Modern Recruiting Hits a Snag 2017-12-22T09:52:20-07:00

Posted on December 22, 2017

The former general counsel of the EEOC under President Obama leads a team that is giving many, many employers an early holiday nightmare. A union and a class of plaintiffs are seeking damages from a class of employers; if your company uses Facebook for recruiting, your company might be a defendant in this case.

The allegations include the claim that, when setting up a job ad on Facebook, employers designate the group they want to reach, by location, age, and gender. The identification might be by age range, or by demographic euphemisms like “Millennial” or “Young and hip.” Those of us who remember recruiting before the internet will be aware of the risks involved in targeted advertising. This is the same thing, but with thousands of employers at risk in a single lawsuit.

The case is Communications Workers of America et a. v. T-Mobile US, Inc., et al., Case No. 5:17-cv-07232 (N.D. Cal.). Watch this space for updates.

Happy holidays!

The Changed NLRB Reasonably Defines “Change” 2017-12-18T09:15:42-07:00

Posted on December 18, 2017

By Patrick Scully

The new National Labor Relations Board (“NLRB” or “Board”) reversed another Obama Board decision on Friday. In Raytheon Company, 365 NLRB No. 161 (December 15, 2017), the Board returned to long standing precedent that the question of whether an employer has made a “change” should take into consideration the employer’s standing practices. The Obama Board had rejected that interpretation in E.I. du Pont de Nemours, Louisville Works, 355 NLRB 1084 (2010), when it held that because a practice was not set forth in the parties’ collective bargaining agreement, the employer could not continue to exercise the practice after expiration of the agreement. The new NLRB disagreed, finding the DuPont decision inconsistent with the long-standing “commonsense” definition of what is actually a “change” in employees’ terms and conditions of employment. Accordingly, Raytheon was free to make its usual adjustments to health benefits as it had in prior plan years. It was not required to provide the union with notice and an opportunity to bargain the practice simply because the agreement expired.

Trump Board Trashes “Biggest Idiot” Test 2017-12-15T14:35:57-07:00

Posted on December 15, 2017

By Bernie Siebert

The Trump Board quickly jumped on the Obama Board’s seeming obsession with otherwise innocuous employee policies and handbook provisions. The Boeing Company. We have repeatedly blogged about the Obama Board’s “biggest idiot” theory as applied to handbook provisions. Rather than reviewing handbook policies to see whether a reasonable person might interpret them to unlawfully prohibit protected concerted activity, the Obama Board seemingly reviewed the policies from the perspective of the biggest idiot in the workplace. The Trump Board recognized the extreme hardship this put on both Employers and Employees, leaving both groups to guess at what was permitted versus prohibited conduct. Overruling Lutheran Heritage Village Livonia, the Trump Board ruled that in evaluating whether a rule potentially interferes with an NLRA right, “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 requirement(s).” The Board majority described three categories of policies. The Board will: (1) uphold rules that, when reasonably interpreted do not ban protected conduct, or that do ban protected conduct but a business justification outweighs the potential impact on protected conduct; (2) individually scrutinize rules that, when reasonably interpreted, appear to ban protected conduct and weigh the value of the protected conduct against the business justification for the rule; and, (3) strike down policies that, when reasonably interpreted, appear to ban protected activity and the value of the activity outweighs the business justification. So, say “hello” to your employee handbook, and “goodbye” to your biggest idiot!

New Board Restores Proper Joint Employer Test 2017-12-15T13:14:28-07:00

Posted on December 15, 2017

By Bernie Siebert

Yesterday the newly constituted Trump Board overruled the Obama-era joint employer test that has caused confusion and legal uncertainty for many employers. Hy-Brand Industrial Contractors, Ltd. The Board’s test in the much criticized Browning-Ferris Industries case was that “direct and immediate” control was not necessary to establish that two employers were “joint employers.” Rather, so long as there was the mere existence of reserved joint control, joint employer status could be found. This test caused problems for franchise relationships, determining which employer had a bargaining obligation, and whether a secondary boycott existed. The Trump Board overruled Browning-Ferris and returned to the direct and immediate control test. Return to the old test should again provide employers with the clarity necessary to determine their legal standing and obligations.

Supreme Court Avoids Sex Orientation Case 2017-12-14T15:50:36-07:00

Posted on December 14, 2017

By Bernie Siebert

In an move that surprised many Supreme Court watchers, the Court declined to hear the case of Evans v. Regional Hospital et al. The case raised the issue of whether the prohibition in Title VII against employment discrimination because of sex encompasses sexual orientation. The Eleventh Circuit ruled that Title VII did not encompass sexual orientation. The panel did however hold that “discrimination based on gender non-conformity” is actionable. The line between sexual orientation discrimination and gender non-conformity discrimination as sex discrimination is blurry at best. Gender non-conformity appears to be where a gay or lesbian plaintiff exhibits at work overt mannerisms, appearance, and behavior that is stereotypical of a gay or lesbian. A plaintiff who is gay or lesbian, but who does not exhibit the stereotypical mannerisms, behavior, or appearance yet is known to be gay or lesbian fares less well with a claim of sex discrimination. The Seventh Circuit has held that sexual orientation discrimination is prohibited by Title VII in Hively v. Ivy Tech. Interestingly, the EEOC and DOJ take different views of the issue. Neither case addressed the issue of transgender discrimination. It was hoped that the Supreme Court would bring some clarity to these issues.

