Thursday, February 27, 2014

NLRB's General Counsel Issues Memo Regarding Mandatory Submissions to Advice

On February 25, 2014, Richard F. Griffin, Jr., General Counsel for the National Labor Relations Board (NLRB), issued a memo to all Regional Directors, Officers-in-Charge, and Resident Officers instructing them on the types of cases that require submission to the Division of Advice (the NLRB's legal department) prior to the issuance of a decision.

Despite Mr. Griffin's position that "the vast majority of cases can be processed without guidance from headquarters," he then proceeds to identify 3 "areas" requiring legal review: (1) cases that involve the General Counsel's initiatives or policy concerns; (2) cases that involve difficult legal issues or the absence of clear precedent; and (3) "other case-handling matters."  

The memo includes no less than 24 types of cases that require submission to the Division of Advice, such as:
  • Cases involving the issue of whether employees have a Section 7 right to use an employer's e-mail system; 
  • Cases involving the duty to furnish financial information in bargaining where the employer has asserted an "inability to pay";
  • Cases involving "at-will" provisions in employer handbooks;
  • Cases presenting unresolved issues concerning undocumented workers; 
  • Cases involving mandatory arbitration agreements with a class action prohibition that are not resolved by the D.R. Horton decision in the Fifth Circuit; and
  • Subpoena authorization issues.
Clear from the Memo is the NLRB's intention to step up its efforts simplify the organizing process and to push deeper into the private sector.

Wednesday, February 19, 2014

NLRB Finds Portion of Employer's Confidential Information Policy Unlawful

On February 6, 2014, the National Labor Relations Board (NLRB) affirmed an Administrative Law Judge's ruling that a portion of an employer's confidential information policy violated Section 8(a)(1) of the National Labor Relations Act (Act).  See MCPc, Inc., Case 06-CA-063690, 360 N.L.R.B. No. 39.  

As most employers do, MCPc maintained a confidential information policy in its handbook that prohibited employees from: (1) storing, outside of the company, information pertaining to any matter related to the company's business; (2) providing anyone with information about the company's purchase prices or processes without permission of senior management; and (3) engaging in "idle gossip or dissemination of confidential information within [the company], such as personal or financial information…."  A violation of the policy could lead to disciplinary action, up to and including discharge.

MCPc discharged an employee after he commented, during an internal meeting, on the dollar figure of a new company executive's salary, contending the employee improperly accessed computer files in violation of the confidential information policy to discover the executive's salary.

Finding no issue with the first two subparts of the policy, the Board agreed with the ALJ that the third subpart was overly broad because employees would (allegedly) construe the rule to prohibit the discussion of wages or other terms and conditions of their employment with their co-workers, activity that is protected by Section 7 of the Act. 

This ruling is yet another example of the NLRB's assault on private employers' facially-reasonable employment policies.

Sunday, February 16, 2014

Employer's Hard Stop Leave Policy May Violate the ADA

On February 11, 2014, a judge in Illinois denied United Parcel Service's 12(b)(6) motion to dismiss, finding that its policy of administratively separating employees after twelve months of leave is a "medical requirement" that may violate the Americans with Disabilities Act, as amended ("ADA").  See EEOC v. United Parcel Service, No. 09-C-5291, in the United States District Court, Northern District of Illinois, Eastern Division.

UPS' policy applies to qualified individuals with disabilities who can perform the essential functions of their jobs, with or without reasonable accommodations.  The court rejected UPS' argument that the ability to attend work is an essential job function, finding instead that the twelve-month policy can be considered a qualification standard, or medical requirement, that an individual must meet to retain his or her position.  The court's order cited to cases holding that a 100% healed policy is per se impermissible because it prevents an individualized assessment and necessarily excludes disabled people who are qualified to work.

The takeaway is that employers with hard stop leave policies should include an exception for leave as a reasonable accommodation under the ADA.

Thursday, February 6, 2014

An Employer's Prompt Remedial Action Results in a Fifth Circuit Reversal of a Race Harassment Jury Verdict

On January 31, 2014, the Fifth Circuit Court of Appeals reversed a hostile work environment jury verdict based on race, finding that the employer's prompt remedial action was sufficient to defeat the claim.  See Williams-Boldware v. Denton County, Texas, No. 13-40044.

In that case, the African-American plaintiff complained about racially inappropriate language directed at her by her Caucasian male co-worker.  Within twenty-four hours of her complaint, the co-worker had issued a written apology, and the complaining employee's immediate supervisor reported the incident to human resources.  The employer then reprimanded the co-worker, required him to participate in diversity training, and transferred the plaintiff to a different division to ensure she had no contact with the co-worker.  

The race harassment claim proceeded to trial, and the trial court denied the employer's motion for judgment as a matter of law.  The jury awarded the plaintiff over $400,000 in mental anguish damages and the employer appealed.

Reversing the trial court's denial of judgment as a matter of law, the Fifth Circuit focused on the employer's post-complaint conduct, which included:

  • the supervisor's prompt report of the complaint to human resources.
  • the employer's meeting with the plaintiff to discuss her complaint.
  • the employer's acquiescence to the plaintiff's request to personally confront the co-worker.
  • the employer's request for the plaintiff's input on an appropriate response.
  • the employer's verbal reprimand of the co-worker.
  • the employer's requirement that the co-worker attend diversity training.
In short, the employer's remedial efforts were prompt and "effectively halted"the racially harassing conduct entitling it to judgment as a matter of law.

Saturday, February 1, 2014

The Empire EEOC Strikes Back Against the Rebel State of Texas

On November 5, 2013, 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. 

The Plaintiff State of Texas took issue with the EEOC's position regarding the hiring of convicted felons, and asked the Court for 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

On January 27, 2014, the EEOC struck back by filing a Motion to Dismiss the lawsuit. Therein, the EEOC makes three arguments. First, it contends the Court lacks subject matter jurisdiction because the EEOC's Guidance lacks legal effect. This argument is interesting for private employers because the EEOC readily concedes the Guidance reflects only the EEOC's view of the law, and is not the law itself. Second, it contends Texas has not suffered a concrete injury from the Guidance, or that such injury is imminent or impending. Third, the EEOC contends none of the claims is ripe for a decision by the Court.

The State of Texas will have the opportunity to file a response, to which the EEOC can file a reply. Thereafter, the matter will be decided by the Court. Stay tuned to see whether the rebel State of Texas or the Empire EEOC wins this battle.