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Legal Briefs for HR

Posted on October 3, 2012

Welcome to Legal Briefs for HR, an update on employment issues sent to over 5000 individual HR professionals, in-house counsel and business owners and many HR and legal professional organizations (who have asked and been permitted to republish via their newsletters and websites) to help them stay in the know about employment issues.  Anyone is welcome to join the email group . . . just let me know you’d like to be added to the list and you’re in!  Back issues are posted at under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.”  

Temperatures are finally falling but some of this may raise yours:

  1. NLRB Nuggets on Social Media – Savvy employers reviewed and often rewrote their social media policies after reading three guides issued on the subject by the Acting GC of the NLRB between August 2011 and May 2012.  Some employers noted that the guidance was not binding and decided to wait and see if the guidance would be endorsed by the NLRB in a legal decision.  That day came on Sept. 7 and the decision is based on unfair labor practice charges filed by UFCW against Costco.  Costco Wholesale Corporation (NLRB Case No. 34-CA-012421).  A compliant policy will require careful drafting.  Here’s what they said:

      1. The three-person panel upheld the ALJ’s findings that the following rules violate section 8(a)(1) of the NLRA

        1. “unauthorized posting, distribution, removal or alteration of any material on Company property” is prohibited

        2. Employees are prohibited from discussing “private matters of members and other employees  . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”

        3. “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security number or personal health information may not be shared, transmitted or stored for personal or public use without prior management approval”; and

        4. Employees are prohibited from sharing “confidential” information such as employees’ names, addresses, telephone numbers, and email addresses.

      2. The panel also upheld the ALJ’s dismissal of the complaint that a rule requiring employees to use “appropriate business decorum” violates section 8(a)(1).  This finding is contrary to statements by the Acting GC in the three guidance documents, where policies requiring employees to be “professional” or “respectful” have been tagged as violating the NLRA.  The Board panel disagreed with the Acting GC,  stating that employers are allowed to establish rules to promote a “civil and decent workplace” and blessing policies that prohibit social media that constitutes “insubordination . . .  or other disrespectful conduct” toward a supervisor, discussion that is “disloyal, disruptive, competitive or damaging” and that which “tends to bring discredit to, or reflects adversely on “the employee, co-workers or the company.”

      3. Contrary to the ALJ, the Board found that a rule prohibiting employees from electronically posting statements that “damage the Company . . . or damage any person’s reputation” violates section 8(a)(1) but did concede that the NLRA protection would not apply if the conduct was malicious, abusive, unlawful, profane or amounted to harasment

      4. Contrary to the ALJ, the rule prohibiting employees from leaving Company premises during the work shift without permission is not a violation of section 8(a)(1)

      5. In discussing the violations, the Board cited to precedent that strikes down a policy which would reasonably tend to chill employees in the exercise of their section 7 rights (to engage in protected, concerted activity relative to their terms and conditions of employment).  In applying that standard, they did not recognize that social media spreads questionable and sometimes damaging messages faster and farther than conventional communications methods.

      6. In discussing rules that should not prohibit employee discussion of health matters and compensation matters, the Board explained that these discussions can relate to terms and conditions of employment and cannot be restricted, unless the source of the private information was the employer’s confidential personnel records.  Employees who access the information in the course of their duties (e.g., HR, Payroll, Accounting) can be prohibited from discussing others’ private information, but if the information came from another source it is fair game.

  2. New Bureau Means New Forms For You– The Fair Credit Reporting Act requires employers to give notice and seek written OKs from affected applicants and employees before conducting most background checks (not just credit checks, despite what the title says) using any third party provider (e.g., individual, company, website).  Due to passage of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act, FCRA regs are now being promulgated by a new entity, called the Consumer Financial Protection Bureau (CFPB) and not by the Federal Trade Commission (FTC).  Effective January 1, 2013 employers should begin using the modified “A Summary of Your Rights Under the Fair Credit Reporting Act” and other forms which replace reference to the FTC with CFPB.

  3. More Whistling While We Work– The Non-Federal Employee Whistleblower Protection Act of 2012 (H.R. 6406) was introduced on Sept.13, 2012.  The goal is expand whistleblower protection that currently applies to federal employees to federal contractors, subcontractors and grantees in an effort to combat waste and fraud.  If a whistleblower suffers reprisals, the inspector general of the appropriate agency will investigate and make a determination within 180 days.  If there was reprisal, the worker must be reinstated and made whole for any costs incurred in bringing the complaint and, if the reprisal was “willful or malicious”, the songbird will get 10X the amount of lost wages and other compensatory damages.  On the same day, the Private Sector Whistleblower Protection Streamlining Act of 2012 (H.E. 6409) was also introduced to provide similar protections to private sector employees who aren’t federal contractors or subcontractors.

