Employment Law Alert

Employment Law Alert

News and Updates on Employment Law

U.S. Supreme Court Reinstates Pregnant Worker’s Discrimination Case

Posted in Discrimination

In Young v. UPS, the United States Supreme Court reinstated a UPS worker’s pregnancy discrimination lawsuit under the Pregnancy Discrimination Act, finding that both the District Court and the Court of Appeals for the Fourth Circuit had applied the wrong standard in upholding UPS’s light-duty-for-injury policy, under which the company refused a light-duty accommodation to a pregnant employee back in 2006. While the Court did not determine whether the employee suffered any actual discrimination, or whether UPS’s policy was impermissible under the PDA – those issues were remanded to the Fourth Circuit – the Court did adopt a modified version of the familiar burden-shifting framework of McDonnell Douglas for analyzing pregnancy discrimination claims under the PDA. The Court’s decision in Young is also noteworthy in that it declined to give deference to the EEOC’s July 2014 guidance on pregnancy discrimination, which we have previously discussed, and, in fact, rejected the argument that the PDA creates “an unconditional favored nations status” for pregnant workers.

Factual Background

Peggy Young worked as a part-time driver for UPS, and her job duties included picking up and delivering packages. In 2006, Young became pregnant and her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. UPS, however, required its drivers to lift packages weighing up to 70 pounds (and up to 150 pounds with assistance). After informing UPS of her lifting restriction, Young sought a transfer to a “light-duty” position pursuant to UPS’ light-duty-for-injury policy, which limited such assignments to employees who (1) had been injured on the job; (2) had lost their U.S. Department of Transportation certification; or (3) were disabled under the ADA. As Young did not qualify for a light-duty assignment for any of these reasons, she was forced to stay home without pay and eventually lost her employee medical coverage.

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Supreme Court Upholds Department of Labor’s Authority to Issue Interpretive Rules Without Public Notice or Comment

Posted in Wage & Hour

Rules promulgated by agencies of the federal government can be divided into those which have the force and effect of law and those which are merely “interpretative” or provide general statements of policy concerning the agency’s view of the law. When an agency wishes to promulgate rules having the force and effect of law it must comply with the requirements of the Administrative Procedures Act (APA) by, among other things, publishing the proposed rules in advance, allowing sufficient time for public comment and responding to significant comments received. In Perez v. Mortgage Bankers Association, the United States Supreme Court addressed the issue of whether the Department of Labor (the “DOL”) was free to reverse itself about the proper interpretation of the laws over which it has enforcement responsibility without giving notice or allowing public comment of the proposed change. The Court unanimously held that the DOL was free to do so.

At issue in Perez was the proper interpretation of the “administrative exemption” of the Fair Labor Standards Act (“FLSA”), which exempts employers from the overtime provisions of that statute for those employees meeting the definition of “administrative employee.” In 2006, the DOL issued an opinion letter finding that mortgage loan officers fell within the administrative exemption. Four years later, however, the DOL reversed course and issued an Administrator’s Interpretation, which, in relevant part, concluded that mortgage loan officers were primarily salespersons who did not qualify for the exemption. It made this change without public notice and without allowing for public comment.

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NLRB Rules that Attack on Safety of Employer’s Products is Protected Employee Concerted Activity

Posted in Labor

As previously discussed on the Employment Law Alert, the National Labor Relations Board has taken several pro-union actions and issued many pro-union decisions over the last few years that impact union and non-union businesses alike, which recently include issuing the latest “quickie” election rule and increasing protections afforded to union-related communications made through companies’ e-mail systems. In MikLin Enterprises, Inc., d/b/a Jimmy John’s, the Board rendered another pro-union decision, a decision which serves to remind all employers to be mindful of the NLRB when considering employee discipline for disloyalty when the allegedly disloyal acts relate to employee dissatisfaction with working conditions.

The Jimmy John’s Decision

In Jimmy John’s, the Board decided that a franchisee of the Jimmy John’s chain, committed unfair labor practices by discharging and disciplining employees who posted notices in its stores and throughout the local community suggesting that employees were contaminating sandwiches the company sold to the public. Specifically, the posters “displayed side-by-side pictures of a sandwich, one described as made by a healthy Jimmy John’s worker and the other as made by a sick worker,” which read, “Can’t Tell the Difference? That’s too bad because Jimmy John’s workers don’t get paid sick days. Shoot, we can’t even call in sick. We hope your immune system is ready because you are about to take the sandwich test. . . . Help Jimmy John’s workers win sick days.” The posters urged readers to contact the owner, and provided the owner’s name and telephone number. The employees, who were considering unionizing, claimed that they posted the notices in response to the company’s sick leave policy, which required an employee to find another employee to take over his/her shifts if s/he wanted to take an excused sick day. Employees who participated in poster campaign were either discharged or issued written warnings.

