of covered positions to covered employees was substantially the same under both policies. Likewise, nonunion employees had to compete with workers from two hospitals, as opposed to union workers’ need to compete only with workers from one hospital.

The Court also noted that the Board ignored other aspects of the hiring policies that still leave union members at a comparative advantage, namely that union seniority trumps qualifications for open union positions, while Southcoast is required to choose “the best qualified” candidate for a nonunion position, regardless of seniority.

Employer Takeaway

Employers must often walk a fine line in order to apply different policies to union and nonunion employees in a non-discriminatory manner. However, as the Court in Southcoast makes clear, this does not handcuff employers from attempting to “level the playing field” by giving certain advantages to nonunion employees, so long as the policy does not disproportionately harm union employees and is supported by a legitimate and substantial business justification.

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.

By: Ashley K. Laken, Esq.

Seyfarth Synopsis: NLRB rules that the operators of the Detroit Masonic Temple unlawfully refused to bargain with a union that represented various engineers and maintenance workers at the temple, even though none of the remaining members of the bargaining unit were union members.

NLRB Chairman Pearce and Members Miscimarra and McFerran unanimously ruled that the Masonic Temple Association of Detroit and 450 Temple, Inc. violated the National Labor Relations Act by refusing to bargain with Local 324 of the International Union of Operating Engineers for a successor collective bargaining agreement. Masonic Temple Association of Detroit, 364 NLRB No. 150 (Nov. 29, 2016).

Facts

The Union had represented employees at the temple since approximately 1968. The most recent collective bargaining agreement covering the temple expired in early 2010, and the Association began operating the temple shortly thereafter.  At the time, there were approximately ten members in the bargaining unit, two of whom were dues-paying Union members.  In mid-December 2010, the Union sent the Association a written request to bargain over a new CBA.  The Association did not respond, and in January 2011, the Union filed an unfair labor practice charge against the Association for refusing to bargain in good faith.  The parties entered into a settlement agreement, with the Association agreeing to recognize the Union and bargain in good faith as a successor employer, and they met approximately once per month between January 2011 and May 2011.

After the last negotiation session in May 2011, the Union was told that a new unnamed entity would take over management of the temple and that the Union should wait until the changeover to negotiate a CBA with that entity. In the fall of 2011, the Detroit Masonic Temple Theater Company took over management of the Temple, and the Union held one negotiation session with that entity in January 2012.  The Association and the Theater Company ended their relationship in November 2012, and shortly thereafter, 450 Temple Inc. took over management of the temple.

From late 2012 until January 2015, the Union made multiple attempts to restart negotiation discussions, but in January 2015, the President of the Association and 450 allegedly told the Union that because Michigan had become a right-to-work state and there were no longer any Union members working for the temple, he did not feel it necessary to and would not bargain with the Union. In response, the Union filed the unfair labor practice charge at issue in this case.

Board’s Decision

An administrative law judge found that the Association and 450 were a single employer, in part because the Association had 100% ownership of 450 and they operated out of the same office, and no exceptions were filed in response to that ruling. Thus, the Board’s decision did not address this issue.

Regarding the merits of the charge, the Association and 450 argued that they did not violate the Act because the Union was not the exclusive representative of a majority of employees in the bargaining unit, pointing to the fact that none of the employees in the bargaining unit were Union members. The Administrative Law Judge (and the Board) disagreed, observing that an employer may rebut the continuing presumption of an incumbent union’s majority status and unilaterally withdraw recognition only on a showing that the union has in fact lost the support of a majority of the employees in the bargaining unit, and that bargaining unit employees’ union membership status is not determinative of the employer’s obligation to bargain.  In other words, evidence of a desire to withdraw from membership in the union is insufficient proof that the union has in fact lost the support of a majority of the unit.

The Board found that there was no evidence of any action taken by the bargaining unit employees to express their lack of support for the Union, such as a petition to decertify the Union or statements by the employees that they no longer wanted to be represented by the Union. The Board ordered the Association and 450 to bargain with the Union on request and to post a notice to employees.