  4. Claim is Up in Smoke – Yet another jurisdiction has affirmed the common sense finding that state medical marijuana laws may protect individuals from State arrest and prosecution for such use, but they do not require employers to accommodate the use and provide no remedy when an employer discharges the pot user for violation of its drug use policies.  Casias v. Wal-Mart Stores, Inc. (6th Cir. Sept. 2012).  The plaintiff was fired when he tested positive for marijuana after a workplace injury.

  5. Shifting to the ADA– While rotating shift work might exacerbate troubling symptoms of an insulin-dependent diabetic workers, employers are not required to offer a straight day-shift as an accommodation, in every instance.  In Kallail v. Alliant Energy Corporate Services Inc. (8th Cir. Sept. 2012), the request was denied and the employer prevailed against the failure to accommodate claim by pointing out that the ability to work rotating shifts (of eight and twelve hours, both days and nights) was an essential function of being a resource coordinator.  The job entails monitoring power distribution while scheduling and routing resources to respond to emergencies, such as power outages.  The employer also pointed out that rotating shifts provided cross-training, exposure to other personnel and spreading desirable and undesirable (e.g., nights, weekends) shifts among the team enhanced morale.  The Court noted that it was not the province of the court to determine what is the most productive or efficient shift schedule for a facility.

  6. Shifting to Title VII– Asking to be relieved of any shifts that fall between sunset on Friday until one hour after sunset on Saturday sounds like a reasonable request from an Orthodox Jew.  Since he was subject to a standard rotational shift that includes Saturday, the employer denied an outright exemption but said the employee could swap shifts with any qualified co-worker so long as the supervisor said OK. The employee declined and filed a complaint.  The employer then offered to give him a Friday a.m. shift and move any Saturday shifts to another that would begin at 10 p.m. on Saturday and end at 6 a.m. on Sunday.  The employee declined and sued under Title VII.  He did not get far, as the employer won early on a 12(b)(6) motion to dismiss for failure to state a claim under Title VII.  The court agreed, noting the absence of any adverse employment action.  In fact, there was not even the risk of disciplinary action since the employer had offered two viable accommodations of the request for religious accommodation.  Marmulszteyn v. Napolitano (EDNY Aug. 2012).  Lesson learned?  Employer attempts to be reasonable in providing accommodation usually go a long way, especially when the one requesting it is seen as entirely unreasonable.

  7. FMLA Math– A high school teacher claimed he was denied tenure for absences that should not have been counted since they were protected under the FMLA.  The employer said the teacher had not worked the requisite 1250 hours in the 12 months preceding commencement of the leave, since he had worked only 172 school days and each day is capped at 7.25 hours under the union contract.  The trial court sided with the employer but the 2nd Circuit reversed and remanded, agreeing with the argument that teachers often work beyond the stated cap and noting that cases involving flight attendants had expanded the definition of “hours worked” to include time spent at check-in and going through customs.  Donnelly v. Greeenburgh Central School Dist. No. 7 (2nd Cir Aug. 2012).  Does your workplace have similar quirks that might affect your computation of FMLA eligibility?

  8. Expensive Muffler– EEOC extracted a $975,000.00 settlement from a CA hospital over its English-only rules which were allegedly aimed at Filipino-American workers.  The allegations include prohibitions of speaking Tagalong, Ilocano or with a Filipino accent except when speaking to a patient with a similar language capacity, or during breaks.  The plaintiffs claimed they were told surveillance equipment would be installed to monitor their conversations and that they were yelled at, mocked and told they would be arrested for speaking their native tongue at work.

  9. Expensive Dithering– The 7th Circuit reinstated a jury’s $3.5 million punitive damage award (on top of $750,000 in compensatory damages) in a harassment case where the employer’s response to 70+ incidents over more than three years was described as “shockingly thin.”  The plaintiff was a pipe-fitter in an auto assembly plant who claimed he suffered both racist and anti-Semitic harassment at the hand of his co-workers.  Per the record, the employer’s response amounted to two meetings with the skilled tradesmen to remind them that harassment is a no-no, a review of badge in/out records to narrow the field of suspects and retention of a graphologist to try to ID the person(s) behind ugly graffiti and notes.  The object of harassment had identified 19 persons he suspected of being involved, but none were interviewed.  Otto v. Chrysler Group LLC  (7th Cir. August 2012).  In the face of this type of conduct, the employer has a duty to take reasonable steps to get the harassment stopped and prevent recurrence.  In the jury’s mind, this response fell far short of that.

