Wednesday, October 31, 2012

NLRB Releases More Guidance on At-Will Clauses in Employee Handbooks

A recent decision by the NLRB finding that an employer's provision in an employee handbook regarding at-will employment violated the National Labor Relations Act (NLRA) made major buzz and has led to a call for guidance.  Today, the NLRB's general counsel, Lafe Solomon, released an analysis of at-will employment clauses in two employee handbooks, finding that both are lawful under the NLRA.  

From the NLRB press release on the analysis:  

As both memos explain, an employer violates the Act by maintaining work rules or policies that explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.
The clause in a handbook maintained by Rocha Transportation in Modesto, California advised drivers that their employment is at-will and may be terminated at any time. “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will,” it continued. “Only the president of the Company has the authority to make any such agreement and then only in writing.” The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.
At Mimi’s CafĂ© in Casa Grande, Arizona, the Teammate Handbook description of at-will employment includes the sentence: “No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.” The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.
Because this issue remains highly unclear and unguided, the NLRB is still asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination. 

Tuesday, October 30, 2012

Wisconsin Woman Settles Age Discrimination Suit for $32,500

The Equal Employment Opportunity Commission (EEOC) announced a settlement in an age discrimination suit it filed on behalf of a Shawano woman, Sharon Passon, 60, who was fired as the billing specialist for Computer Systems LLC, of Shawano, in April 2010, while the company kept a 34-year-old employee who was less qualified for the job, according to the complaint.   From the Milwaukee Journal Sentinel article on the settlement:
A consent degree settling the lawsuit, which was entered by U.S. District Judge William C. Griesbach on Friday, provides that Computer Systems pay Passon $32,500 and prohibits further discrimination. Also, if the company, which was sold later in 2010, resumes operations, it will be required to train its managers and supervisors about an employer's obligations and the rights of employees under the Age Discrimination in Employment Act.
 
Congrats to the EEOC on obtaining this settlement! 

Employer Communications and Elections


Late last week a memorandum sent by the the chairman and owner of Rite-Hite, a major Milwaukee manufacturer of industrial equipment, Mike White, to all employees essentially forecasting what he perceived to be the terrible effects of voting President Obama back into office made major waves.  That email upset a lot of employees and led to an outcry.  The Milwaukee Journal Sentinel highlighted the story but this type of behavior by employers around election time is nothing new as earlier this month an email sent out by the Koch Brothers to its employees supporting candidate Romney sparked outrage and Wynn Resorts, the third-largest casino operator in the U.S., recently mailed a "2012 General Election Voter Guide" to its 12,000 employees in Nevada likewise decided to express its preference for candidates to it employees.  Given how important our vote is for the most important office in the world, these communications raise huge issues and questions of what is allowed under the law.

In 2010 the Supreme Court of the United States made a ruling in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), that held, 5-4, that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The nonprofit group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").  The Court held that portions of BCRA §203 violated the First Amendment.  This ruling provided employers which much larger room to communicate to employees about political matters.  However, not all communications are lawful under election laws at both the state and federal level.

As mentioned in the Journal Sentinel article, White's email may run afoul of Wisconsin law on employer restrictions under Wis. Stat. sec. 12.07(3) which reads:
(3) No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees.
There is a similar federal law housed under 42 USC § 1971- Voting Rights that reads:

(b) Intimidation, threats, or coercion
No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

With the Citizens United ruling comes a lot of confusion over what is allowable, protected speech by employers to their employees about their political preference and what is not.  The FEC recently stated that, in general, employers may suggest how employees should vote.  The problem is how to do that without appearing to intimidate, threaten or coerce.  Thus, employers ought to take extreme precaution in distributing political communications as criminal prosecution is a potential remedy for violating election law and employees, if they feel a communication is threatening, coercive or intimidating, ought to seek counsel.  What will happen to Rite-Hite has yet to be determined and probably will not be resolved prior to next week's election.

Friday, October 26, 2012

Wednesday, October 24, 2012

An Administrative Law Judge Has Denied or Reversed My Unemployment Benefits. What Can I Do Now?

Many claimants find themselves, after a hearing before an Administrative Law Judge (ALJ), either with or without an attorney, either further denied benefits or reversed and owing back the unemployment benefits they received to the State and the unemployment fund.  Accompanying these ALJ decisions is a sheet of paper containing a claimaint's rights to appeal and the process and procedures which often goes unnoticed and ignored.  A lot of claimants believe that the ALJ's decision is the final say but Wisconsin provides for several layers of appeals.

