The NLRB's War on Employee Policies

 {Before skipping this post because you don’t have a union, remember that the National Labor Relations Act (NLRA) applies to employers without unions too.  You can read about the application of the NLRA to non-union employers here.}

War might be an extreme description, but the NLRB has been issuing decisions that declare run-of-the-mill employee policies as unlawful.  For example, earlier this month the NLRB determined that an employer’s conduct policy was unlawful.  The unlawful provisions of the policy stated that “employees will not make negative comments about our fellow team members”, “employees will represent [the employer] in the community in a positive and professional manner in every opportunity”, and “employees will not engage in or listen to negativity or gossip”.  What’s wrong with prohibitions against gossip and being rude?  Well, the NLRB found that the prohibitions might discourage employees from exercising their rights under the NLRA.  It’s not that the employer actually disciplined anyone for engaging in protected rights it’s that the employee might believe that she can’t engage in protected conduct.

Other policies that have been under attack include confidentiality policies, social media policies, dress code policies, confidentiality during workplace investigations, and at-will employment policies.

Before throwing out all your policies and handbooks and declaring anarchy at the workplace, remember that the NLRB isn't prohibiting you from having policies.  It is requiring that the policies you have are narrowly tailored and specific about the type of conduct you expect from your employees.  Instead of pitching the policies, have them reviewed to ensure that you aren't unknowingly violating the NLRA (or any other laws!)

What is a Hostile Work Environment?

The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?

A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with. 

 

But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.

US Supreme Court to Decide Who is a "Supervisor"

Late last month, the U.S. Supreme Court agreed to hear argument in Vance v. Ball State University. The facts of the case are not novel. Vance, an African-American, alleged that certain supervisors and co-workers discriminated against and harassed her based on her race. In one short paragraph, the Seventh Circuit determined that one of the purported supervisors was not a supervisor because that individual did not have the power to hire, fire, demote, promote, transfer or discipline Vance. It then moved on to deal with the remaining individuals and claims. 

It is that short paragraph from which the issue arises. That being, whether "supervisor" liability under Title VII applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work or is limited to those who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim. The distinction is important because under Title VII employers are strictly liable for harassment perpetrated by "supervisors". Alternatively, employers are liable for harassment perpetrated by co-workers only if the employer was negligent in discovering or remedying the alleged harassment. Roughly, an employer who takes preventative and corrective steps can avoid liability in co-worker harassment situations but not in supervisor harassment situations. 

 

The Eighth Circuit, of which Iowa is a part, agrees with the Seventh Circuit--only those who have the power to hire, fire, demote, promote, transfer, or discipline are supervisors. Therefore, if the Supreme Court agrees with the Seventh Circuit not much will change with respect to how cases are decided in our jurisdiction. If, however, the Supreme Court decides that supervisors include those who direct and oversee daily work employers in Iowa will be open to increased risk in harassment lawsuits. 

 

Oral argument in this case should occur in the Fall, with an opinion sometime after that.

Quality Egg Settles Sexual Harassment Suit with EEOC

What's worse than having the EEOC sue your company for sexual harassment? Having it happen twice. 

The EEOC issued a press release yesterday that it settled a sexual harassment suit with Galt, Iowa based Quality Egg, LLC owned and operated by the Austin "Jack" DeCoster Revocable Trust for $85,000. The company is no longer operational. In 2002, the EEOC sued Austin J. DeCoster d/b/a DeCoster Farms for subjecting undocumented female employees to a sexually hostile environment, including sexual assault and rape by supervisors. DeCoster Farms operated at the same location as Quality Egg. The 2002 lawsuit resulted in a settlement of $1,525,000.00 to be paid to 11 women and Iowa Coalition Against Domestic Violence (ICADV) who brought charges against the company on behalf of the women. The settlement was one of the EEOC's largest recoveries in fiscal year 2003.

