2011 ntma fall conference labor & employment update a re e mployers u nder a ttack t oday ?...

2011 NTMA Fall 2011 NTMA Fall ConferenceConferenceLabor & Employment Update

ARE EMPLOYERS UNDER ATTACK TODAY?

Presented by:

Thomas O. McCarthyMcMahon Berger, P.C.

2730 North Ballas RoadSuite 200

St. Louis, Missouri 63131(314) 567-7350

[email protected]

The Perfect The Perfect StormStorm

Employers Are Caught in the Perfect Storm

1) Economy

2) Congress

3) Courts

Is Employment At-Will Is Employment At-Will Dead?Dead?

Employment At-WillEmployment At-WillAs an employer, I can take

whatever action I want against an employee because employment is at will, right?

Federal Employment Federal Employment LegislationLegislation

1935 – National Labor Relations Act

1938 – Fair Labor Standards Act

1963 – Equal Pay Act1964 – Civil Rights Act (Title

VII)1967 – Age Discrimination in

Employment Act1970 – Occupational Safety

and Health Act1974 – Employee Retirement

Income Security Act (ERISA)

1974 – Vietnam Era Veterans’ Readjustment Asst. Act

1986 – Immigration Reform and Control Act

1986 – Consolidated Omnibus Budget Reconciliation Act (“COBRA”)

1988 – Employee Polygraph Protection Act

1990 – Americans with Disabilities Act

1990 – Older Workers Benefits Protection Act

1991 – Civil Rights Act1993 – Family and Medical

Leave Act1996 – Health Insurance

Portability and Accountability Act

2008 – Genetic Information Nondiscrimination Act

2008 – ADA Amendments Act2009 – Lilly Ledbetter Fair

Pay Act

Erosion of Employment At-Erosion of Employment At-WillWillState statutes

◦Discrimination/Retaliation/Harassment

◦Wage and hour◦Leave rights◦Workplace safety

State Law Wrongful Discharge State Law Wrongful Discharge ClaimsClaimsBreach of Implied Contract

(Handbooks and written policy statements)

Breach of Public Policy(Constitution, statute, regulation)

Breach of Implied Covenant of Good Faith and Fair Dealing

Employment LitigationEmployment Litigation

Recent Jury Discrimination Recent Jury Discrimination AwardsAwards

Case NameCase Name Discrimination TypeDiscrimination Type AwardAward

Saffos v. Avaya Inc.Saffos v. Avaya Inc. Age DiscriminationAge Discrimination $10.7 million$10.7 million

Noyes v. Kelly Noyes v. Kelly ServicesServices

Religious Religious DiscriminationDiscrimination $6.5 million$6.5 million

Myers v. Central Myers v. Central Florida InvestmentsFlorida Investments Sexual HarassmentSexual Harassment $5.4 million$5.4 million

McKenna v. City of McKenna v. City of PhiladelphiaPhiladelphia

Race Discrimination/Race Discrimination/

RetaliationRetaliation$5 million$5 million

Morales v. Los Morales v. Los Angeles County MTAAngeles County MTA

Disability Disability DiscriminationDiscrimination $2.25 million$2.25 million

Traxler v. Traxler v. Multnomah County, Multnomah County,

OregonOregon

FMLA Interference/FMLA Interference/

RetaliationRetaliation$1.8 million$1.8 million

Eickhoff v. Union Eickhoff v. Union Pacific RailroadPacific Railroad

Sexual Harassment/Sexual Harassment/


Schaar v. State of Schaar v. State of MissouriMissouri

Sexual Harassment/Sexual Harassment/


Bates v. Kansas Bates v. Kansas City, MOCity, MO Sexual HarassmentSexual Harassment $595,000$595,000

$95 Million Verdict in Sex $95 Million Verdict in Sex Harassment Lawsuit in Harassment Lawsuit in

IllinoisIllinoisLargest everFemale plaintiff alleged her manager

made suggestive comments, touched her inappropriately and sexually assaulted her

She reported conduct to her supervisor and called the company’s Human Resources hotline to complain, but the company took no action

Key: employer’s failure to respond appropriately

Compensatory Jury-Award Compensatory Jury-Award Medians by Type of Medians by Type of

Discrimination Case*Discrimination Case*

*Source: Jury Verdict Research® Horsham, Pa. (2009)

