The National Labor Relations Board (NLRB) recently decided that an employer violated the National Labor Relations Act (NLRA) when it terminated employees who complained about the conduct of their supervisor on Facebook.  The case is Design Tech. Grp. LLC d/b/a Bettie Page Clothing.  

The NLRA prohibits all employers, both union and non-union, from punishing employees who act together to complain about the terms and conditions of their employment (conduct referred to as “concerted activity.”)  In Design Tech., the NLRB determined that a Facebook “conversation” about workplace conditions is, in and of itself, concerted activity.  Based on this determination, the NLRB concluded that the law prohibited Design Tech from punishing its employees over the Facebook postings.  The Board ordered the employer to reinstate the employees and pay back wages, among other remedial relief.  This case is a reminder that employers must tread very carefully when taking any action based on the social media postings of its employees.  Consulting with legal counsel before doing so can help an employer stay on the right side of the law.

According to a recent Eleventh Circuit Court of Appeals decision, undocumented workers are entitled to sue under federal law for minimum wage and overtime.  The Eleventh Circuit does not govern Wisconsin, but Wisconsin employers should nonetheless pay attention to the ruling.  Paying all employees at least minimum wage and all overtime due will help keep you out of court, no matter which employees are at issue.

Senator Tom Harkin (D-IA) and Representative Rosa DeLauro (D-CT) recently introduced legislation referred to as “the Healthy Families Act” that would require employers with 15 or more employees to provide those  employees with paid sick leave.  As proposed, the legislation provides generous benefits for employees.  Some highlights are:

• Employees would earn one hour of paid sick time for every 30 hours worked, to a maximum of 56 hours annually;
• Leave could be taken for the employee’s own or for a family member’s illness, and for preventative care, e.g., medical appointments;
• Employees who are the victims of domestic violence, stalking or sexual assault would qualify for leave;
• Leave would begin accruing the first day of employment and employees can use it after 60 days;
• Leave would carry over from year to year, but could not exceed 56 hours absent employer consent;
• Employers could require medical certification for absences of more than three consecutive days;
• Employees who leave and are rehired within 12 months would be entitled to accrued leave earned prior to leaving employment and would be entitled to take sick leave immediately upon rehire.

Although the new federal Family and Medical Leave Act (FMLA) regulations went into effect in early 2013, it seems that many employers have yet to come into compliance with them.  Given this reality, a brief overview of the substance of the regulations is in order.

Posting

The Department of Labor (DOL) has issued a new “General Notice” FMLA poster that must now be posted in the workplace.  It should also be included in any employee handbook as a standalone document or as an attachment to the employer’s FMLA policy.  The poster is available on the DOL website. 

Military Family Leave Regulations

The new regulations also implement the 2009 FMLA amendments providing for military family leave.  The regulations address:

Qualifying Exigency Leave (29 U.S.C. § 825.126)
Military Caregiver Leave (29 U.S.C. § 825.127)

They also provide a form to use for Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave.

Airline Flight Crew Employees

Finally, the regulations revise the rules for determining FMLA eligibility for flight crew employees.  (28 C.F.R. §§ 825.801, 802, 803)

Compliance

As noted, these regulations are now in effect.  Employers who overlooked the changes (or were simply too busy with all the many tasks that the beginning of a new work year brings!) should promptly update their postings and policies.

In Wisconsin, some local ordinances, like City of Madison Ordinance 39.03, prohibit employers from discriminating on the basis of physical appearance.  In those jurisdictions, Wisconsin employers need to be careful what they say in job announcements or during the hiring process regarding an §applicant’s physical appearance to avoid a potential discrimination charge. 

But what about outside the jurisdictions of these municipalities?  Are there other laws that permit employees to sue Wisconsin employers for allegedly discriminating on the basis of physical appearance?  Not per se.  Nothing under Wisconsin state law or federal law expressly makes physical appearance a protected classification.  That does not mean, however, that employers are free to “discriminate” on the basis of physical appearance without a risk of being sued.  Basing employment decisions on a person’s physical appearance can give rise to a claim that physical appearance “discrimination” is simply a pretext for denying employment based on age or based on gender stereotyping about how men and women should look. 