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NLRB General Counsel Issues Memorandum Addressing New Arbitral Deference Standard

Posted in Labor

The National Labor Relations Board’s General Counsel recently issued a memorandum providing guidance regarding the amount of deference the Board should afford arbitrations and settlements resolving unfair labor practice (ULP) allegations under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). These sections prohibit interference with employees’ rights to engage in protected concerted activities (8(a)(1)) and discrimination against employees for union affiliation (8(a)(3)). The General Counsel’s memorandum was issued to provide guidance in light of the NLRB’s recent decision in Babcock & Wilcox Constr. Co. — a decision that altered decades’ old law by giving the Board greater discretion (1) to initially decide these types of ULP allegations, which had previously been subject to arbitration in the first instance, and (2) to review arbitration decisions concerning such ULP charges. Companies that are negotiating collective bargaining agreements or have such agreements in place and that prefer to arbitrate ULP claims rather than litigate them before the NLRB, should carefully review the General’s Counsel’s memorandum—as should companies settling ULP allegations, as the memorandum deals with settlements as well.

Babcock & Wilcox

For decades, the Board typically placed ULP charges under 8(a)(1) and 8(a)(3) on deferral pending the outcome of arbitration and would defer to the arbitration decision where (1) the parties agreed to arbitrate the dispute, (2) the arbitral proceedings were “fair and regular,” (3) the contractual issue giving rise to the grievance was factually parallel to the alleged ULP, (4) the arbitrator generally received facts relevant to the alleged ULP, and (5) the arbitrator’s decision was not “clearly repugnant” to the NLRA. The burden of proof rested with the party challenging the arbitration.

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DOL Extends FMLA Spousal Care Leave Rights to Same-Sex Spouses

Posted in Family Leave

The U.S. Department of Labor (“DOL”) recently issued a Final Rule revising the definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to include same-sex spouses for purposes of FMLA leave, regardless of the couple’s state of residence. Under the prior FMLA regulations, whether or not an employee had a “spouse” was determined by the law of the state where the employee resided. Notably, however, the Final Rule does not expand the definition of “spouse” to include domestic partners. Rather, only employees who are legally married are covered under the new regulations. The Final Rule takes effect on March 27, 2015.

The FMLA allows an employee to take up to 12 weeks of unpaid, job-protected leave for, among other reasons, to care for his/her spouse or for a qualifying exigency arising out of the fact that the employee’s spouse is a member of the military on covered active duty. It also gives an employee who is the spouse of a servicemember the ability to take up to 26 weeks of unpaid, job-protected leave to care for a covered servicemember with a serious injury or illness.

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Short and Concise Release Agreement Saves the Day for Employer According to NY Federal District Court

Posted in Discrimination

On February 24, 2015, in Brewer v. GEM Industrial Inc., the United States District Court for the Northern District of New York found a two-plus page separation agreement sufficient to dismiss the plaintiff’s court complaint because it was short, understandable by a lay person and included a provision notifying the employee of the right to seek counsel before signing it. The plaintiff, Samuel Brewer, sued his employer claiming discrimination in violation of Title VII of the Civil Rights Act of 1964 related to his termination. Before filing his discrimination lawsuit, he executed a separation agreement containing a release of claims. His employer moved to dismiss the lawsuit based on the release in the separation agreement.

Facts and Analysis

In opposing GEM’s motion, Brewer claimed he signed the one-sided agreement under duress, the influence of medication and threats by his supervisor’s associates. He also alleged he signed without the benefit of counsel. The District Court discounted Brewer’s challenge, finding the agreement withstood these arguments. Specifically, the Court found persuasive the fact that the agreement was just more than two pages, Brewer’s complaint did not articulate economic duress and Brewer gave a “knowing and voluntary” release in the document — although he did not consult with counsel. The court used several factors well-established in the Second Circuit (which includes New York, Connecticut and Vermont) to decide the release was knowing and voluntary: (1) plaintiff’s education and business experience; (2) the amount of time the plaintiff had possession of or access to the agreement before signing it; (3) the role of plaintiff in deciding the terms of the agreement; (4) the clarity of the terms; (5) the existence of counsel representing the plaintiff; and (6) the existence of consideration for the release. With facts meeting most of these criteria, the Court did not find the absence of counsel for Brewer to affect the deal. Likewise, the fact that the plaintiff did not play a role in deciding the terms did not impede enforceability because the Court found the consideration the employer provided in exchange for the agreement to be adequate.