Employer Takeaway

The decision highlights the fact that there is a distinction between an employee’s desire to be a member of a union and his or her desire to be represented by a union.  Even if the majority of employees in a bargaining unit are not union members, that does not necessarily mean the union has lost its majority support.  Employers that have questions about the status of an incumbent union’s support should connect with their labor attorney to ensure they do not engage in conduct that would run afoul of the Act.

By Annette Tyman, Lawrence Z. Lorber, Jaclyn W. Hamlin, and Brent I. Clark

 

Seyfarth Synopsis: The first of several anticipated challenges to Executive Order 13673, “Fair Pay and Safe Workplaces,” has resulted in a preliminary injunction staying the implementation of some – but not all – aspects of the Executive Order and its implementing regulations. In a significant victory for the government contracting community, the Associated Builders and Contractors of Southeast Texas won an injunction staying the application of the reporting and disclosure requirements, as well as the prohibition on entering into mandatory pre-dispute arbitration agreements.  The Judge left the paycheck transparency provisions in effect, however, and as a result, government contractors must still plan for compliance with those requirements.

Introduction

For our readers that are interested in occupational safety and health topics, we are blogging our colleagues “Management Alert” below, with this introductory note. OSHA citations are covered among the labor laws covered by the Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order reads is that the covered violations include citations which are not final, which are being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once the employer has had a chance to present its defense.  The Blacklisting Order is another example of the government’s “guilty until proven innocent” approach to regulating businesses and employers.

Note also that the Blacklisting Order will be applicable under:

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved State Plans equivalent to State Laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)

In a significant victory for the government contracting community, a federal judge sitting in the U.S. District Court for the Eastern District of Texas partially stayed the implementation of Executive Order 13673, “Fair Pay and Safe Workplaces,” referred to in the government contracting community as the “Blacklisting Order.”  As discussed in more detail here, the Blacklisting Order would:

  1. Require government contractors to disclose “labor law violations” under fourteen different statutes and Executive Orders when bidding for or modifying contracts;
  2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and
  3. Require certain disclosures to independent contractors and employees concerning their employment status and information related to wages and hours worked.

When the White House issued the Executive Order, the government contracting community expressed concerns about the substantial burdens it would impose on businesses and noted that the Order seemed to exceed the limits of Executive power.  Judge Marcia Crone, a federal judge in Texas, agreed.  Late on October 24, 2016, Judge Crone issued a preliminary injunction blocking: (1) the labor law violations disclosure requirements and (2) the prohibition against entering into mandatory pre-dispute arbitration agreements.  The preliminary injunction applies to all federal contractors subject to the Executive Order and it blocks all aspects of the requirements and the implementing regulations, except the paycheck transparency provision.

The Plaintiffs, an association of government contractors in Texas, argued that the Executive Order and its implementing regulations and guidance exceeded Executive power and would impose irreparable harm on their businesses.  Judge Crone found the Plaintiffs’ arguments compelling with regard to the reporting and disclosure requirements and arbitration clause prohibitions, and stayed the implementation of those requirements.

In her decision, the Judge addressed several of the arguments raised by the contracting community Plaintiffs and the government Defendants.

  • The Judge found that the Executive Order and its implementing regulations and guidance likely exceeded the limits of Executive power.
  • She noted that fourteen statutes and Executive Orders of which the Blacklisting Order requires contractors to publicly disclose “violations” all have their own detailed enforcement mechanisms and penalties.
  • The Judge noted that under the Blacklisting Order, a contractor could face debarment or disqualification even if it was contesting a violation or over nothing more than the issuance of a citation by an individual government agency official.
  • Judge Crone also found persuasive the Plaintiffs’ arguments that the provisions of the Executive Order and Final Rule which restrict or prohibit certain mandatory pre-dispute arbitration agreements are in violation of the Federal Arbitration Act and the government’s general policy in favor of arbitration.
  • The Judge found the reporting and disclosure requirements to be “compelled speech” that likely violates the contractors’ First Amendment rights and also agreed that the Executive Order likely violates contractors’ Due Process rights by “compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.”
  • Judge Crone found that the Executive Order is likely arbitrary and capricious “in view of the complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits.”