$175,000

$200,000

$253,524 $262,684

$0

$50,000

$100,000

$150,000

$200,000

$250,000

$300,000

Do

llars

Race Sex Disability Age

Recent CasesRecent CasesCrawford v. Metropolitan Gov’t of

Nashville◦Answering questions during an

employer’s internal investigation of alleged discrimination is protected against retaliation

◦“To oppose“ means to resist or contend against

◦A person can "oppose" by responding to someone else's questions just as surely as by provoking the discussion

Recent CasesRecent CasesThompson v. North American Stainless

◦Male employee who claimed he was fired because his fiancé filed a discrimination charge against their mutual employer may pursue a claim for retaliation under the Civil Rights Act

◦U.S. Supreme Court held purpose of anti-retaliation provision is to prohibit any employer action the might dissuade a reasonable worker from engaging in protected activity

Recent CasesRecent CasesKasten v. Saint-Gobain Performance

Plastics◦U.S. Supreme Court holds Fair Labor

Standards Act’s prohibition on retaliation against employees who file claims under the FLSA also applies to oral complaints

◦Complaint must be sufficiently clear and detailed for a reasonable employer to understand its substance

Recent CasesRecent CasesStaub v. Proctor Hospital

◦U.S. Supreme Court ruled a supervisor’s act motivated by bias and intended to cause an adverse employment action can make an employer liable under USERRA where the act is the proximate cause of the termination or other ultimate employment action.

◦The ultimate decision maker was not biased, but was influenced by previous company action that was discriminatory.

Federal Agency ActivismFederal Agency ActivismEqual Employment Opportunity

Commission (“EEOC”)◦Continued increase in Charge filings

Charges Filed with the EEOC FY 2006-2009*Charges Filed with the EEOC FY 2006-2009*

*U.S. Equal Employment Opportunity Commission

16,5

48

19,1

03

24,5

82

22,7

78

15,5

75

17,7

34

19,4

5321,4

51

27,2

38

30,5

10

33,9

37

33,5

79

8,32

7

9,39

6

10,6

0111

,134

23,2

47

24,8

26

28,3

72

28,0

28

12,0

25

12,5

10

13,8

67

12,6

96

02,5005,0007,500

10,00012,50015,00017,50020,00022,50025,00027,50030,00032,50035,000

Nu

mb

er

of

Ch

arg

es

File

d

Age Disability Race NationalOrigin

Sex SexualHarassment

FY 2006 FY 2007 FY 2008 FY 2009

EEOC Increases Litigation EEOC Increases Litigation Against EmployersAgainst Employers

◦The number of lawsuits filed by the EEOC in federal court against employers has increased dramatically◦All across the U.S.: Maryland, Virginia,

Georgia, Kentucky, Michigan, Wisconsin, Texas, Hawaii, just to name a few

◦All types of discrimination: pregnancy, national origin, color, religious, disability, age, harassment, retaliation, failure to accommodate.

EEOC Settlements On The EEOC Settlements On The RiseRise

◦ At the same time, EEOC settlements of discrimination charges is increasing◦$1million in North Dakota for alleged sex

harassment◦$600,000 in Illinois for failure to

accommodate disability◦$3million in Minnesota for alleged age

discrimination◦$6million in California for alleged disability

discrimination◦$2million in Alabama for alleged sex

harassment◦$210,000 in New York for alleged national

origin harassment and retaliation

EEOC’s Final Regulations on EEOC’s Final Regulations on the amendments to the the amendments to the

Americans with Disabilities Americans with Disabilities Act (“ADAAA”)Act (“ADAAA”)

The three-part definition of disability remains unchanged.

To be “disabled” under the ADA, a person must meet at least one of the following criteria:◦ a physical or mental impairment that

substantially limits one or more of the major life activities of such individual;

◦ a record of such an impairment; or◦ being regarded as having such an

impairment.\

EEOC’s ADAA RegulationsEEOC’s ADAA Regulations

The EEOC’s new regulations broaden the definition of disability: ◦Disability” “shall be construed in favor

of broad coverage . . . to the maximum extent permitted…”

◦As a result, practically all individuals claiming to be disabled will be deemed disabled under the ADA

Shifts the burden from the individual to the employer◦No longer is the focus on whether an

individual is disabled◦Rather, the analysis focuses on

whether the employer has satisfied its obligations by providing a reasonable accommodation to an individual with a disability


EEOC’s ADAA RegulationsEEOC’s ADAA RegulationsExpands list of major life activities

through two (2) non-exhaustive lists◦1st class: functioning of body systems, i.e.

sitting, reaching, interacting with others…◦2nd class: operation of major bodily

functions, i.e. operation of pancreas, kidney, liver...

