Recent Developments in Employment Law & NLRB Decisions

Affecting Workplaces

John G. Kruchko, Partner, FordHarrison

EEOC v. Abercrombie & Fitch Stores, Inc.

• Equal Employment Opportunity Commission (EEOC), sued Abercrombie & Fitch for religious discrimination, on behalf of Muslim job applicant, alleging it failed to accommodate applicant’s religious practice of wearing a headscarf (Hijab).

–Hijab is traditionally worn by Muslim women as a sign of modesty and privacy.

EEOC v. Abercrombie & Fitch Stores, Inc.

• Samantha Elauf, a practicing Muslim who, consistent with her religion, wears a hijab applied for a job at an A & F store in Tulsa, OK

EEOC v. Abercrombie & Fitch Stores, Inc.

• Ms. Elauf arrived for interview wearing a hijab. She earned an interview score necessary to qualify to be hired.

• Assistant manager did not discuss hijab with Ms. Elauf, but was concerned that the headscarf would violate the store’s “Look Policy”

EEOC v. Abercrombie & Fitch Stores, Inc.

• Supreme Court agreed with the EEOC– Actual knowledge was not required if potential

need for a religious accommodation was a motivating factor in the employer’s hiring decision.

EEOC v. Abercrombie & Fitch Stores, Inc.

• Take away for employers?– Ignorance is not always bliss.

– Managers conducting interviews should be prepared to discuss job requirements and expectations.

Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015)

• White food and beverage manager called a black cocktail waitress a “damn porch monkey” and threatened to report her to the hotel owner twice in a twenty-four hour time period.

• Waitress complained to human resources and beverage manager received a “counseling.”

Boyer-Liberto v. Fontainebleau Corp. (4th Cir. 2015)

– Take away for employers?• Must take all complaints seriously

– An isolated incident, if “extremely serious” can be used to support hostile work environment claim.

Fair Pay and Safe Workplaces Executive Order

• Mandates that federal contracting agencies collect information concerning potential prime contractor’s 3-year “violation” history.

• Under the executive order, prime contractor and subcontractor “violations” of the following laws and executive orders for the past three years must be reported:

Fair Pay and Safe Workplaces Executive Order

• FLSA• OSHA• Migrant & Seasonal

Agricultural Worker Protection Act

• NLRA• ADA• FMLA• Title VII• ADEA

• Davis-Bacon Act• McNamara-O’Hara Service

Contract Act• Section 503 of Rehabilitation Act• Vietnam Era Veterans’

Readjustment Assistance Act• Executive Order 11246 (Equal

Employment Opportunity)• Executive Order 13658

(Establishing a Minimum Wage for Contractors)

Fair Pay and Safe Workplaces Executive Order

• Order instructs government to consider violations in assessing whether a company should be permitted to bid on new federal government work or continue working on existing federal projects.

Fair Pay and Safe Workplaces Executive Order

• “Violation” can include:– Administrative merits determinations– Awards or decisions from an arbitration– Civil judgments – Conciliation and settlement agreements – Citations

Fair Pay and Safe Workplaces Executive Order

• Impact and potential consequences– Denial of opportunity for contract awards– Loss of contract during contract performance

period– Referral to Department of Labor– Referral for suspension or debarment– Requirement to enter into agreement with agency

to address violations

Fair Pay and Safe Workplaces Executive Order

• Take away for employers?– Must carefully consider potential impact when

seeking to resolve agency complaints, charges of discrimination, investigations, enforcement proceedings, arbitration and private litigation

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At-Will Employment Statements• Unlawful if reasonably construed

statement to restrict NLRA Section 7 rights

• 2012 NLRB Advice Memos– Rocha Transportation, Case No. 32-CA-086799

(Oct. 31, 2012)– Mimi’s Café, Case No. 28-CA-084365 (Oct. 31,

2012)

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At-Will Statements

• Unlawful statements– I further agree that the at-will employment relationship cannot be

amended, modified, or altered in any way.• American Red Cross Arizona Blood Services Region, Case No. 28-CA-

023443 (2012)

– Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and Company’s president.

• Hyatt Hotels Corp., Case No. 28-CA-061114 (2012)

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Collective Bargaining Agreements

• Supersedes employer’s ability to use at-will statements

• Provisions of CBA govern• Add language to employee handbooks if some

employees unionized– “The provisions of this policy will apply except

where the policy conflicts with state law or CBA provisions.”

