EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

• It is illegal for employers to discriminate against employees or applicants based on their genetic information.
• Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
• GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
• There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

EEOC wins over $1.5 million in sexual harassment case

The EEOC has issued a press release announcing a big victory for sexual harassment cases.  These cases are often dismissed.  For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints.  Of these, 53% were found to have no reasonable cause.  This is an increase from 2010, where the percentage was of 50.1%.  Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar  sexual remarks at the company’s Avaya Memphis area warehouse facility.  Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

 

via Jury Awards More Than $1.5 Million in EEOC Sexual Harassment and Retaliation Suit against New Breed Logistics | U.S. Equal Employment Opportunity Commission (EEOC) – JDSupra.

D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

Misclassification of workers and the DOL’s take on it

Labor Employment Perspectives reports on a possible change that the Department of Labor (“DOL”) regarding classification of workers.

DOL suggests that it may push forward changes to the record keeping requirements under the Fair Labor Standards Act (“FLSA”) regulations.  These changes will bring to the forefront issues relating to the misclassification of workers as independent workers when they are, in fact, employees.

On January 11, 2013, the DOL requested comments on a public survey designed to look at worker classification and determine the workers’ knowledge and understanding of employment laws and rules regarding basic laws and misclassification.

The DOL states,

The purpose of this study is to design and administer a new survey to collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification…..

The data collection effort with this group will gather information about workers’ employment and pay arrangements and will measure workers’ knowledge about their current job classification, and their knowledge about the rights and benefits associated with their job status.

As a backdrop, in 2010, DOL commissioned a study, which found that 10% to 30% of audited firms for state unemployment insurance had one or more of its employees misclassified as independent contractors.  In the fall of 2010, the DOL proposed a change to the regulations regarding record keeping designed to “enhance the transparency and disclosure to workers of their status as the employer’s employee or some other status, such as an independent contractor…”

In other words, the regulations, if passed as suggested in 2010, would require employers to inform workers of whether they are (1) employees, (2) independent contractors, or (3) other status.  Currently, the law does not require this.

Given their renewed interest, as evidenced by the public survey focused on worker classification, FMLA regulations may change.

 

via Right-to-Know Regulations May Move Back to the Forefront; Time to Check If You Have Misclassified Your Workers! | Labor & Employment Law Perspectives.

NLRB charge alleging illegal picketing at Wal-Mart held in abeyance

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW.

In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards.

The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.

via NLRB charge alleging illegal picketing at Wal-Mart held in abeyance | NLRB.

Sup. Ct. will hear retaliation mixed motives case

On Friday, the Supreme Court granted certiorari in the University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases.

The question the Supreme Court will address is:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

(emphasis added).

Plainly, the Supreme Court will opine about who has the burden of proof (who has to prove that retaliation was/or-is-not improper).

• If the worker has to prove that the retaliation was improper, the worker has to show that the employer retaliated only due to the improper motive/reason (i.e. filing a lawsuit, making a complaint with HR, having a disability, due to race, gender, religion, etc.).
• If the employer has to prove that the tangible employment action (i.e. discipline, firing, transfer, demotion) was not retaliation, the employer has to show that the improper motive/reason was part of many reasons.

The SCOTUSblog file with links to documents is here.

via Workplace Prof Blog: SCOTUS grants cert in retaliation mixed motives case.

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material,substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 2004 emphasized.

This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today.

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed.

Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system.

Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment—may properly be deferred until after they are imposed.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking

The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:

Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.

The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It’s a good summary.

via Workplace Prof Blog: EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking.

Recent Notable NLRB decisions

This is a really good article I came across —-

 

Recent Notable National Labor Relations Board Decisions

By James Hays and Rebecca Hirschklau

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.

A. Confidentiality Directives During Internal Investigations
In Banner Health Systems d/b/a Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the National Labor Relations Board (“NLRB”) declared that a blanket statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers was in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) as restrictive of an employee’s rights arising under Section 7 of the NLRA. [1]

In Banner Health Systems, an employee made a complaint concerning instructions he had received from his supervisor that he felt were not proper and would endanger patients. After the employee had made the complaint, he was told by the human resources consultant not to discuss the matter with his coworkers while the employer was investigating the complaint. The Administrative Law Judge (“ALJ”) found, among other things, that this prohibition was not in violation of Section 8(a)(1), the NLRB disagreed.

While it is generally a standard investigative protocol to advise an interviewee to keep the subject matter of the interview confidential during the investigative process, the NLRB found that the employer had failed to show that the desire for confidentiality out-weighed the employee’s Section 7 rights. Rather, the NLRB held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation: “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.”

In light of the NLRB’s Banner Health Systems, decision, employers should be aware that mere protection of the investigation may no longer be sufficient to justify a blanket prohibition. Instead, an employer must make a case-by-case, witness-by-witness, determination of the above four factors before prohibiting an employee from discussing the investigation and/or complaint with his/her coworkers. Individually analyzing these four factors should ensure that the prohibition on discussion will be justified.

B. Employment At-Will Statement in Employee Handbook Acknoweldgement

In American Red Cross Arizona Blood Services Region and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.

In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.

Analyzing the language in the handbook acknowledgment form under the two-step inquiry utilized for determining whether an employer’s rule violates the NLRA, the ALJ found that “in his view” there was no doubt that employees would reasonably construe the language to prohibit Section 7 activity. The ALJ found that the acknowledgment form was essentially a waiver in which an employee agrees that his/her at-will employment can never change, thereby relinquishing any rights to advocate concertedly, whether represented by a union or not.

While it remains to be seen whether this case will be reviewed by the NLRB, employers should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms. One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to the language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer should surface and/or simply omitting any reference regarding the permanence of the at-will status.

 

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[1] Section 7 provides that “[e]mployees shall have the right to self-organization, to for, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

 

 

via Labor Employment Law Blog: Recent Notable National Labor Relations Board Decisions.