From the allegations in the 2002 case, it appears that management were the perpetrators of the harassment and assaults. While it appears from the recent case that management realized that it should not engage in harassment, it failed to recognize that it had a duty to prevent harassment as well. The EEOC press release states, "Quality Egg failed to take advantage of the early warning signs and sexual harassment was permitted to continue. The EEOC will take appropriate action to protect workers from egregious sexual harassment if an employer fails to do so." 

 

Sexual harassment is serious and any complaints or information regarding such conduct should be investigated immediately with appropriate action taken at the conclusion of the investigation.  Don't sit back and wait for the EEOC to knock on your door.

Social Media Policies: New Guidance from the NLRB

Yesterday the National Labor Relations Board (NRLB) issued a third memorandum regarding social media policies. Many employers have adopted social media policies that require employees to observe certain guidelines when participating on social media sites. Employees have been terminated for violating these policies. The NLRB has found that some of the policies and the terminations violate Section 7 of the NLRA. As I've discussed previously, certain provisions of the NLRA apply to all employers, not just those with unions. 

A copy of the entire memorandum can be found here. Below are a few of the highlights:

 

·         The use of broad terms such as  "confidential information" or "disparaging remarks" in a social media policy may be unlawful if not coupled with examples of the types of confidential information or disparaging remarks that are prohibited and do not interfere with Section 7 rights.

·         Restricting an employee's discussion of the "terms and conditions of employment" to other employee's is a violation of the NLRA. Employee's have a right to discuss such topics with non-employees.

·         Advising against "friending" co-workers is prohibited

·         A "savings clause", indicating that the policy is not intended to interfere with the NLRA, will not make an otherwise unlawful policy, lawful.

 

The memorandum provides a variety of different policy excerpts that were deemed unlawful and the reasons for the determination. Thankfully, the memorandum also includes a policy, in full, that was considered lawful. Some of the language in the approved policy may be considered overly broad standing alone, but the NLRB determined that in context and with the examples set out in the policy employee's would not reasonably construe the policy to interfere with their rights. Thus, it's important to include examples which provide limitations to otherwise broad language.

Take time to review your social media policy to ensure compliance with the NLRA. If you currently do not have a social media policy, I recommend adopting one.

Back to the Basics: FMLA

With the myriad of federal and state employment laws it’s easy to forget the basic application principles of each one. For the next few weeks, I plan on taking the time to outline the basic application factors of certain state and federal employment laws. It may seem basic, but getting back to the basics is helpful for a beginner in the employment law field and a good reminder for the seasoned veterans. I will begin with the Family Medical Leave Act (FMLA).

  • The FMLA applies to employers who have had 50 or more employees in 20 or more calendar weeks.
  • Eligible employees must meet the following criteria:
    • 12 cumulative months of employment within the previous seven years unless the break in service was for National Guard or Reserve military service or per a written agreement.
    • 1,250 hours actually worked during the 12 month period
    • Works at a site with 50 employees or where the employer has 50 employees within a 75-mile radius
  • The FMLA provides 12 unpaid workweeks of leave in a designated 12-month period for eligible employees and for the following reasons:
    • Birth, adoption or placement of a child for foster care
    • When the employee has a “serious health condition” that makes him/her unable to perform the functions of his/her position
    • The employee is needed to care for the employee’s parent, spouse or child with a “serious health condition” and
    • Qualifying exigency leave
  • The FMLA provides 26 unpaid workweeks of eave in a single 12-month period to care for an injured service member.
  • The FMLA leave may run concurrent with paid-time-off but employer’s can enforce notice policies for vacation and sick leave. For example, if an employer requires two weeks’ advance notice for vacation requests, an employee must give notice two weeks in advance to substitute vacation time for FMLA leave, even for unforeseeable FMLA leaves.
  • Leave may be consecutive, intermittent or on a part-time basis.
  • Employees must give 30 days’ notice if the leave is foreseeable. For unforeseeable reasons employees must give as much notice as practicable, which has recently been defined as within the deadlines and following the procedures prescribed by the employer’s usual notice requirements for missing work.
  • Employers are required to provide 4 notices to employees:
    • A general notice
    • An eligibility notice
    • A rights and responsibilities notice
    • A designation notice
  • Employers may request certification, recertification every 6 months for an ongoing condition, and require employees to submit a fitness for duty certification under certain circumstances
  • Employer must maintain health insurance coverage on FMLA leave on the same terms as if the employee continued to work, but is not required to maintain non-health benefits during unpaid leave provided that such benefits do not accrue for employees on other types of unpaid leave.
  • Generally, employees are entitled to return to a position that is the same with respect to job duties, pay, benefits and terms and conditions as before leave.