The threat of such a claim is not just something made up by lawyers to scare their clients.  The federal Equal Employment Opportunities Commission (EEOC) recently started an investigation of a coffee shop chain regarding the company’s alleged practice of hiring only attractive women.  The EEOC did so even though no applicant or employee had filed a complaint.  The agency’s rationale is that individuals may not even know that they are being discriminated against on the basis of age or some other protected classification, apparently under the guise of hiring only “beautiful people.”  The EEOC’s investigation makes it all the more important for employers to follow best practices regarding hiring and employee retention and rewards, making such decisions on individual work-related qualifications.

A recent case issued by the federal Seventh Circuit Court of Appeals (which governs employers in Wisconsin) underscores the importance of engaging in an interactive process with a disabled employee who has asked for a reasonable accommodation under the Americans With Disabilities Act (ADA). 

In Hoppe v. Lewis University, an employee claimed that she suffered from a disability, and sought a reasonable accommodation from her employer.  The employer offered three accommodations, each of which the employee rejected.  The employer also sought additional medical information from the employee to help it find an appropriate accommodation that might be acceptable to the employee.  The employee refused to cooperate.  Under these circumstances, the court determined that the employee could not prevail on her ADA claim because she had thwarted the “interactive process” through which she and her employer might arrive at a reasonable accommodation, which in turn thwarted the employer’s ability to offer an appropriate accommodation.  The court noted with approval that the employer had continued to make efforts to accommodate the employee despite the lack of information provided. 

The ADA “interactive process” involves back and forth discussions between the employer and a disabled employee in an effort to find an appropriate accommodation.  An employee who refuses to engage in the process will likely lose her ADA claim.  By the same token, an employer who refuses to do so will likely be found liable under the ADA if no reasonable accommodation is ultimately provided.   Engaging in good faith in the interactive process helps protect employers from liability under the ADA.  Never refuse to talk to an employee about possible accommodations.  That way, if the process fails, it is through the fault of the employee and not you.

As mentioned in my March 29, 2012 blog entry, even non-union employers are subject to some of the provisions of the National Labor Relations Act (NLRA).  One relevant provision is Section 7.  Section 7 provides, among other things, that all employees, whether union or not, have the right to engage in “concerted activities for the purpose of” “mutual aid or protection.”  The National Labor Relations Board interprets this language very broadly.  This interpretation has resulted in the Board recently issuing decisions determining that commonplace—and common sense—employer policies have a “chilling effect” on employees’ Section 7 rights.  That means, according to the Board, the policies violate the NLRA.  The following are a few examples of policies that the Board recently found “chilled” Section 7 rights.

Banner Health System (July 30, 2012)

Banner Health System had a policy prohibiting employees who made complaints to management from discussing the matter with co-workers until management had completed investigation of the complaint.  The Board found that this policy could chill employees’ Section 7 rights, and that the employer’s generalized concern with protecting the integrity of its investigations was not sufficient to overcome the concern over chilling employee rights.   

Costco Wholesale Corp. (September 7, 2012)

Costco had a policy prohibiting employees from electronically posting statements that damaged Costco or that defamed or damaged any other person’s reputation.  The Board found that the prohibited conduct encompassed concerted communications protesting the employer’s treatment of its employees and that the policy did not expressly exclude protected communication from its reach.  Therefore, the policy violated the NLRA.  The Board did make reference to policies prohibiting malicious, abusive or unlawful conduct as the kinds of policies that would likely not violate the NLRA.

Flex Frac Logistics (September 11, 2012)

Flex Frac Logistics required its employees to sign an agreement that they would not disclose “confidential information” to individuals outside the company, and that such disclosure could lead to termination.  Confidential information included personnel information.  The Board concluded that employees could reasonably believe that the policy prohibited them from discussing wages or other terms and conditions of employment with non-employees, such as union representatives—conduct protected by the NLRA.  The Board therefore determined that the language in the agreement chilled Section 7 rights and violated the NLRA.

