Digest of Recent NLRB Decisions on Employment in the Digital Age

The NLRB has been active in its continued attempts to establish rules for both unionized and non-unionized employers regarding "concerted activity" in the digital age.  This includes guidance and attacks on social medial policies and rulings relating to company emails.  Below is a digest of some of the most recent NLRB cases on this issue.

Purple Communications, Inc., 361 NLRB No. 43 (2014), the NLRB has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.  The NLRB reasoned that:

By focusing too much on employers' property rights and too little on the importance of email as a means of workplace communication, the Board (in its earlier ruling) failed to adequately protect employees' rights...and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.’

NRLB GC Guidance Memorandum, GC 15-04, March 18, 2015, Concerning Employer Rules.

This GC memo relates to numerous Employee Handbook rules.  Highlights of the GC position as it relates to electronic and social media polices are as follows:

Unlawful confidentiality rules: Any blanket bans on employee information outside of work, bans on publishing confidential information without limiting language, or any other ban that is broad enough that it might include employee wages, benefits, or terms and conditions of employment.  The GC does give examples of “lawful confidentiality rules” that are specific enough to not encompass terms and conditions of employment, such as “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside employer is cause for disciplinary action, including termination.”

Rules regarding conduct toward supervisors: The GC provides examples of language that is inappropriate under Section 7 regarding employee rights to criticize or protest employer labor policies or treatment of employees.  The GC did state that policies requiring employees to be respectful to customers, without mentioning management, would not violation Section 7.  Likewise, rules requiring employees to cooperate with each other and management in the performance of their work would not implicate Section 7 rights.  These policies also could extend to social media behavior.

Rules regulating conduct toward fellow employees:  The NLRB will ban internet or social media policies that it feels prevent employees from debating with each other about unions, management, and the terms and conditions of employment.  For instance, the GC found a policy unlawful that stated “[d]on’t pick fights” online. 

The GC did find that anti-harassment policies were lawful.  For instance, a policy was acceptable that prevented “harassment of employees, patients or facility visitors.”  Likewise, an employer can ban “use of racial slurs, derogatory comments, or insults.”

Policies regarding interaction with third parties: Any policy that could be construed as banning an employee’s right to communicate with news media, government agencies, or other third parties about wages, benefits, or other terms and conditions of employment will be found unlawful by the NLRB.  Policies will be lawful if they clarify that the employee cannot speak on behalf of the company but that the employees can speak to outsiders on behalf of themselves.

Unlawful rules regarding logos and trademarks:  The NLRB claims employees have fair use to use company intellectual property in support of concerted activity.  For instance, the NLRB has found unlawful a policy preventing use of “any Company logos, trademarks, graphics, or advertising materials” in social media.

Wendy’s Social Media Policy: The GC memo contains a discussion of its settlement with Wendy’s International LLC.  The company social medial policy required anyone commenting about Wendy’s on social media to obtain advance approval from his or her supervisor.  This was found to be overly broad and could prevent employee’s from discussing protected activities.

Wendy’s also banned posting photographs taken at company property.  The NLRB found this could violate the NLRA because pictures of, for instance, employee’s picketing would be lawful. 

Another Wendy’s policy prevented the creation of a blog or online group “related to your job” without approval from the company.  Because employees have the right to discuss the terms and conditions of employment online, this policy was unlawful.

The Wendy’s anti-disparagement policy was also found unlawful.  The offending provisions stated: [d]o not harass, threaten, libel, malign, defame, or disparage fellow professionals, employees, clients, competitors, or anyone else.  Do not make personal insults, use obscenities or engage in any conduct that would be unacceptable in a professional environment.”

Pier Sixty, LLC  362 NLRB 59 (2015), a March 31, 2015 (post GC Memorandum) decision where the NLRB found that language of the most offensive degree was not “so egregious as to exceed the Act’s protection.” Id. at *3.  Two days before a union election, a frustrated employee on break posted of his supervisor on Facebook:

Bob is such a NASTY MOTHER F***** don’t know how to talk to people???  F*** his mother and his entire f****** family?? What a LOSER??  Vote YES for the UNION???!!

