EEOC & NLRB UPDATES:Important Issues Every Employer

Should Know for 2016November 17, 2015

Larry Besnoff, EsquireMichael S. Pepperman, Esquire

Union League, Philadelphia

∗Presented by Larry Besnoff, Esquire

Supreme Court Update

∗Neutral policy – Ees can’t wear caps∗Female applicant wearing headscarf∗App never says religious beliefs

require headscarf∗App never asks for accommodation

Abercrombie & Fitch

∗App violates “Look” policy∗Er says it has no “Knowledge” of

religion so it can’t discriminate∗Sup Ct test: what is Er’s “Motive”,

not “Actual Knowledge”

Abercrombie & Fitch

∗Neutral policy must give way to religious accommodation

∗De Minimis no longer the standard for undue hardship

Lessons for Employers

∗Religious practice cannot be a “Motivating Factor” in employment decision

∗Don’t be cute – ask questions

Lessons for Employers

∗Engage in ADA-type interactive discussion

∗You will be held to have known about religious issues

∗Unsubstantiated suspicion of knowledge is enough

Lessons for Employers

∗Applicant can’t work Sat/Sun∗Applicant is wearing headscarf, has

a beard∗Time off for Holidays∗Breaks for prayer

Examples

∗“Essential Job Function” = no accommodation

∗“Job Qualification” = must accommodate

Examples

∗ School bus driver who hands out Black Mass Bibles to young schoolchildren

∗ Supv who repeatedly chastised lesbian subordinate with statements that Bible denounced her lifestyle

∗ No beards for safety reasons –machinery

Can Fire Employees

∗Peggy Young’s daughter is now 9 years old

∗Success – UPS changed its policy; Maryland passed state law; EEOC issued Guidelines

Young v. UPS

∗Most Favored Nations Clause – if one employee is granted benefit, then pregnant female gets it too

Young v. UPS

DISCLAIMER

The opinions, diatribes and ramblings presented today by the attorneys from ORMH should in no way, shape or form be construed as being those of (or in line with) the E.E.O.C. or N.L.R.B.

ORMH’s guests from the above agencies are neutral in their interpretation of the law and how their respective agencies effectuate the purposes of the various statutes covering the American workplace.

Food and drink will be served shortly…

The National Labor Relations Board & Elections

∗ 30% showing of interest/petition/demand for recognition if majority obtained

∗ Stipulated election agreement or NLRB hearing (limited under new rules)

∗ New Rules (since 4/14/15)--Election held within 18-23 days after petition filed/campaign (under old rules—38-42 days)

∗ Campaign period cut in half!!!∗ Unions win approximately 70% of the time on petitions

they file. ∗ Election day∗ Micro-Units (Specialty Healthcare)

14

WHY EMPLOYEES JOIN UNIONS

In surveying numerous union organizing campaigns during a recent 3-year period, the following are reasons why employees were receptive to unionization:

1. Unfair and harsh treatment by immediate supervisor – employees believed they could “get even” with management for real or imagined wrongs/supervisors who show no respect to employees.

2. Little, if any, personal recognition – employees believed they should at least get some recognition from their employer.

WHY EMPLOYEES JOIN UNIONS

WHY EMPLOYEES JOIN UNIONS

3. Lack of fair discipline.

4. Fear of job security – employees felt they would have greater safety and job security in numbers.

5. No confidence in management leadership.

6. Illusory “open door” complaint procedure.

WHY EMPLOYEES JOIN UNIONS

7. Failure of management to foster employee identification with the company – belief that union membership would compensate for lack of workplace identity.

8. Favoritism.

9. Inadequate employee benefits.

10. Noncompetitive wages.

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

The Following Suggestions Have Been Specifically Designed To Help Companies To Most Effectively And Lawfully Manage Their Employees Today…

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

1. Adopt A “Pro-Active” Employee Relations Philosophy. The Days Of Being “Re-Active” Are Over! Constant Communications To Employees And Performance Enhancing/Team-Building Programs Are Essential.

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

2. Train Your Supervisors And Managers On:(i) Positive Employee Relations; (ii) Effective Communication; (iii) Investigating Issues; (iv) Appropriate Discipline And Dispute Resolutions; And (v) Following All Employment Laws.

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

3. Help Employees Understand The Value Of Their Own Company’s Compensation And Benefits Plans And Philosophy.

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

4. Develop And Refine An Employee Selection Process. (e.g., Always Do Background Checks, Contact Previous Employer About Each Applicant, Tailor The Interview/Selection Process To The Position Being Hired, etc.).

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

5. Manage Your Difficult Employees (You Know Who They Are): (i) Be Fair And Consistent; (ii) Clearly Define Rules As Well As Expectations/Standards; (iii) “Just-Cause” Discipline; And (iv) The Punishment Must Fit The Crime!

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

6. Gauge Employee Attitudes Through Surveys And Feedback Sessions.

EMPLOYER’S “OUNCE OF PREVENTION” TOOLBOX

7. Create A Policy Modification (Employee Handbook) In Response To Employee Survey Input Which Includes Informal And Formal Dispute Resolution Procedures And “Positive” Discipline. Make Sure Your Handbook And Employment Policies Comply With The National Labor Relations Act!!!

The Three Most Important Rules of Employee Relations

∗ Do Unto Others . . .∗ Communication. Communication.

Communication!∗ If It Feels Good…Don’t Do It!

N.L.R.B. General Counsel Memorandum (GC 15-04) March 18,

2015

∗A detailed report by the N.R.R.B.’s General Counsel on recent matters/cases concerning employer rules…What’s lawful and what’s unlawful.

LAWFUL OR UNLAWFUL ?

∗“[B]e respectful to the company, other employees, customers, partners, and competitors.”

LAWFUL OR UNLAWFUL ?

∗“[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”

LAWFUL OR UNLAWFUL ?

∗“Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.”

LAWFUL OR UNLAWFUL ?

∗Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”

LAWFUL OR UNLAWFUL ?

∗ “Making inappropriate gestures, including visual staring.”

∗ Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”

LAWFUL OR UNLAWFUL ?

∗Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

LAWFUL OR UNLAWFUL ?

∗ “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.

∗ “Entering or leaving Company property without permission may result in discharge.”

A NEW TYPE OF EMPLOYEE ORGANIZING IN THE AGE OF SOCIAL MEDIA—

COWORKER.ORG

QUESTIONS???