EEOC: Employers, be Proactive vs. Workplace Harassment

Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

NLRB Expands Concept of Protected Concerted Activity

On April 30, 2015, the National Labor Relations Board handed down a decision which expanded upon a prior theory of protected concerted activity. It had already expanded the concept of protected concerted activity in the past by classifying communications which are “inherently concerted” despite not being designed to engender “group action.” This case was brought before the Board as a result of an employee being terminated after discussing her job security with another employee.

The concept of protected concerted activity gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. Historically this concept as only applied to group action.

In Sabo, Inc., however, the Board determined that the discussion between the two employees was “inherently concerted” because job security “[is] a vital term and condition of employment and the ‘grist on which concerted activity feeds’” and concerns about job security have a powerful impact on the rest of a work force and are protected whether or not engaged in for the purpose of inducing group action. In the past, only such communications regarding wages were extended this protection. Now it is extended to job security. Employers should anticipate that the current Board will find other subjects of concern to employees to be likewise protected.

Should you be experiencing an issue involving protected concerted activity, call Gilbert Law Group today.

Arbitrator Holds Employer MLB Did Not Have Right To Suspend Josh Hamilton For Violating Employer’s Substance Abuse Policy

             In a stunning decision laid down on April 3, 2015, an independent arbitrator ruled that baseball athlete Josh Hamilton, an outfielder for the Los Angeles Angels, would not be suspended for self-reporting a drug relapse on February 25. Major Leave Baseball as a substantive substance abuse policy in its Collective Bargaining Agreement and the slugger’s contract had specific language not permitting him to drink alcohol or ingest drugs. The decision shocked Hamilton’s employer, perhaps because he had already been in a sports treatment program due to a history of drug and alcohol issues. Instead of being suspended, Hamilton will be eligible to play and will be able to collect $23 million as part of his salary with the Angels. The matter was submitted to an independent arbitrator after a treatment board created by Major League Baseball’s joint drug program could not determine whether Hamilton’s actions were a violation of his treatment program. The arbitrator did not give any reasons for finding in favor of Hamilton.

            Major League Baseball, the party advocating for his suspension, expressed disappointment with the arbitrator’s decision and in a statement said it would “seek to address deficiencies in the manner in which drugs of abuse are addressed under the program in the collective-bargaining process.” The current collective bargaining agreement is in place until after the 2016 baseball season.

            Employers who find themselves in a similar situation to that of the Los Angeles Angels should consult an attorney for counsel as to their collective-bargaining agreements contain controlling language when matters are left to independent arbitrators.

Under ERISA, Retiree Healthcare Coverage No Longer Guaranteed Unless Contract Is Clear

Contributed by Jonathan Sobel

On January 26, 2015, the Supreme Court released a decision altering the distribution of union retiree healthcare benefits. In M & G Polymers USA, LLC v. Tackett, the Court, citing ERISA as the controlling law, ruled that ordinary contract principles will be used by courts in determining whether retiree healthcare coverage under a plan for retired workers was meant to be vested for life. This rule invalidated an earlier judicial presumption, known as the Yard-Man presumption, stating that union health benefits would be presumed to be perpetual unless there was specific language stating the contrary in either a plan document or a collective bargaining agreement.

In this case, the employer M & G Polymers had entered into a pension and insurance agreement with the union representing its employees at a plant in West Virginia. In the agreement was a provision stating that the employer would contribute to the healthcare benefits of employees who retired after a certain date and had pension eligibility, with no cost to the employees, for a three-year term. After the agreement had expired, the employer announced that retirees would be required to contribute to the cost of their healthcare. The retirees then filed a lawsuit, alleging that the employer had breached the agreement and violated the Labor Management Relations Act (“LMRA”).

The Court noted that the Employee Retirement Income Security Act (“ERISA”) governs the rules for interpreting pension plans and welfare benefits plans, as applicable in this case. Under ERISA, a welfare benefits plan must be “established and maintained pursuant to a written instrument,” but “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” In doing so, the Court essentially has given employers carte blanche discretion to change healthcare coverage for its retired employees as it sees fit.

New Law Regarding Franchise Joint Employer Liability

The Office of the General Counsel of the National Labor Relations Board (NLRB) recently issued 13 complaints against McDonald’s franchisees as well as their franchisor, McDonald’s USA, LLC alleging various labor law violations.  The complaints follow the NLRB General Counsel’s announcement in July 2014 that McDonald’s USA may be held to be liable as a “joint employer” for unfair labor practices committed by its individual franchisees. This represents a departure from a long-standing precedent regarding franchise joint employer liability.