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Bottom Line• NLRB examines at-will disclaimers on a case-by-

case basis

• Review current at-will language

• Cannot foreclose possibility of future modifications of employees’ at-will status

• Cannot unreasonably infringe upon rights to engage in protected concerted activity

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Handling Concerted Activity in Non-Union Environments

• NLRB expanding beyond unions– Focused on Section 7 rights– Unlawful if “reasonably construed” to prohibit

Section 7 activity

• 2015 Report of the General Counsel– “Guidance” on Employee Handbooks, GC 15-

04 (March 18, 2015)

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Confidentiality • Cannot specifically prohibit discussions of terms

and conditions of employment, including:– Wages– Workplace conditions– Customer contact information– Employee contact information– Proprietary information about employer– Confidential information

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Employee Conduct/Professionalism Rules

• Employees have the right to criticize their employer’s policies and actions toward its employees

• Policies prohibiting disrespectful, inappropriate, or rude conduct toward the employer deemed unlawfully overbroad

• Includes rules regulating employee conduct toward employer and supervisors, employee conduct toward fellow employees, and employee interactions with third parties

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Employee Conduct/Professionalism Rules

• Examples of unlawful rules:– “Be respectful of others and the Company.”– “Do not make fun of, denigrate, or defame your co-

workers, customers, suppliers, or competitors.”– “Avoid the use of offensive, derogatory, or prejudicial

comments.”– “All inquiries from the media must be referred to the

Director of Operations, no exceptions.”

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Restrictions of Use of Company Logos, Copyrights, and Trademarks• NLRB considers a broad ban on use of an employer’s

name, logo, or other trademark unlawful– Could be construed to restrict the use of the company

name and logo on picket signs, leaflets, and other protest material

• A policy that requires employees to respect employer’s trademarked or copyrighted material is lawful

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Restrictions on Photography and Recording

• A total ban on photographing, recording, or possessing a camera or recording device could be reasonably interpreted to prohibit employees’ use on non-work times, attempts to document health and safety violations, or documentation of unfair labor practices

• Lawful if appropriately limited

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Restrictions on Leaving Work

• Could be reasonably read to prohibit protected strike actions and walkouts

• Cannot prohibit walking off the job

• Bans allowed in certain industries, such as healthcare

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Conflict-of-Interest Rules• Could be read to prohibit protesting in front of

the company, organizing a boycott, or soliciting support for a union while on non-work time

• Use specific examples and read in context as prohibiting employment for a competing business, rather than prohibiting interactions with unions

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Bottom Line

• Do not assume NLRA does not apply if not unionized

• Board does not read rules in isolation– Consider context

• Review handbook policies

• Contact employment and labor counsel immediately if any provision is alleged unlawful

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Summary of “Quickie” Election Rules

The new election rules:•Became effective April 14, 2015•Significantly shorten time between representation petition and election•Place additional obligations on employers•Limit the issues that will be resolved before the election

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Significant Rule Changes

• New mandatory posting of notice to employees• New employer statement of position to be

submitted prior to the pre-election hearing• Pre-election hearing scheduled in eight days• Restriction on issues that can be raised at the

pre-election hearing• Expanded voter list information

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Bottom Line• Have a Union Avoidance Plan in place

– Conduct a Risk Assessment– Management Training– Handbook & Policy Review

Joint Employer

• NLRB broadened standard• Previous standard: share ability to directly and

immediately control or determine essential terms and conditions of employment

• New standard: possess, exercise, or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not exercised– Browning-Ferris Industries, 326 NLRB No. 186 (2015)

Electronic Signatures

• Unions can use electronic signatures for showing of support– Must have 30% support to file petition

• GC Memo 15-08, Sept. 1, 2015– “practicable and cost effective”

Check Off Dues

• NLRB overturned 50-year precedent• Dues check-off provision requires the

employer to deduct union dues from members’ paychecks and remit them to the union

• Obligation now survives contract expiration – Lincoln Lutheran of Racine, Case 30-CA-111099

(Aug. 27, 2015)

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Social Media • Use of “like” on Facebook constitutes protected activity, even

though comments included derogatory comments and profanity directed at company’s owners– Triple Play Sports, 361 NLRB No. 31 (Aug. 22, 2014)

• Cannot require employees to state that their postings do not represent the opinions of the employer, even when employee identified themselves as company employee– Kroger Co. of Michigan, Case No. 07-CA-098566 (April 22, 2014)

• Profane postings about managers allowed, even when “friends” with co-workers– Pier Sixty, LLC, 362 NLRB No. 59 (March 31, 2015)

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Use of Company Email• Purple Communications, Inc., 361 NLRB No. 126 (Dec. 22, 2014)

– Employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems

– Employees have presumptive right to talk to each other for Section 7 purposes via work email on non-work time unless the employer can demonstrate “special circumstances” that would justify a total ban on non-work use of email

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Bottom Line• Consider disciplining employees for social media communications

very carefully

• Consistently enforce bullying and offensive language in the workplace prohibitions

• Review email, social media, and electronic communications policies– If employees are provided access to email at work, prohibiting

employees’ use of email during a union campaign will be an unfair labor practice, likely resulting in a favorable election outcome being overturned

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Conclusion

• NLRB continues to expand its presence beyond unionized workforces

• Will likely be more union petitions with less time for employers to prepare

• Expect NLRB to continue overturning long-standing precedent

John G. Kruchko, Esq.FordHarrison, LLP1750 Tyson’s Blvd., Suite 1500Tyson’s Corner, VA 22101(703) 734-0554jkruchko@fordharrison.com

Questions?