The NLRB applied, what the dissenting panel member described as the “Atlantic Steel test on steroids” of (i) the place of the discussion, (ii) the discussion’s subject matter, (iii) the nature of the employee’s outburst, and (iv) whether the employer provoked the outburst, the Board also cobbled together “totality of the circumstances” factors from previous Board cases in considering (i) employer’s antiunion hostility, (ii) whether employee was impulsive or deliberate, (iii) whether the employer considered language similar to that used by employee to be offensive, (iv) whether the employer maintained a specific rule prohibiting the language at issue, and (v) whether the discipline imposed upon employee was typical of that imposed for similar violations or disproportionate to his offense.  

The employee was reinstated from his termination as the NLRB found his post was protected concerted activity.

Boch Imports, Inc., 362 NLRB No. 83 (April 30, 2015).  The NLRB found the company’s social media policy overly broad. The handbook rule required employees to: (1) identify themselves whenever they posted comments about the employer, the employer’s business, or a policy issue, and (2) prohibited employees from using the employer’s logo “in any manner.” In finding this policy unlawful, the NLRB reasoned that the self-identification requirement could cover comments about the terms and conditions of employment, and the requirement to self-identify would reasonably interfere with employees' protected activities on social media. The NLRB took issue with the restriction on using the employer’s logo “in any manner.” This, the Board reasoned, could cover protected employee communications, such as an employee engaging in union activity while wearing a uniform bearing the company logo.

In Macy’s Inc., 01-CA-123640 (May 12, 2015), an administrative law judge found that Macy’s maintained an unlawful employee handbook that contained overbroad confidential information policies. Macy’s policies prohibited employees from divulging “the personal information of the Company’s employees and customers,” “information about employees ... which if known outside the Company could harm the Company or its . . . employees,” “confidential information,” “information such as names, home and office contact information,” “any information that is not generally available to the public that relates to the Company or the Company’s . . . employees,” and “personally-identifiable information (Personal Data) ... [which] includes names, home and office contact information.” The ALJ found that these provisions unlawfully restrict employees from discussing the terms and conditions of their employment.

Macy’s handbook included a “savings clause” stating that nothing in the handbook was intended to limit employees from engaging in their rights protected by the Act, including protected concerted activities. The ALJ, howver, found that this “savings clause” was insufficient and written in a “generic” manner, whereas the prohibitions on employee conduct were very specific.

Rocky Mountain Eye Center, P.C., 19-CA-134567 (May 6, 2015).  An administrative law judge found that the company violated the NLRA by terminating an employee based on an unlawful confidentiality provision. That policy stated that “information about physicians, other employees, and the internal affairs of [the employer] are considered confidential . . . Breach of either patient or facility confidentiality is considered gross misconduct and may lead to immediate dismissal.” An employee accessed a database that included contact information for both the employer’s patients and employees and provided the employee contact information to a union organizer. The ALJ held that the confidentiality policy unlawfully restricted protected activity and was applied to restrict the employee’s right to share information about other employees with the union. The judge went on to further conclude that the employer violated the Act by terminating the employee for engaging in protected concerted activity.

In Landry’s Inc. (Bubba Gump Shrimp Co.), 362 NLRB No. 69 (April 16, 2015), the NLRB found that a social medial policy was permissible. The employee claimed termination based on making protected negative statements in social media about the employer. The employer’s social media policy stated:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The judge noted that the “cautionary language” in the first sentence could act to inhibit employees from exercising their Section 7 rights. But the judge went on to conclude that when read in conjunction with the second sentence, the policy was sufficiently narrowly tailored to the “manner and tone” with which employees discuss the terms and conditions of their jobs, and “not the content.” The judge concluded that the employer did not violate the Act.

Does the ADA Require Employers to Give Drivers to Blind Pharmaceutical Reps?

