NLRB Poster Rule Upheld

As previously reported, on August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date). The NLRB then postponed the implementation date with a new effective date of January 31, 2012.

The effective date got postponed again when the National Association of Manufacturers brought a challenge to the rule in a U.S. District Court in Washington, DC. On March 2, 2012, U.S. District Court Judge Amy Berman Jackson ruled that the NLRB has the authority to implement the rule, although the court struck down the provision that would have made noncompliant employers guilty of an automatic unfair labor practice charge.

A copy of the court ruling can be found here.

Workplace Bullying

Bullying is a prevalent problem in the workplace and can be considered a form of harassment. For instance, there have been cases that have found “sexual animus” in violation of Title VII where a male is more comfortable bullying women than men.

Very few, if any, state laws protect against bullying in the workplace. But, in the Federal context, at least one court has recognized “an alternative motivational theory in which an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men. There is no logical reason why such a motive is any less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” E.E.O.C. v. Nat'l Educ. Ass'n, Alaska, 422 F.3d 840, 845 (9th Cir. 2005) Hence, bullying could be a form of unlawful harassment under Title VII. 

Another case held that a co-workers' sporadic use of abusive language, gender-related jokes, occasional teasing, and workplace bullying did not create hostile work environment. Vito v. Bausch & Lomb Inc., 403 F. App'x 593 (2d Cir. 2010)

According to a New York District Court, “to be actionably hostile, a workplace must be rendered hostile by workplace-altering conduct attributable to some statutorily prohibited factor (race and national origin are the relevant factors for our purposes here)—not simply incivility or nastiness. When we say that Title VII, and corresponding state and local laws, are not a civility code, See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), we are saying even if mean-spiritedness or bullying render a workplace environment abusive, there is no violation of the law unless that mean-spiritedness or bullying is rooted in race or national origin discrimination. An abusive workplace that is not discriminatory does not violate the law. For purposes of this case, harassment at the Westin that was not based on Plaintiff's race or national origin is not illegal, even if it was offensive. Mendez v. Starwood Hotels & Resorts Worldwide, Inc., 746 F. Supp. 2d 575, 606 (S.D.N.Y. 2010)

 Finally, another New York District Court held that mere workplace bullying is not enough to give rise to an actionable hostile work environment claim; rather, there must be a showing that the conduct occurred because of the employee's membership in a protected class. De la Cruz v. City of New York, 783 F. Supp. 2d 622 (S.D.N.Y. 2011)

A best practice to avoid workplace bullying:

•  Train and educate management and staff on what is/isn't appropriate behavior;
•  Encourage witnesses to bullying to report the conduct to the appropriate management person without fear of retaliation or reprisal;
•  Encourage victims to report bullying, which will be promptly and appropriately investigated;
•  Take appropriate remedial action.

Expired FMLA Forms Extended

You may notice that the most current versions of the Family and Medical Leave Act (FMLA) forms from the US Department of Labor (DOL) bear an expiration date of December 31, 2011.  Of course, the deadline has passed, yet the DOL has not issued new forms.

The DOL must submit the new forms to the Office of Management and Budget (OMB).  At first, OMB had not yet approved the new FMLA forms, so DOL was advising that employer could still use the expired forms.  However, on Saturday, January 14, 2012, the DOL changed the expiration date for the most current forms to January 31, 2012, extending the use of the existing forms.

The most current forms are subject to updating in part because they do not address the Genetic Information Nondiscrimination Act (GINA) safe harbor notice employers can provide when seeking medical information from employees or employees’ medical providers. The safe harbor notice states that “GINA prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

  

What's the Real Cost?

With the increase in Federal agency initiatives targeting employers, such as I-9 audits or independent contractor classification audits, employers face increased scrutiny. In addition, disgruntled current or former employees are free to lodge complaints with State and Federal agencies that may spark an investigation. In either case, an employer faces potential liability, as very few employers are capable of keeping up with the myriad of employment laws. In reality, most employers try to remain compliant with employment laws, but if the government looks hard enough, it is likely to find a violation or two.

