NLRB CONTINUES AGGRESIVE CRACKDOWN ON EMPLOYEE HANDBOOKS

As The Employee With The Dragon Tattoo first reported back in 2014 and 2015, the National Labor Relations Board (“NLRB”) has taken a highly aggressive position against many commonly utilized employee handbook policies.  The NLRB alleges that overbroad employment policies could have a chilling effect on employees’ concerted activities protected by Section 7 of the National Labor Relations Act (“NLRA” or “the Act”).  This applies whether employees are members of a union or not.  Under the NLRB’s 2015 interpretive guidelines, an employer’s policy will violate the NLRA if it could simply be “construed” as restricting Section 7 rights.

The NLRB has now taken it one step further.  In a recent ruling earlier this Summer, an NLRB Administrative Law Judge (“ALJ”) held that a California casino’s handbook policy that prohibited employees from conducting “personal business” while on the job on company property could be construed to be illegal under the Act.  In the ruling, the ALJ held:

[T]he prohibition against conducting "personal business" on company property and "while at work" can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on non-work time. The rule makes it clear that personal business is the opposite of "Casino Pauma business," thus including communications about unions or complaints about working conditions in the "personal business" category. The restriction of protected activity "while at work" is also too broad because it is not properly restricted to "work time" and thus bans protected activity during  nonwork time, such a time on lunch, breaks and before and after work.

 

At the least, the prohibitions against conducting "personal business" in Rule 2.19 are ambiguous insofar as that term may be read to include discussions about unions and other concerted activity; the rule thus puts employees at risk if they guess wrongly about what the Respondent means by "personal business." (citations omitted).

The ALJ’s opinion also noted that under the Act, employees are generally free to distribute union literature on company property during such nonwork time as long as it is in nonworking areas of the company facility.

In its 2015 interpretive guidelines, the NLRB listed a series of other commonly implemented employment policies that it maintained were illegally overbroad.  Examples of such policies include:

·         Do not discuss "customer or employee information" outside of work, including "phone numbers [and] addresses."

·         "You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy)."

·         Prohibiting employees from "[d]isclosing ... details about the [Employer]."

·         "Sharing of [overheard conversations at the work site] with your co-workers, the public, or anyone outside of your immediate work group is strictly prohibited."

·         "Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places."

·         "[I]f something is not public information, you must not share it."

The ALJ’s opinion that a policy against conducting personal business “while at work” likely seems nonsensical to employers who are legitimately trying to prevent employees from spending their work hours on Facebook, shopping on Amazon, or chatting with friends on the phone.  However, this latest ruling is a wake-up call for employers to review their employee handbooks to address any purported ambiguity that the NLRB might “construe” as being overbroad.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

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THE EEOC GETS A DREAD (LOCKS) RULING

Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.

 

However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 

The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees to be “dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines . . . [H]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 

In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 

In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 

The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.

This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.

The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.

In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:

Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.

Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 

Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

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EEOC SUES EMPLOYER OVER POSITIVE DRUG TEST FOR PRESCRIPTION OPIOID PAINKILLER

            In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record, with the majority of deaths from opioids, and 78  Americans die every day from an opioid overdose.  Prescription opioid abuse also has been linked to the national increase in heroin addiction.  Commonly prescribed opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing Codeine.

            However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).

            According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino.  The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain, and had a valid prescription for the prescription drug Hydrocodone.  Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for Hydrocodone.  According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them that she would provide additional information if needed, Happy Jack's Casino refused to hire her.  According to the Complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act.  Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law

            Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result.  However, this lawsuit should service as a notice for employers to review their current drug testing policies.  This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States.   Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

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FORMER UNION OFFICIAL’S “GOOSE IS COOKED” IN “TOP CHEF” UNION EXTORTION CASE

            “Top Chef” is one of my favorite shows, and because of my last post on a legal victory against union hardball tactics, this story out of Boston caught my eye. 

