NLRB Reins In Prior Expansive View Protected Concerted Activity 2019-04-19T17:00:24-06:00

Posted on April 19, 2019

“So, two guys walk into a bathroom…” No, seriously, this case is about two co-workers who walked into a bathroom. While in the bathroom, Employee A complained to Employee B that a former client had been dropped back in his lap, and that the former client should have been sent to someone else and “quit wasting his ***ing time.” Employee B stated that he understood the frustration. As bad luck would have it, a supervisor overheard the bathroom conversation, reported it to management, and Employee A was ultimately discharged.

An Administrative Law Judge (“ALJ”) found the conversation constituted protected concerted activity under Section 7 of the NLRA. The ALJ first found that Employee A’s complaint involved common concerns regarding their employment. The ALJ then found that Employee B’s statement of commiseration was “vocalized support” of Employee A’s supposed call to collective action. The ALJ then found that Employee A’s whining had the unstated goal of collective action because the employer failed to call Employee B to disprove this conclusion. This bizarre conclusion was based on the NLRB’s adverse inference rule, which allows an ALJ to make adverse inferences against the employer when it fails to call a witness that would be expected to support the employer’s defense.

The NLRB made short shrift of the entire ALJ analysis. First, the NLRB reminded us that protected concerted activity is only protected when it is work-related and made with an eye toward collective action among workers. Here, there was zero evidence that the bathroom whining was intended to instigate any sort of collective behavior. Second, the NLRB chastised the ALJ’s adverse inference; because Employee B was, by definition, adverse to the employer, the ALJ was not permitted to make any adverse determination against the employer simply because the employer did not call the witness. Over the years, the NLRB has artificially expanded the notion of what is protected concerted activity under the Act. It seemed that any comment about work made from one employee to another fell within the Act’s protections. But the NLRB has now made clear that protected concerted activity does not encompass every single workplace gripe or statement of exasperation; Section 7 protects only those statements that relate to the terms and conditions of employment, and only when the proven purpose of those statements is to incite others to action. The case is Quicken Loans, Inc., Case 28-CA-146517 (April 10, 2019).

Employer’s Reasonable Belief Is No Pretext 2019-04-11T11:03:29-06:00

Posted on April 11, 2019

By Beth Ann Lennon

Did the car hit the employee or the employee hit the car? This is not the beginning of a logic problem – it’s the question one employer recently encountered when investigating a “he-said, he-said” workplace dispute. Based on the investigation, the employer determined that the employee had lied about the contact with a company vehicle that left the employee bruised. The employer terminated the bruised employee and not the driver. The employee, of course, sued. The Tenth Circuit affirmed what should be obvious but somehow repeatedly becomes an issue in so many cases – can an employer terminate an employee if the employee disputes the allegations against him? So long as the employer (not the employee) “reasonably believed at the time of the termination that the [employee] had violated company policy” and the employer “acted in good faith upon that belief” the answer is an unequivocal yes. “Pretext” is not proven by an employee’s continued insistence that his employer should have believed him over another employee. Even if the employer “got it wrong,” being wrong on a fact dispute during an investigation is not evidence of discrimination. Another reminder of the importance of effective, and well documented, investigations.

Montoya v. Jacobs Technology, Inc., No. 18-2098 (10th Cir. April 9, 2019)

EEO-1 Reprieve 2019-02-21T14:44:59-06:00

Posted on February 21, 2019

By John Alan Doran

Good news from the EEOC for a change! The EEOC announced that it is delaying the deadline to submit EEO-1 data until May 31, 2019. The agency blames “a partial lapse in appropriations” for its need to extend the deadline, but fails to explain why the lapse necessitates the extension. For an agency that has been notoriously stingy with extensions for filing position statements and the like, we are certainly amused to witness its deadline generosity when it comes to its own operational needs.

For more information, click here.

Opening the Door to Discrimination Claims Under the Arizona Medical Marijuana Act 2019-02-12T10:52:21-06:00

Posted on February 12, 2019

By Lindsay H.S. Hesketh & Matthew A. Hesketh

A medical marijuana cardholder and her employer went to court. The employer had a policy prohibiting employees from working under the influence of marijuana and fired the cardholder when her drug test (taken after a workplace accident) showed the presence of marijuana metabolites. The District Court of Arizona made findings on two novel issues under the Arizona Medical Marijuana Act (“AMMA”): (1) AMMA creates a private cause of action for discrimination claims; and (2) Arizona’s Drug Testing of Employees Act (“DTEA”) permits employers to terminate an employee based on the results of a drug test, but only if test results showed a concentration of metabolites sufficient to cause impairment at work. With those decisions in hand, the court – on its on motion – granted the med-mar cardholder summary judgment.

Private cause of action. AMMA prohibits employers from discriminating against a cardholder for testing positive for marijuana metabolites unless the cardholder used, possessed, or was actually impaired by marijuana on the job. Impairment on the job cannot be presumed just because some marijuana metabolites are present in a sample; there must be such a high level of metabolites that the employee must have been impaired. Relying on case law interpreting similar provisions in Connecticut and Delaware, the court found that AMMA’s anti-discrimination provision implied that employees could sue over illegal discrimination.