Whether it is a good decision or worth appealing an ALJ's adverse decision is not always clear-cut and depends on a number of factors that are best discussed with an attorney who routinely handles unemployment compensation matters and is beyond the scope of this article.  Here is a brief outline of appellate rights for claimants to follow and understand:

Upon receiving the ALJ's decision from the unemployment insurance department, you will have a certain number of days to file an appeal with the Labor and Industry Review Commission (LIRC) and an appeal may be filed a number of ways including electronically here, or by mail.  Upon a successful appeal submission, LIRC will mail out confirmation and further instructions and either party, claimant or employer, may request the appeal to be "briefed," meaning the parties thoroughly make their legal argument on why they should prevail.  However, briefing is not mandatory and not always necessary.  LIRC then makes a decision based on the recording of the hearing and documents submitted into evidence but does not hold new hearings know as de novo hearings. 

Should a claimant receive another unfavorable decision from LIRC, an appeal may then be filed in circuit court pursuant to Wis. Stat. § 108.09(7)(a) within 30 calendar days from the date the decision was mailed to the party’s last known address.  The process and procedure for filing is more involved and handled under Chapter 227 of the Wisconsin Statutes which describes the procedure more thoroughly.  These types of appeals are commonly-referred to as "paper appeals" as they consist of filings and no hearing is held. 

Now of course even the circuit court's decision could be appealed to the Wisconsin Court of Appeals and the Court of Appeals decision appealed to the Wisconsin Supreme Court but such extensive appeals are incredibly rare and expensive.  This is why it is best to consult with an attorney before embarking on the appeals process to discuss options to better determine whether an appeal is the best decision. 

Enochs Law Firm's New Website

I am not sure if anyone noticed or will notice but Enochs Law Firm recently launched a newly-designed website and changed the url.  The new website can be viewed here and I welcome any and all feedback! 

Domestic Violence and the Workplace

In the wake of the unfortunate shooting at a Milwaukee-area salon and spa, many questions have been raised about what legal considerations there are for employers that may prevent or avoid such incidents from occuring in their workplace, questions that perhaps were not considered as seriously as before.

Given the numerous laws involved, there are quite a few considerations for employers and the Equal Employment Opportunity Commission (EEOC) has already issued guidance and considerations on the application of federal anti-discrimination laws on employees or applicants who experience domestic or dating violence, sexual assault or stalking.  The biggest concerns arise out of sex discrimination (e.g., an employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential "drama battered women bring to the workplace.") and disability discrimination (e.g., an employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner.  When she returns to work after a lenghty hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment).  Given these considerations, employers will want to act with precaution when dealing with an employee who may be dealing with domestic violence issues.

Wisconsin also has a "safe-place statute," Wis. Stat. section 101.11(1), which says that every employer is required to furnish both "safe employment" and a "safe place of employment."  However, not much elaboration has been made on the length and extent employers must go to in order to meet this standard and employers do not have a general duty to protect their employees from criminal acts.

Another consideration regards Wisconsin's recent enactment of the conceal weapon law which has prompted many employers and public places to create policies banning weapons on their premises.  The one exception specifically carved out involves an employee's right to conceal in their own vehicle even if the vehicle is used for employment/employer purposes.  Otherwise, if there is an incident involving a shooting in the workplace like the one that occurred at the Azana Salon & Spa, whether there is any liability for the business or employer will involve on several facts that do not appear to have been made public at this time due to the legal issues being sorted out.

It is unfortunate employers have to address issues involving weapons and violence in the workplace but if all of the best and correct measures and steps are taken then perhaps the issue is minimized and employees can do the things necessary to address domestic violence.

Wednesday, October 17, 2012

Employers: Opposing Unemployment Insurance Benefits May Amount to Retaliation!

Attorney Eric Meyer graciously highlighted a recent case out of Pennsylvania involving a retaliation claim under Title VII involving an employer who opposed a former employee's claim for unemployment compensation who had also filed a charge of discrimination.

Under Title VII of the Civil Rights Act, an employer engages in unlawful retaliation when, in response to an employee complaint of discrimination, it acts in a way that may dissuade a reasonable worker from making or supporting a charge of discrimination.  A federal district court in Pennsylvania held that an employer's request that its agent contest the employee's claim for unemployment compensation and state, that the employee was "discharged for gross negligence causing a financial loss to the employer," amounted to retaliation under Title VII.  The employee claimed that this appeal prevented her from continuing to receive unemployment compensation benefits and made it impossible to find new employment.

The employer argued that there was no adverse employment action in contesting the employee's unemployment benefits claim because it occurred after her employment had already ended.  Even though the employer cited previous case law where a court found no adverse employment action because contesting unemployment came after employment ended (the case involved the ADEA and not Title VII), it noted that in this case the employee was already collecting benefits then lost them, suffering economic harm and damaged her chances of procuring future employment.  

The case is STEZZI v. CITIZENS BANK OF PENNSYLVANIA, Dist. Court, ED Pennsylvania 2012, Case No. Civil Action No. 10-4333.