What’s the cost of a claim? It might be fines for incomplete I-9s, unpaid taxes for misclassification of workers, overtime for unpaid wages or a need to change employment practices. But, the biggest cost is usually legal fees. It is a best practice to hire counsel when an employer faces a government investigation, employee claim or audit. Contacting counsel before reacting/responding to a claim is prudent, but it does create an expense. Moreover, a disgruntled employee is likely to have an attorney herself. When an employee has an attorney, that attorney will likely make a demand for some kind of monetary compensation for whatever wrong the employee alleges. The demand ordinarily includes the payment of that employee’s attorney’s fees.

Most Federal discrimination laws allow for the recovery of attorney’s fees to the “prevailing party”. In a case that goes to litigation, this can mean that the employee’s attorney will ask the court to award “reasonable attorney’s fees”. Typically, the employee’s will ask that the court award attorney’s fees in excess of $100,000. Even in cases that settle, employees expect their attorney’s fees to be paid by the employer, which again can add up to significant amounts of money even in a case that is considered suspect.

In a recent Federal employment discrimination case, a jury awarded an employee $110,000 in damages for the employer’s retaliation for her protesting unlawful employment practices. The employee asked the court for an award of attorney’s fees. Although the employee also brought two other unsuccessful claims (one for gender discrimination and one under the FMLA) that the jury rejected, the judge in that case awarded the employee $250,000 in attorney’s fees and expenses. Think about it: her attorney’s fees award more than doubled the amount of actual damages that the jury awarded to her. The judge reasoned that the winning claim (retaliation) was “intertwined” with her other discrimination claims such that she was entitled to all of her attorney’s fees.

What is the lesson learned from this illustrative case? Be proactive as an employer. Conduct regular training for both employees and management, including on topics such as harassment. In addition, conduct a self-audit of internal recordkeeping, policies and procedures, etc. If you find violations on your own, it’s cheaper and easier to correct with the assistance of counsel than when your company is facing a claim or audit. Finally, while not all claims are avoidable despite best efforts, if the company has taken proactive steps such as those mentioned above, it can mitigate its exposure and can reduce the number of claims. After all, paying someone else’s attorney’s fees doesn’t exactly help the bottom line.

Sexual Harassment Revisted

Sexual harassment has taken over headlines again.

First, the 20th anniversary of the Anita Hill/Clarence Thomas controversy just passed.  To rewind, in 1991 when U.S. Supreme Court Justice Marshall decided to retire, then-President George Bush appointed Thomas to the U.S. Supreme Court. During the the Senate's confirmation process, Hill went public with her allegation that Thomas had sexually harassed her while both worked for the Equal Employment Opportunities Commission (EEOC).


Second, in the past few weeks, Republican presidential hopeful Herman Cain's campaign has had to answer charges that he sexually harassed several women while he was the head of the National Restaurant Association in the 1990s.


Sexual harassment has always existed in the workplace, although it receives much more attention in legal circles than it does in mainstream dialogue.  By law, a company is supposed to train and educate management and staff on what harassment is, what do if a worker is a victim or witness to harassment, and how the company will handle the report or complaint.  Generally, a company should have a written anti-harassment policy covering all forms of harassment, including sexual harassment.  Typically, a company puts such a policy in an employee handbook or on a company intranet.  The key elements of an appropriate investigation include:

• interviewing the alleged victim, harasser and any witnesses; and
• taking prompt remedial action if the allegations can be substantiated.

The law also creates a strict liability situation (i.e., no defense) in some situations, such as where a supervisor is the alleged harasser and the company has failed to provide any form of policy or guidance on how to report the conduct.  A company can also be held liable where a member of management learned of alleged harassment and failed to take action to investigate or address the complaint.

A best practice is for a company to bring in outside assistance, such as legal counsel, to perform annual training on harassment and to review existing policies and procedures.  During training, it is a good idea to explain the current state of the law, to review the company's anti-harassment policy and to reiterate a zero tolerance for any form of harassment.

NLRB Posting Deadline Now Delayed

After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

So, the NLRB still intends to implement the rule.  Curiously, the NLRB made no mention of the federal court litigation challenging the rule.

NLRB Posting Rule and Current Status

On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement.  But for now, employers should presume that they are to comply with this rule.