The Bipartisan Budget Act of 2015, signed by President Obama on November 2nd, contains a buried provision with the potential to substantially impact employers. Section 701 of the Act significantly increases the maximum civil penalties that may be imposed for violations of the Occupational Safety and Health Act. OSHA penalties — which have not changed
What Employers Can and Cannot Say During a Union Organizing Campaign
Employers probably are aware of the “quickie” election rules implemented earlier this year by the National Labor Relations Board (“the Board”), but they may not have considered all of the rules’ consequences. With as little as 15 to 20 days to respond to an organizing drive, employers must be prepared to educate employees about the risks and consequences of union representation on very short notice. While many employers have prepared as we described here, some still may not be ready to answer questions from workers and explain the consequences of unionizing the workplace. Responding to workers’ questions about a union without being properly prepared can make a mess of things, even if employers speak the truth.
A recent case from the Sixth Circuit Court of Appeals upheld a Board decision that provides a good reminder that managers must be extremely careful even when speaking the truth to workers during an organizing campaign.
Be Careful What You Say
When a car dealership in Illinois learned that some employees were stirring up interest in unionizing, the plant’s general manager met with workers to discuss unions and answer their questions. The manager answered their questions honestly, but his answers still violated labor law, according to the Board and the Sixth Circuit.Continue Reading What Employers Can and Cannot Say During a Union Organizing Campaign
Affirmative Action Update: Challenging the Pay Gap
According to government studies, last year women overall made approximately 77 cents to the dollar in compensation compared to men. Black women made 64 cents to the dollar. Hispanic women made even less—55 cents to the dollar. Most pay disparity isn’t due to base salaries; it’s due to other forms of compensation such as bonuses,
Northwestern University Football Players Can’t Vote for Union Representation …but it’s not over until it’s over…
Depending on your allegiance, “the Play” was one of either the most memorable or the most infamous moments in the history of college football. It happened in the final seconds of 1982’s annual “Big Game” between the Stanford Cardinal and U.C. Berkeley’s Golden Bears. As the fourth quarter was winding down, the Bears had taken a 19-17 lead over the Cardinal, but Stanford quarterback John Elway would have none of it: he overcame a dire 4th-and-17 and drove the Cardinal into field goal range. The field goal was good, giving Stanford a 20-19 lead with just seconds left in the game. As Stanford prepared to kick off, Cal announcer Joe Starkey observed, presciently, that “only a miracle can save the Bears now!”
Continue Reading Northwestern University Football Players Can’t Vote for Union Representation …but it’s not over until it’s over…
EEOC Rules That Title VII Prohibits Discrimination Based on Sexual Orientation
In a 3-2 decision published on Thursday, July 16, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) concluded that intentional discrimination against an employee based on their sexual orientation is sex discrimination- an act strictly prohibited under Title VII of the Civil Rights Act of 1964. “Discrimination on the basis of sexual orientation is premised
U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive
Stoel Rives Summer Associate Dexter Pearce co-authored this post.
In a case Justice Antonin Scalia described as “really easy,” the Supreme Court held that an employer can be liable for failing to accommodate a religious practice even if the employer lacks actual knowledge of a need for an accommodation. Writing for the 8-to-1 majority (Justice Thomas dissented), Scalia stressed that Title VII is concerned with motive, not knowledge. Thus, even if an employer has no more than an “unsubstantiated suspicion” of an applicant’s religious beliefs/practices, the employer violates Title VII if it’s action is motivated by a desire to avoid a potential accommodation.
Abercrombie employs a “Look Policy” that prohibits “caps.” Samantha Elauf, a practicing Muslim, applied for a retail sales position. Elauf wore a headscarf to her interview, but neither the headscarf nor religion were discussed. Heather Cooke, the assistant store manager and interviewer, identified Elauf as qualified for the position, but asked her store manager and the district manager about Elauf’s headscarf, noting that she believed Elauf wore her headscarf because of her faith. The district manager told Cooke that the headscarf would violate the Look Policy and instructed her not to hire Elauf.Continue Reading U.S. Supreme Court’s Decision in EEOC v. Abercrombie & Fitch: It’s All About the Motive
Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective
As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.
Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.
The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time.
Continue Reading Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective
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 Supreme Court Sends UPS Pregnancy Accommodation Case to Trial
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 NLRB Says “Mere Maintenance” of Employee Handbook Rules May Violate the NLRA
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