Supreme Court Sends UPS Pregnancy Accommodation Case to Trial

The U.S. Supreme Court handed a defeat to United Parcel Service (UPS) this week. At issue was whether UPS violated the Pregnancy Discrimination Act (PDA) by requiring a pregnant woman with lifting restrictions to go on leave during her pregnancy, while workers in certain other categories (such as those with on-the-job injuries) were allowed light duty. We consider the ruling and the lessons it holds for employer leave and accommodation policies below.

In a decision announced March 25, 2015, the Supreme Court ruled that the district court, which had dismissed Young v. UPS (PDF) on summary judgment, must proceed to trial on the question of whether intentional discrimination occurred when a pregnant UPS employee was treated less favorably than others in similar situations.

The Court ruled in Young that under the PDA an employee can make a prima facie case of discrimination by showing that she was denied accommodation, while other sick or disabled workers with a similar inability to work were allowed accommodation. The employer then must show that it had a legitimate non-discriminatory reason for the difference in treatment to avoid liability, and if it makes such a showing the plaintiff can rebut the showing through evidence of pretext. Continue Reading

NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA

In recent years the National Labor Relations Board (NLRB) has aggressively sought to emphasize that its reach extends beyond solely unionized workforces.  On March 18, 2015, NLRB General Counsel Richard Griffin released a 30-page report that provides labor lawyers and HR professionals guidance on what the General Counsel contends is – and is not – a lawful employee handbook rule under the National Labor Relations Act (NLRA).  The General Counsel’s report makes clear just how broadly the Board applies its rules, finding fault in a number of common-sense workplace practices regarding confidentiality, criticism of the company, misconduct, communication with the public or the media, conflicts of interest, and a variety of other topics.   Non-union employers may be asking, “Why do I care?”  But the NLRA applies to every employer (at least those engaged in “interstate commerce,” which is almost everyone).

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.  If you’ve got a union lurking (or campaigning), that’s like free (and forced) advertising, telling employees why they need a union.

We’ve written about the NLRB’s scrutiny of employer rules on social media use and off-duty access, but this report is a “one stop shopping” trip for purposes of NLRA compliance.  The report (available here) provides real-life examples of allegedly unlawful and lawful policies and the reasoning behind the decisions.  And it provides (starting at page 26) what some might view as “model” policies prepared by Wendy’s International LLC and the NLRB pursuant to a Board settlement agreement. You may not like – or decide to adopt – the stance that the General Counsel has taken on these policies, but at least you (sort of) know his position on many handbook policies. Continue Reading

Utah Legislators Make History, Pass LGBT Antidiscrimination/Religious Freedom Bill

Utah legislators made national headlines last night when they approved a bill providing antidiscrimination protections to LGBT employees coupled with protections for religious expression in the workplace. Titled the Utah Antidiscrimination and Religious Freedom Act (the “Act”), the bill received support from across Utah’s political spectrum, including the Church of Jesus Christ of Latter-Day Saints, the ACLU of Utah, and some of Utah’s leading LGBT advocacy groups. Utah Governor Gary Herbert has pledged to sign the bill into law later today.

The bill could serve as a template for other so-called “Red States” also seeking to balance concerns about religious liberty and expression with the need for workplace antidiscrimination protections for LGBT employees. Our objective in this article is to describe how the new law will impact Utah employers, their obligations under the Act, who is protected and who is exempt, and how the law’s religious belief protections for employees are meant to apply. Continue Reading

Uncharted Territory: Seattle’s $15 Minimum Wage Ordinance

5352901The City of Seattle’s Minimum Wage Ordinance is set to take effect April 1, 2015.  When it does, Seattle will have the highest minimum wage in the nation, outpacing larger metropolises like San Francisco and New York City. Initially, Seattle workers will see a large increase above the State of Washington’s current $9.47 an hour minimum wage, up to either $10 or $11 an hour, depending on the size of the employer. Thereafter, the Seattle minimum wage will rise under a phased-in approach so that employee wages increase incrementally over the next three to seven years until the $15 per hour minimum is met by all employers. Once the $15 minimum is attained, wages will adjust with inflation. Below is a brief guide to the legislation and how it affects Seattle-area employers.