The Fourth Circuit Court of Appeals is currently considering an appeal of a case involving whether a legally blind Pfizer sales representative must be provided a driver as an ADA accommodation.  The case involves a long-time Pharm-Rep for Pfizer whose job was to travel to physician offices to make sales visits.  The sales territory was large parts of North Carolina that lacked public transportation.  After the sales representative became legally blind and could no longer drive, she asked Pfizer to hire a full-time driver to take her to physician offices as an ADA accommodation.  Pfizer denied the request.

The subsequent ADA lawsuit was dismissed by the federal court judge overseeing the case.  The plaintiff appealed to the Fourth Circuit Court of Appeals arguing that while traveling was an essential function of the employee's job, actually driving was not.  Therefore, a driver would have been a reasonable accommodation for that job function.

The U.S. Chamber of Commerce, National Federation of Independent Businesses, and Equal Employment Advisory Council filed an Amicus brief (a brief filed by interested parties who are not technically part of the lawsuit).  The Amicus brief argued that providing a driver would not be a reasonable accommodation and would represent and undue hardship to the employer.  Requiring a driver for a sales person would have far reaching consequences according to the brief.

The Amicus brief was filed in the wake of briefs filed by the EEOC and National Employment Lawyers Association (NELA) that argued that the employee should have been given a driver.  The briefs compared the case to providing an interpreter for a deaf employee, which is required as an accommodation.

The case remains pending.  In the meantime, to avoid such word games from Plaintiff attorneys, employers should specify that both traveling and driving are essential functions of the job for outside sales personnel.

EEOC Responds to Criticism During Senate Hearing, Defends Wellness Regulations and Conciliation Efforts

During a recent Senate Committee Oversight Hearing, the EEOC faced criticism for pursuing discrimination investigations where no individual has claimed discrimination and focusing on high-profile lawsuits relating to novel legal issues rather than handling the charges currently pending.  Senator Lamar Alexander (R-Tenn) noted that the EEOC backlog has grown to more than 75,000 pending charges.  EEOC representations and Republican Senators jousted over several additional hot topic issues during the hearing.

Wellness Plans:  For instance, during the hearing the GOP was critical of the EEOC's new proposed regulations regarding wellness plans.  On April 20, 2015, the EEOC issued proposed regulations under the ADA regarding whether certain wellness plans are discriminatory.  These plans may comply with the ACA but still be considered unlawful under the ADA.  Republicans have introduced legislation (H.R. 1189, S. 620) that would shield employers from ADA lawsuits as long as their wellness plans complied with ACA requirements. "We recognize that many employers wish to implement wellness programs in an effort to improve their employees' health and reduce health care costs," Yang noted in her prepared remarks. “We are also mindful that wellness programs must adhere to the ADA's requirement that disability-related inquiries (such as questions on a health risk assessment) or medical examinations (such as blood tests for cholesterol levels) that are part of employee health programs must be 'voluntary.'"

New GINA Regulations Coming Soon:  The EEOC is aiming for the end of July to propose regulations under the Genetic Information Non-Discrimination Act that would impact wellness plans as well.

Conciliation Efforts: The EEOC, in response to questions, stated that lawsuits from the EEOC are a "last resort" and noted it engages in conciliation efforts prior to filing any lawsuit. The EEOC Chair Jenny Yang noted that the recent Supreme Court case allowing narrow judicial review of the EEOC's conciliation efforts was a "positive step forward."

The battle will no doubt continue as administrative agencies like the EEOC and NLRB take a more active role in attempting to change interpretations of existing statutes.

For more information, contact Brett J. Miller
www.butzel.com

Do On-Call Hours Count Toward the 30-Hour per Week ACA Requirement?