            Mark Harrington, a former official of Teamsters Local 25 pled guilty to federal extortion charges in connection with union threats of physical violence and production disruption against the cast and crew of the top-rated culinary reality show because they were using non-union workers. Charges are still pending against four other union members, who have entered pleas of not guilty. Bean Town politics also are entangled in the case. In a separate but related federal  indictment, Boston’s head of tourism is accused of withholding permits for Top Chef to film in the area and calling local restaurants that were scheduled to host the show, and threatening them that they would be picketed by the union if they did not withdraw the invitations.

            After the union officials were initially indicted in 2015, Local 25 argued that they were not engaged in criminal activity, but were instead engaged in the protected concerted activity of picketing, as allowed for under the National Labor Relations Act (“NLRA”).  However federal prosecutors fired back that the union defendants were not entitled to collective bargaining rights because they did not have a collective bargaining agreement with the Top Chef production company, and the positions they were seeking for union members already were filled by non-union employees.  The ugly facts of this case make it clear that what occurred was not protected union activity under the NLRA.  As noted by U.S. Attorney Carmen M. Ortiz at the time of the September 25, 2015 indictments:

In the course of this alleged conspiracy, they managed to chase a legitimate business out of the City of Boston and then harassed the cast and crew when they set up shop in Milton. This kind of conduct reflects poorly on our city and must be addressed for what it is – not union organizing, but criminal extortion.

           
             Here is what happened.  In June 2014, Top Chef came to Boston to film the twelfth season of the show.  This included Top Chef host Padma Lakshmi.  Following the threats against Boston restaurants, they withdrew their offers to host the filming of the show, and Top Chef decided to move their production plans to a well-known restaurant in nearby Milton, Massachusetts. During the production of the show, Local 25 members picketed the restaurant, physically roughed up members of the production crew, and slashed the tires of fourteen production workers. 

            From the picket line outside the Milton restaurant, the members of Local 25 screamed racist, sexist and homophobic threats and slurs for hours as production crew and cast came and went.  Some of the worst conduct was directed toward the show’s host. When Lakshmi arrived at the scene, one of the union members rushed her car and screamed “We’re gonna bash that pretty face in, you f***ing whore!”  In responding to local media reports of the incident at the time, a Local 25 spokeswoman stated, “As far as we’re concerned, nothing happened.”

            The indictment a year later charged the union members with using violent tactics in an attempt to extort jobs from Top Chef under the threat of disrupting or shutting down production.  By agreeing to plead guilty, Harrington, who was the former Secretary-Treasurer of Local 25, received a deal in which he will receive no prison time and will spend no more than two years of probation.  The maximum sentence available was up to 20 years in prison and fines of up to $250,000.  The other union members still await trial.

            According to media reports, this is not atypical behavior for Local 25.  Other union members have previously been convicted of money-laundering, extortion, racketeering and shaking down movie producers who tried to film in Boston.  The union is politically active, and has made campaign donations to Boston Mayor Martin J. Walsh, a former union attorney, every member of the Boston City Council, and Attorney General Maura Healey.

            The good news in this case is that the U.S. Department of Justice took action against obviously criminal and terrorizing action by the union, but the bad news is that the relative “slap on the wrist” no jail-time sentence of Harrington is unlikely to prove much of a deterrent to such abusive union activity in the future. There is no indication as to what, if any, involvement the National Labor Relations Board ("NLRB") had in the case.

            In light of the NLRB’s recently announced joint employer standard for franchise operations, an interesting perspective on the Top Chef incident was offered in an article by the Competitive Enterprise Institute entitled “Why Isn't There a Joint Union Standard?”  According to the author:

The NLRB argued in the majority that companies utilize common business relationships—franchising, contracting and temporary staff—to insulate themselves from labor violations and collective bargaining responsibilities.

Seemingly, if corporations are deemed liable for the wrongdoings of an entity that they voluntarily associate with and may reserve control over, then why are labor unions insulated from liability when union officials commit criminal acts when pursuing union objectives—in this case, obtaining work? Also, why is a national union shielded from liability when local unions commit criminal acts?

A national union, in essence, acts in a similar fashion as a franchisor of labor services. National unions let local unions use its brand, “provide services to their locals, such as legal advice and leadership training” and help negotiate collective bargaining agreements.