EEOC states that in determining other examples of major life activities, the term “major” shall not be interpreted strictly


“Substantially limits” – EEOC states that this is not a demanding standard and should be broadly construed

Determination is to be made without considering any ameliorative effects of mitigating measures◦Exception: ordinary eyeglasses or

contacts

Conditions that are episodic (epilepsy) or in remission (cancer) are considered a disability if they would substantially limit a major life activity when active

EEOC states that conditions lasting less than six (6) months can be substantially limiting



◦The key – reasonable accommodation and the interactive process: Interactive process between the

employer and the employee to determine what, if any, reasonable accommodation is available to enable the individual to enjoy equal employment opportunities


◦Examples of reasonable accommodations: Making existing facilities used by

employees readily accessible to and usable by persons with disabilities

Job restructuring, modifying work schedules, reassignment to a vacant position

Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters

EEOC Rules Addressing EEOC Rules Addressing Genetic Information Genetic Information

Nondiscrimination Act Nondiscrimination Act (“GINA”)(“GINA”)

“Genetic information” includes Information about an individual’s or a family member’s genetic tests or family medical history

EEOC Rules Addressing EEOC Rules Addressing GINAGINA

Key prohibitions◦An employer never may use genetic

information in making employment decisions, including benefits

◦No harassment or retaliation◦Neither employer nor employer’s

physician may collect family medical history as part of a medical examination

EEOC Rules Addressing EEOC Rules Addressing GINAGINA

When requesting health information, warn the individual or health care provider not to provide genetic information

Use specific language suggested by EEOC The Genetic Information Nondiscrimination Act of 2008

(GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

EEOC Issues Warning to Employers EEOC Issues Warning to Employers Who Respond to Medical Record Who Respond to Medical Record

SubpoenasSubpoenas In January 2011, the EEOC ruled that

an employer providing medical records pursuant to a valid subpoena, but without the employee’s written consent, violates the privacy provisions of the Americans with Disabilities Act.

The EEOC’s ruling was not a court decision, nor was it a ruling in a federal discrimination claim.

Use caution when responding to such subpoenas.

Department of Labor Department of Labor (“DOL”)(“DOL”)

Significant awards against employers for wage and hour violations

◦ $934,425 in Florida on behalf of 30 employees in back wages and liquidated damages

◦ $830,000 in Texas for overtime violations◦ $1.5million in California for overtime and

recordkeeping violations◦ $1.76million in Iowa on behalf of 31

workers for minimum wage and overtime violations

DOL Introduces Smartphone DOL Introduces Smartphone App For Employees To Track App For Employees To Track HoursHours◦Can track straight time and overtime

hours as well as break times◦In English and Spanish◦Can be used during investigations to

contradict employer’s records◦Makes it easier for employees to

pursue claims against their employer

Deducting Wages Due To Deducting Wages Due To Losses Caused By The Losses Caused By The

EmployeeEmployeeIn most states, employers may not

deduct wages from an employee’s paycheck due to losses caused by the employee (e.g., damage to equipment, cash register shortages, etc.) absent a written authorization signed by the employee prior to the deduction

In many states, for example California, an employee’s pay cannot fall below minimum wage

Best practice – written authorization obtained in a timely manner

Avoiding Payment of Overtime Avoiding Payment of Overtime on Employee Bonuseson Employee Bonuses

Section 7(e) of the FLSA requires inclusion in an employee’s regular rate all remuneration for employment except certain specified types of payments. Among these excludable payments are:◦ Discretionary bonuses◦ Payments in the nature of gifts on special

occasions◦ Contributions to certain welfare plans◦ Payments made by the employer pursuant to

certain profit-sharing, thrift and savings plans


Bonuses which do not qualify for one of the exclusions from the regular rate must be totaled in with other earnings to determine the regular rate on which overtime pay is based

Where a bonus payment is considered a part of an employee’s regular rate, it must be included in computing his/her regular hourly rate of pay and overtime compensation

If the employer promises in advance to pay a bonus, he has abandoned his discretion to issue it


DOL Focuses on DOL Focuses on Misclassification IssueMisclassification IssueIndependent Contractor

◦ Generally, the payer has the right to control or direct only the result of the work done by an independent contractor, and not the means and methods of accomplishing the result

Employee◦ An individual who performs services for

the company who is subject to the company’s control regarding what will be done and how it will be done

DOL Focuses on DOL Focuses on Misclassification IssueMisclassification Issue

◦Primary issues to determine status Does the business have the right to

control the manner in which work is performed?

