Thursday, November 2, 2017

Is an Employee's Inability to Read or Understand English a Defense to a Motion to Compel Arbitration?

According to the Dallas Court of Appeals, the short answer is that absent fraud or trickery, an employee's inability to read or comprehend English is not a defense to a motion to compel arbitration where the employee executed an English version of an acknowledgment which referenced the arbitration agreement.  MiCocina, Ltd D/B/A Taco Diner v. Jose Balderas-Villanueva, No. 05-16-01507-CV (Oct. 27, 2017).  http://www.search.txcourts.gov/Case.aspx?cn=05-16-01507-CV&coa=coa05
 
In this case, the employee, who did not read or speak English, signed a one-page document titled, "Acknowledgment of Receipt of Employee Handbook," written in English, which memorialized receipt of the Mutual Agreement to Arbitrate, a summary description of the work-related injury plan, a department of insurance non-subscriber form, and a company handbook.  Neither the employer nor the employee signed the Mutual Agreement to Arbitrate referenced in the Acknowledgment. Thereafter, the employee was injured at work when an oven exploded, and sued the employer for damages.
 
The trial court denied the employer's motion to compel arbitration, finding that no contract formation existed and that the employee was misled into signing the document, but the Fifth Court of Appeals reversed and remanded with instructions to grant the motion. 
 
Key to the appellate court's ruling were the following points:
  • An employer may enforce an arbitration agreement with an at-will employee if the employee received notice of the employer's arbitration policy and accepted it.
  • An at-will employee who receives notice of an employer's arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law.
  • It was undisputed that the employee's claims fell within the scope of the Mutual Agreement to Arbitrate.
  • The  Mutual Agreement to Arbitrate did not need to be signed by both parties because it was incorporated by reference in the paper signed by the person sought to be charged.
  • The signed Acknowledgment that specifically identified the Mutual Agreement to Arbitrate was evidence of notice.
  • Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.
  • Illiteracy will not relieve a party of the consequences of his contract.
  • If a person is unable to read a contract, it is his duty to find some reliable person to read and explain it to him before he signs it.
  • The fact that a person may not be fluent in English does not of itself create the type of confidential relationship that would relieve the person from his duty to read a contract.
  • A party does not have a general duty to explain, discuss, or translate an arbitration agreement merely because the subject matter concerns arbitration.
Here, despite conflicting testimony regarding whether the employee was provided with copies of various documents translated into Spanish, and despite the fact that the employer told the employee to sign the Acknowledgment because it was related to restaurant policies, the appellate court concluded that the employee failed to provide evidence of a fraudulent misrepresentation or trickery.

Thursday, October 5, 2017

Seventh Circuit Panel Affirms that the ADA is Not a Medical-Leave Statute

    In a decision that took more than one year from the date of oral argument to issue, a panel of the Seventh Circuit recently affirmed summary judgment for a company that was sued for violations of the ADA, including a failure to accommodate, after it terminated an employee who had exhausted his Family and Medical Leave Act (FMLA) leave and was unable to return to work for at least another two months due to a planned surgery.  Severson v. Heartland Woodcraft, Inc., No. 115-3754 (7th Cir. Sept. 20 2017). 

    With assistance from the EEOC, the employee argued that a long-term medical leave of absence should qualify as a reasonable accommodation under the ADA when the leave is for a definite duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return to work. The Court rejected this argument, noting that the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work.  An employee who needs long-term medical leave cannot work, and thus is not a “qualified individual” under the ADA.
    The Court noted that a leave of absence “may” be a reasonable accommodation, provided that the duration of the leave is short (such as a few days), but squarely rejected the idea that the ADA is a medical leave statute, or an “open-ended extension of the FMLA.”  Simply put, an extended leave of absence does not give a disabled employee the means to work; rather, it excuses his work.  An inability to do the job’s essential functions means that one is not “qualified”; it does not mean that the employer must excuse the inability.  This decision follows several others, including the 2014 Hwang v. Kansas State University decision by a panel of the Tenth Circuit, which are providing employers with much-needed guidance on the issue of leave as a reasonable accommodation.  

Friday, September 1, 2017

New Texting and Driving Ban Effective Today in Texas

Employers with employees who drive as part of their job duties should know that Texas's texting while driving ban takes effect today.  Fines can range from $25 to $99, and up to $200 for repeat offenders. Drivers are, however, permitted to use hands-free devices. Employers should ensure employees are aware of the ban and penalties. 

Monday, August 21, 2017

Scimitars, Sabers and Samurai Swords, Oh My! Texas’s New Open Carry of Blades Law

Effective September 1, 2017, and pursuant to House Bill 1935, Texans over the age of eighteen will be permitted to open carry knives with blades longer than five and one-half inches.  Instead of prohibiting the carrying of an “illegal” knife, defined in the prior version of the law as “a knife with a blade over five and one-half inches,” including, without limitation, daggers, dirks, stilettos, poniards, bowie knives, swords, or spears, the new law focuses on public places where these types of blades (now known as “location-restricted knives”) cannot be open carried. 
 
More specifically, under HB 1935, a person commits a felony of the third degree if he intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife on the physical premises of a school or educational facility; on the premises of a polling place on the day of an election or while early voting is taking place; on the premises of any court buildings or court offices, or racetracks; or in or into the secured area of an airport. 
 
The new law provides that a person commits a Class C misdemeanor if he intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife into a bar; on the premises where a high school, collegiate, or professional sporting event is taking place; on the premises of a correctional facility, hospital, mental hospital, or amusement park; or on the premises of an established place of religious worship. 
 
Whether you’re a swashbuckler or a Samurai, and whether your blade of choice is the Sword of Gryffindor or a Katana, polish up those sheaths and scabbards to be ready for September 1st.
 
 
Blades of Glory
 

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.  http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/.
 
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.