Keeping it simple

Imagine having employees who are so happy with their work that they tattoo the company's name on their wrists.  A recent article in the Detroit News describes the fast service restaurant Moo Cluck Moo.  At a time when there is a unrest in the fast food service industry with employee unhappiness, this fast service restaurant has taken a different approach with higher wages (starting at $12/hour, increasing to $14) and the recognition of the value that the employees, called culinarians bring to the business.  The desire to have long term employees with the resulting reduced turnover and other HR expenses was the motivation since it was the "right thing to do."

One of the owners expressed what all employers will agree with...the desire to have motivated employees with "their heads in the game."  With all that has been written about employee relations and establishing an environment which promotes employee morale, the answer is not that complicated.  As the owner of the Detroit landmark American Coney Island restaurant said, "If you take care of your people, pay them well and treat them properly, they'll stick around."

A conversation with the EEOC

The Labor and Employment Section of the Michigan bar held its annual spring meeting yesterday, and the topic was A backstage pass to the EEOC.  The Detroit office had over 20 representatives attend.  The round-table topics were intake and investigation; mediation and conciliation; and litigation.

An overview of the office was given by the various representatives.  The Detroit office receives between 2300-3000 charges a year.  It has 17 investigators; 2 full time mediators; and 5 attorneys.  The office is affected by the sequestration, and all employees have scheduled furloughs.  In addition, the office is subject to a 3 year hiring freeze.

One point which was emphasized at each discussion group is the agency's commitment to the agency's Strategic Enforcement Plan.  In particular, the agency is seeking out the LGBT community for charges since the agency believes such discrimination is prohibited under Title VII under the theory of sexual stereotyping consistent with the Supreme Court's decision in Price Waterhouse v. Hopkins.  Other areas of emphasis are pregnancy discrimination; reasonable accommodation under the ADA; mandatory arbitration and the shortening of statute of limitations; and equal pay(although only 1% of the charges filed allege equal pay violations.)  The emphasis on the so called "no fault" leaves of absence with mandatory termination after the passage of a set period of time as an ADA violation are not being emphasized as much as they once were.  In Detroit, the emphasis is being placed on discrimination against immigrants; LGBT discrimination; and systemic harassment discrimination with emphasis on fast food chains and small restaurants.

The intake/charge investigation session reviewed the process.  At intake, approximately 2 hours are spent with the charging party.  The ability to articulate  the claims and credibility are assessed at this time.  Case are categorized as A,B, and C.  With A being litigation worthy and C being without merit.  The charges are constantly being assessed as the investigation proceeds.  Each investigator is assigned to an attorney who reviews and assists as needed.  The investigators review their cases on a monthly basis with the attorney and other supervisors.  When a charge involves one of the subjects of the strategic enforcement plan, the attorney will become more involved.

Other points which were discussed were the desire that respondents review and follow the green sheet included with the charge concerning position statements.  Fact finding is used when the investigator wants both sides to hear the other's position.  It is used in B cases but not in A cases.  The investigator decides when to schedule it.  The investigator will review the respondent's policies even if not directly involved in the charge to see if there may be other violations.  Investigators prefer taking affidavits from company witnesses but are rarely allowed to do so.

With respect to litigation, the attorneys emphasized their interaction with the investigators and the ongoing review that occurs during the investigation.  With respect to the selection of cases for the EEOC to litigate, the office looks for cases that are covered by the strategic enforcement plan and cases where the agency wants to establish precedent.  The agency wants to be able to determine strategy rather than a have a private litigant pursue a case and will litigate even where only one employee is involved.

The meeting provided a rare opportunity to meet and to interact with all levels of the Detroit office.  This interaction will help to improve the communication during case processing.

Motions in limine and non-evidentiary issues

In Louzon v. Ford Motor Co., the 6th Circuit addressed the issue of the use of a motion in limine to exclude evidence of the plaintiff's comparators and reversed the exclusion because the district court improperly considered non-evidentiary issues in granting the motion.

The plaintiff was employed as a product engineer and took a company approved leave of absence.  He visited relatives in Gaza and was unable to return when the borders were closed by Israel.  His leave was extended, and he kept Ford apprised of his situation.  With the assistance of the State Department, he was finally able to return.  In the meantime, Ford sent him a "five day" letter two days prior to the expiration of the extended leave indicating that failure to return with an excuse would result in termination.  Ford sent a termination notice prior the expiration of the five day period informing him he was considered to have quit.  The plaintiff did not receive either letter and was advised of his termination upon return to work.