For more detailed information on the FMLA rules and regulations visit the Department of Labor's website or speak to your attorney.

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

No Beer? We're Striking!

A change in a Denmark Brewery’s beer drinking policy at work caused its workers to strike. (They are now only allowed to drink beer in the break room during lunch).   What policy change do you think would cause you or your worker’s to strike?

Is Your Office Ready for March Madness

It’s March Madness! Pick your teams, fill out your bracket and turn in your $5 to the office pool manager… or not? Are office pools legal under Iowa law? According to Iowa Code Section 99B.12 individuals may participate in social gambling if:

1.      The gambling is incidental to a social relationship between all participants

2.      The gambling is not on school property

3.      All participants are individuals

4.      The gambling is fair and honest

5.      No person receives or has the right to receive compensation except if they are the winner of the pool.

6.      The participant is not a coach, official, player or contestant in the athletic contest

7.      No participant wins or loses more than $50

8.      No participant pays an entrance fee, cover charge, or other charge for the privilege of participating in gambling or for the privilege of gaining access to the location in which gambling occurs.

9.      Everyone has the opportunity to deal, if dealing is required.

 

So before you turn in your bracket make sure your office is following all the rules. Go Panthers!

Win or Lose: You've Got the Job

This post should be prefaced with the fact that I am an alumnus of the Univeristy of Iowa, but I will attempt to remain as objective as possible in my reporting.

Iowa State University recently finialized its contract with new Head Football coach Paul Rhoads.  The contract, linked here by the Des Moines Register, has an interesting term that is not often found in coaching contracts.  Under Article V of the contract, instances are provided that equate to "just cause" for termination, in other words, reasons the University can give to fire him.  Paragraph 2(a) of this Article specifically lists some situations that cannot be considered just cause, including:

ii) Win-loss record or public unhappiness with win-loss record; or

iii) Other general displeasure at the direction or success of the football program.

Generally, win-loss records and displeasure with the direction of an athletic program are the main reasons coaches are fired by their university employers.  It would be interesting to know at whose behest these clauses were added, and the policy behind them.  It should be noted that the contract also lists a number of "just cause" reasons to fire Rhoads, and the University would likely be able to find separate reasoning to release him besides the win-loss record of the team. 

At any rate, his job is safe for a while, even after September 12, 2009.  Go Hawks.

Labor & Employment Bills in the Iowa Legislature

The Iowa Legislature has a number of bills it will be considering this session. Although some bills may die in committee it’s interesting to see what is being considered. Below are the bills and study bills that are currently in the House Labor Committee and Senate Labor & Business Relations Committee. You can see the full text of the bills on the committee websites. 

Senate Labor & Business Relations Committee:

SF 7

A bill for an act relating to notice of public disclosure of certain workers' compensation information.

SF 24

A bill for an act providing for the licensure of elevator contractors and elevator mechanics and providing penalties.

SSB 1051

A study bill for an act pertaining to the duties and regulations under the purview of the labor commissioner.

SSB 1052

A study bill for an act relating to unemployment insurance benefits and compliance with federal law regarding and in order to qualify for funding, and including effective and applicability dates.

