Thursday, November 20, 2014

Yes, There is a Limit: NLRB Rules For Employer On Facebook Post

The NLRB recently considered a dispute involving two employees who had a Facebook rant against their employer. The employer was a teen center providing after school activities for high school students in Northern California. All employees at the teen center were asked to provide the “pros and cons” of working at the center during a year-end meeting. Apparently 8 pros and 23 cons were submitted and perceived as taken personally by management.

Two of the employees went on Facebook to complain about the center’s supervisors and discuss their plans of insubordination. Plans identified online included: refusing to ask for permission before organizing activities; disregarding specific school district rules; undermining leadership; and neglecting their job duties. Specific comments made about these plans were: planning “field trips all the time to wherever the f… we want,” teach the kids how to graffiti up the walls” and “f… it up” in reference to the teen center. The Center was given a screen shot of the conversation and quickly rescinded the offers to re-hire the two employees. The Center asserted its concern for the planned insubordination, which could potentially endanger the teen participants.

The NLRB found that the comments made by the employees were not protected by the NLRA. The NLRA protects the right of employees to act together to try to improve their pay and working conditions. This conversation was held to be “so egregious as to take it outside the protection of the Act, or of such a character as to render the employee[s] unfit for further service.”  The magnitude and detailed list of planned insubordination was considered so egregious as to take it outside the law’s protection.

Wednesday, November 19, 2014

11th Circuit Puts A Limit on EEOC’s Subpoena Power

In EEOC v. Royal Caribbean, the EEOC received a charge of discrimination from a former Royal Caribbean employee. The employee was an Argentinean national who had been fired because he was diagnosed with HIV and Kaposi Sarcoma. Royal Caribbean admitted that it had fired the employee because of his illnesses. However, the cruise ship company insisted that the ADA did not apply to a foreign national who worked on a ship that operated out of the Bahamas. Furthermore, the Bahamas Medical Authority’s standards mandated termination because of the employee’s illnesses.

The EEOC issued a subpoena that sought a list of all employees who were fired for a medical reason for the year before the charge, including detailed information about each employee such as personnel files and contact information. The EEOC’s subpoena also sought the same information for individuals not hired for medical reasons. The magistrate and district court refused to enforce the subpoena.

The 11th Circuit Court of Appeals outlined the EEOC’s right to inspect and copy all evidence that is “relevant to the charge under investigation.” However, the Court concluded that the subpoena did not attempt to gain information regarding the charging party. Rather, the EEOC was trying to discover a “potential class of employees or applicants who suffered from a pattern or practice of discrimination rather than fleshing out [the Charging Party’s] charge. The EEOC must make some showing that the “requested information bears on the subject matter of the individual complaint.” The EEOC argued for a much broader power to investigate and uncover other potential violations and victims of disability discrimination. In rejecting this argument, the Court stated that the EEOC is limited to evidence of the individual charge and what contested issues that are relevant to it; and not to issues that may be relevant to future unknown charges that may be brought by others. The Court also noted that the burden on Royal Caribbean to gather all the information needed to respond to the subpoena outweighed the “limited need” for the information by the EEOC.

Tuesday, November 18, 2014

Great Maternity Benefits May Mask Gender Bias

A recent survey by the consulting firm Mercer revealed an interesting correlation between comprehensive female benefits and job advancement. Many of the companies with wonderful benefits were the companies with the slowest advancement of women to the executive ranks.

The 164 organizations included in the survey were questioned about their human resources practices as well as their offered benefits. Questionnaires were answered and Mercer was permitted to review internal employee data.  Flexible working arrangements and maternity leave benefits were more likely to be offered in companies with higher current numbers of women yet these companies also had a much slower rate of promotion of women to the executive level.

Mercer proffers that often companies offering full benefits then feel complacent, forgetting that those benefits do not constitute actions to correct gender bias. Proactive management is needed to ensure that these women get back on track for promotion. Without active management of the employees taking advantage of these benefits and coaching them upon return, there are unintended consequences for diversity in the executive ranks according to Mercer. Another key to offering such benefits is whether they are truly valued by the organization. If such programs are formally offered but informally disparaged, then using the benefits negatively impacts women. All levels of management must be on board with the policies.

