Monday, August 14, 2017

Citing Stephen Colbert, the Fifth Circuit Rolls Back Several NLRB Handbook Positions

Not long ago, I wrote about how the National Labor Relations Board’s (NLRB's) positions on various handbook policies transcended common sense.  In a recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals agreed, holding that the following employer handbook policies did not, contrary to the NLRB’s opinion, violate Section 7 of the National Labor Relations Act and “chill” an employee’s organizing rights: (1) encouraging employees to “maintain a positive working environment”; (2) prohibiting "arguing or fighting," "failing to treat others with respect," and "failing to demonstrate appropriate teamwork"; and (3) prohibiting access to electronic information by non-approved individuals. See T-Mobile USA, Inc. v. National Labor Relations Board, No. 16-60284 (5th Cir. July 25, 2017). 
According to the Court, the relevant inquiry isn’t whether a rule “could” conceivably be read to cover Section 7 activity, but rather whether a reasonable employee reading the rule “would” construe it to prohibit Section 7 activity.  A reasonable employee is one who is aware of her legal rights, "but who also interprets work rules as they apply to the everydayness” of her job.  

As I said in my earlier blog, and as the Court reasoned, reasonable people understand the meaning of work rules such as, “treat employees with respect,” and “don’t fight at work.”  To drive home its point, the Court, in a footnote, cited a YouTube clip from Stephen Colbert mocking the NLRB’s position.  And if you’re wondering, the Fifth Circuit doesn’t routinely cite to YouTube in its opinions. The decision is important for Texas employers because it reinforces the idea that an employer has the right to enact “reasonable” work rules.   

Wednesday, May 31, 2017

The Texas Supreme Court Takes an Egg from the Employment Plaintiff's Basket

In its ExxonMobil Corporation and WHM Custom Services Inc. v. Rincones decision issued last week, the Texas Supreme Court held that there is no independent cause of action in Texas for compelled self-defamation.
The crux of this sometimes-recognized tort is that a former employee's publication to a third party can satisfy the publication element of a defamation claim because the former employee is effectively compelled to publish the defamatory statement to prospective employers when the employee is asked why she left her former employment.  The claim often arose in cases where an employee alleged that the employer gave a false reason for the employee's discharge, and the employee was "compelled" to publish the false statement to prospective new employers during the hiring process.  Prior to the Supreme Court's decision, several appeals courts in Texas had recognized the theory.

In its decision, the Court cited several reasons for its refusal to recognize the claim.  First, such a refusal is a natural extension of the well-established rule that if the publication about which the plaintiff complains was consented to, authorized, invited, or procured by the plaintiff, she cannot recover for injuries sustained by reason of the publication.  Second, the recognition of such a claim would not only discourage plaintiffs from mitigating damages to their own reputations, but would also enable an employee to unilaterally create an actionable tort against the employer, and third, the compelled, self-defamation doctrine would unacceptably impinge on the at-will employment doctrine.  
In short, employment plaintiffs now have one less claim to assert against employers in Texas.

Tuesday, May 16, 2017

When Can Employers Expect a Cessation of the NLRB's Handbook Policy Hostilities?

