Tuesday, January 27, 2015

For the defense: It's getting complicated

There was once a time when legal arguments contained in briefs and motions filed with the courts, similar to conduct in Las Vegas, stayed within the confines of the file.  Information about most cases was simply not the subject of  publicity or media attention.  No more.  Counsel for employers are finding that legal arguments are becoming subject to media scrutiny thanks to the internet and to social media.  As result, development of case strategy requires consideration for how a given defense may impact the client in the public forum. 

In Hammer v. University of Michigan Board of Regents, a law professor sued the university alleging that he was denied tenure because he was gay.  He alleged that the university's policies and by-laws prohibited discrimination on the basis of sexual orientation and that he therefore had a reasonable expectation which was the basis of his claim for breach of contact.

The university filed a motion for summary disposition on the basis that the non-discrimination policies were not binding on the university and could not serve as a basis for a breach of contract action.  The position was the subject of a university student paper article, and the case was featured on a website established by the Wayne State Law School Outlaws., a lesbian, gay, bisexual, transgender, and allies organization.

The judge denied the motion, and noted with respect to the university's position at oral argument "...so we can just disregard it at our whim?  When we put it in writing, right there, that the university is committed to a policy of non-discrimination, equal opportunity for all persons...we are just kidding?  We don't really mean that?  Thereafter, the president of the university directed the attorneys to abandon the claim.  The focus shifted to the issue of proof, and the university ultimately prevailed.

The most recent example of how a legal position creates public relations problems involves a case against Saks.  The company was sued in federal court in Texas by a transgender employee who claims she was the victim of a pattern of discrimination and was terminated when she filed an EEOC charge asserting that the harassment was based on her gender, gender identity, and gender expression. The company took the position that the employee was terminated as a result of customer complaints.

 Saks filed a motion to dismiss based on the argument that transgender discrimination is not prohibited under Title VII.  This position led to criticism of the company, including an article that labeled the company's position as "morally reprehensible" and "legally untenable."  The plaintiff's attorney stated that the motion was "ironic" because the company had "touted" its protections for the LGBT community.  Yesterday the company filed a notice with the court that it was withdrawing its motion and would litigate the matter on the merits rather than asserting the legal defense it had raised.  The notice stated that the company is confidant the facts will show it did not discriminate against the plaintiff and that its policies are effective in insuring a diverse and inclusive workplace free from harassment and discrimination.

There needs to be an appreciation that a sound legal argument raised in defense to an employee's or applicant's suit or claim may trigger unwanted and unfavorable publicity.  The higher the employer's public profile, the greater the risk.  The decision to not use a defense must be carefully analyzed since the failure to raise it will be viewed as a wavier of the defense which cannot be resurrected on appeal.  Attorneys need to make sure that the potential for public criticism is understood by the client before an argument is raised.

Tuesday, January 20, 2015

Next up for the EEOC: workplace harassment

The EEOC does not hold public meetings addressing substantive topics simply an exercise in open government.  Last year, the EEOC held a grand total of one meeting in March to address the implications of social media on EEO law.  Employers therefore need to take note of the meeting held on 1/14 addressing workplace harassment. 

The press release from the meeting stated that the speakers addressed the fact that workplace harassment is still a major problem.  Nearly 30% of all charges address the issue, which is not limited to sexual harassment.  EEOC Chair Jenny R. Young announced the formation of a task force to identify effective strategies to prevent and to remedy harassment in the workplace.  One goal of the task force will be to reach workers to ensure that they know their rights and employers to promote best practices.  In written testimony, Carol Miaskoff, acting associate legal counsel, identified the basic parts of a harassment policy in a 10 bullet point list. 

So, what now for employers?  One of the first actions should be to compare any existing harassment policy with the bullet points identified by Ms. Miaskoff.  To the extent that an existing policy does not have the 10 basic elements, an employer should consider whether the policy should be revised to include them. It is likely the 10 bullet list will be used as a template in future investigations, and to the extent an employer has incorporated the list into its policy, it may serve as a useful defense.

 One interesting bullet point addresses the hiring of supervisors and the need for screening to see if they have a history of engaging in harassment.  If such a person is hired, the employer should monitor actions closely in order to prevent harassment.  What is not addressed is exactly how the prospective employer obtains this information.  Many employers will simply not be that specific with respect to background inquiries from prospective employers.  Few employers currently ask prospective employees if they are serial harassers.  Absent an applicant who is unusually forthcoming, an prospective employer is unlikely to know this information.  Expect employers to begin to ask such information to be able to state later that they tried to get this information.

So, how is the EEOC going to move forward?  In addition to a taskforce which will ultimately identify the best practices which should be adopted by an employer, the agency will sift through charges to find those which are considered to be egregious and litigation worthy.  To the extent the offending employer does not agree to a comprehensive settlement incorporating a consent decree, the agency will sue with all the accompanying publicity it can muster.