SSB 1053

A study bill for an act relating to an increase in the balance of the unemployment compensation reserve fund and the purposes for which the fund's interest may be used.

SSB 1054

A study bill for an act providing training program extension benefits to unemployment insurance benefits, and including an applicability date.

SSB 1055

A study bill for an act requiring employers to provide notice of plant closings and mass layoffs and providing penalties.

SSB 1071

A study bill for an act relating to the duties of the labor commissioner pursuant to wage payment collection and child labor law enforcement, making an appropriation, and providing penalties.

House Labor Committee:

HF 10

A bill for an act relating to employees who are breast-feeding.

HF 11

A bill for an act to increase the state minimum hourly wage by the same percentage as the increase in federal social security benefits.

HF 24

A bill for an act requiring employers to provide employees with meal periods and rest periods and providing penalties.

HSB 61

A study bill pertaining to the duties and regulations under the purview of the labor commissioner.

HSB 62

A study bill for requiring employers to provide notice of plant closings and mass layoffs and providing penalties.

HSB 63

A study bill relating to the duties of the labor commissioner pursuant to wage payment collection and child labor law enforcement, making an appropriation, and providing penalties.

I will be tracking these bills throughout the legislative session and provide updates periodically.

Bullies in the Workplace

When does bullying behavior in the workplace rise to an actionable level? This question was considered by the Iowa Court of Appeals in Wilson v. Cintas Corp No. 2 released Wednesday, December 17, 2008.

The facts indicate that Wilson was daily subjected to a “constant barrage of personal attacks, insults, and vile profanity” by his co-worker Mills. (The conduct occurred for approximately 5-10 minutes each day). The specific insults are too vulgar to repeat, but can be found in the opinion. It was also brought out that both employees were involved in the insults and profanity. Wilson did report the conduct to his supervisors. Apparently the employer took some action because Mills was terminated in December because he had four occurrences of shouting inappropriate language and not maintaining a level of professionalism. Later Wilson terminated his employment for reasons unrelated to Mills’ conduct.

 

The opinion tells us that “outrageous conduct” is the standard for maintaining an action against a co-worker for this type of conduct. Outrageous conduct “is so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  It should extract an exclamation of outrage from and instill resentment in the average member of the community. Mills’ behavior was considered “inconsiderate, unkind, and offensive” but was not outrageous conduct according to the court.

 

The court contrasted Mills’ behavior with the behavior of a supervisor in Blong v. Snyder, 361 N.W.2d 312 (Iowa Ct. App. 1984). In that case a discharged employee who was reinstated after filing a grievance was falsely “accused of stealing, wasting time, intentionally breaking his machine, intentionally producing inferior parts, violating fifteen company rules, playing with himself in the restroom, given extra work without receiving the proper tools to do the job and was then berated, threatened, and disciplined for his inability to properly complete the task.”

It’s apparent from the comparison between these two cases that the court will not get involved in personality conflicts but will step in when offensive conduct rises to a level that is unconscionable.

Iowa Wage Payment Collection Act

 

The Iowa Wage Payment Collection Act protects employees from employers who fail to pay wages owed to an employee. Wages, as defined in the act, can encompass more than just compensation owed for labor or services. It can also include vacation, holiday, sick leave, and severance payments which are due an employee under an agreement or policy of the employer, benefit payments under an agreement or policy of the employer, and expenses incurred and recoverable under a health benefit plan. The key is whether an agreement or policy providing for payment of these items exists. In most instances the agreement or policy will be contained in an employee handbook. It can, however, take the form of an unwritten policy.

 

An employer is required to pay all wages earned no later than the next payday for the pay period in which the wages were earned. Employees paid on a commission basis, however, may have to wait up to thirty days from the date of termination to get their final paycheck.

 

An employee who has a claim against an employer for wages may bring an action in an Iowa district court or, if the claim is less than $5,000.00, through the Iowa Department of Labor. A claim form for the Iowa Department of Labor can be found here and the steps the Department follows can be found here.  Claims for wages must be brought within two years after the wages were earned.

