Unleashing Weingarten Rights

When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.

The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:

“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”

Nonetheless, in Circus Circus the panel broke with these seemingly settled principles.

So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third party denied this request and advised the employer that the temporary employee refused to cooperate.  The employer suspended the employee pending an investigation.

Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.

The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:

“I called the Union three times [and] nobody showed up, I’m here without representation.”

After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.

Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.

Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.

Attorney John Getty* assisted in preparing this blog post.
*Admitted in Louisiana and Georgia

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

The NLRB Continues to Retreat on Its Assault of Handbook Policies

In a recently released memo, the NLRB General Counsel confirmed the Board’s December 2017 signal of a shift in how the Board will scrutinize employer personnel policies. In December 2017, the NLRB changed course when it replaced the Lutheran Heritage standard, which had been aggressively used by the Board to invalidate personnel policies, with the Boeing standard (as discussed in our post from December 2017, “The NLRB’s Holiday Gift to Employers”). The Lutheran Heritage standard evaluated whether employees could “reasonably construe” a policy as barring them from exercising their rights under the NLRA. If the answer was “yes,” the policy was improper. The Lutheran Heritage standard was often applied in a manner that gave the appearance that the NLRB thought employees were lacking in intellect or common sense. Thus, the switch to the Boeing standard was generally celebrated by employers.

Even so, many employers felt that although the Boeing standard was a step in the right direction, it was somewhat complicated. In response to these criticisms, on June 6, 2018, NLRB General Counsel Peter Robb issued GC 18-04 “Guidance on Handbook Rules Post-Boeing.” This guidance provides examples of the policies (which he refers to as rules) that would fit into each of the three categories, and also makes it clear that the NLRB will no longer interpret ambiguities in rules against the drafter, “generalized promises should not be interpreted as banning all activity that could be considered included.”

The memo explains that the Boeing standard balances the personnel policy in question’s impact on NLRA-protected rights with the employer’s legitimate business justifications. The Boeing analysis uses three categories to determine the legality of rules:

Category 1: Rules that are Generally Lawful to Maintain

Category 2: Rules Warranting Individualized Scrutiny

Category 3: Rules that are Unlawful to Maintain

The memo goes on to state that Category 1 includes rules that may have been found unlawful under the Lutheran Heritage standard. It also explains that the types of rules in this category are generally lawful because the rules do not prohibit or interfere with the exercise of NLRA-protected rights or because there are business justifications associated with the rule. Rules in this category include:

(a) civility rules;

(b) no photography, no-recording rules;

(c) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;

(d) disruptive behavior rules;

(e) rules protecting confidential, proprietary, and customer information or documents;

(f) rules against defamation or misrepresentation;

(g) rules against using employer logos or intellectual property;

(h) rules requiring authorization to speak for company; and

(i) rules banning disloyalty, nepotism, or self-enrichment.

The memo provides that charges alleging that rules in Category 1 are facially unlawful are to be dismissed, recognizing however, that special circumstances could render a normally lawful rule in Category 1 unlawful. Facially lawful rules cannot be used to prohibit protected activity or to discipline employees for engaging in protected activity.

Category 2 rules are to be evaluated on a case-by-case basis. Such rules are not facially lawful or unlawful. If rules in this category restrict NLRA-protected rights, then the question is whether the employer’s business interest in having the rule outweighs the restriction on NLRA-protected rights. Some “possible examples” of Category 2 rules are:

(a) broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;

(b) confidentiality rules that encompass employer business or employee information;

(c) rules regarding disparagement or criticism of the employer;

(d) rules regulating the use of the employer’s name;

(e) rules generally restricting speaking to the media or third parties;

(f) rules banning off-duty conduct that might harm the employer; and

(g) rules against making false or inaccurate statements.

Category 3 rules are unlawful to maintain because they prohibit or limit NLRA-protected conduct and the adverse impact on NLRA-protected rights outweigh any justifications for them. Category 3 rules include:

(a) confidentiality rules specifically regarding wages, benefits, or working conditions; and

(b) rules against joining outside organizations or voting on matters concerning.