Although the contracting community’s victory is substantial, it was not complete, as Judge Crone left the paycheck transparency provisions to take effect on their regular schedule (starting on January 1, 2017).  The paycheck transparency provisions require that contractors with procurement contracts of $500,000 provide their employees with a document disclosing “the individual’s hours worked,  overtime hours, pay, and any additions made to or deductions made from pay.” For exempt employees, the document may omit information concerning overtime hours worked so long as the individual has been informed of his or her exempt status.  Covered contractors in states with equivalent paycheck transparency laws, such as New York and California, are deemed to be in compliance with the Executive Order’s requirements so long as they comply with their state’s paycheck transparency law.  Contractors should also be aware that there is always a possibility that the preliminary injunction may be lifted – whether by the Fifth Circuit or another federal court – and in that event, the reporting and disclosure requirements could be reinstated.  For that reason, covered contractors may wish to continue to collect data in case they find themselves once again subject to the reporting and disclosure obligations.

The request for – and subsequent partial granting of – a preliminary injunction staying the implementation of certain provisions of the Blacklisting Order is only the opening salvo in what is likely to be a long fight between the contracting community and the federal government.  As we discussed in our previous alert on the topic, multiple court challenges are possible, and the Blacklisting Order’s provisions may appear before Congress at some point.

Meanwhile, thanks to Judge Crone’s preliminary injunction, the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements are enjoined until further notice, while we continue to closely monitor developments.  Preliminary injunctions typically remain in effect at least until the conclusion of the underlying litigation.  The Plaintiffs may petition the court for the preliminary injunction to become permanent, blocking the government from enforcing the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements (unless the injunction is overturned).  Or the government Defendants may appeal to the U.S. Court of Appeals for the Fifth Circuit, perhaps paving the way for an ultimate ruling by the U.S. Supreme Court.  The ultimate resolution of the contracting community’s concerns about the Blacklisting Order remains to be seen.  One thing is clear, however: while government contractors should be pleased with their victory in Texas, they must still plan to comply with the paycheck transparency provisions.  The contracting community has won the first battle, but the war over blacklisting continues.

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

By Michael Rybicki, Esq.

Seyfarth Summary: The relevance of the National Labor Relations Act to industries and business sectors that have not traditionally had to deal with its implications – such as hedge funds.

The New York Times recently ran on the front page of its business section a lengthy article discussing the National Labor Relation’s Board challenge to a number of provisions of an employment agreement that Bridgewater Associates, the world’s biggest hedge fund firm, requires each full-time employee to sign. Under the headline Confronting Wall Street’s Secretive Culture – N.L.R.B. Challenges Confidentiality Clauses, the article notes that the Board is challenging Bridgewater’s confidentiality, non-disparagement, and arbitration clauses and went on to state “[t]he unusual action is calling into question longstanding practices and prompting some companies to re-examine their employment agreements.”

With all deference to The Times, however, for a number of years the Board has been finding confidentiality provisions (see e.g., Target Corporation, 359 NLRB No. 103 (2013)) and non-disparagement clauses (see Dish Network Corporation, 359 NLRB No. 108 (2013)) unlawful and has steadfastly maintained, despite much criticism from the courts, that clauses restricting employees to arbitrating disputes are unlawful (D. R. Horton, Inc., 357 NLRB 184 (2012)). If anything is “unusual” – if unsurprising – it is that the Board is going after a hedge fund.

Although many employers (and some of their attorneys) think that the application of the National Labor Relations Act is limited to union-represented employees or at least limited to union or union-related activities, such as collective bargaining, union organizing, or union strikes, hand billing, picketing, or boycotts, the Act’s coverage is much broader. As the Board’s website notes:

  • The NLRA applies to most private sector employers, including manufacturers, retailers, private universities, and health care facilities.
  • Employees at union and non-union workplaces have the right to help each other by sharing information, signing petitions and seeking to improve wages and working conditions in a variety of ways.See NLRB Website: FAQ’s.