 

Photo on flickr by jenn_jenn.

 

Celebrate Labor Day!

Labor Day, summer's last hurrah, is just around the corner (It's Monday, for those of you who don't highlight every holiday on your calendar). The original purpose of Labor Day was to celebrate the working (wo)man (154.5 million people now) and also to discuss working conditions and improvements that could be made. Most celebrations included rallies, demonstrations, and speeches from labor representatives. Today, Labor Day has become more of a family celebration with little thought about our working conditions. Is it because we have it so good? You decide--below are some facts and statistics about current working conditions taken from the U.S. Census Bureau regarding labor:

·         82% of full-time workers are covered by health insurance

·         77% of workers receive paid holidays

·         15% of workers have access to employer assistance for child care

·         12% of workers have access to long-term care insurance

·         46% of workers have access to dental care

·         29% of workers have access to vision care

·         64% of workers have access to outpatient prescription drug care

·         The median earnings of male full-time, year-round workers is $42,261.00

·         The median earnings of female full-time, year-round workers is $32,515.00

·         28% of workers work more than 40 hours per week

·         8% of workers work more than 60 hours per week

This year, enjoy your Labor Day celebration, but take some time to think about your working conditions and to pat yourself on the back for another good year.

 

Be Careful What You Say

Beside the fact that discriminating against prospective employees could land your company in litigation hot water, it may come back to bite you later on. Most people have heard of Roe v. Wade but haven't heard of Sarah Weddington, the attorney representing the woman seeking an abortion in Roe v. Wade. According to an ABA article, Weddington may not have had that opportunity had she been given a fair chance at a Dallas law firm. During the interview process, the law firm questioned her ability to work the long hours and still make it home to cook dinner. They were also concerned that they couldn't cuss her out as much as male associates. She didn't get the position, but she didn't file a lawsuit. Years later, when she was advising President Jimmy Carter on women's issues and judicial appointments, a senior partner in that same Dallas law firm wanted to be a federal judge. He didn't get the position.

Wal-Mart Takes Another Hit

It's been said before: Wage and hour claims are the newest trend in the employment law area. Recently Wal-Mart got hit with a $6.5 million judgment for violating Minnesota wage and hour laws. The judgment could increase to $2 billion depending on the penalties imposed. Apparently Wal-Mart required employees to work off the clock and denied rest and meal breaks to employees. The 151 page opinion can be found here.

What can you do to prevent a wage and hour claim? Start by classifying your employees correctly. Employees are either exempt or non-exempt. The most common types of exempt employees are executive, administrative and professional. Non-exempt employees must be paid overtime.

Keep accurate records of the hours worked by non-exempt employees. Using punch-in and punch-out clocks may be the most accurate, but at the very least have employees write their hours on a time sheet for each pay period. Iowa law requires employers to keep these records for three years.

Make policies clear to employees and managers. If breaks are given to employees, make it clear to employees that they should or must take the breaks. Make sure managers understand this as well. It seems Wal-Mart's policy was to give workers meal and rest breaks, however, managers either directly or indirectly required employees to work during meal and rest breaks with no pay.

For more information on the wage and hour law check out the DOL website

Retaliation

I recently attended an employment law seminar in St. Paul, Minnesota. One key topic that kept resurfacing in the sessions I attended was RETALIATION. Title VII retaliation claims have increased 19% from 2006

An employer retaliates when it makes an adverse employment decision which tends to discourage an employee from engaging in protected conduct. What is an adverse employment decision? Although not clearly defined, the Supreme Court has made it clear that it is not necessarily have to be a tangible employment decision, such as termination. What is protected conduct? Whistleblowing, filing a complaint, taking FMLA leave or making a worker’s compensation claim are all examples of protected conduct.

What should employers do to minimize retaliation claims?