In light of Boeing and GC18-04, employers should be more confident in their ability to maintain appropriate policies for their workplaces, including those that dictate professional behavior. The new approach is clearer and provides for a balancing of employer justifications with employee rights, resulting in common-sense personnel policies being upheld as lawful. Employers are now better positioned to defend attacks on their well drafted, common-sense personnel policies.

Summer associate Ryan Larson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Employers Hear Music as the Supremes Cut into Employee Class Actions

The United States Supreme Court recently decided two cases addressing class-action proceedings. These cases show that “Things Are Changing” and employers will no longer have “Nothing But Heartache.” Both decisions are employer-friendly, in that these opinions effectively limit participation in class-action lawsuits.

In Epic Systems Corp. v. Lewis, the Supreme Court upheld the enforceability of class-action waivers in employee arbitration agreements. Arbitration is an alternative means of resolving a dispute without proceeding to a court trial. A class-action waiver in the employment context is a contract provision in an arbitration agreement that prevents employees from resolving employment disputes in a group. The Court found that employers can put these waivers in their arbitration agreements, and the waivers do not invalidate the agreements. Opponents to these waivers are now screaming, “Stop, In the Name of Love.”

Now, some “Reflections.” In light of this decision, employers should keep two things in mind.

  • The Epic Systems decision does not represent a blanket endorsement of arbitration agreements; rather, this decision requires courts not to overturn arbitration agreements solely because they contain class-action waivers. This case does not prevent courts from refusing to enforce arbitration agreements for other reasons.
  • Epic Systems does not mean all employers should declare, “I’ll Try Something New,” and adopt arbitration agreements. Employers considering using arbitration agreements should evaluate whether arbitrating their disputes is the right choice. Employers should keep in mind that by agreeing to arbitration, they are generally giving up their right to appeal an adverse decision.

In the second case, China Agritech v. Resh et al., which was not an arbitration case, the Court held that employees/former employees who were not certified as members of a class-action lawsuit before the legal deadline to join the lawsuit could not file a new class-action suit after the passage of the statute of limitations on the initial class action. Thus, some employees/former employees who do not timely protect their rights will no longer be able to belt, “You Keep Me Hangin’ On.”

“No Matter What Sign You Are,” as an employer these decisions are “Automatically Sunshine” and maybe even a bit of “Buttered Popcorn.”

Summer associate Kelley Thompson assisted in preparing this blog post.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Planning for the Next Hurricane: Employee Pay During and After a Storm

With the onset of the 2018 hurricane season and the effects of Hurricane Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Heathcare employers also have new ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s recent article, “Senior Living Providers: Are you ready for the Beryl, Chris, and Debby?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

A New W-4

The Tax Cuts and Jobs Act has several provisions that impact payroll, employment tax, and employee benefits. In accordance with these changes, the IRS released new withholding tables, as well as a new W-4. Although the IRS is not requiring employers have its entire workforce (hired before March 30, 2018) complete the new W-4, as of February 15, 2018, employers were required to begin withholding from employee wages based on new withholding tables.

At this time, employers should, at a minimum, have all new hires and any employee that has a change in their tax status (e.g., marriage), complete the new 2018 W-4. Further, if employers are not requiring all employees to complete new forms, employers should at least encourage their employees to review their withholdings, as the Act eliminated certain exemptions and allowances. As a result, some employees’ allowances may be overstated, resulting in under-withholding for the year. If employees want to submit a new W-4, they should be allowed.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).

Employment Law Seminar: Get a Handle on Workplace Scandal

Employers and human resources professionals, does turning on the news today make you cringe more than usual? Do you feel prepared to guide your companies away from the front page and out of the news spotlight?

We invite you to join us for a high-energy, engaging program, in which the panel will provide you with strategies to help prevent, investigate, and defend sexual and other harassment claims. Additionally, the presenters will share insights regarding Employment Practices Liability Insurance (EPLI), the use of non-compete agreements and other restrictive covenants, including a push from Washington, a new interpretation of Florida law, as well as voluntary compliance and litigation issues. The session will also address the legal landscape surrounding the gender pay gap.

