Wednesday, May 21, 2014

The NLRB Continues its Assault on Reasonable Handbook Policies

In a decision issued on Monday, an Administrative Law Judge (ALJ) ruled that a number of an employer's handbook policies violated Section 7 of the National Labor Relations Act (the "Act").  See Hoot Winc, LLC, NLRB ALJ, No. 31-CA, 104872 (May 19, 2014).

The underlying dispute involved the termination of employees who were allegedly involved in, among other things, a dispute about a bikini contest.  In a lengthy ruling in favor of the employee, the ALJ found that a number of the employer's policies violated the Act, including those prohibiting:

  • employees from discussing tips with other employees or guests.
  • insubordination to a manager or lack of respect or cooperation with fellow employees or guests.
  • disrespect to a guest, including profanity or negative comments or actions.
  • the unauthorized dispersal of sensitive company operating materials.
  • actions or activities the complaints believes represent a threat to the smooth operation, goodwill, or profitability of the business.
  • off-duty conduct which negatively affects the employee's ability to perform his or her job.
  • discussion involving the company's business or legal affairs with anyone outside the company.
Incredibly, the ALJ also found that the employer's social media policy, which required employees to be respectful to the company, other employees, customers, partners, and competitors, also violated the Act.  According to the ALJ, these policies, which a large number of employers have, were overly broad and could "chill" union activity.

The takeaway here is that the NLRB continues its efforts to erode an employer's right to effectively manage its workforce by striking down reasonable policies.  Employers must be vigilant about keeping pace with these decisions.  

Sunday, May 11, 2014

Spring Cleaning for Hospitality Employers Part 2

Arbitration agreements aren't right for every employer, but if you utilize one, now is a good time to determine if it is as comprehensive as it could be.  When reviewing your existing arbitration agreement, ask yourself these questions:

  1. Does it require the arbitration of all employment-related claims, and exclude claims for, by way of example only, workers' compensation and unemployment benefits, administrative charges, and claims for declaratory and/or injunctive relief?  
  2. Is it mutual, meaning it equally binds both employer and employee?
  3. Have you reviewed your handbook language to ensure that there are no conflicts between the handbook language and the arbitration agreement?
  4. Does it indicate which party or parties is responsible for arbitration filing and other costs?
  5. Do you ensure each employee signs a copy of the arbitration agreement upon hire, and retain that copy in the personnel file?
  6. Does it specify that the arbitrator can award all relief that could be awarded by a court, including the granting of a motion for summary judgment?
  7. Does it specify whether the parties will be required to utilize an arbitration administration service, such as the American Arbitration Association, or JAMS, or does it allow the parties to forego the expense and choose a mutually-agreeable arbitrator?
  8. Does it specify the parties do not require more than one arbitrator?
  9. Does it include a class action waiver?  If so, does it require any dispute regarding the waiver to be decided by a court, and not the arbitrator?
  10. Does it specify the minimum requirements for the arbitrator's experience and expertise?
  11. Does it provide deadlines for requesting arbitration?
  12. Does it define "employer" broadly enough to include affiliates, subsidiaries, parents, etc.?
  13. Does it specify that whether an issue is arbitrable is a matter for the arbitrator to decide, or a matter for the court? 
  14. Does it clearly state the parties waive all rights to a trial in court before a judge and jury on all claims?
  15. Does it require the arbitration proceeding and result to remain confidential?
  16. Does it provide that each side is responsible for its own attorneys' fees and costs, absent an award to the contrary?
  17. Does it include rules regarding available discovery?
This list is not exhaustive, but should provide an initial checklist for your review project.

Wednesday, May 7, 2014

A Missouri Court Rules Obesity Could Be a Disability under the ADA

The 2009 amendments to the Americans with Disabilities Act (ADA) left no doubt that Congress intended to expand the ADA's scope, but is this pendulum swinging too far? 

In a recent decision, a Missouri court refused to grant an employer's motion to dismiss a plaintiff's disability discrimination claim where the alleged disability is obesity.  See Whittaker v. America's Car-Mart, Inc., Case No. 1:13CV108SNLJ, in the United States District Court, Eastern District of Missouri, Southeastern District.

In that case, the plaintiff contends he was discharged based on his severe obesity.  The employer moved to dismiss the lawsuit on the grounds that obesity is not a disability unless it is related to an underlying physical or psychological disorder or condition.  Denying the motion to strike, the court noted that with the 2009 amendments, Congress mandated that the definition of "disability" be construed in favor of "broad coverage." 

Although the court tempered its ruling by noting that the plaintiff still had to prove that his weight rises to the level of a disability, the decision clearly signals that currently, there is no girdle holding the ADA's expanding girth in place.