Draft Regulations Just Issued

On February 19, 2015, Seattle released long-awaited draft regulations interpreting the Ordinance, which will be discussed further below. Seattle is taking comments on the draft regulations through Friday, March 6, 2015. The text of the Ordinance and the draft regulations, the phased-in minimum wage schedules, and other information about the Ordinance can be found here: http://www.seattle.gov/civilrights/labor-standards/minimum-wage.

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NLRB Final Rule: “Quickie” Elections are Now Reality

As anticipated, on December 12, 2014 the NLRB announced that the final “Quickie” Election Rule will be published in the Federal Register on December 15, 2014 and will take effect on April 14, 2015. Among other changes, the rule will shorten the time between the filing of a petition and the election for union representation from approximately 42 days to as little as 10 to 14 days. The final rule is substantially similar to the rule that was invalidated by the D.C. District Court for procedural reasons in May 2012 and re-issued in draft form last February.

The NLRB contends that the rule will “reduce unnecessary litigation and delay” in the context of union organizations. In reality, the new rule will be a boon to organized labor, speeding up the union election process while limiting an employer’s ability to challenge potential voter eligibility until after the election has already taken place.

As we reported earlier this year, under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB.  Sometimes employers know about the organizing drive before the petition is filed, but sometimes they do not. During the pendency of the election (which was formerly about 40 days), employers have an opportunity to provide employees with information about the union, its tactics, and the costs and disadvantages of joining a union.

Under the new rule, the campaign period is further compressed to as few as 8 to 10 days, resulting in the union getting a quick vote before the employer can make its case against unionization. This means that employees will be voting based on the information provided to them by the union, which is less than complete and often less than factual. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.

The rule also requires employers to provide the union with voter lists in electronic form, including home and mobile telephone numbers and personal email addresses when it has them available. The new rule also defers most aspects of litigation (such as contesting the appropriateness of the bargaining unit) and any appeals until after the election.

What should I do now?

Although litigation to challenge the rule is likely, employers should ready themselves to respond quickly to organizing campaigns. Steps you can take now include:

  • Educate managers and supervisors about the organizing process and what they can do to educate employees about the benefits of their current employment situation.
  • Update job descriptions and job titles for supervisors and be sure you are clear on what constitutes supervisory status under Board law.
  • Consider preparing basic election campaign information for employee distribution if the union comes knocking.

U.S. Supreme Court Finds Post-Shift Security Checks Noncompensable in Integrity Staffing v. Busk, But Employers Shouldn’t Get Too Excited

The U.S. Supreme Court, in a rare unanimous decision earlier this week in Integrity Staffing Solutions v. Busk, held that time spent by warehouse employees at Amazon.com warehouses waiting to go through security checks at the end of their shifts was “postliminary” activity not compensable under the federal Fair Labor Standards Act (“FLSA”) and its major amendment, the Portal to Portal Act (“PPA”).  While Busk may provide welcome clarity for employers who wish to implement such screens, the case probably does little to radically change the analysis of compensability of other pre- and post-shift activities beyond its narrow set of facts.

Amazon.com’s Warehouse Security Checks

Integrity Staffing is a staffing agency that provides employees to Amazon.com.  Those employees work in the company’s warehouses pulling products from shelves and getting them packaged for mailing to buyers.  Because of concerns related to employee theft, Integrity Staffing required employees to go through security checks before leaving the warehouse at the end of their shift, but did not pay employees for that waiting time.  Waiting in line and going through these security checks took about 25 minutes.

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NLRB Reverses Sodexo Off Duty Access Decision – a Crack in the Door After Noel Canning…Or Not?

Employers often maintain policies prohibiting off-duty employees from accessing their facilities.  The NLRB has maintained its “Tri-County Medical” rule for nearly 40 years:  an employer’s rule barring off-duty employee access to a facility is valid only if it (1) limits access solely to the interior of the facility, (2) is clearly disseminated to all employees, and (3) applies to off-duty access for all purposes, not just for union activity.  In two recent decisions, the Board interpreted the third prong of Tri-County Medical to significantly limit employers’ ability to prohibit off-duty access by employees.

In St. John’s Health Center, 357 NLRB No. 170 (2011), the Board invalidated a hospital’s policy that permitted employees to come onto hospital property “to attend Health center sponsored events, such as retirement parties and baby showers.”  And in Sodexo, 358 NLRB No. 79 (2012), the Board invalidated a hospital’s rule that permitted off-duty employees access for “hospital related business,” which was defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”  The 2012 Board majority disallowed this rule because it gave the hospital “free rein to set the terms of off-duty employee access.”  Former Member Hayes dissented in both decisions, stating that, under the majority view, an employer cannot maintain a valid off-duty access policy if it permits activities “as innocuous as allowing employees to pick up paychecks or complete employment-related paperwork.”

