Monday, May 4, 2015

Beware the digital immigrant

Fortune Magazine has an interesting article concerning how employers are using a term--digital native--in hiring which could be construed as a preference for younger applicants much the way that "new grad" was used in the past.  In 2001, Marc Prensky wrote an article entitled Digital Natives, Digital Immigrants.  Prensky stated that students were comprising the first generation to be totally surrounded by and immersed in using computers, cell phones, the internet, and all other tools of the digital age.  All others, myself included, are immigrants in the sense that they adapt to their environment while retaining to some degree their foot in the past.


As digital natives assume more responsibility for hiring and other HR functions, they must be aware that the preference for other natives as opposed to digital immigrants who may have more difficulty in "learning new tricks" can be age discrimination.  The focus would be on whether the preference for digital natives has a disparate impact on immigrants.  


An employer would need to be prepared to articulate what is meant by "digital native" and what the attributes of the job are that warrant use of the term.  Is it a requirement or a preference or a stereotype?  Many digital immigrants may not realize what they are called, but when they do, they will likely react as others who feel unfairly stereotyped.  Technology may be new and evolving but the principles of disparate treatment are fairly well defined.







Arbitration...be careful what you ask for

Employers are embracing binding arbitration as the preferred choice for resolving work place disputes with employees and thus avoiding state or federal court.  One survey indicated that in 2014, employers use of arbitration to prevent class action claims rose to 43% from 16% in 2012 notwithstanding the NLRB's position that such arbitration violates the National Labor Relations Act.


The rationale for using arbitration is that is faster, less formal, and less costly than litigation, and it is generally more employer friendly than the typical neighborhood jury.  Employers and their counsel who have had experience with arbitration in the context of collective bargaining agreements are more reserved in their approach to arbitration in the non union setting.  Arbitration awards are virtually unreviewable in court in all but the most unusual circumstances.  The mantra of the courts--especially appellate courts--is that a reviewing court should not substitute its judgment for that of the arbitrator.  The reality in the union contract context is that you win some cases you should lose, and vice versa.


Recently employers have experienced buyer's remorse as a result of unfavorable decisions.  An arbitrator awarded  Peter Karmanos, founder and former CEO of Compuware  $16.5 million in  a dispute over his termination.  The parties agreed the dispute should go to binding arbitration.  The arbitrator was not obligated to offer explanatory evidence for the decision and did not.  The company has sued to force the disclosure of the evidence or to alter or vacate the award so a new arbitration can take place.


Hooters found itself disagreeing with an arbitrator's award of $250,000 in lost wages and legal fees in a racial discrimination matter.  An arbitrator found that the company policy with respect to hair and hair color was implement in a discriminatory manner adversely affection African American employees.  Hooters posted its response to the decision on its web site.  It denied engaging in any discrimination and observed that the arbitrator's decision was flawed and without merit.  The arbitrator demonstrated an unfortunate bias and complete disinterest in hearing Hooter's evidence buy limiting the evidence Hooters could present.  The company also pointed out that the employer recovered $ 11,886.40 in back wages while her attorneys collected $244,000 in fees.


The enthusiasm for arbitration should be tempered with the reality that once a decision is rendered, it is unlikely it will be overturned.  As long as employers understand this reality, they can make a decision based on what is viewed to be in their best interests.  It is important to understand the totality of what arbitration means when it is implemented.



Tuesday, March 31, 2015

The NLRB and English only rules

General Counsel Richard Griffin has issued a report concerning employer work rules.  He had previously indicated that he thought employers would appreciate guidance in this area.  John Hyman at the Ohio Employer Law Blog compared what was deemed acceptable and not acceptable.  Perhaps the only real lesson from the comparison is that context matters...a lot.


Consider employer prohibitions against recording and photographs.  "Taking unauthorized pictures or video on company property"  is impermissible.  "No cameras are to be allowed in the store or parking lot without prior approval from the corporate office"  is considered lawful.  Again context really matters.  It is difficult to see how an employee would grasp the distinction between the rules.


Now an administrative law judge has ventured into the legality of an English only rule in the context of chilling employees' section 7 rights.  In Valley Springs Health System, an ALJ noted that the issue was one of first impression and found that the rule would be reasonably construed to restrict employees from engaging in concerted activity.  The ALJ found that the rule was similar to rules that infringed upon an employee's right to engage in "negative speech."  The rule was vague in terms of time and location and infringed upon the employees' ability to freely discuss work conditions and other terms of employment.  As a result, the ALJ concluded violated the Act to the extent the rule required employees to speak and to communicate only in English in all areas to which patients and visitors have access other than immediate patient care areas.


How did we get here?  The Board has gone from what it considers vague or overly broad rules that may chill protected, concerted activity to control how employees communicate, as opposed to what they communicate.  There is no basis to equate "English only" to "negative speech" or "negative conversations."  There is no apparent rule here to prohibit negative conversations in English.


In the report, the General Counsel stated that the "vast majority" of violations fall under the first prong of the Board's decision in Lutheran Heritage Village-Livonia, 343 NLRB 646(2004), where employees would reasonably construe the rule's language to prohibit §7 activity.  Does the maintenance of the rule have a chilling effect?  Applying that test to the "English only" rule, it would seem the rule would not violate this first prong.


There seems to be a presumption that work rules chill §7 rights absent some kind of detailed disclaimer.  The last sentence of the last page of the General Counsel's report concerning use of cell phone/cameras/recording devices in the Wendy's revised policy gives a clue to the motivation.  The last sentence reads An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected and concerted activities.