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Gibbons Employment Article Featured on Cover of The Metropolitan Corporate Counsel

Posted in Employee Benefits, Employment Agreements, Family Leave

Five New Year’s Resolutions for Employers,” written by Employment & Labor Law Department Directors  Kelly Bird and Carla Dorsi, was the featured cover story in this month’s The Metropolitan Corporate Counsel. The article outlines the following five employment practices for clients to focus on in 2015.

  • Resolution #1: I will review my company’s arbitration agreements.
  • Resolution #2: I will examine my company’s hiring practices, from job postings through background checks.
  • Resolution #3: I will ensure my company’s paid time off policies and practices are compliant with paid sick leave laws.
  • Resolution #4: I will rethink my company’s policies and practices concerning pregnant employees.
  • Resolution #5: I will equip my employees with the knowledge and ability to comply with and enforce my company’s policies and our legal obligations.

Click here to read the full article.

Businesses Look to Slam Brakes on “Quickie” Election Rule

Posted in Labor

The United States Chamber of CommerceCoalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.

The lawsuit is just the latest chapter in the quickie election rule saga, whose long and tortured history dates back to 2011, 2012, and 2014. The new rule alters the union election process in numerous ways, but most notably by:

  • Expediting Elections. Under the current rule, there typically is a six to eight week period between the filing of an election petition and the election. Although less than ideal, many businesses often address unionization with their work forces only after receiving an election petition and they use the 42 to 56 days to educate their employees about unions so that they can cast an informed ballot come election day. The new rule can drastically reduce the time between the filing of the petition and the election to as little as 14 days, significantly reducing the ability of an employee to cast an informed ballot, given the extremely narrow window employers will now have to respond to the union’s side of the story the employees have been hearing for months (Notably, the latest union election statistics indicate that unions currently win most elections, even under the current rules.)
  • Limiting Legal Arguments and the Time to Make Them. The new rule requires companies to submit position statements containing virtually all legal arguments in opposition to an election and local agency rulings within days of receiving the petition or risk waiving these arguments. This short time frame will especially burden employers who have not previously considered their potential arguments.
  • Requiring the Disclosure of Employees’ Private Information. The new rule requires employers to provide unions with personnel information that previously did not need to be disclosed, namely, the employees’ personal e-mail addresses and phone numbers, if available, within two business days of the NLRB’s direction of an election.

Companies with questions about the new rule may contact a lawyer in the Gibbons Employment & Labor Law Department.

James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.

NLRB Rules Employees “Presumptively Permitted” to Use Employer Email Systems for Statutorily Protected Communications

Posted in Labor

On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

At issue in Purple Communications, was the Company’s electronic communications policy, which stated that the Company’s electronic systems were to be used for business purposes only. In addition, the policy prohibited employees from using the Company’s email systems to “engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “send[] uninvited emails of a personal nature”, among other things. The Communications Workers of America and the AFL-CIO brought an unfair labor practice charge against Purple Communications with the NLRB, alleging that the Company’s electronic communications policy interfered with the employees right to engage in “concerted activity” under Section 7 of the National Labor Relations Act.

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Supreme Court Decides Time Spent to Undergo Security Screening is Noncompensable

Posted in Wage & Hour

The time warehouse workers spent waiting to undergo and undergoing antitheft security screenings before leaving work is not compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et. seq., as amended by the Portal-to-Portal Act of 1947, §251 et. seq. (Portal-to-Portal Act), according to the United States Supreme Court, which unanimously decided Integrity Staffing Solutions, Inc. v. Busk on December 9, 2014.

Compensable work has been interpreted under the FLSA to mean work the employee is required to perform, and defined in the Portal-to-Portal Act to include activity that is “preliminary to or postliminary to said principal activity or activities.” In Integrity Staffing, the Supreme Court concluded that this statutory language means activity “with which the employee cannot dispense if he is to perform his principal activities.”

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