Has the contractor a special or unique skill?

Is the service an integral part of the business?

DOL Focuses on DOL Focuses on Misclassification IssueMisclassification Issue

◦Primary issues to determine status Is there a degree of permanence in

the working relationship between the individual and the business?

Does the individual have a loss or profit opportunity, depending upon results?

Does the individual have an investment in equipment or materials necessary for the work?

Occupational Safety and Occupational Safety and Health Administration Health Administration

(“OSHA”)(“OSHA”)Significant fines against

employers for safety violations◦$1.9million in Alabama for

egregious safety violations◦$243,000 in Maine for fall hazards

and other egregious violations◦$487,000 in Mississippi for safety

and health violations

FY 2006 – FY 2010FY 2006 – FY 2010Average Penalty Per Serious Average Penalty Per Serious

ViolationViolation(Private Sector)(Private Sector)

$890 $928$1,012 $983

$1,098

$0

$250

$500

$750

$1,000

$1,250

$1,500

FY06 FY07 FY08 FY09 FY10

Top 10 Most Cited StandardsTop 10 Most Cited StandardsSt. Louis Area Office-FY10St. Louis Area Office-FY10

((General Industry)General Industry)

1. 1910.147(c)(6)(i) Energy Control Periodic Inspection

2. 1910.212(a)(1) Machine Guarding3. 1910.1200(e)(1) Hazard Communication

Program4. 1910.022(d)(1) Floor Loading Protection5. 1910.147(c)(4)(i) Energy Control Procedures6. 1910.303(g)(2)(i) Guarding of Live Parts7. 1910.305(b)(1) Cabinets, Boxes, and Fittings8. 1910.215(a)(4) Abrasive Wheel Machinery9. 1910.132(d)(2) Workplace Hazard Assessment10. 1910.134(e)(1) Medical Evaluation-Respirators

OSHA Implements New OSHA Implements New Smartphone App For Heat Smartphone App For Heat

IndexIndexAllows workers and supervisors to

calculate the heat index for their worksite, and, based on the heat index, displays a risk level to outdoor workers

Provides reminders about “proactive measures” individuals can take to protect themselves from heat-related illnesses

Provides OSHA contact information

OSHA Announces Changes to OSHA Announces Changes to Whistleblower Protection Whistleblower Protection

ProgramProgramIn effort to strengthen program,

OSHA ◦Restructured internal operations for

better accountability, investigation and enforcement

◦Implemented training programs for all investigators

◦Revised its whistleblower policy manual

◦Modified internal processes to increase speed of complaint investigations

OSHA’s New Penalty OSHA’s New Penalty StructureStructureOSHA decided its penalty

structure, in place since early 1970’s, was inadequate to deter employers as the fine amounts were too low in today’s dollars

Gravity-BasedGravity-Based PenaltyPenalty

Previous New

High/Greater$5,000 or

$7,000 $7,000

Medium/Greater $3,500 $6,000

Low/Greater $2,500 $5,000

High/Lesser $2,500 $5,000

Medium/Lesser $2,000 $4,000

Low/Lesser $1,500 $3,000

Employer Size ReductionsEmployer Size Reductions

Number of Employees

PreviousReduction

New Reduction

1 – 25 60% 40%

26 – 100 40% 30%

101 – 250 20% 10%

251 or more None None

History History Reductions/IncreasesReductions/Increases

Previous New

Consider last 3 year-history of violations

10% reduction

If inspected within last 5 years and no SWRF citations issued (OTS or IC only)

10% reducti

on

Citations within the previous 3 yrs

No reduction

If inspected and cited for HG Serious, WRF within the past 5 yrs

10% increas

e

If never inspected or no HG serious, WRF citations in the past 5 yrs

No reduction or

increase

Repeat ViolationsRepeat Violations

Previous New

Criteria: a final order

citation in the previous 3 yrs

Criteria: a final order

citation in the previous 5 yrs

Application ofApplication ofPenalty Adjustment FactorsPenalty Adjustment Factors

Previous: All penalty reduction factors summed and multiplied by the Gravity-Based Penalty (GBP)

New: Penalty adjustment factors will be applied serially to the GBP (e.g., 10%, then 40%, etc. instead of 50%)◦Example follows

Sample Moderate Gravity Sample Moderate Gravity Comparison: Summed vs. Comparison: Summed vs.