           
          As they might say on Top Chef, food for thought.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

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UNION LEARNS “DON’T MESS WITH TEXAS” (AND RELATED NLRB FUN)

 

           A Texas janitorial service cleaned up last week when a Texas jury awarded it $5.3 million in damages in the company’s defamation/disparagement/harassment lawsuit against the Service Employees International Union (“SEIU”).  The victory in this groundbreaking case may encourage more employers to go on the offensive and sue over hardball tactics used by unions in union campaigns and contract disputes.

            The facts of the case, which go back more than a decade, read like a John Grisham novel.  In 2005, SEIU sought to unionize janitorial workers in Houston with a “Justice for Janitors” campaign.  All but one of the janitorial companies agreed to accept SEIU as the bargaining representative for their employees.  However, Professional Janitorial Services (“PJS”) declined to do so, insisting, as allowed under the National Labor Relations Act (“NLRA”), that representation be decided by a secret ballot vote of their employees.

            According to the testimony and evidence presented during the four weeks of trial, this kicked off years of dirty tactics by the SEIU.  This included efforts to destroy PJS with an organized campaign of misinformation, specifically designed to cause PJS to lose money and customers.  The evidence, including internal SEIU e-mails, showed that the union intentionally and knowingly made false allegations that PJS was illegally withholding employee’s pay, forcing them to work off the clock, or firing them for engaging in union activity.  The union filed “unfair labor practice” complaints against PJS with the National Labor Relations Board (“NLRB”) and then would withdraw them, causing the company to needlessly incur legal costs.  The evidence also showed that SEIU would send letters to PJS’s customers, making false accusations, and would stage disruptive demonstrations designed to intimidate customers into dropping PJS.  Every time PJS lost a client, someone from the union would send an e-mail claiming credit.

            In an interview with the Houston Chronicle, PJS’s chief executive Brent Southwell stated "The jury found what PJS and its employees have known for more than a decade . . The SEIU is a corrupt organization that is rotten to its core." Obviously worried about the precedent set by PJS’s legal victory, SEIU has announced its plans to appeal the jury verdict.

           In other NLRB news, it appears unions also are learning that the Board’s position on social media applies to them as well.  In recent years, the NLRB has taken the position that employees’ social media postings qualify as protected concerted activity under Section 7 of the NLRA.  Since then, the NLRB has brought action against numerous companies for terminating employees who post disparaging comments about their employer, or in some cases, simply for having overbroad social media policies that might “chill” an employee’s right to engage in concerted activity.

            Despite a very pro-union NLRB, the Board has now ruled against a local union in New York State for retaliating against a member because of his Facebook postings critical of the union and raising accusations of union corruption, including improperly giving a union journeyman’s book to a local candidate for mayor.  According to the Administrative Law Judge Opinion, the union then retaliated against Frank Mantell by finding him guilty of disrupting the operation of the union, fining him $5,000, and suspending his membership for two years.

            Mantell filed an unfair labor practice complaint against the union with the NLRB.  The ALJ in the case ruled against the union, and found that Mantell’s Facebook postings were protected concerted activity:

One could argue that Mantell did not engage in protected activity because the issuance of a journeyman’s book to Mr. Choolokian did not affect him, or even if it did, his Facebook posts only complained about the effect on apprentices.

 

Nevertheless, I find that Mantell’s Facebook posts were protected. First of all, issuing a journeyman’s book to someone allegedly ineligible to receive one, affected Mantell in that one more journeyman would arguably impact his opportunities for employment. Moreover, as Judge Learned Hand pointed out, employees making common cause with fellow employees are engaged in protected activity. Even though the immediate quarrel may not concern them they may be assured that if their “turn ever comes,” they will have the support of those they are then helping.

 

I also reject Respondent Union’s assertion that Mantell forfeited the protection of the Act by maliciously defaming the Union and Business Manager Palladino. Nothing Mantell said in his Facebook posts was maliciously and knowingly untrue. The Union takes issue with the fact that Mantell characterized the Union’s action as giving Choolokian “a gift.” I find that has not been proven to be false despite the fact that Choolokian may have paid for the journeyman’s book. Mantell’s use of the term “gift” can reasonably be interpreted as arguing that Choolokian was not entitled to a journeyman’s book—an assertion that may or may not be true. (citations omitted)

            The ruling may provide some small comfort (or amusement or schadenfreude) to the many companies trying to draft social media policies that will pass NLRB muster.  It seems the NLRB is inclined to take just as expansive an interpretation of Section 7 against the unions as it does against private business.