  • Have a clear policy prohibiting retaliation;
  • Educate managers and supervisors about retaliation;
  • Enforce policies consistently for all;
  • Refrain from making hasty decisions when employees have engaged in protected activity in the recent past even if you believe the decision is warranted;
  • Investigate all retaliation claims and discipline those who have engaged in retaliation. Inform the employee alleging retaliation of your findings and whether any disciplinary action will take place;

"You're Fired"

We all know that sometimes HOW you say something is more important that WHAT you say or WHY you say it. This is especially true when it comes to terminating employees. In “Halloween” from Season 2 of The Office, Michael Scott provides one way to go about terminating an employee. (You can purchase this episode at iTunes or Amazon). However, I would suggest reading today’s posting on the Pennsylvania Employment Law Blog for excellent tips to use if you have to terminate an employee. It stresses the importance of focusing on HOW you terminate an employee rather than WHY you are terminating an employee. Focusing on the HOW may reduce the blow of WHAT you are saying.

Maintaining a Temporary Worker's Status as Temporary

The Question of the Week posted this week got me thinking about the classification of temporary employees. Temporary workers are workers that are employed by a staffing agency which supplies workers to the client company. Temporary workers report to the client, but receive pay and benefits from the staffing agency. Temporary workers, therefore, are considered to be the employee of the staffing agency rather than the client company.

The risk of having a temp become an employee of the client company arises when the client company retains a certain amount of control over the temp. If that happens, the client company may face liability for a wide variety of employment related issues including discrimination and wage and hour violations.

How can the client company reduce the risk of having a temp become classified as an employee? The suggestions listed below are taken from “Get Smart When Using Temporary Employees” and a 2004 Iowa case, Willms v. Associated Materials Inc.

  • Allow the staffing agency to communicate the rate of pay and hours to the temp;
  • Require the staffing agency to perform drug testing or background checks;
  • Request the staffing agency perform periodic visits to the job site;
  • Differentiate the temp uniforms, badges, parking spaces, break rooms, etc. from the permanent employees’;
  • Allow the staffing agency to make hiring and firing decisions as well as take disciplinary action;
  • Limit the time period a temp works at the site;
  • Refer to the temp as a worker who is assigned rather than an employee who is hired;
  • Always have your attorney review your agreement with the agency.

In short, treat temporary employees different than your permanent employees. A client company may not be able to completely eliminate the risks of having temporary workers classified as employees, but by using some of the suggestions above the risk will be reduced.

Photo on flickr by DCvision2006

Tip #27: Enforce policies consistently

An article in the Des Moines Register affirms my advice in a past blog: Have an internet, e-mail, and/or computer policy AND enforce the policy consistently. Michael Hopewell has been terminated from IPERS for circulating an indecent email. Hopewell, believing his termination was improper, has brought an action against the agency for unemployment benefits. IPERS claims the email joke violated its computer policy. I would imagine the nudity in the email did violate IPERS’ computer policy.  However, just from reading the article, I can presume Hopewell’s argument will be: Jokes and emails like this (maybe even worse) have been forwarded around this agency hundreds of times and nobody has ever been fired before. Based on the article, it seems that IPERS has, at least in some manner, enforced the policy in the past. It’s not clear what the outcome will be in this situation, but it is clear that having a computer policy and enforcing that policy consistently is a good business practice. 

Internet Usage

Julie Elgar of That’s What She Said uses the employees of The Office to illustrate the pervasiveness of internet use in the workplace. Elgar recognizes that unmonitored internet usage can lead to a decline of productivity and even worse harassment among employees. What should employers do? As Elgar says it’s important to develop a monitoring system and inform the employees that the system is in place.   Communicating the policy to the employees reduces their exepctation of privacy in the workplace.  Inform employees of any disciplinary policy you may have regarding violations of the intenet usage policy.

 

Photo on flickr by *diggin an old dude*