The agency will consider employers who do not have effective policies and who do not train their supervisors concerning harassment to be "bad," perhaps with justification in this day and age.  Therefore employers need to review not only their harassment polices, but also how employees are informed and educated as to the subject and the procedure.  Supervision needs to be educated as to what harassment is and how it is to be prevented.

Thursday, January 15, 2015

Safety and today's workplace: Lessons from the friendly skies

13 United flight attendants who had refused to fly on a flight from San Francisco to Hong Kong in July of 2014 and were fired have filed a complaint with OSHA challenging their terminations.  Prior to the scheduled flight departure, the words "bye bye" and two faces, one smiling and one "devilish" which had been drawn on the tail of the 747 were discovered.  The airline had concluded that there was no credible safety threat after following its procedures, and the aircraft was deemed safe to fly.  The flight attendants argued that the entire airplane should have been checked.  With the plane in a secure area, the discovery of the graffiti should have triggered a more comprehensive search instead of one limited to the auxiliary power unit near the plane.

The flight attendants are covered by the Railway Labor Act and not the National Labor Relations Act.  The Railway Labor Act does not provide as comprehensive treatment of protected, concerted activity of employees as the National Labor Relations Act.  Comparing the two statutes is not unlike comparing Canadian and American football.  Since the scope of the National Labor Relations Act is far broader and covers more employees, the issue of how the flight attendants would have faired under that Act is relevant, especially in light of the events in Paris and heightened employee awareness of potential terrorist acts in the workplace.

If the flight attendants were covered by the Act, their actions would be viewed as protected, concerted activity concerning safety of their workplace.  They had expressed concerns about the safety of the aircraft in light of the message.  The American public operates on the premise that the areas of active flight operation are monitored and secure from unauthorized persons. The words "bye bye" on the tail would certainly raise concern.  There was no issue of the sincerity of their actions.

In addition, Section 502 of the Act provides that an employee who refuses to work in good faith because of abnormally dangerous conditions for work at the place of employment is not deemed to be engaged in a strike.  The NLRB has taken the position that a purely subjective impression of danger is not sufficient.  Factors supporting safety threats beyond the norm include whether conditions deviate from the norm or risk; whether protective equipment appears to be functioning properly; whether employees are trained in using equipment properly; whether management has procedures in effect for proper use of safety equipment; and whether the employer has failed to correct serious infractions.

Employee concerns about workplace safety will be impacted by the reporting of terrorist threats here and abroad.  Just as employers had to prepare to respond to employee concerns about the threat of the Ebola virus, they will have to be sensitive to concerns about potential terrorist acts.  The expansive scope of protected, concerted activity afforded by the Obama Board will mean employers have to recognize their response will have to take into account the issue of whether such response is impacting the employees' protected, concerted activity and violating the Act.

Wednesday, December 31, 2014

Elections and the NLRB: a perspective for employers

As December comes to a close, the month has been marked by the fulfillment of expected changes to the election procedure by the Obama Board.  Employers who expect to be able to "win" a representation election after a petition is filed will soon find that they have less time in the campaign to do so.  The changes do not mean that unions will automatically win a representation election; the procedure enhances the chances.

With the protection afforded under state and federal laws to employees, there is less of a reason to select a union for job security.  The NLRB's expansion of the scope of protected, concerted activity has meant that at will employees have recourse under the NLRA to an extent unknown before the Obama Board.  Unions do not protect employees from economic downturns; the automotive industry is the case in point.

Even the Board's decision in Purple Communications and the expanded access to company email during non working times for engaging in protected, concerted activity is not as important as it would have been in 2007 because of the advent of personal smart technology.  Company email may be used in representation elections more to bait an employer into unfair labor practices by overreacting to the content than to actually campaign.

The changes of December simply underscore what many employers have realized; employers are or at least should be "campaigning" all the time.  Employers should recognize that by educating and communicating with their employees about matters of importance in the workplace, they will be in an excellent position to address issues that may arise if an election petition is filed.  Employers also need to be aware of how their supervisors interact with employees and whether that interaction is reflecting positively on the employers.  There is the saying that unions do not organize employees; supervisors do.

2015 will bring new rules and shorter times for campaigning in union representation elections.  The change in rules does not mean unions will automatically win.  Success or failure will be based on the employer's credibility which is built by its actions over time, not in the weeks of a campaign.  Employers who believe that "campaigning' is for elections only could be in for a surprise. 

Monday, December 22, 2014

'Twas the Board before Christmas

Mere weeks before Christmas, and all through the land,
The Obama appointees embarked on their plan.
Employers were nervous and waited with dread,
As expedited elections danced in their heads.

The election rules were lengthy, and in Purple Communications they said,
Employees could use the company's email, even from bed.
With broadened protection expanded through the year,
Reluctant employees would have nothing to fear.

