Monday, March 2, 2015

More than words: Defending Michigan Whistleblowers' claims

Plaintiffs who sued under the Michigan Whistleblowers' Protection Act had a difficult time surviving summary disposition motions in the trial court or sustaining a verdict in the court of appeals.  Frequently the issue focused on whether the plaintiff was engaged in protected activity.  This focus, in turn, frequently became an exercise in semantics.  In Pace v. Edel-Harrison , the Michigan Court of Appeals addressed the issue of semantics with respect to protected activity and emphasized the Michigan Supreme Court's decision in Debano-Griffin v. Lake Co., 486 Mich 938 (2010) with respect to what constitutes protected conduct.

The plaintiff alleged that she was terminated for reporting discrepancies in grant transfers and the alleged purchase of an appliance by the director.  The defendants argued that  plaintiff was terminated for engaging in conduct that caused fear and intimidation.  The trial court granted summary disposition based on the plaintiff's failure establish a real or suspected violation of the act. 

Defendants argued that plaintiff had reported a possible future violation of a law but not an actual or suspected violation.  Defendants also argued that taking the deposition testimony of plaintiff as true, the director announced an intention to commit a violation in the future which insufficient because the report of a belief is insufficient to trigger the protections of the act.

The court rejected the argument and noted that under the defense's theory an employee who learns of a plan must (a) report the planned violation without the protection of the act; (b) remain silent until a violation occurs; or, (c) undertake an investigation to determine whether the planned violation has been completed.  The court said the first two are inconsistent with the language of the act, and the third would be foolish, if not dangerous.  The act protects employee efforts to report violations or suspected violations.  This case involved a suspected violation of an actual law.  Summary disposition was reversed.

The development of the law under the whistleblowers' act is similar to the development of the law under the ADA.  Initially defendants focused on whether the plaintiff was disabled.  Once the statute was amended, the focus turned to more substantive issues.  As the courts apply the Michigan Supreme Court's decisions, the focus will shift from the question of protected conduct to causation.  Employers need to understand that there must be a defense to the causation aspect of the case.  The reality is that more cases are going to go to trial because of disputed material facts involving causation.

Monday, February 16, 2015

An end run around Michigan's right to work law? Not so fast.

Michigan's right to work law was passed and signed in December of 2012.  The law did not go into effect until March 28, 2013.  The law contains a provision which states that collective bargaining agreements("CBA") with union security clauses in effect before the March effective date would not violate the law.  A number of public and private sector unions renegotiated the expiration dates of the agreements prior to the law's effective date to extend well into the future as a way of avoiding the impact of the law.

The Michigan Employment Relations Commission("MERC") recently  overturned an administrative law judge's dismissal of a challenge to such an agreement.  The Taylor school district had entered into two agreements:  one was a typical CBA and the other, entered into on February 7, 2013, was a union security agreement which would expire on January 31, 2013.  The agreement was challenged by several teachers.

In a 2-1 decision, MERC found the employer had violated the act by coercing the employees to support the union and discriminated with respect to terms and conditions of employment.  The employees were engaged in protected concerted activity by exercising their right to refrain from assisting a labor organization and the right to be free from coercion.  The majority stated that the record revealed that the motivating factor in entering into the agreement was hostility towards the employees' rights. 

The union was found to have violated its duty of fair representation by acting arbitrarily in a manner that discriminated against some of the bargaining unit members.  The union was aware of the pending law when it negotiated and ratified the agreement which it knew would force unwilling members to support it for ten years.  Imposing a lengthy financial burden on bargaining unit members in order to avoid the application of state law for ten years is arbitrary, indifferent, and reckless.  The relief included a prohibition against enforcing the union security clause against the charging parties or unit members who do not want to support the union pursuant to the union security agreement.

MERC's decision marks the end of round 1.  Given the impact on other public sector agreements which were extended well into the future, the unions will be challenging the decision.  Round 2 will be coming up.

Monday, February 2, 2015

Collison course? LGBT protection and religious freedom

As employers in Michigan settle into 2015, there are some known developments on the horizon.  The NLRB will implement its revised election procedures absent court intervention; the DOL will address overtime exemptions; and the EEOC will issue guidelines on wellness plans and implement its task force on preventing workplace harassment.  There is another potential development that employers need to be aware of--the interaction of increased state and federal protection of LGBT individuals and the impact of religious freedom restoration legislation by the states.

The issue was raised in the Michigan legislature during the lame duck session at the end of the year.  The attempts to amend Michigan's civil rights act to protect LGBT individuals stalled out as did the attempts to enact the  religious freedom restoration act.  A bill was introduced   in the state senate to revive the bill.  The bill would allow individuals to seek exemptions to government regulations they feel substantially burdens their sincerely held religious beliefs.  There is no pending legislation to address the LGBT issue.  The Mormon church recently announced its support for legislation for new laws to protect LGBT individuals while protecting individuals who assert religious beliefs.  The issue is not going to go away.

A Ford contract employee filed a charge with the EEOC alleging that Ford and his employer discriminated against him by firing him for statements made in response to a newsletter concerning that addressed LGBT issues.  The employee's response contained strong remarks condemning Ford for addressing immoral sexual conduct which is an assault on Christians and morality. 

The EEOC has already taken the position in federal court in Michigan that an employer violates Title VII by discriminating against transgender employees, setting up a potential confrontation if the religious freedom restoration act is enacted and not vetoed by the governor.  One of the last things an employer wants to have happen is to be caught in the middle of this issue.  Employers in Michigan with 15 or more employees need to be aware of the pending legislation.  The collision has not least at this time.

Sunday, February 1, 2015

Better than "ban the box?"

Michigan has taken a different approach with respect to addressing the issue of employability of persons who were convicted and served time in state prisons.  The state enacted two laws which combine to provide a level of defense for employers who hired ex-convicts.

The first bill establishes a procedure for the Department of Corrections to give ex-convicts a certificate of employability when certain conditions are met.  The certificate is valid for four years and requires the individual to have successfully completed certain courses/training and to not have had major misconduct within two years or release or three minor misconducts for that same time period. 

The second bill provides that the certificate can be introduced as evidence of an employer's due care in hiring regarding the holder of the certificate.  The certificate establishes that the employer did not act negligently in hiring the person if a claim against the employer requires proof that the employer was negligent in disregarding a prior criminal convictions.  The bills took effect January 1 of this year.

The State Bar of Michigan's Prisons & Corrections section opposed the bills.  One problem that the section noted is that if a parolee does not get a certificate, it would likely be more difficult to find employment.  The certificate is the key to employment.  The number of requisite courses offered varies from facility to facility and not all prisoners who express interest may be admitted.  The section pointed out that corrections officials have broad discretion in determining whether misconduct has occurred and whether it is major or minor.  The section noted that the laws only pertain to state prisons and does not cover current parolees, federal offenders, those released from county jails, and anyone with a felony record not sent to prison. 

While lawmakers had good intentions with the two laws, they have nevertheless created a two tier system of ex-convicts with and without the certificate.  The absence of a certificate may provide reluctant employers with an excuse to deny employment without actually considering the individual.  The lawmakers have started addressing the employment issue in Michigan; now they must finish it.

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 " 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.