PRESENTATION TOPICS

  • Harassment Prevention – Let’s Talk About Sexual Harassment, Baby
    Amie Remington, LandrumHR
  • Non-Compete Agreements – White House Initiative, Florida Law
    Interpretation, Voluntary Compliance and Legal Enforcement
    Gail Farb, Attorney, Williams Parker Harrison Dietz & Getzen
  • Gender Pay Gap Legal Landscape – Laws and Litigation
    Jennifer Fowler-Hermes, Attorney, Williams Parker Harrison Dietz & Getzen
  • Employment Practices Liability Insurance (EPLI)
    Pat Del Medico, Chief Operating Officer, Al Purmort Insurance

DATE AND TIME

Wed, April 18, 2018
8:00 AM – 11:30 AM EDT
Add to Calendar

LOCATION

The Francis
1289 North Palm Avenue
Sarasota, FL 34236
View Map

Click here for more information and to register. 

The Tax Act May Limit Resolutions of Sexual Harassment Complaints

One aspect of the new Tax Act (the Act) that has not been widely reported impacts employers that amicably resolve claims of sexual harassment. The provision denies tax deductions for any settlements, payouts, or attorneys’ fees related to sexual harassment or sexual abuse if such payments are subject to a non-disclosure or confidentiality agreement. Specifically, Section 162(q) to the Internal Revenue Code provides:

PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—

(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.

The intent of this provision is to deter confidentiality provisions in settlements of harassment claims. It is unclear if this provision will actually have the desired impact. Companies may value the confidentiality provisions more than the tax deductions permitted in their absence, and thus continue to enter into confidential settlement agreements. Alternatively, this provision of the Act may end up hurting those bringing harassment claims. Alleged victims may want confidentiality provisions in order to avoid any publicity about their claims. However, by removing tax incentives for employers, an employer may reject a higher settlement amount or settlement of claims altogether.

Section 162(q) of the Act is bound to create confusion as to its applicability as it fails to define key terms. Namely, the Act fails to define “sexual harassment” or “sexual abuse,” both of which are pivotal to the application of the new provision. The Act also fails to contemplate how the provision is to be applied in settlement arrangements involving a variety of claims. Are the sex-based claims separable from a universal confidentiality covenant? Causing further confusion, the Act fails to explain what attorney’s fees are considered to be “related to such a settlement or payment.” Are these only the fees related to settlement negotiations, drafting the agreement, and execution or payment? Or does it extend to the claim’s inception and include the underlying investigation of the claims?

In light of the numerous questions raised by Section 162(q), employers should review their standard settlement agreements and practices and consider revising the breadth of any releases, nondisclosure provisions, or any representations or remedies.

Ryan P. Portugal
rportugal@williamsparker.com
941-329-6626

The Mark of the Beast and Religious Accommodation in the Workplace

This week, the United States Supreme Court refused to grant certiorari to hear a religious accommodation case from the Fourth Circuit Court of Appeal, affirming a jury award for a long-term employee that retired because he believed that his employer’s requirement that he use a hand-scanner to clock into work would brand him with the “Mark of the Beast” (as referenced in the Book of Revelation in the Bible). Read the full opinion.

This case began back in 2012 in West Virginia. Plaintiff, an evangelical Christian, requested that he be allowed to use paper timesheets instead of the hand-scanning time clock that his employer was implementing. His request was denied. His employer asserted that he could use his left hand instead of his right hand in the scanner, as the Mark of the Beast is associated with the right hand and forehead. The employee was given an ultimatum, use the hand-scanner or be terminated. He chose to retire. Subsequent to his retirement, he learned that the company accommodated two employees with hand injuries, who could not be scanned, by installing a key pad and providing codes to the employees to enter into the key pad. With this knowledge, the employee sought the assistance of the EEOC, which filed suit on his behalf.

Shortly thereafter, I co-authored an article that discussed not only the facts of the suit, but also the framework under which religious accommodation claims are allowed to proceed. The framework for evaluation of religious accommodations has not changed since the article. Read the full article from The Florida Bar Journal.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558