Harmonizing the DTEA and AMMA. The DTEA, enacted after AMMA, allows employers with a proper drug testing policy to act on their “good faith belief” that an employee was impaired on the job. That “good faith belief” may be based on, among other things, the results of a drug test. But the court interpreted the DTEA to be consistent with AMMA. Thus, the “good faith belief” must be based on a positive drug test that shows such a concentration of marijuana metabolites that it establishes the employee was impaired on the job. Because the defendant in this case did not present expert testimony concerning whether the plaintiff’s test results met that threshold, the court turned around and granted summary judgment for the employee.

Arizona employers with DTEA-compliant drug testing policies still have to be cautious. If they take adverse employment action against an employee who possesses a medical marijuana card and who tests positive for marijuana metabolites, they have to prove the metabolites were the right kind, and were present in a high enough concentration, to cause impairment. According to the court, this proof requires a scientific expert.

To read the full decision, see Whitmire v. Wal-Mart Stores Inc., No. CV-17-08108 (D. Ariz. Feb. 7, 2019).

Drafting Yourself into a Lawsuit 2019-02-04T13:38:17-06:00

Posted on February 4, 2019

By Beth Ann Lennon

Many employment-related statutes require employers to provide “clear and conspicuous” communications to employees. The Ninth Circuit’s decision last week in Gilbert v. Cal. Check Cashing Stores (“CCCS”), No. 17-16262, reminds us of the need to proofread employment documents to satisfy that requirement. As the Ninth Circuit was forced to explain again, to be “clear and conspicuous” a document must be “reasonably understandable” and “readily noticeable” by its intended audience – the employee. After reviewing the form used by CCCS to provide mandatory disclosures under the Fair Credit Reporting Act (“FCRA”), the Court found their form was not “reasonably understandable.” “[A] reasonable person would not understand” the incomplete, grammatically incorrect, run-on sentences found throughout that form. Also, the form “would confuse a reasonable reader” because it did not stay on subject. It combined federal and state disclosures in a manner that confused rather than clarified. While CCCS ultimately squeaked by on the “readily noticeable” front, with just a slap on the hand for having “inadvisably” printed their disclosure “in Arial Narrow, size 8 font,” they still violated the FCRA, as the form had to be both “clear” and “conspicuous.” One out of two just didn’t cut it.

Learn from their mistakes. Stick to the subject-matter. Title the document so the employee can “see what she [is] signing.” Use capitalization, bolding, and underlining to draw attention to any portion of a document that must be “clear and conspicuous;” and use clear, simple language that your reader will understand in complete, grammatically correct sentences. Most importantly, PROOF READ your documents BEFORE you start using them.

The Importance of Reporting Procedures 2018-12-04T14:48:22-06:00

Posted on December 4, 2018

By Matthew Hesketh

Employee Handbooks should have procedures for reporting harassment, and employers should take prompt remedial action once the procedures are initiated by an employee. Employers who take such action may escape Title VII liability even in cases where an employee can show harassment. That’s the lesson from a District Court decision last month in Texas. Johnson v. Hyatt Corp., No. SA-17-cv-00442-OLG (W.D. Tex. Nov. 8, 2018).

The plaintiff was a waitress in a hotel bar. She alleged sex harassment by two different customers. The first customer made harassing comments to her for approximately two years. The employer’s handbook said employees could report harassment to HR, a general manager, or an ethics hotline, but the plaintiff only reported the harassment to her direct supervisors. When HR learned of the harassment, nearly two years after it began, the customer was banned from the bar (and the entire hotel). A second customer physically assaulted the plaintiff. The plaintiff did not immediately report the incident, but the employer learned about it from a witness. Hotel security responded in 10 minutes and removed the customer from the bar. Police responded 20 minutes later and arrested the customer. When the customer returned from the police station, he was evicted from the hotel.

The court found that the conduct of either customer might be severe or pervasive enough to support a hostile work environment claim under Title VII. Applying Fifth Circuit precedent, however, the court concluded that the employer was not liable because it took “prompt remedial action” that was “reasonably calculated to end the harassment.” The employer was not liable for the first customer’s harassment because “an employer’s obligation to take prompt remedial action is triggered only when the employee follows the reporting procedures in the employer’s anti-harassment policy.” For two years, the plaintiff only talked to her supervisors about the customer’s conduct, which did not comport with the employer’s procedures.

The lesson: Employers should have harassment reporting procedures and make their employees aware of them. But don’t stop there, because not all courts are this pedantic when it comes to employees following harassment reporting policies to the letter. All supervisors should also be trained to promptly follow up on allegations of harassment by either direct action or by escalation to more senior management. Allegations of harassment should be taken seriously, including a prompt and thorough investigation followed by remedial measures as necessary.

