Monday, December 16, 2013

NLRB Judge Finds Employer's "No Gossip Policy" Violates the NLRA

Last week an Administrative Law Judge (ALJ) found that an employer's "No Gossip Policy" violates Section 8(a)(1) of the National Labor Relations Act (NLRA).  See Laurus Technical Institute, Case 10-CA-093934, before the National Labor Relations Board, Atlanta Branch Office.  

The non-unionized employer's No Gossip Policy provided that, ""Gossip is not tolerated…Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action."  The Policy defined "gossip," in part, as:

1.  "Talking about a person's personal life when they are not present."
2.  "Talking about a person's professional life without his/her supervisor present."
3.  "Negative, or untrue, or disparaging comments or criticisms of another person or persons."
4.  "Creating, sharing, or repeating information that can injure a person's credibility or reputation."
5.  "Creating, sharing, or repeating a rumor about another person."
6.  "Creating, sharing or repeating a rumor that is overheard or hearsay…"

The employer allegedly terminated an employee for violating the Policy, and the employee complained of an unfair labor practice.

The ALJ found that the policy, on its face, prohibited protected activity in violation of the NLRA because it was "overly broad, ambiguous, and severely restrict[ed] employees from discussing or complaining about any terms or conditions of employment."  The ALJ further determined that the scope of the Policy banned any discussion about one's personal life, and prohibited "virtually all communications about anyone, including the company or its managers."  

In light of this decision, employers should review their handbooks to determine whether they have any similar policies that could violate the NLRA.

Friday, December 6, 2013

OSHA Launches On-Line Whistleblower Complaint Process

Congress passed the Occupational Safety and Health Act in 1970 with the purpose of requiring employers to provide a safe and healthy work environment.  It also protects an employee from retaliation for reporting an unsafe work environment, which is often referred to as a "whistleblower complaint."  The law covers most private sector employers, and grants the Occupational Safety and Health Administration (OSHA), part of the United States Department of Labor, investigation and enforcement authority.

Recently, OSHA provided employees with a new method for lodging whistleblower complaints against employers.  Through a portal on the United States Department of Labor's website, employees can now electronically file whistleblower complaints anonymously, and in any language.  The online form is located at

Employers curious about OSHA's whistleblower investigation process should familiarize themselves with OSHA's Whistleblowers Investigations Manual located on the web page.

Sunday, November 10, 2013

Fifth Circuit Determines ADAAA Claims Still Require Proof of a Disability

In enacting the amendments to the Americans with Disabilities Act, Congress made clear its intent that the question of whether an individual's impairment is a disability under the statute should not demand extensive analysis.  Congress also undeniably broadened the definition and coverage of the term "disability."

Many employment practitioners interpreted the amendments to mean that courts would no longer examine whether a plaintiff was actually disabled, and instead, would focus the analysis on whether there was discrimination in the adverse employment action.

In a decision issued on November 6, 2013, the Fifth Circuit confirmed that a plaintiff bringing disability discrimination and failure to accommodate claims under the Americans with Disabilities Act, as amended (ADAAA), is still required to prove he or she is disabled to prevail on the claims.  See Neely v. PSEG Texas, Limited Partnership, et al., No. 12-51074.

In Neely, the plaintiff appealed a judgment based on an adverse jury verdict, and complained the trial court erred in submitting predicate questions to the termination and failure to accommodate claims that asked whether the plaintiff was "a qualified individual with a disability."  The plaintiff argued the jury questions, as submitted, directly conflicted with the purpose of the amendments.

The Fifth Circuit disagreed, finding that the amendments in no way eliminated the need to prove a disability.  In the Court's words, "though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one." (Emphasis in original).  Finding no error in the jury questions, the Court affirmed the judgment.

Tuesday, November 5, 2013

The State of Texas Files Suit Against the EEOC Challenging the EEOC's Recent Enforcement Guidance Related to the Use of Arrest and Conviction Records in Employment Decisions

Yesterday, in a clear expression of the "Don't Mess with Texas" mentality, the State of Texas filed suit against the Equal Employment Opportunity Commission (EEOC) challenging the EEOC's April 2012 Enforcement Guidance titled, "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964."  See State of Texas v. EEOC, Case No. 5:13-CV-00255-C, In the United States District Court for the Northern District of Texas, Lubbock Division.

According to the Guidance, which reflects the EEOC's interpretation of Title VII, hiring policies or practices that categorically exclude all convicted felons create an unlawful "disparate impact" under Title VII, and employers must conduct "individualized assessments" of convicted felons' job applications.  If an employer refuses to hire a convicted felon, the employer has the burden to prove the felony disqualification is "job related and consistent with business necessity."

The Guidance also provides that, if an employer's (including a state employer's) exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

Where's the beef?

Many Texas agencies, including the Department of Public Safety, the Department of Aging and Disability Services, General Land Office, Lottery Commission, Parks and Wildlife Department, and others, enforce absolute bans on the hiring of felons.