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Nostradamus, Minimum Wage, and Paid Sick Leave

Thumbs upAllow us to pat ourselves on the back for a moment.  Prognosticating from 2013 into the future, we accurately predicted that in 2014 the Seattle Seahawks would win the Super Bowl and that the public would continue to strongly support minimum wage increases and paid sick leave laws.  (Please politely ignore our Portland Trailblazers NBA championship prediction.)

This year voters in five states overwhelmingly supported an increased minimum wage, while voters in Massachusetts and three New Jersey and California cities adopted paid sick leave.  These states and cities join a growing trend of support for “living wages” and paid sick leave laws.  Earlier this year, for instance, Seattle approved a minimum wage of $15 per hour, while Portland implemented its paid sick leave law and California became the second of now three states to give its employees paid sick leave on a statewide basis (see our posts on Portland’s law here, and California’s law).

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EEOC’s Tough Stance on Employee Separation Agreements

pharmacistEmployers like separation agreements.  Separation agreements, of course, are contracts that employees sign when their employment is terminated that allows them to be paid severance and in exchange they usually give up the right to sue their employer.  Separation agreements provide finality to employment terminations by offering employers protection from claims and potential claims.  The agreements many employers use are often standardized and have served them well for years.  But now might be the time to take another look at those documents, lest the Equal Employment Opportunity Commission (“EEOC”) looks first.

Recently, the EEOC has aggressively asserted its (re)interpretation of the law regarding the enforceability of separation (severance) agreements, suing several companies for using what it perceived to be overly broad agreements.  See, EEOC v. CVS Pharmacy, Inc. no. 1:14-cv-00863 (N.D. Ill. 2014); see also, EEOC v. CollegeAmerica Denver, Inc., no. 14-cv-01232-LTB (E.D. Co. 2014).  The EEOC doesn’t like separation agreements that do not make it sufficiently clear (in the EEOC’s opinion) that employees do not waive the right to file charges with the EEOC or participate in agency investigations, even though the employee can waive claims for damages under the statutes the EEOC enforces like Title VII or the Americans with Disabilities Act (“ADA”).  In the CVS Pharmacy and CollegeAmerica cases, the EEOC alleged the employers’ separation agreement forms constituted a “pattern or practice” of denying employees their statutory rights.  (“Pattern or practice” is significant because such cases can carry much higher penalties than a run-of-the-mill lawsuit; they can also inspire class-action lawyers to start snooping around.)

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AB 1897: California’s New Labor Contracting and Client Liability Law

sledgehammerCalifornia Governor Jerry Brown recently signed AB 1897 thereby creating new liability for businesses that engage in labor contracting.  Current California law prohibits employers from entering into labor or services contracts with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor, if the employer knows or should know that the agreement does not include sufficient funds for the contractor to comply with laws or regulations governing the labor or services to be provided.  AB 1897, which goes into effect January 1, 2015, greatly expands this law by requiring all “client employers” to share with “labor contractors” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to secure valid workers’ compensation coverage.

AB 1897 defines “client employers” as any business entity “that obtains or is provided workers to perform labor within its usual course of business from a labor contractor” and “labor contractors” as any individual or entity “that supplies, either with or without a contract, a client employer with workers to perform labor within the client employer’s usual course of business.”  While there are limited exceptions, the practical effect of these broadly defined terms is to impose joint liability on employers for the employment violations of their subcontractors and staffing agencies. All is not lost, however.  The new law does not prohibit employers from agreeing to any otherwise lawful remedies against labor contractors for indemnification from liability created by acts of the labor contractor.  Second, the law only applies to employers who are provided with workers to perform labor “within the client employer’s usual course of business.”  As such, independent contractors are excepted so long as a bona fide independent contractor relationship exists.

This new law confirms that California businesses must continue to do everything in their power to ensure that their subcontractors and staffing agencies are complying with all aspects of California’s wage and hour laws.  In addition, employers must ensure that any contracts with such parties contain valid indemnification provisions.  It is only by taking these and other steps that employers can protect their businesses from any loss or harm (including attorneys’ fees) arising from claims by the subcontractor’s or staffing agencies’ employees.

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