New NLRB General Counsel Fires Shot Across The Bow 2017-12-06T09:32:42-07:00

Posted on December 6, 2017

By Patrick Scully

NLRB General Counsel Peter B. Robb has made a first and lasting impression with his initial Memorandum describing Mandatory Submissions to Advice. General Counsel Robb announced his intent to review, through the Division of Advice, new cases involving issues that the Obama-appointed NLRB regularly prosecuted as unfair labor practices. Among other matters, GC Robb will review cases: where vulgar, obscene, or racist conduct/statements were declared to be “protected concerted activity;” where innocuous employer rules were declared unlawful (including confidentiality rules, rules prohibiting disrespectful conduct, etc.); arising under Purple Communications; involving alleged joint employers, requesting an expansion of employees’ Weingarten rights; involving off-duty access to employer property; concerning expansion of successorship; and involving expanded remedies. In short, it appears that GC Robb will be reviewing (and potentially reversing course on) every ‘hot button’ issue prosecuted by his predecessor Richard Griffith. Additionally, Mr. Robb announced the rescinding of prior GC Memoranda and novel legal theories advanced by the former General Counsel. For instance, GC Robb rescinded the Memorandum regarding unlawful employer rules, the Memorandum requiring “default language” in Board settlement agreements, and the model briefing instructions on partial/intermittent strike cases. GC Robb also instructed the Regions to cease seeking to extend the Purple decision to other electronic systems, cease arguing that “misclassification” of employees is an unfair labor practice, and cease trying to further curtail employer free speech in union organizing campaigns. While the General Counsel’s announcement will not affect an immediate change in the law, it is a very good sign for employers who have been suffering under the heightened scrutiny of Mr. Robb’s predecessor. The full list of GC Robb’s initiatives is set forth in the Memorandum (link below). Memorandum GC 18-02 (December 1, 2017).

DOL Proposing New Tip Credit Regulations 2017-12-05T10:48:35-07:00

Posted on December 5, 2017

By Bernie Siebert

On December 4, 2017, the U. S. Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking regarding the tip credit regulations under the Fair Labor Standards Act. https://www.dol.gov/newsroom/releases/whd/whd20171204 The proposed new regulation will be published today, and will be available for public comment. The purpose of the new regulation is to alter the regulations issued in 2011 concerning tipped employees. Under the FLSA, an employer is permitted to pay tipped employees $2.13 so long as the employee receives in tips an amount equal to at least $5.12 per hour. One of the biggest problems for employers under the 2011 regulation was that the number of employees for whom the employer could claim the tip credit was limited to only employees who directly received tips. Thus “tip pooling” arrangements were limited. Under the new proposed regulation, tip pools can be expanded to include non-tipped employees such as cooks and dishwashers. According to DOL: “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 regulation would also address the issue of the propriety of an employer retaining tips paid to employees while paying its employees an hourly wage that exceeds the minimum wage. The 2011 regulation prohibited an employer from retaining tips and paying employees at least the minimum wage even when no tip credit was claimed. It should be noted, that the regulation is proposed, not final. Moreover, employers utilizing the tip credit should check local law to make sure they are in compliance with any applicable law, regulation or ordinance.

Road to Lawsuit Paved with Good Intentions 2017-12-04T12:01:51-07:00

Posted on December 4, 2017

By Chance Hill

A federal district court in Alabama recently denied summary judgment to an employer in a Title VII pregnancy discrimination claim. The employee, a pregnant nurse working at a home for intellectually disabled individuals, was removed from a work schedule after revealing her “high-risk” pregnancy to her supervisor. The employee and her supervisor butted heads when the employee explained that she could not attend medication distribution training during her days off due to doctor’s appointments concerning her high-risk pregnancy. Soon thereafter, the supervisor expressed concerns about the employee’s high-risk pregnancy and spoke of risks to the unborn baby as well as patients. After the supervisor refused to permit the employee to dispense medications, which drastically limited what shifts she could work, the employee filed suit. When the employer moved for summary judgment, the court pointed out that the employer itself provided direct evidence of pregnancy discrimination—the employer admitted that its management removed the employee from the work schedule because of the high-risk conditions of her pregnancy. That the employer “may have done this out of benevolent concern for the health and safety of the nurse and her unborn child does not excuse the discriminatory nature of its actions,” noted the court.

In other words, employers need to be wary: Even the best of intentions may result in unlawful behavior. Carter v. A & E Supported Living, Inc., No. 16-00574-N, 2017 U.S. Dist. LEXIS 195838, at *1 (S.D. Ala. Nov. 29, 2017)

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