For this reason, the State of Texas takes issue with the EEOC's position, and the State seeks the following relief:  (1)  a declaratory judgment and injunction that the State's "No-Felons Policies" do not constitute "unlawful employment practices"; (2) a declaratory judgment that the EEOC's Guidance is unlawful (and not just the portion related to state laws) because the EEOC exceeded its statutory authority; and (3) a declaratory judgment that the EEOC's interpretation of Title VII cannot abrogate State sovereign immunity.

What are the implications?

They could be far-reaching if the Court determines the Guidance is in fact unlawful.  Texas recruiters and employers could, for example, impose strict bans on the hiring of felons, regardless of whether those bans are "job related and consistent with business necessity," and place more weight on arrest records in the hiring process.

More than likely, employers in other states would jump on the Texas wagon and urge their courts to take similar action against the EEOC's Guidance.  Stay tuned for updates on this important development.

Saturday, November 2, 2013

The Fifth Circuit Rules "Reasonable Accommodations" Need Not Assist with an Essential Job Function

A "reasonable accommodation" under the Americans with Disabilities Act, as amended (ADA), should assist an employee with performing the essential functions of the job, right?

Not really, according to the Fifth Circuit's recent opinion, Feist v. State of Louisiana, No. 12-31065, issued on September 16, 2013.  In that case, an employee claimed her employer discriminated against her based on a disability by declining to provide a free, on-site parking space to accommodate her osteoarthritis.  The employer's rationale was that the denial of the parking space did not limit the employee's ability to perform the essential functions of the job.  The District Court agreed with the employer, but the Fifth Circuit vacated the decision on this issue and remanded the case.

Why is this decision so interesting?

Because it appears to contradict older, but not yet superseded, Guidance issued by the Equal Employment Opportunity Commission (EEOC). Specifically, the EEOC's Enforcement Guidance, Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, dated October 17, 2002, provides, "An accommodation also must be effective in meeting the needs of the individual.  In the context of job performance, this means that a reasonable accommodation enables the individual to perform the essential functions of the position." (Emphasis added).  

Ignoring the EEOC's 2002 Guidance, the Fifth Circuit instead chose to focus on the statute's definition of a "reasonable accommodation," which includes "making existing facilities used by employees readily accessible to and usable by individuals with disabilities."  In so doing, it noted that the ADA "provides no indication that an accommodation must facilitate the essential functions of one's position."  

What is the practical implication of this ruling?

Think twice before denying an employee's request for a reasonable accommodation, particularly one that does not appear to be related to the employee's ability to perform the essential functions of the job.

Thursday, October 24, 2013

Halloween in the Workplace: Tips for Human Resources

Permitting employees to celebrate the spirit of Halloween in the workplace can be a fun morale booster.  A few simple tips for Human Resources can help minimize employment-related risks:

1.  If you allow employees to wear costumes, establish clear and specific policies regarding the dress code.  Examples of unacceptable costumes might include those that:

  • are inappropriately skin-revealing, or include rips or tears that are inappropriately skin revealing; 
  • include special effects,  such as fake blood, oozing fluids, or body parts (think current zombie craze);
  • include props that could be upsetting to patrons or guests, such as fake knives, guns or other weapons; 
  • include strobe-type lighting that could trigger seizures in some people;
  • cover the employee's entire face and mouth (unless there is a legitimate medical or religious exception); 
  • could be construed as derogatory toward any religious or social group (but be mindful of rules prohibiting expressions of union support).
2.  If you host or otherwise sanction an after-hours Halloween party, establish rules about the service of alcohol.  If you permit alcohol, let employees know the company expects them to exercise good judgment and discretion, and refrain from drinking alcohol in excess or driving under the influence.  Remind managers to watch for signs of excessive drinking, and never knowingly allow an intoxicated employee to drive home.

3.  Take employee complaints seriously, particularly if an employee complains he or she is offended by another employee's costume.  

4.  Tell employees the consequences of violating the policies you set, and enforce the policies.

These simple tips could be the difference between a horrible and a happy Halloween.

Tuesday, October 22, 2013

Thinking of using biometric identifiers in the hospitality industry? Tread cautiously.

Thumbprint and retinal scans are no longer the stuff of science fiction thrillers, and a growing number of employers are turning to biometric identification as a way to track employees' time and attendance.   For employers considering implementing this type of technology, tread cautiously.  Last month, the Equal Employment Opportunity Commission (EEOC) filed suit against a company that uses a biometric hand scanner to track its employees' time and attendance.  See EEOC v. Consol Energy, Inc. and Consolidation Coal Co., No. 1:13-CV-215, In the United States District Court, for the Northern District of West Virginia.

So what's the issue?

The answer may surprise you.  The employee on whose behalf the EEOC filed suit, an Evangelical Christian, contends there is a relationship between the hand-scanning technology and the Mark of the Beast (associated with the right hand and the forehead, for those of you who are curious and want to refer to Chapter 13, Verse 16 of the Book of Revelations), and claims his employer refused to grant him a religious exemption from the biometric hand scanning of either hand.  

What does this mean for hospitality employers?

For those of you that use, or may want to implement, biometric scanning for your workforce, or at some point, for your guests, be mindful of requests for exceptions based on religious beliefs, and be prepared to consider alternate methods for employees and guests to identify themselves if necessary.