The plaintiff filed a lawsuit alleging a discrimination in violation of Michigan and federal age and national origin law.  Ford's motion for summary judgment was denied. The case was transferred to another judge, and Ford filed a motion in limine to exclude all evidence relating to the seven Ford employees offered as comparators.  The district court granted the motion; entered a show cause order why the case should not be dismissed based on the order on the ii limine motion; and granted summary judgment.  The district court had determined that none of the seven comparators was similarly situated because they had different supervisors.  The plaintiff appealed, and the court of appeals reversed.

The 6th Circuit stated that a motion in limine is the vehicle to exclude anticipated prejudicial evidence before any evidence is offered.  A motion for summary judgment is the proper vehicle to resolve non-evidentiary matters prior to trial.  The court stated that allowing a party to litigate matters that have been, as here, or should have been resolved at an earlier stage not only allows those who are dissatisfied with a ruling a chance to re-litigate that ruling but also deprives the other party of the procedural protections  that attach at summary judgment.

The court noted that Ford attempted to "infuse" an evidentiary matter into its motion by arguing the comparator evidence was inadmissible under FRE 401 and 402 because it did not make it more or less probable that that plaintiff was a victim of discrimination.  In rejecting the argument, the court stated that if the "tactics' were sufficient, a litigant could raise any matter in limine as long as he included duplicative argument that the evidence related to a matter is irrelevant.  When the motion is no more than a rephrased summary judgment motion, it   should not be considered.

The court also held that the district court applied an incorrect standard in holding that to be similarly situated, the comparators must have dealt with the same supervisor.  The court stated that it had never read the same supervisor criterion to be an inflexible requirement and that the court should make an independent determination as to the relevancy of a particular aspect of plaintiff's employment status and that of the non protected employee.  Given the facts of the case, the court stated that the same supervisor issue should not be given significant weight.  The court also noted that the alternative argument that the comparators were not similarly situated was reviewed in the initial denial of summary judgment.

The 6th Circuit's decision will make the decision on whether to file a summary judgment more critical since the court has made it clear that a party cannot obtain in a motion in limine what it did not in summary judgment.

From an HR perspective, the underlying facts raise an issue about the termination.  The policy governing unpaid personal leave stated that failing to return on or before the date leave ends may result in termination as a voluntary quit.  Ford argued that the termination was automatic.  The court noted that the language of the policy did not support this argument.

When the boss speaks out...

One of the great challenges for employers is to draft and to enforce policies dealing with communications and social media which actually achieve the desired result.  The tension between enforcing a mother's admonition of not saying anything if there is nothing nice to say with the NLRB's broad interpretation of concerted, protected activity where you can say something that is not necessarily nice makes creating such a policy extremely challenging.  Perhaps the leading example, at least of a policy "approved" by the Division of Advice is Boeing's code of conduct.  A portion of the code states, "Employees will not engage in conduct or activity that may raise questions as to the company's honesty, impartiality, reputation or otherwise cause embarrassment to the company."

What happens when the "boss" engages in conduct that for an employee would be unprotected and a violation of the applicable policy?  There have two recent incidents which highlight the problem.  The first incident involved the statements of the president of a major university concerning the conduct of Catholic priests.  The statement was to the effect that while the priests are holy on Sunday, they are holy hell the rest of the week, and one cannot trust the "damn" Catholics on Thursday and Friday.  Statements were also made about other athletic conferences and the lack of quality educational standards at another university.  The board of trustees sent a letter to the president reprimanding him for the remarks and cautioning that repetition could cost him his job.  The president subsequently apologized for his remarks.

The second incident involved the head of a financial lending institution who tweeted concerning reports that another company was moving its headquarters from suburban Detroit to Atlanta.  The tweet called the company's CEO a "punk" and referred to the company's board of directors as "invertebrate."  He also referenced the company's poor economic performance over the last five years.  In a follow up interview, the head of the company did not apologize and elaborated on his tweet.

The two incidents provide two different approaches to the response--apologize or not.  Perhaps the best approach when the boss speaks out is to remind everyone, including the boss, of the applicable policy and to refer them to an excellent article in Forbes which highlights the six things things that should not be done on social media in light of the Amy's Baking social media fiasco.  Rule 5 is don't insult people.

What's next for the NLRB?

With President Obama's renomination of Acting General Counsel  Lafe Solomon for a four year term, the NLRB seems destined to be the federal government agency equivalent to "Lost."  As summer approaches, with the looming expiration of the term of Chairman Pearce, the Board will be left with two members whose recess appointments where struck down by the D. C. Circuit in Noel Canning.  The U. S. Supreme Court has held in New Process Steel that two members do not constitute a legal quorum.  So, a logical question is what happens to the NLRB?