Pundits proclaimed that with the new administration, the National Labor Relations Board (NLRB) would dial down or pull back from its current position of DEFCON 2 with respect to employer handbook policies.  As evidenced by a decision issued by an Administrative Law Judge last week, it does not appear that a retreat is in sight.
In Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25, Case Nos. 01-CA-153956, 01-CA-158947, and 01-CA-165432 (May 12, 2017), the ALJ found that the following handbook policies violated the National Labor Relations Act (NLRA), even though most of them were not actually at issue in the case:
1.  Integrity Code (communications): employees should not engage in communications that "include material that is inappropriate, untrue, or disparaging to outside parties or to [employer]."  According to the ALJ, the NLRB has repeatedly held that such a prohibition is unlawful because it restricts employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as distinguished from those which are maliciously so.  Bottom line: Section 7 protects employees who make false statements. 
2.  Information Protection Policy (disclosure of employee information):  provisions that prohibit employees from disclosing "employee information" and "employee records."  According to the ALJ, the policies "fail to clarify that they do not prohibit employees from disclosing such information as part of NLRA-protected activity."
3.  Information Protection Policy (use of company name and logo):  employees are prohibited from allowing any outside party to use "the name of any [employer] and any [employer] logo...without prior approval" from management officials.  The ALJ found that the employer could not articulate a "business reason" for the restrictions.
4.  Information Protection Policy (recordings): prohibits employees from photographing, video-recording, or audio-recording anything at the facility and/or anything that includes information that the employer deems "confidential" or an "information asset" without approval from the employer.  The ALJ found that the employer, which operates a nuclear power plant and must comply with various Nuclear Regulatory Commission regulations, could not articulate a "legitimate business need" for a blanket policy.
5.  Issue Resolution Policy (confidentiality):  prohibits employees, without the approval of the senior vice president of human resources, from discussing with, or disclosing to, individuals who do not have a legitimate business reason to know any information collected by the decision-making panel.  The ALJ found that a blanket policy such as this one interferes with the employees' Section 7 rights.
6.  Government Investigations Policy (participation):  various provisions prohibit employees from answering any questions posed by a governmental investigator without first contacting the company's legal departments, prohibit employees from providing any documents requested by a government investigator without first contacting the company's legal department, and require employees to contact the legal department before contacting a governmental agency about the company's business.  Without hesitation, the ALJ found that these provisions "unlawfully interfere with employees' independent communications with the NLRB and its representatives." 
Absent a clear directive from the administration or definitive action by the Board, unionized and non-unionized employers need to continue to ensure that their handbook policies comply with the myriad of restrictions imposed by the NLRB. 

Friday, May 12, 2017

Texas Supreme Court Takes Up Important Issues in Same-Sex Harassment Case

Currently pending before the Texas Supreme Court is a case involving three important issues for Texas employers, both public and private.  First, to invoke the TCHRA’s waiver of governmental immunity, must a plaintiff establish but-for causation found in the third step of the McDonnell Douglas burden-shifting framework? Second, what kind of evidence can establish that same-sex harassment was not just about gender, but because of gender?  And third, must a supervisor actually exercise hiring and firing authority under the United States Supreme Court’s standard in Vance v. Ball State Univ. for the purpose of establishing vicarious liability?
In Alamo Heights Ind. Sch. Dist. v. Clark, No. 16-0244, Clark, a female physical education teacher and coach, claimed she was sexually harassed by her female supervisor and a co-worker, and fired in retaliation for her complaints.  In the trial court below, the school district filed a plea to the jurisdiction, which the trial court denied, and then appealed the denial to the Fourth Court of Appeals, which upheld the trial court’s ruling.  The Texas Supreme Court recently agreed to hear the case.
Both sides weave vastly different stories in their briefing.  The school district claims that the trial court and the Fourth Court of Appeals erred, and should have: (1) required Clark to prove but-for causation to survive the plea to the jurisdiction; (2) determined that Clark was unable to prove her sex harassment claim because the harassment was about gender, but not based on gender; and (3) found that Clark’s “supervisor” was not a “supervisor” in accordance with the Vance standard.
In turn, Clark: (1) disputes that she is required to prove but-for causation to survive the plea to the jurisdiction, and instead claims she must only establish a prima facie case; (2) claims that the evidence, which includes lewd comments and touching, establishes that the harassment was based on sex; and (3) contends that one of the harassers was a de facto supervisor under Vance, and was also a “supervisor” for other reasons. 
If the school district is right about the jurisdictional issue, plaintiffs seeking a waiver of sovereign immunity under the TCHRA will face a high burden early in the litigation when challenged by a plea to the jurisdiction.  If Clark is right about her same-sex harassment claim, then the Court could arguably, expressly or implicitly, expand the evidentiary routes for a plaintiff to establish harassment because of gender.  And finally, the Court’s decision about the scope of authority required to establish “supervisor” status, if reached, could either expand or contract the pool of individuals who can subject an employer to vicarious liability.