The Complaint against Bridgewater (Case Number: 01-CA-169426 (06/30/2016)) is not the first one in the financial sector. For example, as Seyfarth Attorney Ashley Laken noted, the D.C. Circuit recently upheld the Board’s finding that the confidentiality and non-disparagement provisions of Quicken Loan’s employment agreements (see our earlier blog post here) violated the Act.

Confidentiality agreements, for example, can be drafted to lawfully prohibit the disclosure of a wide variety of confidential information, see e.g., GC MEMORANDUM OM 12-31, Case 7 (pp. 17-18) (a rule by a drugstore chain prohibiting the disclosure of confidential information lawful where the rule was clearly in the context of not disclosing personal health information); see also GC MEMORANDUM OM 12-59, p. 20 [Walmart, Case 11-CA-067171] (finding lawful a rule requiring employees to maintain the confidentiality of the employer’s trade secret and confidential information where rule was sufficiently contextualized by examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how and technology, internal reports, policies, procedures or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions).

It seems reasonably clear, however, that too often the implications of the NLRA for industries and sectors that have not traditionally had to deal with issues arising under the Act are not considered. Further, even where they are at least considered, frequently all that is done is to include a so-called “savings clause,” stating in effect that nothing contained in an employment agreement, handbook, or work rule, shall be construed as restricting activity protected by the National Labor Relations Act. The Board, however, routinely finds such clauses ineffective. Chipotle Services LLC d/b/a Chipotle Mexican Grill, 364 NLRB No. 72 (2016); see also ISS Facility Services, Inc., 363 NLRB No. 160 (2016).

As noted, the National Labor Relations Act applies to most private sector employers, including industries and business sectors that have not traditionally had to deal with issues arising under its provisions. However, because it provides for only compensatory damages and generally does not offer the opportunity for attorney’s fees, it has generally been ignored by the Plaintiff’s Bar. But in today’s digital age, where employees can readily become aware of the Act’s scope via social media and online content providers, the Act’s implications need to be considered by almost all private sector employers when drafting employment agreements, handbooks, and work rules –  areas into which the Board clearly is looking to expand its effective reach.

 

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.

 

 

 

 

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.

By Kevin A. Fritz and Rashal Baz

Seyfarth Synopsis: New EEOC study calls for employers to “reboot” workplace harassment prevention efforts, outlines statistics, risks and administrative recommendations.

On June 20, 2016, two Commissioners of the U.S. Equal Employment Opportunity Commission (“EEOC”) presented their findings of a fourteen month workplace harassment study in Washington, D.C.

The U.S. Supreme Court created a cause of action for workplace harassment under Title VII of the Civil Rights Act of 1964 in Meritor Savings Bank v. Vinson about thirty years ago.  Taken back by the amount of sexual harassment claims, Commissioners Chai R. Feldblum and Victoria A. Lipnic co-chaired a Select Task Force that spent more than a year studying harassment and creating prevention strategies.  The report notes that approximately 31% of ~90,000 charges received by EEOC in fiscal year 2015 included a workplace harassment allegation.

Employer Impact

It goes without saying that eliminating workplace harassment can lead to a happier and more productive work environment. The Select Task Force noted other indirect costs include increased turnover and reputational damage.  Additionally, beyond quality of work life, employers bear direct financial costs of harassment.  According to the study, between 2010 through 2015, harassment allegations cost employers $698.7 million in the pre-litigation EEOC process.  The pre-litigation financial liability is just the tip of the iceberg, when compared to the costs of litigating harassment allegations to completion.

All Charges Alleging Harassment FY 2010 – FY 2015

This table shows charge data for harassment allegations filed under all statutes, including sexual harassment charges. This table has been harmonized with other data on this site and only show charges filed with the EEOC.

  FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Receipts 27,356 27,270 26,777 26,756 26,820 27,893
Resolutions 29,687 31,990 30,501 27,537 25,791 28,642
Resolutions By Type
Settlements 2,853 3,127 2,906 2,656 2,351 2,627
9.6% 9.8% 9.5% 9.6% 9.1% 9.2%
Withdrawals w/Benefits 1,652 1,648 1,652 1,725 1,667 1,860
5.6% 5.2% 5.4% 6.3% 6.5% 6.5%
Administrative Closures 5,607 5,844 5,132 4,777 4,877 5,258
18.9% 18.3% 16.8% 17.3% 18.9% 18.4%
No Reasonable Cause 17,316 19,696 19,331 17,144 15,977 17,866
58.3% 61.6% 63.4% 62.3% 61.9% 62.4%
Reasonable Cause 2,259 1,675 1,480 1,235 919 1,031
7.6% 5.2% 4.9% 4.5% 3.6% 3.6%
Successful Conciliations 523 458 482 488 326 398
1.8% 1.4% 1.6% 1.8% 1.3% 1.4%
Unsuccessful Conciliations 1,736 1,217 998 747 593 633
5.8% 3.8% 3.3% 2.7% 2.3% 2.2%
Merit Resolutions 6,764 6,450 6,038 5,616 4,937 5,518
22.8% 20.2% 19.8% 20.4% 19.1% 19.3%
Monetary Benefits (Millions) $118.7 $118.5 $113.0 $129.1 $93.9 $125.5

The study also identified key risk factors that tend to give rise to workplace harassment claims: (1) homogenous workforces, (2) workplaces where some workers do not conform to workplace norms, (3) cultural and language differences in the workplace, (4) coarsened social disclosure outside the workplace, (5) workforces with many young workers, (6) workplaces with “high value” employees, (7) workplaces with significant power disparities, (8) workplaces that rely on customer service or client satisfaction, (9) workplaces where work is monotonous, (10) isolated workspaces, (11) workplace cultures that tolerate or encourage alcohol consumption, and (12) decentralized workplaces.  Savvy employers would be wise to try and eliminate or mitigate such risks where practicable. While the existence of one risk is not indicative of harassment, it may create a susceptible environment for harassment when coupled with other risks.

Takeaways

The proposed solutions from the EEOC study include a revamping of workplace culture through leadership and accountability, beginning with a top-down approach. The study urges employers to assess their workplaces for the risk factors associated with harassment, conduct intra-office surveys, hold mid-level managers and supervisors accountable for preventing and responding to grievances and actively promote diversity.

Employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Instead, any discipline that might result from such policy violations should be proportionate to the offense.  Zero tolerance policies may contribute to under-reporting of harassment, “particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop.”  The study suggests that avoiding zero tolerance policies will encourage employees to report workplace incidents, thus allowing management the opportunity to  tackle and proactively sculpt future anti-harassment training.

As we have previously published, employers should also consider the rising harassment claims stemming from social media platforms and might want to consider including a social media policy that ties into their anti-harassment policies.  This is not without its own pitfalls, though, as the National Labor Relations Board has released guidelines on drafting and updating social media policies, but the case law in that space is far from settled.

Lastly, the report highlights the importance of compliance training and the components to make such training successful. Training should shift from a legal compliance focused approach to a preventative-driven teaching that is supported at the highest levels and routinely evaluated.  In particular, the report highlights workplace civility training and the less-common “bystander intervention” training.  Workplace civility training focuses on positive interactions and respect in the office that transcends Title VII protected classes; while bystander intervention training empowers the individual to speak up when they witness harassment.  The study suggests an interactive approach to training may be more effective.

For additional thoughts and comments on the study, see what our colleagues in the class action world are saying.  If you have a question on this topic or training practices, please contact the authors or your Seyfarth Shaw attorney.