There are nominations pending in the Senate for five members.  The likelihood of approval is an open question.  Throw into this political mix an Acting General Counsel who has boldly gone where no General Counsel has gone before to explore the strange new world on the non union workplace seeking out new life for an agency whose caseload has dropped. Non union employees have always had the right to engage in protected, concerted activity and benefit from the Act's protection.  The difference has been that definition of protected, concerted activity has been given a very broad construction and that employer policies regulating conduct now seem to be assumed to infringe on these rights.  Despite having the most tech savvy workforce in history which seeks out information through social media anywhere and anytime, the NLRB attributes a level of naivete to those employees that is embarrassing.

Anyone who has practiced before the Board understands that it is perhaps the most political of all governmental agencies (except now for the IRS).   A Republican President means a Republican majority on the Board with decisions expected to favor employers.  A Democratic President means a Democratic majority with decisions favoring unions and an expanded definition of protected, concerted activity.  That has been the case for decades.

What is different now?  A Board that through rule-making has changed procedures  and has overreached its authority with requiring notice posting (which has now been struck down by the courts).  This Board has followed the Acting General Counsel by also going where no Board has gone before.

What can be done?  Well, that is a good question given the political climate.  Here is a suggestion which is also wishful thinking.  Nominate a different person to be General Counsel; one who will interpret and enforce what is instead of trying to expand to the law should be.  As for the five nominations, from the perspective of all parties, they could be far worse, but the new majority needs to backtrack and to undue the rule-making.  If this means different Democratic members need to be nominated, do it, but if the current nominees express a willingness to do so, fine.

 Let's get back to the political NLRB that we have known...it wasn't perfect but at least we knew what to expect.

Oil & water; cats & dogs; teachers & Facebook

It seems fitting that the school ends with another story about educators and Facebook.  In this case, an elementary school  principal who had been with the district for 21 years resigned rather than face demotion, due in part to her Facebook postings Some of the posts which the principal shared included obscenities and the use of the "b" word in reference to other school employees.

The principal said she had her Facebook account locked down with privacy settings which limited who could see her posts.  In addition, the post were made on her personal time, and no parent or student could see them.  A spokesperson for the Michigan Association of School Administrators said her organization had no recommended policy for its members to follow, and that a number of school leaders were using Facebook incidents as "teaching opportunities" on proper on line conduct.

Teachers, like everyone else, experience the intersection of their personal and professional lives.  Until there is a Facebook for teachers only, teachers who bring their frustrations from a day in the classroom home and share them on Facebook run the risk of becoming "teaching opportunities" for others.  Regardless of free speech issues or privacy rights, teachers need to take a Facebook sabbatical during the school year and refrain from sharing stories about their students, co-workers, or administrators during the summer.

The NLRB and the law firm as an employer

Although law firms can be subject to the NLRB's jurisdiction, there are not many reported decisions.  An administrative law judge recently issued a decision involving a small law firm in Alabama that addressed the issue of whether a lawyer who was not a partner could be a supervisor within the meaning of Section 2(11) of the National Labor Relations Act.  The issue involved the termination of an associate who violated the firm rule prohibiting discussion among employees of wages or benefits.  One of the employer's defenses was that the associate was a supervisor and therefore exempt from coverage of the Act.

The firm had one partner who made all the decisions concerning hiring, firing, wages, and benefits.  There were five associates, and four case managers who assisted the associates.  Ms. Rouse was the charging party and was the only employee in the firm admitted in Mississippi.  She therefore handled all the cases in Mississippi.  She was assisted by a case manager. While there was a scheduling software used in the firm, it was not used for Mississippi cases.  The firm had a rule prohibiting the discussion of wages and benefits by employees.

The administrative law judge found that the rule violated the Act.  The discussion of wages is a core Section right, and its prohibition is unlawful absent a proof of a legitimate and substantial business interest.  With respect to the issue of supervisory status, the judge stated that the key issue was how the attorneys interacted with the case managers to fulfill the case handling responsibilities.

The judge found that Rouse had effectively recommended the hiring of a case manager.  The judge also found that Rouse had complained about a case manager and requested the individual be terminated.  The judge noted that since the partner had not worked with the case manager and had no first hand knowledge of performance, he relied on Rouse's judgment and fired the individual.

The judge recognized that the firm was small and that each attorney is lead counsel in his or her cases with the independent authority to decide how to handle the cases. The attorneys are subject to adverse consequences if the case manager does not properly perform the assigned task.   The judge noted that this fact differentiated the firm from legal services organizations whose lawyers operate under multiple layers of supervision.  Because Rouse was a statutory supervisor, her termination did not violate the act.

Law firms and especially large law firms should be aware that associates may be covered by the Act as employees.  Law firms should consider whether and the degree to which an associate's assessment of support staff is considered in personnel decisions. It could be the critical difference if an issue of an attorney's employee status becomes an issue.   Law firms should also make sure that firm policies are valid under the Board's expanded view of protected, concerted activity.