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

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

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

A NLRB Christmas Story

If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”

However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:

We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.

*  *  *

In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”

The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.

[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]

In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.”  With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining  “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”

We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.

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

The NLRB’s Holiday Gift to Employers

The new General Counsel for the NLRB recently issued a memorandum explaining that the NLRB would be moving swiftly to review several of the more controversial, and arguably anti-employer, decisions issued in the last eight years.  On December 14, thirteen days later, on the third night of Hanukkah, nine days before Festivus, and less than two weeks before Christmas, the NLRB took the first steps towards fulfilling this promise, when it issued two employer-friendly decisions that overturned two of the most controversial rulings of the NLRB under the Obama administration.  Happy Holidays, Employers!

First, in Hy-Brand Contractors the NLRB overturned the Browning-Ferris joint employer standard. When issued, the Browning-Ferris decision was shocking as it changed years of NLRB precedent. Through the Hy-Brand decision, NLRB has returned to the long standing test for joint employment that focuses on whether joint control is exercised (rather than merely reserved), whether such control has a “direct and immediate” impact on employment terms (rather than a merely indirect impact), and whether such control is not merely “limited and routine.”

Next, in Boeing Co. & Society of Professional Engineering Employees in Aerospace, the NLRB overturned the somewhat paternalistic Lutheran Heritage standard that has been used to invalidate policies in employee handbooks if it was determined by the NLRB that employees could “reasonably construe” the policy as barring them from exercising their rights under the NLRA. In application, the Lutheran Heritage standard was often applied in a way that caused employers to opine that the NLRB thought employees were lacking in intellect or common sense if they were to construe the policies as chilling or prohibiting their rights.  On pages 3-4 of the Boeing opinion, the NLRB states that the new standard will be as follows:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1).

As the result of this balancing, in this and future cases, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.

Although this standard is somewhat complicated, it should provide employers more confidence in their ability to have appropriate policies for their workplaces, including those that have business justifications which outweigh potential adverse impacts on employees’ protected rights.

In addition to the foregoing, on December 12, 2017, the NLRB issued a Request for Information Regarding Representation Election Regulations and in doing so provided employers with hope that the 2014 “quickie election rule” may eventually be a rule of the past.

Hopefully, the holiday gifts from the NLRB continue through the season.

This post was co-authored by Gail E. Farb and Jennifer Fowler-Hermes.

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

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

Proposed Changes to the Department of Labor’s Tip Pooling Rules

Yesterday, the U.S. Department of Labor published a Notice of Proposed Rule Making (“NPRM”) to alter limitations on tip pooling when an employer does not take a tip credit and pays the tipped employees a direct cash wage of at least the federal minimum wage. According to a DOL fact sheet on the NPRM:

As the NPRM explains, since 2011, there has been a significant amount of litigation involving the tip pooling and tip retention practices of employers that pay a direct cash wage of at least the federal minimum wage and do not claim a Fair Labor Standards Act tip credit. There has also been litigation directly challenging the department’s authority to promulgate the provisions of the 2011 regulations that restrict an employer’s use of tips received by its employees when the employer pays a direct cash wage of at least the federal minimum wage and does not take a tip credit. Moreover, in the past several years, several states have changed their laws to require employers to pay tipped employees a direct cash wage that is at least the federal minimum wage. This means that fewer employers can take the FLSA tip credit. The department is issuing this NPRM in part because of these developments and the department’s serious concerns that it incorrectly construed the statute when promulgating the 2011 regulations.

The proposed rule would allow employers to distribute customer tips to larger tip pools that include non-tipped workers, such as cooks and dishwashers. This would likely increase the earnings of those employees who are newly added to the tip pool and further incentivize them to provide good customer service. The proposed rule would additionally provide employers greater flexibility in determining pay practices for tipped and non-tipped workers. It also may allow for a reduction in wage disparities among employees who all contribute to the customers’ experience.

This proposed change does not impact tip pooling when an employer takes a tip credit toward the minimum wage requirement. Employers impacted by this proposed rule have until January 4, 2018, to provide comment on the rule. Comments may be submitted electronically at regulations.gov.

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

Office Holiday Parties: Avoiding Adding Names from Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in, say, the 1950s or 1960s. Setting aside a discussion of power and how power can lead some to believe that these social norms do not apply to them (see the list above), employers should keep in mind that social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sex harassment including, but not limited to, workers compensation, the Fair Labor Standards Act, and religion. However, this year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration.