October Edition of the Employment Law Blog

Attorney Jon Hyman was gracious enough to host this month's edition of the Employment Law Blog Carnival and it is available here

Monday, October 8, 2012

Pregnancy Discrimination Continues to Present Hurdle for Women

Recently the Equal Employment Opportunity Commission (EEOC) publicly-announced that it was targeting pregnancy discrimination and highlighted four (4) pregnancy discrimination suits it had filed on behalf of women who allegedly suffered from pregnancy discrimination.  The EEOC also highlighted the fact that pregnancy discrimination claims had risen 23% from 2005 to 2011.  Prior to that headlines were made when Yahoo’s new chief executive, Marissa Mayer, gave birth to a baby boy, but the headlines presented both positive and negative thinking on whether the proverbial glass ceiling had been raised. 

The New York Times recently published an article in their op-ed section discussing women who conceal their pregnancies until the best possible time and the many challenges pregnant women continue to face in the workplace and Congress' recent action in introducing the Pregnant Workers Fairness Act into the Senate.  The Act would require employers to offer workplace accommodations for pregnant women, like exempting them from duties that involve heavy lifting and offering them plenty of water breaks, among other things — the same sort of accommodations offered to disabled workers.  Currently pregnant women are to be treated no differently than any other temporarily disabled person in the workplace (though pregnancy is not considered a disability under the law).

Sunday, October 7, 2012

Ohio's Minimum Wage Rate Raising to $7.85/Hour

At the start of the new year (when most new laws take effect), the State of Ohio's minimum wage will raise to $7.85 per hour.  The minimum wage for tipped employees will rise 8 cents to $3.93 per hour.

Tuesday, October 2, 2012

NLRB Rules Car Salesman's Facebook Posting Not Protected

A salesman at a Chicago-area BMW dealership was terminated for posting photos of a car crash at a Land Rover dealership (owned by BMW) and filed a claim with the National Labor Relations Board (NLRB) claiming that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation, the regional office issued a complaint. Administrative Law Judge Joel P. Biblowitz found that this activity might have been protected under the National Labor Relations Act (NLRA) because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

What clouded this case a bit is the fact the employee's Facebook page contained other content that seemed to clearly fall within the ambit of concerted protected activity but it was only the Land Rover post that was cited in the discharge.  The NLRA protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.  The ALJ did not find the Land Rover picture and caption ("OOPS") to be protected concerted activity:
As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected. 
However, the Board did take issue with the employer's “Courtesy” rule regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the NLRA.  Thus, the Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.

Monday, October 1, 2012

10th Circuit Finds Transferring Disabled Employee to Different Geographical Location for Better Access to Medical Care is Reasonable Accommodation


A long-time secretarial employee of the United States Forest Service (“Forest Service”), Clarice Sanchez, suffered irreversible brain damage after falling at work. As a result of her injury, Sanchez lost the left half of her field of vision. She requested a hardship transfer to Albuquerque, New Mexico, where she could better access ongoing medical treatment. After the Forest Service declined to accommodate her request, she brought suit under the Rehabilitation Act, 29 U.S.C. § 791. The district court granted summary judgment in favor of the Forest Service, concluding that Sanchez was not disabled within the meaning of the Act. The Court of Appeals for the Tenth Circuit disagreed and held that Sanchez raised a genuine issue of material fact regarding her disability.  The Court further held that transfer accommodations for the purpose of medical treatment or therapy are not unreasonable per se, even if the employee is able to perform the functions of their job. 

What makes this case interesting is that neither party contended that Sanchez could not perform her job.  However, Sanchez had difficulty reading due to her limited vision.  When Sanchez's work began suffering, her work environment allegedly began to deteriorate. According to Sanchez, her supervisor and coworkers mocked her brain injury saying that she was “crazy,” “not all there,” and “not right in the head.” She also alleges that her supervisor made gestures to this effect. Thus, in 2006, Sanchez took a pay cut to accept an accounting technician position with the Forest Service in Albuquerque.  Sanchez filed suit under the Rehabilitation Act and both parties moved for summary judgment with the Forest Service arguing that Sanchez's impairment did not substantially limit her so as to qualify as a disability under the Rehabilitation Act.  The district court agreed with the Forest Service on the issue of Sanchez not qualifying as disabled and therefore did not need to address the issue of accommodation.

The 10th Circuit found that Sanchez provided plenty of evidence that she has a qualifying disability for purposes of the Rehabilitation Act.  The Court then focused on the Forest Service's alternative argument that the Rehabilitation Act does not contemplate transfer accommodations for employees who require medical treatment despite being able to perform the essential functions of their jobs.  In finding that it does, the Court cited several other circuits--primarily the 7th Circuit--that have held that transfers for medical treatment also fall within the Rehabilitation Act’s ambit.