Thursday, August 28, 2014

Meaning of Concerted Activity Broadened by NLRB

Margaret Elias was a cashier for Fresh and Easy Neighborhood Market. Ms. Elias had asked her supervisor if she could participate in some on the job training called “TIPS.” Per her supervisor’s instructions, she wrote “TIPS” on the whiteboard in the employee break room as a reminder of her request. Ms. Elias then found that someone had altered her writing to “TITS” and added an inappropriate illustration to go with it. The company did not allow cameras so Ms. Elias copied the writing and picture on a piece of paper. She asked three of her co-workers to sign the note verifying that they saw it, stating that she wanted to file a sexual harassment complaint. The three employees signed the note.

When the company found out that she had obtained those signatures during the course of their investigation into the incident, it asked why and instructed her not to gather any more signatures. The company concluded its investigation and the individual responsible was disciplined. Ms. Elias thereafter filed an Unfair Labor Practice Charge. She contended that the company’s employment policy was over-broad because it could be viewed as restricting her right to ask others to support her sexual harassment claim and that the company was unlawful in instructing her not to obtain any further statements.

The NLRB (reversing the ALJ’s decision) found that Ms. Elias’ actions were “concerted activity” taken for “mutual aid or protection.”  Therefore, it was protected by the NLRA. Ms. Elias’ right to ask her employees was independent of whether the requested employees joined her cause or even agreed with her. Asking for assistance from other employees to raise an issue to management, Ms. Elias was in essence asking her co-workers to exercise vigilance against the employer’s perceived unjust practices.

Wednesday, August 27, 2014

Employers On the Hook For Cell Phone Pay: California

A California Court of Appeals has ruled that employers must reimburse employees for the use of their personal cell phones for business purposes.

Colin Cochran was a customer service manager. He wanted his employer, Schwan’s Home Services, Inc, to cover his expenses for using his personal cell phone for work-related reasons. California Labor Code §2802 mandates that employers reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties…”

The trial court found that since no expense had been incurred, no reimbursement was owed. The employee had an “unlimited plan” and thus was not out-of-pocket anything beyond his usual expense for the personal use of his cell phone. The California appellate court overruled the lower court, finding it irrelevant whether the employee incurred additional charges for the work related calls. The duty arises when the employee “must” use the cell phone for work-related calls. The employer must pay a “reasonable percentage” of the cell phone bills.

Tuesday, August 26, 2014

Not High Enough: Silicon Valley Settlement Rejected

The proposed $324.5 million class action settlement of the anti-trust litigation has been rejected by a district court in Northern California as inadequate.

Five class action lawsuits had been filed against seven of the biggest technology companies in Silicon Valley for alleged engaging in a conspiracy not to poach each other’s employees. The lawsuits contend that this conspiracy had the effect of suppressing the employees’ wages. The lawsuits have since been combined into one large class action suit. Three of defendants settled earlier for $20 million. A tentative settlement subject to court approval was reached with the remaining defendants but a few of the plaintiffs filed an opposition to the proposed settlement.

The court concluded that the total amount was insufficient. Under the terms of the settlement, each class member would receive approximately $3,750. The total calculated cost of lost wages was found by an expert to be $3,056 billion plus a successful case could result in treble damages under the statute. The court determined that the settlement must be at least $380 million to be proportionate to the settlement of the first three defendants. The Court noted that the evidence in the case had only strengthened since filing: there was compelling evidence that Steve Jobs was a central figure in the conspiracy and that anti-poaching strategy had a big impact on salary.

Thursday, August 21, 2014

NLRB Says No To Another Confidentiality Rule

Fresh and Easy Markets have a written “Code of Business Conduct.” The code was up on the company’s website and contained 20 pages on a range of topics such as ethical considerations, equal employment opportunity, and unacceptable employee behavior.

The provision in question before the NLRB was entitled “Confidentiality and Data Protection.” Under this section, the company asserted its duty to customers and employees to respect and protect the information that it holds about them.  Following that, in the Dos and Don’ts section, it said do “[K]eep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained.”