  10. Mama Mia– The Pregnant Workers Fairness Act (S. 3565), if passed, will require employers to provide “reasonable adjustment” of duties that may prevent pregnant women from working throughout their pregnancy.  Adjustments might include elimination of standing for long periods of time (i.e., provide a stool), lifting heavy objects or working long shifts with no break.  The idea is to create a nondiscrimination and reasonable accommodation duty, similar to that under the ADA, since pregnancy is generally not a disability under the ADA.

  11. Heads Up, IL, IN and WI Employers– In deciding whether an employer must assign an employee who is unable to do the current job due to disability to an open position for which he/she is qualified, despite the existence of better qualified candidates, the 7th Circuit said in most circumstances the answer is “yes.”  Unless there is a seniority system governing how those selections are made, the disabled worker is to be assigned to the vacant job if qualified to do the job unless the employer can prove undue hardship.  Other Circuits have taken the opposite view and supported the employer’s ability to select the best qualified person for the job, so this one will probably end up before the Supremes.  EEOC v. United Airlines (7th Cir. Sept. 2012).

  12. Stated Differently– Here are some hot topics for you multi-state employers:

    1. California– Eff. January 1, 2013, the CA Workplace Religious Freedom Act bans religious discrimination at work and specifies that “religious dress practice” and “religious grooming practice” should be accommodated unless the employer can show undue hardship. The undue hardship standard is not the de minimls standard of Title VII and instead requires a showing of significant difficulty or expense to accommodate the practice. 

    2. Connecticut – Eff. October 1, 2012, persons and businesses who are required to notify impacted individuals of a data breach (that includes access to their personal information) must also notify the State Attorney General of the breach.  To facilitate this new requirement, he has provided a new email address . . .

    3. Massachusetts – Eff. January 31, 2013, temporary staffing agencies will be subject to new requirements under the Temporary Workers Right to Know Act.  The law requires that staffing agencies provide workers with specific details relating to assigned work, prohibits the agencies from charging the workers for certain items (e.g., cost of procuring employment, cost of performing criminal record check, any good or service unless charged via a written contract and is voluntary in nature) and applies additional restrictions on the agencies such as prohibiting the provision of false or misleading information, use of a name that is not registered with the MA DOL and assigning a worker to a location where there is a strike or lock-out without notifying the worker of that fact.

    4. Minnesota – Private sector employers may prefer veterans, spouses of certain disabled veterans and the surviving spouse of deceased veterans in their hiring and promotion practices.  “Veteran” is defined to include those who were honorably discharged from the U.S. armed forces and satisfied criteria relating to their former active duty status.

    5. New Jersey – Eff. November 21, 2012, NJ employers of 50+ employees must post (in English and Spanish) and distribute a notice to employees of their right to be free from gender-based pay discrimination, and obtain acknowledgement of receipt of the notice.  The notice may not be ready by then, and the law (A2647) says employers will have 30 days to issue once the notice is released by the NJ DOL.  After that, give the notice to new hires at the time of hiring and again to everyone, annually, on or before December 31.

    6. Pennsylvania – HB 2619, if passed, will prohibit employers from requesting a credit report on an applicant or employee & provide a private cause of action for violations.  The exclusions to the prohibition are very limited, requiring such inquiry to be “substantially related” to the job sought or held.  “Substantially related” is defined as a managerial position which involves setting the direction or control of the business; involves access to customers’, employees’ or the employer’s personal or financial information other than information customarily provided in a retail transaction; involves a fiduciary responsibility to the employer, including the authority to issue payments, transfer money or enter into contracts; requires access to confidential or proprietary information that derives value from secrecy; involves regular access to cash totaling $10,000 or more during the work day.

  13. For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State . . . Go Cats!), follow me on Twitter.  I’m at @amross.

  14. Thanks! – I appreciate the kind notes about my selection to the 2012 Texas Super Lawyers list . . . thank you thank you thank you!

Until next time,
Audrey E. Mross
Labor & Employment Attorney
Munck Wilson Mandala LLP
600 Banner Place
12770 Coit Road
Dallas, TX  75251

972.628.3661 (direct)
972.628.3616 (fax)
214.868.3033 (iPhone)

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