SerialSerialSample Data Summed Serially

High/Lesser $5,000 $5,000

History (10%) $4,500 -10%

Good Faith (15%) $3,825 – 15%

Quick Fix (15%) $3,251 – 15%

Size (30%) 10% + 15% + 15% + 30% =

70%

$2,275 - 30%

Result $1,500 $2,275

Office of Federal Contract Office of Federal Contract Compliance (“OFCCP”)Compliance (“OFCCP”)

Proposes strengthening current rules pertaining to veterans◦ Increase data collection obligations ◦ Establish hiring benchmarks to measure

the effectiveness of affirmative action efforts

◦ Engage in at least 3 specified types of outreach and recruitment efforts each year

◦ Require that all job applicants be invited to self-identify as "protected veterans" before they are offered a job

• Founded in 1935 to Enforce the National Labor Relations Act

• Members Appointed by President, Confirmed by Senate

• 5 Year Terms

• Currently only 3 members (2 Democrats; 1 Republican)

• U.S. Supreme Court Ruled NLRB Must have 3 Members to act

• Obama Recess Appointments (Becker, expires Dec 31, 2011)

• Jurisdiction over all private sector workers and Postal Service

National Labor Relations National Labor Relations Board (“NLRB”)Board (“NLRB”)

Craig Becker’s Craig Becker’s ViewsViews

While acknowledging that “at first blush it might seem fair to give workers the choice to remain unrepresented. Just as U.S. citizens cannot opt against having a congressman, workers should not be able to choose against having a union as their monopoly-bargaining agent”

“Employers should be stripped of any legally cognizable interest in their employee’s election of representatives”

“Employers should have no right to raise questions concerning voter eligibility or campaign conduct.”

NLRB Charges On The NLRB Charges On The RiseRise

NLRB Complaint Against NLRB Complaint Against BoeingBoeing

Challenges Boeing’s decision to place a second production line for the 787 Dreamliner airplane in a non-union plant in South Carolina as opposed to Washington◦Based on statements made by Boeing

representatives that decision was made, in part, on past strike history in Washington and resulting disruptions on production

◦Republican lawmakers are outraged and have called hearings on the NLRB’s conduct

The PosterThe PosterNLRB Finalizes New Posting NLRB Finalizes New Posting

ObligationsObligationsNLRB issued final rule on August

30, 2011Effective January 31, 2012, all

employers (both union and non-union) covered by the National Labor Relations Act must post a notice to their employees informing them of their rights to organize and collectively bargain

Requirements of notice◦11-by-17 inches◦Where other workplaces notices are

posted◦Must be electronically

posted/distributed if employer typically communicates in such a manner with its employees

◦Must be posted in foreign language if 20% of employees speak foreign language

The PosterThe Poster

Failure to post may result in an unfair labor practice, tolling of six months statute of limitations, and a finding of unlawful motive in other matters pending before the NLRB

Notice can be obtained from NLRB, www.nlrb.gov, or commercial providers

The PosterThe Poster

The PosterThe PosterNotice describes employees’ rights

under the NLRA, including the right to◦Organize, form, join or assist a union◦Bargain collectively◦Discuss wages and benefits with

coworkers◦Raise work-related complaints with the

employer◦Strike and picket ◦Choose not to do any of these activities

The PosterThe PosterNotice also lists employer unfair

labor practices◦ Unlawful solicitation and distribution rules◦ Interrogation◦ Adverse job action for engaging in protected

activity◦ Threats, such as to close facility if

employees go union◦ Making promises to discourage union

support◦ Prohibiting wearing of union insignia (hats,

buttons, etc.)◦ Surveillance of union activities

Ambush ElectionsAmbush ElectionsOn June 22, 2011, the NLRB proposed

new rules regarding NLRB ElectionsVoter Eligibility Lists (Excelsior Lists)

◦Employers would be required to produce a voter eligibility list within 2 days after the direction of the election (currently 7 days)

◦The list also would include substantially more information, including employees’ telephone numbers, position and email addresses

Ambush ElectionsAmbush Elections

Pre-Election Hearings◦ Employers could obtain a pre-election

hearing only upon a showing of substantial evidence (by submitting a statement of position)

◦ Even upon a showing of substantial evidence, a hearing would only be granted at the discretion of the Regional Director