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

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Thanks! 

 

 

 

 

 

 



The EEOC Issues Employers New Enforcement Guidelines on Retaliation

 



         Nearly half of all claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) address allegations of retaliation.         Retaliation occurs when an employer takes a materially adverse employment action against an employee for engaging in protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) or any of the other federal anti-discrimination laws administered by the EEOC.  Generally, protected activity consists of either filing an EEOC Charge of Discrimination, or opposing unlawful employment actions.

        The EEOC has now issued its final Enforcement Guidance on Retaliation to replace its 1998 Compliance Manual section on retaliation. In the 18 years since the 1998 guidelines, the United States Supreme Court has issued numerous rulings concerning retaliation claims, and the new enforcement guidelines are intended to assist employers in addressing retaliation claims and avoiding liability.

            Not surprisingly, the EEOC’s new guidelines take a very broad and expansive view of what constitutes protected activity for purposes of triggering a retaliation claim. For instance, the EEOC states that “sometimes there is retaliation before any ‘protected activity’ occurs. For example, an employment policy that discourages the exercise of equal employment rights could itself be unlawful.”  Other examples of protected activity listed in the guidelines include:

·         Taking part in an internal or external investigation of employment discrimination, including harassment;

·         Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;

·         Communicating with a supervisor or manager about employment discrimination, including harassment;

·         Answering questions during an employer investigation of alleged harassment;

·         Refusing to follow orders that would result in discrimination;

·         Resisting sexual advances, or intervening to protect others;

·         Reporting an instance of harassment to a supervisor;

·         Requesting accommodation of a disability or for a religious practice; or

·         Asking managers or co-workers about salary information to uncover potentially discriminatory wages.

            In its guidelines, the  EEOC stresses that the protections against retaliation apply not only to current employees (full-time, part-time, probationary, seasonal, and temporary), but also to applicants and to former employees.  The guidelines also note that the protections apply regardless of an applicant or employee's citizenship or work authorization status.  The guidelines offer the following examples:

·         A supervisor cannot refuse to hire an applicant because of his EEOC complaint against a prior employer, or give a false negative job reference to punish a former employee for making an EEOC complaint.

·         An employer suspects a worker is undocumented but does not attempt to verify her authorization to work as required by the immigration laws. If the worker raises an EEOC complaint, such as sexual harassment or national origin discrimination, and the employer then threatens to expose the worker's immigration status as punishment for complaining about EEOC violations, the employer would violate the ban on retaliation.

            The EEOC guidelines make it clear that an employee does not have to be terminated or demoted to have a viable retaliation claim, and much lesser employment actions can be enough to impose liability.  The EEOC’s standard is that an employer is not allowed to do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination.  For example, depending on the facts of the particular case, it could be retaliation because of the employee's protected activity for an employer to:

·         reprimand an employee or give a performance evaluation that is lower than it should be;

·         transfer the employee to a less desirable position;

·         engage in verbal or physical abuse;

·         threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);

·         increase scrutiny;

·         spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or

·         take action that makes the person's work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).

            The EEOC guidelines acknowledge that engaging in protected activity does not shield an employee from discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. It is not uncommon for poorly performing employees, aware that they face discipline or termination, to suddenly file a baseless EEOC Charge or assert frivolous claims of discrimination as a form of “job insurance”, knowing that employers will then be worried that justifiable actions might be perceived as retaliatory.  Examples of non-retaliatory and non-discriminatory reasons for discipline or termination include poor job performance or low productivity, or where the employee's actions in opposing discrimination interfered with job performance or involved something illegal or disruptive to the workplace.

            To avoid retaliation claims, the EEOC advises maintaining a written and easily understood anti-retaliation policy, combined with training.          Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur.  The importance of documentation and review of employment actions is also stressed.  The guidelines suggest that managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure that they are justified and consistent with existing practice.