Tag Archives: employment lawyers

Office Holiday Parties: Avoid Adding 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.

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. Employers should keep in mind that office policies 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 that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

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

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

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