Post-Election Objections◦ The time period to file post-election

objections would decrease from 14 days to 7 days

Ambush ElectionsAmbush Elections

Timing of Elections◦ Based on the NLRB timetable, an election

could be held less than 20 days after a representation petition is filed (pre-election hearing 7 days after petition is filed, 2 days to provide voter eligibility list and election held within 10 days)

◦ This substantially limits an employer’s ability to prepare an informational campaign for its employees about the pros and cons of unionization

Micro UnionsMicro UnionsSpecialty Healthcare and

Rehabilitation Center of Mobile, (NLRB 2011)◦NLRB permits unions to organize a minority

share of an employer’s workforce◦Departure from traditional “wall to wall”

unit of employees who shared a community of interest

◦Potential for different unions to represent different groups of employees – department or job classification union organizing

NLRB and Social MediaNLRB and Social MediaActing General Counsel Issues

Report on Recent Social Media Cases ◦Each case involved an employee’s

use of social media (e.g., Facebook, Twitter) In 4 cases, the NLRB found the

employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees

NLRB and Social MediaNLRB and Social MediaExample: an employee posted negative

remarks about her supervisor on Facebook while on her home computer. The NLRB found the employee’s discharge for such comments violated the NLRA. The NLRB also found the employer maintained an unlawful internet and blogging policy because: 1. The policy unlawfully prohibited employees

from posting pictures of themselves that depicted the company in any way.; and

2. The policy also unlawfully prohibited making disparaging comments about the company or its supervisors or managers.

NLRB and Social MediaNLRB and Social MediaFurther examples of overly broad

policies:◦Prohibiting any communication or post

that constitutes embarrassment, harassment or defamation of the employer or of any employee, officer, board member, representative or staff member.

◦Prohibiting any statement that lacks truthfulness or that might damage the reputation or goodwill of the company, its staff or employees.

NLRB and Social MediaNLRB and Social MediaFurther examples of unlawful

policies:◦Prohibiting employees from revealing

personal information regarding coworkers or customers without specific examples or limitations

◦Prohibiting the use of the employer’s logos and photographs of the employer’s facility, brand or product without written authorization.

The LMRDA requires employers and outside labor relations consultants to file financial disclosure reports as to any arrangement where the consultant was retained to: ◦Persuade employees regarding union organizing or collective bargaining; and/or

◦Obtain information about employee or union activities related to a “labor dispute.”

Persuader Activity - The Persuader Activity - The Gag RuleGag Rule

LMRDA Section 203(c) provides an advice exemption which permits employers to consult with labor counsel about what is lawful for the employer to do during a union campaign.


Currently, speech and materials delivered directly to employees by an outside consultant or attorney is reportable persuader activity.

Advice exemption◦ No employee contact by third party◦ Draft communication for employer to

consider


New standards issued in June 2011, would narrow significantly the scope of the “advice exemption.”

Reportable persuader activities would include those in which a consultant engages in any actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning their rights to organize and bargain collectively, regardless of whether or not the consultant has direct contact with workers.


American Bar Association Position

◦Rule underminesconfidential attorney-client relationship

employer’s fundamental right to counsel


NLRB Permits Employee to NLRB Permits Employee to Secretly Record ConversationSecretly Record ConversationIn Hawaii Tribune-Herald, the NLRB

held an employee could not be discharged for secretly tape-recording a meeting with a supervisor◦ Employee invoked Weingarten rights, which

NLRB found the employer violated◦ No work rule in place barring such recordings◦ It was not otherwise unlawful to make such a

recording in the state where the incident took place

As a general rule, in all jurisdictions, at least one party to a private conversation must consent to the recording of the conversation

12 jurisdictions require all parties to consent

NLRB Permits Employee to NLRB Permits Employee to Secretly Record Secretly Record ConversationConversation

Handling Government Handling Government InvestigationsInvestigations

OSHAOSHA

OSHA - Be PreparedOSHA - Be PreparedConduct periodic audits of OSHA

safety records◦ Injury logs maintained as required◦ All necessary safety precautions implemented

and working properly

Have an action response plan in place◦ Train managers/employees on how to respond ◦ Delegate responsibilities to certain

managers/employees◦ Advise employees of their rights/responsibilities

OSHA - The Inspection OSHA - The Inspection ProcessProcess

No advance notice

OSHA must be notified by call to local area office or 800 number if:◦Employee fatality on the job◦3 or more employees hospitalized as

a result of workplace injuries/illness within 8 hours of occurrence

OSHA - The Inspection OSHA - The Inspection ProcessProcessRefusal to allow inspection rarely

advisable

Delay of more than 1 hour likely to be treated as refusal

OSHA can obtain inspection warrant from a federal judge without notice to employer

