Thursday, August 27, 2015

Background checks...time for honesty?

The tragic shootings involving the WDBJ crew and the subsequent information which is coming to light concerning Vester Flanagan will trigger discussions about workplace violence and employees who have anger issues.  There is another issue that should receive some attention and was referenced in today's press conference conducted by the station's general manager--background checks.

The general manager was asked about whether a background check was made and responded that it had been and the references received were good.  He observed that it is very difficult to get any information from past employers beyond "name, rank, and serial number." He said "it is hard to get bad references these days."   Given what is known about Flanagan's past employment, it appears that a good reference is simply not consistent with his work performance.  Perhaps more will disclosed on his work history. 

The shootings raise the issue of the ongoing practice of employers of avoiding  providing any substantive information even where the applicant signs a release for the past employer and where state law offers a qualified privilege for disclosing accurate information.  The rationale that I have frequently heard is a desire to avoid being sued by a former employee.  At a minimum, employers should consider whether they have any objective information about the employee that they would want to know if they were the hiring employer. 

Sunday, July 5, 2015

Changing latitudes

Unfortunately my blog has been neglected as we plan and execute a move to the lower latitudes, Georgia to be exact.  Once we get settled, I will be more diligent.

I have spent 40 years practicing labor and employment law in Michigan.  The quality of plaintiffs, union and management bar is unmatched.  Michigan has always been on the cutting edge of the development of employment law.  It is the only state that  prohibits discrimination based on weight.  It is this progressive history that makes the current handling the LGBT issues so puzzling.  I am sure that the state will ultimately continue its leading role in protecting employee rights while recognizing the challenges faced by employers.   

Friday, June 5, 2015

The 6th Circuit and overtime: uh oh

In Moran v. Al Basit LLC , the 6th Circuit  posed the question of whether plaintiff's testimony is sufficient to defeat a motion for summary judgment where plaintiff presented no other evidence with respect to the amount of overtime he worked.  The court answered in the affirmative and reversed the summary judgment that the district court had entered.

A dispute arose between an employee and his employer over entitlement to overtime.  The employee claimed he worked regularly worked 65-68 hours in a six day work week.  The employer claimed that he never worked more than 30 hours a week.  It supported its position with pay stubs and time sheets which one of the owners completed by watching the security film footage to determine when employees arrived and left.

The court reviewed its earlier decisions concerning the sufficiency of testimony to create a genuine dispute of material fact despite the absence of corroborating evidence for the plaintiff.  The court stated that the defendants failed to cite any 6th Circuit precedent to the contrary and rejected the out of circuit cases.  The plaintiff put forward testimony that contradicted that of the defendants, describing his typical work schedule with some specificity and estimating that he worked 65-68 hours a week on average.  The contradictory testimony created a genuine issue of material fact.

The court's decision should send chills through employers who do not use a more formal and reliable time keeping system.  At a minimum, employers need to re-visit how hours are recorded and verified.  The significance of the decision will not be lost on employees or their counsel.

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. 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.