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

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

An Employer’s Response to #MeToo

If you did not know the name Harvey Weinstein prior to October 2017, you should now, following the well-publicized allegations against him of sexual assault and harassment spanning decades. The focus on the allegations against Weinstein has resulted in women and men sharing their personal accounts of sexual assault and harassment. Often these personal accounts of improper sexual behavior are tied to the workplace and are prompting a national conversation of the abuse of power in the workplace. Many of these accounts are being made with the hashtag #MeToo. Even persons not willing to share the specifics of their experiences have been using #MeToo to confirm that they were indeed victims. The hashtag itself is not a specific call to action but instead aims to raise awareness of the magnitude of the problem of sexual assault and harassment.

Improper conduct by those in positions of power in several large companies is now being highlighted, and high-ranking officials in several of those companies are having to answer for their conduct, even if such conduct is outside of a relevant limitations period for a legal claim. On November 1, 2017, NPR’s senior vice president for news resigned on the heels of allegations of sexual harassment against him by several women, including two that, according to the Washington Post, claim that “he unexpectedly kissed them on the lips and stuck his tongue in their mouths.” Questions are now being asked regarding when NPR, and other companies, first learned of allegations of harassment and why firmer action was not taken by the company.

Due to this intense focus on harassment in the workplace, companies may want to evaluate if the policies and procedures that they have in place are sufficient, if their leadership truly understands what is appropriate behavior, and if employees are familiar with how to make complaints. To do this employers should consider the following:

  • Review written policies to ensure they are easily understood and provide the proper protections for employees
  • Conduct management training regarding harassment and appropriate behavior
  • Conduct employee training to ensure employees are aware of policies in place to protect them and understand the reporting procedures

Employers should anticipate that, with the increased focus on sexual misconduct, an issue may come up within their own companies. Understanding the issue and being prepared to provide a proper response is usually a better option for employers than merely responding to an issue when it arises.

You may also want to read our past posts relating to sexual harassment.

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

Florida’s Minimum Wage Is Set to Increase: What Are You Doing New Year’s Eve?

It is only October and across the state, in department stores not named Nordstrom, holiday decorations are appearing. It may seem that, like these stores, reporting to you that on January 1, 2018, Florida’s minimum wage will increase, may be premature. But, like the holidays, the new minimum wage will be here before you know it. If you are not prepared, then you may be updating your payroll on New Year’s Eve.

Great, now I have Harry Connick Jr’s melancholy version of the 1947 classic by Frank Loesser stuck in my head (and it’s only October):

Maybe it’s much too early in the game
Ooh, but I thought I’d ask you just the same
What are you doing New Year’s
New Year’s Eve?

On January 1, 2018, Florida’s minimum wage will increase from $8.10 to $8.25 an hour. Employers should be prepared to make adjustments to their minimum wage earners. Failing to pay non-exempt employees Florida’s statutory minimum wage can result in claims against employers pursuant to Section 24, Article X of the State Constitution and Section 448.110, Florida Statutes. The maximum tip credit ($3.02) that can be taken by Florida employers with tipped employees will remain the same, but the direct wage paid to tipped employees will increase from $5.08 to $5.23 an hour.

In addition to raising the minimum wage, Florida employers are required to post a minimum wage notice in a conspicuous and accessible location. Before the beginning of 2018 you will be able to download the 2018 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice requirement is in addition to the requirement that employers post regarding the federal minimum wage (which has not been increased). There will also be commercially available Florida-specific “all-in-one posters” that satisfy both the federal and state notice requirements. The 2018 “all-in-one” posters should also be available in the near future.

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

Reinforcing Florida Employers’ Ability to Protect Valuable Business Relationships

Florida employers and their attorneys received good news in September when the Florida Supreme Court finally issued its opinion in White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017). At issue in White, was whether referral sources could constitute protectable legitimate interests under Florida Statute s. 542.335. The Florida Supreme Court answered this question in the affirmative, holding that referral sources can be protectable interests sufficient to support a restrictive covenant in a non-compete/non-solicitation agreement.

For more information on how employers can protect their valuable information and business relationships see our previous post.

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

Should I Pay Exempt Employees Who Miss Work Due to Bad Weather Conditions?

As Florida prepares for a potential direct hit by Hurricane Irma, employers have many concerns. At some point, when decisions have been made about if a business will stay open and if goods or people need to be moved out of harm’s way, the following question will most likely be asked: “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 worksite 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 see this opinion letter from the U.S. Department of Labor.

As for non-exempt employees, the FLSA only requires that employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweeks, must be paid their full weekly salary in any week for which work was performed.

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