Employers should be careful with this issue and it will depend on how the on-call time is structured.  Remember, the ACA requires you to count “hours of service” toward the ACA 30 hour requirement.  Hours of service goes well beyond simple “hours worked.”  To determine if on-call time should be counted toward the 30-hour requirement, there are several things that must be considered.  Is it paid-at-regular-rate on-call time? Is it on-call time paid at some discounted rate?  Is the employee required to be on-site?  The preamble to the final employer mandate rule states:

The Treasury Department and the IRS continue to consider additional rules for determining hours of service for purposes of section 4980H with respect to certain work arrangements, including on-call hours, or categories of employees whose hours of service are particularly challenging to identify or track or for whom the final regulations’ general rules for determining hours of service may present special difficulties. Until further guidance is issued, employers of employees who have on-call hours are required to use a reasonable method for crediting hours of service that is consistent with section 4980H. It is not reasonable for an employer to fail to credit an employee with an hour of service for any on-call hour for which payment is made or due by the employer, for which the employee is required to remain on-call on the employer’s premises, or for which the employee’s activities while remaining on-call are subject to substantial restrictions that prevent the employee from using the time effectively for the employee’s own purposes.

Certainly it is clear that if employees are paid at their standard rate for on-call hours, these hours should be counted as hours of service. It remains unclear, however, how to treat circumstances where employees receive other minimal compensation for on-call time but are not called to work or substantially restricted.  It seems clear that if the employee is not paid for on-call time and is free of “substantial restrictions that prevent the employee from using the time effectively for the employee’s own purposes” then those hours would not count toward the 30-hour requirement.

Don’t Let the Bed Bugs Bite Your Business: Add a Bed Bug Policy to Your Handbook.

Bedbugs have been an increasing problem for families and businesses.  For instance, in June 2012, the Detroit News ran a front page article entitled “Detroit Bus Drivers Seek Bedbug Relief.”  According to the article, bus drivers were complaining of bed bugs on the buses and seeking employer intervention.  According to the Michigan bed bug registry, these tiny pests have been reported throughout the Detroit area as well as in Ann Arbor, Lansing, Flint, Grand Rapids, Traverse City, Kalamazoo, and other populated areas of Michigan.  Walk into any Home Depot or Lowes and you can now find shelves full of bedbug treatments and sprays.  In short, bedbugs are a major problem.

This author has received numerous questions about bedbugs in the workplace, including a panicked call from a client in the furniture business.  A warehouse employee had reported bed bugs in her apartment and claimed that she had been bitten.  The client wanted to know what steps could be taken to keep her out of the warehouse given that a bedbug-infested furniture warehouse may not be the best business model.  The client had no bed bug policy and no precedent to guide him.

The details of the background of bedbugs and bed bug remediation are beyond the scope of this article.  For those interested, the State of Michigan has a website dedicated to bed bugs that can be accessed online (Google “bed bugs State of Michigan” to find the website).  

For employers, bedbugs can be a very serious problem.  Imagine, for instance, that an employee in hospital, nursing home, or home health setting reports a bed bug infestation in his or her home or body.  This could include direct care givers or laundry workers who may be spreading bed bugs to patients.

The potential for a bed bug infestation from any one of these employees is tremendous and can be damaging to a business.  But, what can an employer do?  One option is to establish an employment policy that sets forth expectations for an employee who may be carrying bed bugs to work.

In crafting a bed bug policy, an employer must answer several questions:

1.    How does the company plan to prevent bed bug infestations?  For instance, will the company conduct on-site inspections of work areas (if allowable under an applicable collective bargaining agreement) or will the employer rely on reports of bed bugs in the work place from other employees or customers?

2.    Will employees have a duty to report bed bugs seen in the workplace?

3.    Will your policy require employees to report bed bug infestations or bites from home?

4.    What is the employer’s plan if an employee does have an infestation?  Will the employee be granted leave to avoid the risk of spreading bed bugs in the work place?  Will the leave be paid or covered by sick time?

5.    Will the employer pay for an employee’s extermination costs at home or require the employee to fix the problem and trust that it is done competently?

How these questions are answered will depend on the employer’s industry and the severity of a potential bed bug threat.  We recommend, at a minimum, requiring employee’s to disclose bed bugs spotted in the workplace and any bed bugs at home.  Failure to so report could lead to discipline up to and including termination.  Employers should also reserve the right to conduct inspections of the work place where possible.