Resulting inspection more stringent

OSHA - Opening Conference OSHA - Opening Conference with Compliance Officerwith Compliance Officer

Establish basis and intended scope of inspection◦Complaint inspection

Copy to be provided Generally limited to complaint items

◦General schedule inspection◦Fatality/catastrophe inspection◦Warrant inspection

Warrant should specify scope


Apprise top management and Company attorney, depending on circumstances

Determine persons to accompany compliance officer, including union representative


Plan the route through the plant for inspection◦What can be seen can be cited◦Take notes of everything observed

by investigator◦If pictures taken, take pictures of

everything being photographed◦Make copy of everything being taken

OSHA - Inspection OSHA - Inspection ProceduresProcedures

Use of cameras and testing equipment◦Industrial hygiene inspections

Employee interviews◦Opportunity to select◦Private

Limit disruption of work operations◦Reasonable time◦Reasonable limits◦Reasonable manner

OSHA - Inspection OSHA - Inspection ProceduresProceduresAnswering the compliance

officer’s questions

When should you volunteer information

Making immediate repairs

OSHA - Closing Conference OSHA - Closing Conference with Compliance Officerwith Compliance Officer

Employee representative not entitled to be present◦Compliance officer meets separately

Preliminary findings onlyAvoiding admissions of violations

and providing exculpatory information

Convey good faith concern for compliance

Correcting potential violations

OSHA - Responding to a OSHA - Responding to a CitationCitation

Decision to contest must be made within fifteen (15) working days of receipt

Take advantage of informal conference with OSHA supervisor prior to contesting

Maximum penalties

OSHA - Have a Settlement OSHA - Have a Settlement Proposal to MakeProposal to Make

Be realistic◦OSHA generally will offer some

penalty reduction◦Consider partial settlement

Get abatement dates extended where necessary

Non-admissions clause for any purpose other than subsequent OSHA proceedings

Handling Government Handling Government InvestigationsInvestigations

DOLDOL

DOL – Reasons for DOL – Reasons for InvestigationInvestigationMinimum wage complianceOvertime Proper employee classificationRecordkeeping obligationsRetaliation claims

DOL – Be PreparedDOL – Be PreparedConduct periodic audits of payroll

records◦Employees being paid minimum

wage for each pay period◦Employees receiving overtime when

required◦Job descriptions accurately reflect

duties resulting in proper exempt/non-exempt status

◦Employees properly classified

DOL – The Inspection DOL – The Inspection ProcessProcess

Notice◦ Typically given in advance via letter◦ If no notice, then simply advise this is not a

good time due to the demands of the business and reschedule at a mutually convenient time Call your attorney if the investigator

insists on entering at that time.


Onsite visit◦Opening meeting◦Place the investigator in a room

separate from employees near the front of the facility

◦Have records responsive to the request ready for review if possible


Responding to requests for interviews◦Comply to the extent operations are

not disrupted◦Company should select the

interviewee◦Employees also have the right to

decide whether or not to provide a statement

◦Neither managers nor supervisors should provide written statements.


Closing meeting◦Make no admissions◦Simply listen to what they have to

say

Immigration and Customs Immigration and Customs Enforcement (“ICE”)Enforcement (“ICE”)

Purpose – investigate the employment of unauthorized workers

Be prepared – conduct periodic audits of Form I-9 documentation◦Fully completed◦Timely completed◦Re-verification completed as

necessary◦Maintained in separate files

ICE – The Inspection ICE – The Inspection ProcessProcess

Notice◦If ICE agent has been in

communication with the Company, then notice may be provided. I-9 Forms may already have been provided and issues identified.

◦Typically, however, no notice is provided, even if communications have been made between the parties

ICE – The Inspection ICE – The Inspection ProcessProcess

Dealing with ICE arriving at your door◦Authorities arrive with a search

warrant Ask to see identification Obtain a business card or write down

information Ask to see warrant and accompanying

documents and make a copy Contact your attorney

Avoiding Litigation By Avoiding Litigation By Disgruntled EmployeesDisgruntled Employees

The 90/10 RuleThe 90/10 Rule90% of an organization’s human

resource problems are caused by 10% of the organization’s employees

Essential Handbook Essential Handbook PoliciesPolicies

◦Equal Employment Opportunity◦Harassment

General policy statement that covers all forms of harassment, not just sex

Description/examples of prohibited conduct

Reporting procedure Confidential investigation Appropriate remedial action No retaliation

◦At-will nature of employment

Essential Handbook Policies Essential Handbook Policies (cont.)(cont.)