Friday, April 21, 2017

Slow Death on the Vine? 5th Circuit Grants Second Extension in Overtime Suit

Since the government's appeal of in injunction issued in December 2016 by Judge Amos Mazzant that blocked the implementation of the Obama administration's overtime rule overhaul, employers have been waiting to see whether the new administration will take up the battle cry or fall back and retreat.
This week, and for the second time since the government filed its appeal, the Fifth Circuit granted an extension of 60 days, or to and including June 30, 2017, for the government to file a reply brief. 
Clearly, the government is waiting on the confirmation of Alexander Acosta as the new Secretary of Labor, and expects him to provide guidance regarding the administration's position on this issue.  Assuming that Acosta is confirmed, and based on his confirmation hearing testimony, it is unlikely that the Department of Labor will continue the appeal.  What is unknown is whether Acosta will consider more modest changes to the current overtime rules in the future.

Sunday, April 16, 2017

Fifth Circuit's Recent Retaliation Ruling Provides Employers with Ammunition

To state a claim for retaliation under Title VII, a plaintiff must show that: (1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action.  For an employer's action to qualify as a materially adverse action, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
In the Cabral v. Brennan decision issued last week, the Fifth Circuit affirmed summary judgment for the United States Postal Service (USPS) and agreed that a two-day suspension without pay did not constitute a materially adverse employment action to support a Title VII retaliation claim.  A copy of the decision can be found here:
In Cabral, the USPS suspended a letter carrier for two days without pay after a supervisor asked Cabral to produce a valid driver's license and he failed to do so.  At the time of the incident, Cabral had already filed multiple charges of discrimination against the USPS, as well as multiple union grievances.  A few weeks later, the USPS reimbursed Cabral for any lost pay.
Interestingly, the Court's decision did not turn on the fact that the USPS made Cabral whole by making up the back pay, or a finding that a reasonable employee would not have been dissuaded from bringing a charge.  In contrast, it turned on the fact that Cabral did not show that his suspension exacted a physical, emotional, or economic toll.  The Court rejected his conclusory statements attesting to the emotional or psychological harm he suffered because of the suspension, and noted that he failed to provide any supporting documentation.
In short, a suspension without pay could constitute a materially adverse action, but currently, this is not a bright-line rule in the Fifth Circuit.  Employers faced with retaliation claims should ensure they engage in sufficient discovery related to the plaintiff's emotional state following the challenged action.

Tuesday, March 14, 2017

11th Circuit Panel Parses Gender Stereotyping and Sexual Orientation Claims

Last week, a panel of the Eleventh Circuit affirmed dismissal of a plaintiff’s Title VII sexual orientation claim, but vacated the district court’s order dismissing the employee’s gender non-conformity claim, drawing both an interesting concurring opinion and a no-holds-barred, partial dissent.  See Evans v. Georgia Regional Hosp., et al., No. 15-15234 (11th Cir. March 10, 2017). 
In Evans, the initially pro se plaintiff, a lesbian hospital security officer, claimed, among other things, that she was discriminated against for failing to conform to gender stereotypes and because of her sexual orientation.  A magistrate judge recommended dismissal of the claims because Title VII was not intended to cover discrimination against homosexuals, and further because the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.”  The district court conducted a de novo review of the record and adopted, without further comment, the magistrate’s recommendations.
On appeal, a panel of the Eleventh Circuit, relying on the Fifth Circuit’s decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), affirmed dismissal of the sexual orientation claim because, as the Blum Court found, discharge for homosexuality is not prohibited by Title VII.  Drawing a line between sexual orientation and sex stereotyping, the Court reversed and remanded the gender non-conformity claim, finding that a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation.
In a concurring opinion, Judge Pryor agreed with the majority’s opinion, but drew a different line between discrimination based on behavior, and discrimination based on status.  According to Judge Pryor, the former is protected, but the latter is not, because Congress has not made sexual orientation a protected class. 
In a partial dissent, Judge Rosenbaum argued that when a woman alleges that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be, and it is “utter fiction” to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. This, says Judge Rosenbaum, is discrimination “because of sex.” 
This decision highlights the ongoing struggles in the courts about the breadth of Title VII’s protections, and once again begs the question of which branch of government, if any, will provide a definitive answer.