Foley & Lardner Labor and Employment Law Weekly Update (Week of September 19, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of September 19, 2011)

Hispanics United of Buffalo- The NLRB Goes Online!

by John Douglas

A little known feature of the federal law governing labor relations in the private sector - the National Labor Relations Act (NLRA) - is the right of even non-unionized employees to engage in so-called "protected concerted" activity. Non-union employers can be and often are caught in the trap arising from this right unawares.

If one non-union employee gets fed up with his or her working conditions and walks off the job, that employee generally can be, and often is, fired without legal consequence. However, if two, three, or more employees decide over lunch in a break room in the same workplace that they have had enough of their supervisor's abuse, walk off their jobs, and file an unfair labor practice charge with their local NLRB office, the result will almost certainly be different. Not only will the group probably get free legal representation all the way to the U.S. Supreme Court if necessary - they almost certainly will get their jobs back with back pay for any period they are unemployed.

Why is this? It comes down to the "concerted" nature of their activity. When employees act in concert, rather than alone, subject to a few limited exceptions, the NLRA generally protects them from reprisal for their concerted action. Thus, employers that take adverse action against employees who have been acting in concert to protest or air grievances related to their working conditions basically do so at their own risk.

This is the legal principle in action in an NLRB administrative law judge's September 2, 2011 decision involving Facebook postings by certain employees of Hispanics United of Buffalo (HUB).

In Hispanics United of Buffalo, one employee asked a number of colleagues from work - who also happened to be Facebook friends - what they thought about a comment by another colleague who had disparaged their work productivity. A lively discussion peppered with obscenities ensued. When the alleged disparager brought the conversation thread to the attention of their supervisor, four commenting employees and the employee who had posed the original question were let go. The stated rationale: the five had engaged in "harassment" of the employee who had complained regarding their productivity.

Not so, Judge Arthur Amchan, an NLRB administrative law judge, found.

In discussing the complaints that had been leveled against them, the five were engaged in "concerted" activity protected under the NLRA, Judge Amchan found. "The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe [their colleague] was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by [sic] taking any further group action vis-a-vis [their colleague's] criticisms." Nor, Judge Amchan found, did any of the exceptions to the rule that might cause the employees' speech to lose its protection apply.

The Facebook posts were not made at work and not made during working hours. Moreover, despite at least some of the employees' use of obscenity, Judge Amchan found, there were no "outbursts" "so opprobrious as to lose protection under the Act." Finally, after reviewing the employer's anti-harassment policies, Judge Amchan concluded there was simply no harassment occurring since none of the posts had any nexus to any characteristic identified as protected under those policies like sex or race. As a result, HUB has been ordered to reinstate the five workers with back pay.

Hispanics United of Buffalo echoes the result of another recent NLRB case involving Facebook postings that American Medical Response settled after the agency issued a complaint alleging that it unlawfully fired an employee who posted complaints about an AMR supervisor on a Facebook page. Although HUB has a right of appeal to the NLRB, the federal Court of Appeal, and the United States Supreme Court if it so desires, the outcome of the case is not really that surprising.

In general, the law in this area is rather employee-friendly. Although under certain limited circumstances "concerted" activity can lose its protection, by and large the cases that find that employee speech has been so intemperate or disloyal as to go over the line and lose its protection under the NLRA involve speech that is either somehow threatening or unquestionably defamatory.

This is not to say that the loss of protection cannot happen, but the prudent employer considering discipline of employees in such circumstances will always consult with their legal counsel before proceeding. Similarly, the increasing number of employers who now make it a practice to seek out and review Facebook or other Internet postings by employees or applicants should tread with caution. Although the Fair Credit Reporting Act, the principal federal law governing employer background checking, generally does not apply to checks conducted internally by an employer's own staff, some states - including California - have laws that apply even to employers' checking of publicly available records that concern "an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment." Depending on what you actually find on an applicant's or employee's Facebook page, such state law requirements could at least arguably come into play.

EEOC Highlights Legal Risks Posed by Inflexible Job Requirement and Leave Policies

by Jeremy C. Wooden

The EEOC has recently highlighted the significant legal risks that arise from an employer's inflexible, one-size-fits-all application of certain employment policies. The EEOC has singled out two types of employment policies that are likely to draw its attention: (1) uniform job qualification requirements that permit no exceptions for applicants "regarded as" disabled, and (2) leave policies containing inflexible cut-off dates.

Uniform Job Qualification Requirements Must Be Relevant to Performance

Speaking recently at the 2011 Technical Assistance Seminar, EEOC Legal Counsel Peggy Mastroianni warned employers that, in the wake of the ADA Amendments Act (ADAAA), the EEOC will apply heightened scrutiny to uniform job requirement policies that exclude applicants based on impairments. The ADAAA makes it easier for an applicant to qualify for ADA coverage if he/she is "regarded as" disabled. Prior to the ADAAA, an employer may not have had to defend a no exceptions policy because an affected applicant would not have been regarded as disabled for failing to meet the job requirements. Now, an affected applicant will likely be regarded as disabled, and employers will have to defend the policy on the merits by showing how the policy is relevant to job performance.

EEOC Cracks Down on Inflexible Leave Policies

In recent years, the EEOC has entered into several sizeable settlement decrees resolving allegations that maximum leave policies violate the ADA. The following cases illustrate this trend:

  • In June 2011, Denny's, Inc. agreed to pay $1.3 million to settle claims it discriminated against disabled employees, including by "maintain[ing] a maximum medical leave policy that automatically denied workers any additional medical leave beyond a pre-determined limit, even when additional leave was required by the [ADA] as a reasonable accommodation."
  • In January 2011, Supervalu, Inc. entered into a $3.2 million consent decree settling EEOC claims that Supervalu unlawfully terminated disabled employees who, after one year of leave, could not return to work without any accommodation and without any restrictions. The EEOC alleged that this policy shirked the company's duty to engage in individualized assessments of employees returning from leave.
  • In February 2010, Sears Roebuck & Co. entered into a $6.2 million settlement  resolving EEOC allegations that the company maintained "an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA."

In light of the EEOC's position towards inflexible job requirement policies and maximum leave provisions, employers should consider reviewing such policies to allow for flexibility and individualized assessment. Employers should be prepared to defend job requirements on the merits by showing a connection with job performance. Leave of absence policies should permit individualized assessment and make room for reasonable accommodation upon an employee's return from leave.

Labor and Employment Trivia

Last week's question: What is a "yellow dog contract" and where did the term originate?

Answer: A yellow-dog contract is an agreement between an employer and an employee in which the employee agrees, as a condition of employment, not to become a member of a labor union. Prior to the 1930s, such contracts were widely used by employers to prevent the formation of unions. Yellow dog contracts were outlawed in the Norris-LaGuardia Act, enacted in 1932. The term was thought to have originated in the pro-union press, where comments like this appeared "[This contract is] yellow dog for sure. It reduces to the level of a yellow dog any man that signs it, for he signs away every right he possesses."

This week's question: What labor strike of the early 1900s was known as the "Bread and Roses Strike" and why was it called that?

Please continue to send suggestions for trivia questions to mneuberger@foley.com.

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