There is, of course, the potential for liability from employee bed bug issues regardless of how well crafted a bed bug policy may be.  For instance, there are OSHA concerns where there is a workplace bed bug outbreak.  While OSHA regulations do not specifically mention bed bugs, the general duty clause states that “every closed workplace shall be so constructed and maintained to prevent the entrance of vermin . .  . .”  Thus, bed bugs could lead to a host of problems under OSHA and its attendant record keeping and reporting requirements.  We recently defended a MIOSHA claim of retaliation for reporting bed bugs in a nursing home.  While it turned out to be a false report, the government investigated the claim nonetheless before dismissing the charge.

Likewise, there could be whistleblower lawsuits for employees who report or threaten to report a bed bug issue.  Workers’ compensation could also be implicated if any employee claims an illness based on a workplace-related bed bug bite. 

There can also be a potential for discrimination claims.  Any bed bug policy should be crafted to avoid having a disparate impact on certain protected classifications.   Bed bugs are often found in low income areas but can strike anywhere.  Employers should not single out any one group for bed bug inspections or other action. 

Finally, employers must be aware of common law negligence claims.  If any employer is aware of workplace bed bugs and takes no action, the employer could face a negligence lawsuit from employees who become infested.  

Given the potential for disruption of business and possible liability, health care employers should have an employee bed bug policy.  Employers should consult legal counsel before implementing such a policy and before taking any adverse employment actions against an employee who has a bed bug infestation.

By Brett J. Miller

U.S. Supreme Court Creates New Standard for Proving Pregnancy Discrimination: What Does This Mean for Employers?

The Background.  Young was a part-time driver for the United Parcel Service (UPS). When she became pregnant, her doctor advised her that she should not lift more than 20 pounds. UPS, however, required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction.  Young filed a lawsuit under the Pregnancy Discrimination Act (she did not allege an ADA disability) and claimed that UPS accommodated workers who were injured on the job, had disabilities covered by the ADA, or had lost Department of Transportation (DOT) certifications.  She argued that these policies showed that UPS discriminated against its pregnant employees because it had a light-duty-for-injury policy for numerous “other persons,” but not for pregnant workers.  UPS responded that, since Young did not fall within the on-the-job injury, ADA, or DOT categories, it had not discriminated against Young on the basis of pregnancy, but had treated her just as it treated all “other” relevant “persons.” 

This dispute made it to the U.S. Supreme Court who, on March 25, 2015, issued a ruling on the case granting relief to neither party, setting forth a new standard for how to consider pregnancy claims, and remanding for the trial court to consider the evidence based on the new standard.

The Supreme Court’s Ruling.  The Court departed from the normal discrimination analysis to craft something new for pregnant workers.  The Court now held that a pregnant employee can prove discrimination by showing that (1) she is pregnant; (2) she sought an accommodation for her pregnancy—like the 20 pound lifting restriction Young requested, and (3) that the employer did accommodate others “similar in their ability or inability to work.”  This standard is a departure from the analysis used by courts to consider other forms of discrimination.  In particular, there had never been a duty under the PDA to “accommodate” a pregnant employee before but there now appears to be.  Further, in a traditional discrimination analysis, the courts generally consider how other employees who perform the same or similar work are treated.  The new Young analysis seems to broaden this by considering any employee who is similar in his or her ability or inability to work.  This new standard remains murky and it will probably take several years for courts to make rulings on what exactly this means.

The analysis, however, does not end there.  If a pregnant employee can meet the above factors, the employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation.  That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates.  If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual.  The plaintiff may reach a jury on this issue by: (1) providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons do not justify the burden; and (2) by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.  As Justice Scalia noted in his dissent, this standard may merge the disparate treatment and disparate impact analyses.  For the uninitiated, disparate impact does not require proof of discrimination, only that a company policy has an unwarranted negative impact on a protected group.  For instance, laying off the highest salaried employees in a company may lead to termination of most of the older workers, who tend to have higher salaries due to longer tenure. 