◦Employee Classification – avoid “permanent”

◦Benefits – reference to summary plan description

◦Leaves of Absence◦Workplace Violence◦Code of Conduct◦Substance Abuse Testing◦Open Door◦Employee Acknowledgement

Supervisor/Manager Supervisor/Manager TrainingTraining

◦At hire and periodically thereafter (annually in some states, like California)

◦Communicate and reinforce Company’s policies against discrimination and harassment

◦Supervisors/managers must be role models and refrain from inappropriate behavior at all times

◦Open door policy to receive complaints◦No retaliation

Employee TrainingEmployee Training◦At hire and periodically thereafter

(annually in some states, like California)

◦Communicate and reinforce Company’s policies against discrimination and harassment

◦Explain complaint procedure so that employees know who to go to if they have an issue

Upper Management Upper Management ResponsibilitiesResponsibilitiesMonitor the work environment and

require high standards of professionalism and courtesy

Respond quickly and appropriately to all discrimination/harassment complaints

Take every complaint seriously and act quickly to stop inappropriate or offensive conduct

Ensure retaliation does not occur and do not let the complainant walk away frustrated

Effective Complaint Effective Complaint InvestigationsInvestigations

Interview the complainant, alleged bad actor, and any witnesses◦ Obtain specifics – time, date, location,

context, others present, statements, etc.Resolution of complaint

◦ If allegations not established, no action taken except redissemination of policy and/or training

◦ If policy violation occurred, then take appropriate, remedial corrective action

◦ Follow up with complainant

Making the Decision to Making the Decision to TerminateTerminate

7 Questions7 Questions

1. Did the employer give the employee forewarning of the possible or probable disciplinary consequences of the employee’s conduct?a. Employee handbooksb. Plant rules

2. Was the employer’s rule or policy reasonably related to the orderly, efficient, and safe operation of the company’s business?

a. Performance and productivity

b. Safety

3. Did the employer, before administering discipline, make an effort to discover whether the employee violated or disobeyed a rule or policy?

a. Employee has a right to know the offense he or she is being charged with and must be given an opportunity to defend his or her behavior

b. Investigation should be made prior to a disciplinary decision

c. Where management must react immediately to employee’s behavior, suspension pending investigation is generally recognized as acceptable

4. Was the employer’s investigation conducted fairly and objectively?

a. Who, what, where, when and how?

b. Interview relevant witnessesc. Do not pre-judge employee

5. At the investigation did the employer obtain substantial evidence or proof that the employee was guilty as charged?

a. Evidence must be truly substantial and not flimsy

b. Evidence must be documented

6. Has the employer applied its rules, policies and penalties evenhandedly and without discrimination to all employees?

a. Discrimination is the antithesis of just cause

b. Employee cannot be singled out for discipline based on a rule that is not enforced against any other employees

7.7. Was the degree of discipline Was the degree of discipline administered by the employer administered by the employer reasonably related to the reasonably related to the seriousness of the employer’s seriousness of the employer’s proven offense and the record of proven offense and the record of the employee’s service?the employee’s service?

a. A trivial proven offense does not warrant harsh discipline unless the employee has properly been found guilty of the same or other offenses a number of times in the past

b. Employee’s record of previous offenses may never be used to determine guilt or innocence of the current charge, but may be used in evaluating the severity of discipline for a proven offense

c. Bottom line: Is it fair?

Termination GuidelinesTermination GuidelinesHow an employee is treated at the time

of termination, and not the termination itself, often gives rise to legal action◦ Protect the employee’s privacy and dignity◦ Notify the employee in person in private◦ Have 2 managers present so that one can

act as witness◦ Provide the reason for termination and give

him/her the opportunity to respond or ask questions

◦ Limit communications regarding termination decision on a “need to know” basis

QUESTIONS???QUESTIONS???

2011 ntma fall conference labor & employment update a re e mployers u nder a ttack t oday ?...

Documents

employment act

health act

disabilities act

accountability act

control act

medical leave act

equal pay act

employment litigation