Pro Tip: Employee Handbooks Should Avoid Contractual Language and Affirm At-Will Employment 2018-10-17T16:15:21-06:00

Posted on October 17, 2018

By Lindsay H.S. Hesketh

An October 12, 2018 Order from the District Court of Arizona reminds employers to include the appropriate “at-will” language and disclaimers of contractual intent in their employee handbooks.

A former employee brought 11 claims against the employer, including a claim for wrongful termination in violation of an employment contract under Arizona state law. All parties moved for summary judgment on this claim. The former employee argued that the employer’s employee manual constituted an employment contract because it contained purported rights of employees. Defendants argued that it was not an employment contract. The manual was silent on whether it was a “contract,” but it did include mandatory language about when the employer could fire employees. It did not emphasize that the employees were employer at-will. The Court found that the manual created a genuine issue of material fact and denied all parties’ motions for summary judgment on this issue.

Lesson learned: Take steps to avoid this issue by revising handbooks to expressly state employees are at-will and that the handbook is not intended to be a contract.

Corzo v. Maricopa County Community College District, No. 2:15-cv-02552 (D. Ariz. Oct. 12, 2018)

Employees on Leave? Maybe It’s Time to Check-In. 2018-08-20T14:45:16-06:00

Posted on August 20, 2018

By: Mercedes Pineda

The Eighth Circuit recently served a reminder about the importance of maintaining direct contact with your employees. The employer hired a sergeant in the National Guard. The employee was deployed to Afghanistan and coordinated his military leave through the employer’s third-party leave administrator. Unfortunately, the employee was wounded in action, and was on leave longer than expected. The employee tried to coordinate his reemployment several times. In one call with the third-party leave administrator, he reported that he hadn’t had a response from the employer, and wondered whether he should give two weeks’ notice. The third-party leave administrator believed the employee had resigned, and confirmed the resignation for the employer. The employer changed his employment status to terminated. Still, the employee actually wanted to come back and even applied online for a position.

In May 2016, the employee filed suit under the Uniformed Services Employment and Reemployments Rights Act (“USERRA”). The case hinged on whether the employee had “clearly and unequivocally” resigned and whether he applied for reemployment as required by USERRA. The Eighth Circuit reversed summary judgment for the employer because the employee had presented evidence that he had not “clearly and unequivocally” resigned. Specifically, he asked “if he needed to put in his two weeks’ notice,” and he had reapplied. The employer protested that the employee had not contacted the third-party leave administrator to coordinate his return, but the court ruled his re-application was sufficient under USERRA.

Delegating employment decisions to a third party has risks. Employers should maintain direct contact with employees on any form of leave. This will help avoid communication missteps and ensure a smooth transition back into the workplace.

The case is Scudder v. Dolgencorp, LLC d/b/a Dollar General Store, No. 17-2941 (8th Cir. August 17, 2018).

NLRB GC Leashes Pavlov’s Dog 2018-08-03T10:58:47-06:00

Posted on August 3, 2018

By: Patrick Scully

NLRB General Counsel Peter Robb this week directed his staff not to object when an employee, who is trying to decertify a union, moves to intervene in a related unfair labor practice case. Typically, when employees try to decertify the union that represents them, the union’s Pavlovian response is to file a charge claiming the employer induced or assisted the decertification effort. Unions tend to argue it is inconceivable employees would be dissatisfied with their services without a nudge from the employer. In the past, the NLRB has typically prevented employees from intervening in inducement/assistance charges. Unfortunately, as a result, employees (and their advocates) rarely have the opportunity to speak for themselves and deny that the employer caused the decertification. The GC’s directive means employees are more likely to be heard in all aspects of the decertification process. GC Robb’s move is another example of his plan to bring better balance to the enforcement of the National Labor Relations Act.

The memo is available here.

Takin’ Care of Business (on Half Time Schedule) 2018-07-19T13:30:31-06:00

Posted on July 19, 2018

By: Joe Hunt

An employee was unable to return to work full time because she was experiencing postpartum depression. She worked half time instead and, according to the employee, she was still able to do everything that was required of her position as a Human Resources Generalist. When the employee requested to extend her half time schedule for the foreseeable future, her employer terminated her employment because the reduced schedule overwhelmed other employees and caused the department to function poorly.

The crux of this lawsuit under the ADA was whether the employee was “qualified for her position.” The trial court decided the employee was not qualified because she could not perform the essential function of her job with or without accommodation. It granted the employer’s motion for summary judgment on all the claims. The Sixth Circuit Court of Appeals, however, reversed and held that the employee had presented sufficient evidence to preclude summary judgment when she and another employee testified she could do all her work on the reduced schedule.

This appellate decision punched a hole in the argument that an employer gets to determine the essential functions of its jobs. Instead of taking the employer’s word (as expressed in job descriptions and by management) for job duties, the court ruled that employers must tie time-and-presence requirements to other job requirements and explain why an employee cannot complete essential functions unless he or she is present 40 hours a week.

The case is Hostettler v. The College of Wooster, No. 17-3406 (6th Cir. July 17, 2018).