In sum, the new standard creates a duty to accommodate pregnant workers that never existed before, articulates a new standard that could require several test cases to clarify, and arguably imports the dreaded “disparate impact” analyses into a pregnancy discrimination case.  Justice Scalia described the Court’s holding as “inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.”

What this means for Employers.  There is now, essentially, a duty to accommodate pregnant workers under the Pregnancy Discrimination Act.  In addition, under the ADAAA, almost all ailments are potential “disabilities” as a matter of law, including some “temporary conditions” depending on their severity.  The bottom line for employers, it will be far less expensive to treat pregnant employees the same as you would any other employee who is able to work with similar restrictions as the pregnant employee.  Therefore, if you give employees on workers’ compensation light-duty, you must now also offer available light-duty to pregnant workers.

In Defense of the Employment Non-Compete Agreement

On March 18, 2015, Crain’s Detroit published an article entitled “Laws on noncompete agreements hurt Michigan, new study says.”  The article argues that Michigan can reverse a drain of talent by banning non-competes.  This article comes on the heels of a bill proposal in the Michigan Legislature to limit non-compete agreements to business owners.

The study on non-competes itself seemingly has numerous flaws, such as the assumption that non-competes are the sole factor of why “inventors” would move to states without non-competes.  It also ignores the history of Silicon Valley as a technology destination, the availability of venture capital, and, the existing tech companies that give inventors a start before going out on their own.  This assumption ignores other social, economic, and demographic trends of Michigan’s talent drain.  For instance, many non-inventors leave Michigan for a myriad of reasons that do not relate to non-compete agreements.

But let’s assume that banning or restricting non-competes in Michigan would help keep “inventors” in the state.  The article focuses on employees and ignores the impact on job creators.  Businesses prefer to protect their interests with reasonable non-compete agreements to ensure that the investment made in employees will not lead to disaster when that employee bolts to a competitor with the company’s customer lists and product knowledge.  As the article points out, even with non-competes essentially unlawful in California, Apple and Google had agreed not to poach employees from each other.  Michigan needs to attract business to the State and businesses prefer the protections a non-compete can offer.

It is this reasonable balance of interests that makes Michigan’s non-compete law so beneficial.  The Crain’s article ignores the practical way Michigan’s non-compete statute operates.  Under Michigan’s law, a non-compete must be reasonable to be enforced.  This includes a realistic protection of business interests.  For instance, Jimmy John’s attempting to restrict its delivery personnel from competing simply will not be enforced since there is no business interest in doing so.  The “freaky-fast” delivery guy does not have the company’s customer list or knowledge of a secret Jimmy John’s recipe and therefore there is no basis to prevent competition.

On the other hand, a court will uphold a non-compete that protects an employer’s reasonable business interest and is still fair to the employee.  For example, consider a company that provides medical support services to hospitals.  Because the company spends a great deal of money to train its employees, it is known in the industry as producing high quality talent.  As such, competitors, rather than investing in their own training, often attempt to poach the company’s employees.  Thus, after investing a great deal of money in these employees, these employees would leave for a competitor and end up in the same hospital where they were working, but now competing against the company.  The imposition of a reasonable two-year non-compete that prevents these employees from competing at the same hospitals where they worked for the company is a reasonable way to help prevent damage to its business.  In this way, the employee is not prevented from working at any hospital, she just cannot turn around and compete at the same hospital where she worked for the company.  The company, in turn, has a reasonable protection from the investment it made in the employee. 

But Michigan non-compete law goes even further to protect employee interests.  The law expressly allows a Judge to rewrite, or “blue pencil,” a non-compete that is unfair.  Therefore, if a company were to try to enforce an unfair non-compete, a court could rewrite the unfair provisions in favor of the employee.

    

The current bill before the Michigan legislature to restrict non-competes is sold as a protection for workers.  But, in reality it would only hurt job creators and that is not good for workers.

Brett J. Miller is a principal attorney at the Kitch Law Firm in Detroit.  He specializes in labor and employment law and has litigated non-compete lawsuits and lectured on the subject.