The language of the work rule is another attempt by Board to revive the language of its now abandoned employee rights poster which it was successfully challenged in two court of appeals decisions.  The notice is found on the Board's website, and employers are encouraged to voluntarily post it on their own. It almost seems that the failure to require the notice to be posted is being used against employers through the determination that practices are having the chilling effect.


 It would be interesting to see how the Board would handle the challenge to the maintenance of a work rule as having a chilling effect where the employer posted the proposed notice with other required notices.  Wouldn't employees have notice of their rights?  Would an employer be required to publicize the notice and urge employees to read it? 


The "English only" decision seems to mark a new level of scrutiny of employer rules.  An employer would be excused if the saying "No matter how thin you slice it, it is still baloney" comes to mind.

Wednesday, March 18, 2015

De minimus adverse employment actions?

In Crane v. Mary Free Bed Rehabilitation Hospital, No. 1:13-cv-1294(3/13/15) (W.D. Mich.), the district court granted the hospital's motion for summary judgment in a case brought by a black female nursing supervisor alleging that she was discriminated against when the hospital chose to accommodate a request of a patient's family that no African American employee provide care and when she was denied several promotions.  This case marks the second time that a hospital in Michigan has had to confront such a request as noted by Jon Hyman in a recent blog.


The plaintiff was a part time nursing supervisor on the night shift.  She was advised of the request by the second shift nursing supervisor.  The plaintiff and another black nurse protested the request to the nursing supervisor who in turn contacted the vice president of clinical services.  The request was discussed at a nursing supervision meeting, and leadership determined it would grant the request. 


The court noted that the plaintiff only worked two shifts when the patient was in the hospital and never saw the family.  While the plaintiff submitted evidence other nurses were reassigned to avoid an African American nurse being responsible for the patient's care, the court stated that the reassigned nurses were not  plaintiffs in this is case and that plaintiff's work was not significantly altered.


The court reviewed cases cited by the plaintiff in support of the argument that job assignments with no monetary loss are adverse employment actions.  The court rejected the hospital's argument that there is no claim because there was no change in plaintiff's compensation, work duties, work hours, or benefits.  The court agreed with the hospital's argument that the employment action was de minimus and less severe than other 6th Circuit decisions in which employment actions were similarly considered to be de minimusBowman v. Shawnee State University, 220 F.3d 456, 462 (6th Cir. 2000).  The court also stated that the plaintiff had not pled a hostile work environment claim and that the facts of the case would not support a claim that she was subjected to severe and pervasive discriminatory harassment.


In a letter sent to staff after the lawsuit was filed, the hospital's CEO stated the hospital was committed to diversity and "As you know, Mary Free Bed simply does not tolerate discrimination and has a formal process in place to deal with employee concerns."  The letter also indicated that everyone needed to trust the legal process and not be distracted from the primary commitment to the patients.


It may well be that the court viewed this case as representing a one time occurrence; the outcome might  have been different if the plaintiff had in fact had her duties changed because of the request.  There was no discussion of whether the family's request was made before or after the patient was admitted.  There was also no indication that the hospital had a policy to address the issue or has since implemented one.


As Jon Hyman noted in his blog, adhering to a customer request is not a defense to racial discrimination.  Frankly, the hospital was lucky.  It should consider implementing a policy indicating that discrimination based on patient preference is not allowed.  The policy should be disseminated to individuals no later than at the time they seek admission and should prominently displayed on the hospital's website.  A second occurrence will likely attract the attention of the EEOC since it would seem to be a factual scenario capable of repeating without adequate remedy.  Employers should recognize the ability to use this case outside of these facts is de minimus.

Friday, March 13, 2015

It's time for Michigan employers to address the transgender issue

The Michigan legislature has, to date, not amended the state's civil rights act to afford protection to LGBT individuals.  There was a great deal of publicity concerning the subject at the end of last year when the legislature was in its "lame duck" session.  The governor and the business community supported amending the law.  If Michigan employers think, however, that the issue is now dead, they are mistaken.


The EEOC has filed an action under Title VII in federal court in Detroit challenging a funeral home's termination of an employee who had announced an intention to transition from male to female and to dress accordingly.  The complaint alleges that the employer called the action "unacceptable' and terminated the employee.  EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2:14-cv-13710 (9/25/14).  The defendant takes the position that the issue involves the implementation of a dress code policy and disagrees that a cause of action exists; it has filed a motion to dismiss.


The EEOC's position is supported by the 6th Circuit's decision in Smith v. City of Shaw, 401 F. 3d 729(6th Cir. 2005).  The court held that sex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination.  Discrimination against a person who is transsexual is no different that the discrimination that U.S. Supreme Court found in Price Waterhouse v. Hopkins where the employee was viewed as not acting "feminine enough."


Employers who are covered by Title VII need to formulate policies with respect to transgender employees.  The policies should be discussed with and explained to their employees.  The recent publicity that Planet Fitness has received at its Midland Michigan location's handling of a member's concern should provide enough incentive for employers to act.  A member spoke to a staff member after she noticed an individual dressed like a man in the women's locker room. She was told that a member could use the locker room of whatever gender felt appropriate.  The member was told if she was uncomfortable, she could wait until the individual was finished.  After she complained to other members, the gym revoked her membership the manner in which she expressed her concerns was deemed inappropriate.


An employer who waits until a problem arises and then takes action will find itself in a no win situation.  Expecting employees to "deal with it" without explanation is not the best response. An employer needs to evaluate its operations, especially in regards to rest rooms, and to decide what would work to avoid employees being surprised like the member at Planet Fitness. Employees should be engaged in what the employer is doing and why.  Education is the key to minimize resistance.

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.