The time for campaigning will be reduced to mere days,
How better to stop the employers' nefarious ways.
The time for elections will be woefully short,
Good luck to employers who take us to court!

Their job now completed, and Member Schiffer retired,
The Obama appointees watched 2014 expire.
But before Congress adjourned, and they flew out of sight,
The Republicans vowed, "This is just the start of the fight."

(With apologies to Clement Clark Moore)

Friday, December 12, 2014

VW and UAW: Sign and then what?

VW announced that the UAW has been certified as representing at least 45% of the workforce at its Tennessee plant under its Community Organization Engagement policy and that the union will therefore have the opportunity to meet with plant management and executive committees every other week.  The UAW has indicated that it is planning to train employees to participate in the works council beginning in 2015.  The VW certification follows the union's loss of a representation election in February of this year.

Under Section 9(c) of the National Labor Relations Act, a union is precluded from seeking an election in the same unit subject previously to an election which the union lost for a period of one year from the date of the election.  The UAW and VW entered into a 22 page Agreement for Representation Election which provided that if the UAW did not receive a majority of the votes, it would discontinue all organizing activities at the plant for one year.

At the present time, the union's status could be viewed as that of a minority union.  The unions have tried unsuccessfully to have the NLRB engage in rule making that would obligate an employer to bargain with a minority union.  The NLRB's current position is that based on the legislative history and language of the statute and the Board and U.S. Supreme Court decisions interpreting the statute, an employer has no statutory obligation tor recognize and to bargain with a union seeking to bargain as a minority representative.

So what is the effect of the certification under the VW policy?  The effect is to start dealing with the UAW in the context of a workers council which is what both the company and the union wanted before the representation election.  It will start the process where VW be in a position to voluntarily recognize the union without an election based on a showing of interest.  The company and the union realize any recognition will be challenged so they are proceeding in a way they feel provides the best defense to the inevitable challenge of the inevitable recognition.

It has been suggested that the VW organizing efforts will be a template to use throughout the South and supports the argument that the union's strategy is working.  These observations fail to fully take into account the unique situation at VW.  The Tennessee plant is the only non union VW plant worldwide.  There has been a great deal of pressure placed on the company by its other unions to recognize the UAW.  VW publically stated that it supported the establishment and operation of a work council at its plant.

VW agreed in the election agreement with the UAW refrain from making any negative comments against the UAW. (p.13)  The company also stated that it has informed the workers at its plant that it believes the establishment of a works council at the plant modeled on those at plants in Germany was in the common interest of the company and its employees.  It allowed the UAW access to the plant and provided for the union's use of a room for meetings with employees and to arrange for UAW representatives to be present at company conducted employee meetings. 

It is highly unlikely other foreign auto manufacturers with plants in the South will enter into similar agreements or to convey the same message as VW that they hope the employees will select a union to represent them.  In truth, the VW representation is an anomaly.  The UAW's Southern strategy, to the extent it showcases whatever develops with VW, may well be "See, we're not so bad."  Success at VW is not a guarantee of future success.

Tuesday, December 9, 2014

Michigan's Religious Freedom Restoration Act: heading for righteous trouble?

It was anticipated that this lame duck session of the Michigan legislature would see a bill to amend the state's civil rights act to add protection to prevent discrimination based on an individual's sexual orientation and gender identity, and a bill modeled after the federal religious freedom restoration act.  The Republican speaker of the House supported the expansion of the civil rights act to bar discrimination based on sexual orientation but opposed extending coverage to cover transgender individuals.  A bill introduced by Democrats to protect LGBT individuals apparently has died in committee.

The proposed religious freedom restoration act, however, was passed by the house and moves on to the state senate.  The purpose of the proposed legislation, according to the legislative analysis is to limit governmental action that substantially burdens a person's exercise of religion and allows the person so affected to assert such burden as a defense.  The proposed bill defines "exercise of religion" as the practice or observance of religion, including an act or refusal to act, that is substantially motivated by a sincerely held religious belief, whether or not compelled by or central to a system of religious belief.  One goal of the house speaker was to provide a legal framework wherein an employer could not fire someone who is gay or deny them service unless the service involves a form of religious expression.

While it is likely the bill will be passed by the Republican controlled senate, it remains to be seen if Governor Snyder will sign it.  With the bill to expand coverage of the civil rights act now dead, there is the potential for the religious freedom restoration act to be used as a defense to actions challenging alleged discrimination based upon sexual orientation and gender identity.  One outcome of the bill's passage would be litigation to define its parameters.

As employers watch the legislative process unfold, they would do well to remember that the EEOC filed once of its first lawsuits challenging transgender discrimination under Title VII in Michigan.  The enactment of the bill would truly only be the beginning of a potentially very contentious era of litigation.  Such litigation will attract national attention.