The NLRB concluded that this provision was “not adequately limited by context” and that employees could reasonably believe that the company viewed information regarding the terms and conditions of employment as confidential and not to be shared. The language was considered too expansive and needed limiting information as to what type of information it was referring.

Wednesday, August 20, 2014

Barneys Pays Up to Settle Bias Case with NY

The New York State Attorney General had been investigating claims that Barneys was targeting minorities as suspected shoplifters. Specifically, Barneys was accused of only identifying minorities: to be placed under surveillance; to follow around the store even when the minority customers were known to the store; and disproportionately asking them for proof of purchases. It was also claimed that some sales associates avoided serving minority customers so they would not have to deal with the loss-prevention employees over the minority customer credit card use.

Two black shoppers who alleged race discrimination had triggered the investigation. One of the shoppers, Trayvon Christian asserted that he was asked by security how he could purchase such an expensive belt and was accused of using a fake id for the credit card and receipt that he produced. He was ultimately handcuffed and taken to the local precinct. The other shopper was a female nursing student. She was stopped after buying a $2500 Celine bag at the store. After leaving the store, she was surrounded by four undercover police officers.

An internal Barneys report alleges that the fault was with the police and not Barneys. However, Barneys has agreed to make changes ensuring that it does not discriminate against black and Hispanic customers. These changes include retaining an independent anti-profiling consultant and establish new record keeping requirements on investigations, detentions and false stops conducted by Barney’s employees. Barneys must also limit access to its closed circuit TV areas by local law enforcement and keep records of visits by local law enforcement. Barneys has agreed to pay $525,000 in costs and fees. Lawsuits by the shoppers against Barneys are ongoing.

Tuesday, August 19, 2014

Timing Does Matter in Pregnancy Discrimination

Terminating a pregnant employee in anticipation of her work related restrictions might be pregnancy discrimination according to an Illinois federal court.

Araceli Cadenas was employed as a certified nursing assistant for Butterfield Health Care. The duties of her position required that she be able to pull, push, or lift at least 20 pounds. During the 15th week of her pregnancy, Ms. Cadenas provided her employer with a doctor’s note informing it that once she reached her 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Knowing that in five weeks she would be unable to perform the essential functions of her position, the company refused to allow her to work any more before her baby was born.

Acknowledging that Butterfield could have terminated Ms. Cadenas when the restrictions went into effect, the timing of the termination raised suspicions because it was five weeks prior to the restrictions. No legitimate business reason was put forth by Butterfield to explain why it terminated her short of 20 weeks. Those facts could cause a reasonable jury to conclude that Ms. Cadenas was fired because of her pregnancy in violation of Title VII. The court noted that the defendant was not required to accommodate Cadenas because its employee policy only provided for accommodation in the face of a work related injury. No evidence was provided that the policy had been applied in anything other than a neutral manner.

Thursday, August 14, 2014

Courts Says Mailing Not Reliable Enough for FMLA Notice

The Third Circuit Court of Appeals has issued a message to employers: the burden will be on them to verify that their employees receive FMLA notification.

Lisa Lupyan worked for Corinthian College as an instructor. She decided with the support of her boss to take “personal leave” for her depression. She completed a leave of absence request form that indicated “personal leave.” However, she provided complete medical certification, which would support her need for an FMLA leave. The College converted her request for “personal leave” into FMLA and sent by U.S. mail the necessary FMLA notices to designate her leave as such. She ended up needing 14 weeks of leave. When she was released to return to work, the College responded that she no longer had a job because she exceeded the allotted 12 weeks of FMLA leave.  Ms. Lupyan responded that she had no idea that her absence had been classified as FMLA leave because she never received any notification.

The central question before the Third Circuit Court of Appeals was whether Ms. Lupyan had received notice of her FMLA leave. If she had received notice, then her claim against her former employer failed. The Court concluded that notification sent by “regular mail” only provided a “weaker presumption” of receipt.  This “weaker presumption” was nullified “whenever the addressee’s denies receipt of the mailing.” If the FMLA notice had been sent by certified mail, the presumption of receipt would have been stronger. In the age of computerized communications, the Court concluded that employers could reasonably find the means to have verifiable receipt.