 

By Scott Rabe and Samuel Sverdlov

Seyfarth Synopsis: With seemingly every employee having access to a smart-phone or other recording device, employers without strong social media policies may be placing themselves at greater risk of creating workplace incidents that could be avoided. 

Just a few weeks ago, a video leaked of Los Angeles Lakers rookie, D’Angelo Russell, recording teammate, Nick Young, describing adulterous sexual encounters with a 19-year-old during his engagement to pop star, Iggy Azalea.  The incident has since been described as a prank that backfired.  But this “prank,” and the ensuing media attention it drew, has caused the Los Angeles Lakers to endure a media frenzy, a fractured locker room, and being booed by their hometown fans.

The Lakers incident is just one of the more recent, and public, examples of the risks employers face when employees introduce audio and video recording devices into the workplace. Viral videos such as this example may tarnish a company’s reputation.  A leaked audio recording may disclose important company trade secrets or confidential information.  Or a video recording may misleadingly appear to reveal unlawful practices at a company that could lead to litigation or other unwanted attention.

Where employers may once have understood the work place to be a semi-private space, that has changed. As a result, information and behavior that could be counted on to remain within the confines of the workplace now has the potential to become very public very quickly, with some pretty hefty consequences.

So what can employers do?

One of the best things an employer can do to hedge against these risks is to create a comprehensive social media policy that explicitly defines employee responsibilities with regard to social media. The social media policy should:

  • be geared towards the company’s business and its workforce;
  • underscore the importance of acting professionally when utilizing social media in connection with work as well as the importance of, where possible, maintaining a separation between personal and professional use of social media;
  • strictly prohibit the sharing of non-public confidential or proprietary information, or trade secrets, on social media;
  • be distributed to new hires at orientation and be regularly provided as a reminder to existing employees;
  • make clear that employees can be disciplined for violating the employer guidelines.

An employer may also want to consider putting in place a policy that regulates the use of audio or videotaping in the workplace more generally.   Although the National Labor Relations Board (“NLRB”) has said that wholesale bans on video recording in the workplace are unlawful since they could deter employees from exercising rights guaranteed to them under the NLRA, an employer may want to put in place a policy that prohibits surreptitious recording in the workplace or one that prohibits recording of other employees in the workplace without permission. Additionally, employers should be mindful that many states prohibit any kind of video or audio recording where all participants do not consent to being recorded. Given the scrutiny social media policies receive, however, employers are encouraged to consult with counsel before implementing any policy governing the use of audiotaping or videotaping in the workplace.

Employers should also consider making an investment in the education of managers and supervisors regarding best practices for upholding and enforcing the company’s social media and video recording policies. Given the ubiquity of social media today and its importance to employees’ personal and professional lives, there is significant value to employers in having a workforce that is educated on how to use social media effectively while avoiding potential costly pitfalls.

Warning to Employers: Employee audio and video recordings may be protected

The NLRB has taken an aggressive stance in the last few years in connection with its regulation of employer-imposed limitations on social media use. (To read more about the NLRB’s take on social media use, please see our blogs: here and here.)  In particular, the NLRB has taken increasing action against employers who have sought to prohibit employees from engaging in public discourse regarding the terms and conditions of their employment, especially when such discourse occurs on social media.   As a result, employers need to be careful that their social media and related policies do not place undue limitation on the forum or content where employees can engage in discourse regarding their employment.  For example, an employee’s video post to YouTube where she complains about her wages likely would be considered protected concerted action, and the employer could face liability for interfering.

Relatedly, the Equal Employment Opportunity Commission has also made clear that it views the prohibition by an employer of an employee from recording evidence of discrimination by video or audio means may be “retaliation.” This is true even if the employer maintains a workplace policy forbidding such recording.  Thus, employers should be extra careful before disciplining or regulating the conduct of employees who have already raised claims or complaints against the company.

For more information, please contact the authors, your local Seyfarth attorney or a member of Seyfarth’s Social Media Practice Group [http://www.seyfarth.com/SocialMedia].