Karl Knauz Motors, Inc. (September 28, 2012)

Karl Knauz Motors issued a statement that it expected employees to be courteous, polite and friendly to customers, vendors, suppliers and other employees, and to not be disrespectful or use profanity or other language that injured the image or reputation of the company.  The Board found that the prohibition on “disrespectful” conduct and “language that injures the image or reputation” of the company could encompass activity protected by Section 7.  It determined that the policy violated the NLRA.

Bottom Line

In light of the National Labor Relations Board’s recent decisions, employers should carefully review policies that govern communication by and between employees and revamp, or get rid of altogether, those policies that could be construed to “chill” employees’ Section 7 rights.

Assume an employee came to you and said that he was unable to do his job because of a disability, but that he could perform the duties of a vacant job in another department. You already have three other applicants for the position, each of whom is more qualified than the disabled employee. What do you do?

According to a new decision by the federal Court of Appeals for the Seventh Circuit, you may have to transfer the less qualified individual with a disability in order to comply with the Americans With Disabilities Act (ADA). In E.E.O.C. v. United Airlines, Inc., decided September 7, 2012, the Court overruled one of its prior decisions which had come to the opposite conclusion. In the new case, the Court explained that the first issue an employer must consider in determining whether it is required to transfer an employee to a vacant position when there are better qualified candidates for the position to consider is whether reassignment in general would be a reasonable accommodation. If it is, then the employer must consider whether there are fact-specific considerations particular to its employment system that would create an undue hardship. If so, then the employer need not transfer the disabled employee to a vacant position for which there are better qualified applicants.

Unfortunately, the Court did not give any guidance to employers as to what “fact-specific considerations” might give rise to an undue hardship. If you are faced with a request by a disabled employee to transfer to a vacant position, and you already have more qualified applicants for the job, you will need to proceed with caution before denying the request for the transfer.

Social networking is everywhere.  It is rare for anyone in the workforce to not have at least a Facebook or LinkedIn account.  Many employers are convinced that access to these accounts will provide tons of valuable information on prospective employees, so much so that some employers have now begun asking potential hires for passwords to their social networking accounts.  While many applicants acquiesce out of fear of losing out to other candidates, there is starting to be some significant political pushback.  Two states, Illinois and Maryland, have passed laws barring employers from asking job applicants to provide passwords to their online accounts.  Washington, Delaware and New Jersey are currently considering similar bans.  And two U.S. Senators have asked the U.S. Department of Justice to review whether employer requests for passwords are legal. 

Asking for passwords is legal in Wisconsin—for now.  But is it wise?  Employers can obtain information about religious beliefs, sexual orientation, and political beliefs from social media sites.  Without such information, employers often have good defenses to discrimination suits.  They can assert that they had no knowledge of the protected classification and therefore could not have discriminated on the basis of that classification.  Having the knowledge potentially available on the social networking site takes this defense away from the employer.  Employers should give careful consideration as to whether the usefulness of the information that may be learned online outweighs the increased risk of potential discrimination suits.

A growing number of employers now require employees to sign non-compete agreements as a condition of employment.  Not many, however, think to ask prospective employees whether they are subject to a non-compete agreement with their current/former employer.  Failure to do so early on in the hiring process can have serious—and expensive—consequences.  If you do not ask a potential hire whether he or she has a non-compete, and they do, you could end up with an employee who is unable to do any of the duties of the job without violating the non-compete.  If the employee does do any such work, the former employer could sue your company for interfering with the non-compete, as well as seek to bar the employee from working for your company altogether. 

To avoid problems, the best practice is to ask about the existence of a non-compete early in the hiring process.  In most cases, employers will pass on hiring such candidates.  Keep in mind, though, that many non-competes are unenforceable.  For that reason, if your ideal candidate for a position is subject to a non-compete, there is no need to write him or her off without further consideration.  Instead, get an opinion from legal counsel on the likelihood that the non-compete is enforceable.  Armed with that information, you can make an informed hiring decision.