The 13 complaints allege that the individual franchises violated their employees’ right to engage in protect concerted activity. In other words, they took actions against them for engaging in activities aimed at improving their wages and other terms and conditions of their employment. This includes participating in nationwide fast food worker protests during the past two years. If successful, this would mean that under certain circumstances, a franchisor can be held liable for any unfair labor practices perpetrated by any of its franchisees. Such a precedent would have have a significant impact on franchise joint employer liability.

The NLRB posted on its website a “McDonald’s Fact Sheet” in which it  claims McDonald’s USA “through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees” sufficient to share liability for its franchisees’ violations of the National Labor Relations Act.

The results of these complaints will not be determined for some time. Franchisors should take note, however, there are steps a franchisor can take to mitigate its risk of being declared a joint employer of its franchisees’ employees under the current law, as well as potentially under any new law.  These steps will also lessen the risk of a finding of common law vicarious liability for a franchisee’s employment practices in most states.

For more information regarding franchising and/or ways to avoid being declared a joint employer and therefore avoid liability for a franchisees’ employment issues call Gilbert Law Group today. 631-630-0100.

Labor Law Update: Independent Contractor Status

The National Labor Relations Board has “redefined” the test it uses for determining whether workers performing services for an employer are to be considered employees, who are covered by the National Labor Relations Act, or independent contractors, who are not.  The case is FedEx Home Delivery, 361 NLRB No. 55 (2014). This is a significant decision because of its broad application in labor law in determining the status of workers in both representation cases and in unfair labor practice cases.

The Board took the opportunity in this case to make some key legal points about the evidence of economic opportunity for gain or loss from the perspective of the worker:

(1)  The multifactor test articulated in the Restatement (Second) of Agency § 220 (1958) has traditionally been employed by the NLRB and the courts in making and reviewing employee/independent contractor determinations under the NLRA. The Board stated that it would simply consider entrepreneurial opportunity along with the Restatement factors, but would not grant it overriding “animating” importance, as it accused the DC Circuit of doing.

(2)  The Board further held that any claimed entrepreneurial opportunity of the individuals in question must be real, not merely theoretical.  The Board will look at employer imposed and other structural factors which act as an impediment to the genuine existence of entrepreneurial opportunity.  Further, in representation cases, the Board will consider evidence regarding only the individuals in question (here, those in a requested bargaining unit), and not system wide or extra-unit evidence.  (It is to be expected that a similar limitation will be imposed in unfair labor practice proceedings where no bargaining unit issue is in play.)

(3)  Finally, Board said that it will look at the work being done by the individuals in question and ask whether they are truly performing it in the same way as a bona fide independent business would.

Can An Employee be Fired for Marijuana Use?

With marijuana use becoming legal in an increasing number of states, the courts will become the battleground for deciding whether an employee may be fired for marijuana use. In fact, Colorado’s highest court will decide that very issue in a state where both medicinal and recreational marijuana use have been legalized. The issue: whether a workers’ off-duty, off work-site use of medical marijuana is protected by law. The facts: Brandon Coats is a quadraplegic medical marijuana patient who was terminated from Dish Network after failing a drug test in 2010. Coats never got high at work, but pot’s intoxicating chemical, THC, can stay in the system for weeks. The employer claims that it has a zero-tolerance drug-free workplace policy, and it is therefore irrelevant if Coats was impaired at work.

Coats, 35, was paralyzed in a car accident as a teenager. In 2009, he found that pot helped dissipate violent muscle spasms. Coats was a telephone operator for Dish for three years before he failed a random drug test. He told his supervisors in advance that he would probably fail the test. The lower courts upheld the firing, holding that pot use cannot be considered lawful so long as it violates federal law.

Aside from the narrow issue of state law, there are several important issues in this case. Colorado, like New York and several other states, has a Legal Activities Law which prevents employers from discriminating against employees who engage in off-duty, off work-site activities which are legal. New York also recently made legal the medicinal use of marijuana under certain conditions. Also, under the Americans With Disabilities Act (ADA) as well as New York’s Human Rights Law, Dish’s termination of Coats may constitute unlawful disability discrimination based on his disability.  There is also the issue of reasonable accommodation of Coats’ disability.

It would appear that where workers are employed in nonhazardous jobs, unless there is some negative impact in the workplace, an employee’s marijuana use may not serve as a basis for discharge. Negative impacts may include smoking or ingesting at work, impairment or being ‘hung over’ at work, poor performance linked to the use, or time and attendance issues.

Also, if the employer receives federal funding, condoning known pot use may jeopardize a federal subsidized project, contract, continued receipt of federal funds, or status as a federal agency employer inasmuch as federal law still prohibits pot use.

This case clearly has nationwide implications as it will impact how companies and other employers treat employees who use the drug both medically and recreationally. It will therefore be interesting to see how Colorado’s Supreme Court rules. Stay tuned.