Sunday, November 16, 2014

Marijuana Reform Legalization on the Move

In the EPS Newsletter article “The Impact of Marijuana Reform on the Workplace” (published in November 2014 and written by Katherine Novak Townsend, Esq.), discussed recent marijuana reforms and the need for employer’s to stay on top of rapidly changing state laws. The November 2014 midterm elections resulted in two more states, Alaska and Oregon, as well as the nation’s capital, Washington D.C., voting to legalize small amounts of marijuana for adult recreational use.  Following in the footsteps of Colorado and Washington, Alaska and Oregon have passed regulations regarding retail production and sale and allowing adults to grow cannabis for their own personal use.  Stay tuned as we update new laws as well as court decisions interpreting the new laws and how they may impact employer-employee relations.

Thursday, November 13, 2014

Cutting Healthcare Costs Factor For Age Discrimination

After being purchased by a new owner, Associated Underwriters was operating at a loss. In looking at how to reduce costs, the recent upsurge in healthcare costs made it an important area to cut back. Bids were solicited from new insurers and one bid came in significantly lower than the others. Looking at that lower bid, the owner discovered that two employees over 65 had been excluded from coverage. One of those employees was Marjorie Tramp. The insurer explained that it did not cover Medicare eligible employees (those employees over 65 years of age.)

The owner sent an email to insurers noting that two employees older than 50 had left the company and that “[w]e have lost several of the older, sick employees and should have some consideration on this.” Ms. Tramp was summoned and encouraged to use Medicare instead of the company’s insurance plan. She declined. Shortly thereafter, Ms. Tramp was formally reprimanded for performance issues and placed on probation. The company had another reduction in force, which included both Ms. Tramp and the other over 65-year-old employee.

The Eighth Circuit Court of Appeals found that healthcare costs could be a proxy for age discrimination. Ms. Tramp had evidence that the employer had been looking for cheaper health plans and had negotiated by showing that some of the older employees had left the company. The company’s attempt to get Ms. Tramp to use Medicare as a replacement further supported the tie between healthcare costs and possible age discrimination, as did the timing between her termination and refusal to use Medicare. “Age and health care costs are not so analytically distinct if [the employer] presumed the rise in one necessitated a rise in the other.” The case will proceed to trial.

Wednesday, November 12, 2014

No More Playing for Free: Should College Athletes Be Paid Minimum Wage?

A former Division 1 soccer player has filed a lawsuit against her Texas university alleging that she is owed back wages for the time period in which she competed.

It is Samantha Sacko’s belief that student athletes are “employees” of their universities under the Fair Labor Standards Act. She likens the athletes to those students who participate in work-study programs. Both types of students perform non-academic functions for no academic credit, are supervised by college staff in the normal course of their job responsibilities and result in a benefit for the college. However, unlike the work-study students, the athletes are not paid for the time spent performing their non-academic tasks.

All 352 Division 1 schools are named in the lawsuit, as is the NCAA. She accused the schools and the NCAA of entering into a conspiracy to deprive the student athletes of fair wages by prohibiting payment in the bylaws. The NCAA is accused of forcing the schools into this agreement with the “threat of competition and financial penalties.” The suit has been filed in Indianapolis where the NCAA is headquartered. Although not mentioned, it is believed that this case is derived from the recent regional NLRB decision that student-athletes from Northwestern University may form a union.

Tuesday, November 11, 2014

Hit Again: Ford Assembly Plant Subject of Yet Another Sexual Harassment Suit

A Ford assembly plant in Chicago is the subject of a potential class action sex harassment suit. This sexual harassment is alleged to have occurred over two decades.

There are four named plaintiffs, each of whom alleges that they were subjected to lewd and demeaning comments from co-workers on a repeated basis because of their gender and race.  Specific allegations of groping, fondling and requests for sexual favors are outlined in the suit as are examples of sexually explicit graffiti and pornographic images. These women further assert that any attempt to complain about the conduct resulted in threats and adverse employment actions against them. For example, one of the women says that she was pushed to the ground and stomped on after complaining. The assailant told her she was a “black snitch bitch” who should not return to work and threatened her life if she did return. Supervisors and managers at the plant are also accused of having sexual relations during working hours on the premises.

The suit seeks not only damages but also a federal monitor to be present at the plant to make sure the conduct is not allowed to continue. This is not the first sexual harassment case against this same Ford plant for the plaintiff’s attorney. In 1995, he brought suit on behalf of nine women at the Ford plant and in 1997 he was part of two consolidated class action lawsuits that included allegations of sex harassment on behalf of over 1,000 women. The first case settled for $1 million and the latter settled for $9 million. Ford did not respond directly to the allegations but issued a statement affirming its commitment to equal opportunity and asserting that it takes allegations of sex harassment very seriously.