Threats by a Union Member Are Not Protected Activity
In NLRB v. Arkema, Inc., the U.S. Court of Appeals for the Fifth Circuit found that, contrary to an order of the National Labor Relations Board (NLRB), an employer’s discipline of a pro-union employee who threatened a co-worker and the employer’s issuance of an anti-harassment memo did not invalidate an election in which employees voted to decertify the union.
Facts of the Case: The employer’s production and maintenance employees were represented by a union. Some of those union members began a campaign to decertify the union, meaning that they sought to remove the union from representing the production and maintenance employees. During the campaign, a pro-union employee threatened a new female employee that male employees would not come to her aid in an emergency if she did not support the union. The female employee, fearing for her safety, reported the threat to management and the pro-union employee was disciplined. The employer also issued a memo to all employees about its anti-harassment policy, encouraging employees to report harassment, intimidation or threats to management or the NLRB’s regional office.
An election was then held, in which a majority of employees voted to decertify. Management immediately notified employees that the collective bargaining agreement no longer existed, and began implementing changes to the terms and conditions of employment. The union filed an election objection and unfair labor practice charge. An administrative law judge (ALJ) found that the warning and memo were violations of the National Labor Relations Act, and that these illegal actions invalidated the decertification election. The NLRB affirmed the ALJ’s order, and the employer petitioned the federal appellate Court for review.
The Court’s Ruling: Where there is a claim that the employer unlawfully disciplined a union supporter, the employer bears the burden of showing that it had a good-faith belief that the employee engaged in misconduct. The Court, unlike the NLRB, found that the employer had a good faith belief that the pro-union employee sought to threaten and intimidate the other employee. The Court rejected the NLRB’s conclusion that the pro-union employee’s conduct was simply a persistent effort to persuade. As the Court stated, threats are not protected under the NLRA.
The Court also disagreed with the NLRB that the anti-harassment memo could be construed to prohibit protected union activity. It found that the memo was not sent in the context of unfair labor practices, and that instructing employees to alert management if they felt harassed was not reasonably translated into prohibiting protected activity.
Impact of this Case: The line between threats (activity which is not protected by the NLRA) and persistent or aggressive efforts to persuade is often difficult to gauge. The NLRB often rules that activity that is harassing in the eyes of the so-called victim is simply lawful and persistent persuasion. In this case, the Court agreed with the employer that the NLRB went too far.
The Patient Protection and Affordable Care Act Waiting Period
The Departments of Health and Human Services, Labor and Treasury recently issued proposed guidance on the Affordable Care Act’s prohibition on waiting periods in excess of 90 days.
For plan years beginning on or after January 1, 2014, employees and dependents who are otherwise eligible for coverage under an employer’s group health plan cannot be required to satisfy a waiting period (the time that must pass before coverage can become effective) longer than 90 calendar days, including weekends and holidays. Notably, the proposed regulations make clear that a 3 month waiting period is not the same as 90 days.
While coverage will need to be available within 90 days to comply with the rule, the plan will not be penalized if an employee delays his or her election beyond the 90 day waiting period. Also, plans can still have other substantive eligibility criteria as long as they are not designed to avoid compliance with the 90-day limit.
The 90-day clock does not start ticking at an employee’s hire date, but when the employee satisfies those eligibility criteria. For example:
• Coverage can be conditioned on being in a job classification or completing a certain training, and begin within 90 days of satisfying that eligibility requirement.
• Coverage can be conditioned on completing enrollment forms, if the employee has the ability to complete the forms and start coverage within 90 days.
At this point, the Departments have not indicated when final regulations on this topic will issue. They have stated, however, that employers may rely on the proposed regulations and be deemed in compliance with PPACA at least through the end of 2014.
ADA and FMLA. A federal court in Alabama held that an employer had no duty under the Family and Medical Leave Act (FMLA) to restore the employee to her job with an accommodation under the Americans with Disabilities Act (ADA). In Brown v. Montgomery Surgical Center, the employee sought to return to work after FMLA leave and provided a doctor’s note with lifting and standing restrictions. The employer refused to reinstate her without a full release. She then sued under the FMLA and ADA. The employee’s ADA claims were dismissed as untimely filed. With regard to her FMLA claims, the Court observed that the right to reinstatement under the FMLA is not absolute, and held that an employee who is unable to perform an essential job function is not entitled to reinstatement. The FMLA does not require an employer to provide a reasonable accommodation to enable the employee to return to work at the end of FMLA leave. The reasonable accommodation obligation arises from the ADA, not the FMLA.
More on the ADA and FMLA. In another case exploring the interaction of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA), a federal court in Pennsylvania held that an employee was not entitled to reinstatement under the FMLA to a pre-leave position that had been given her as an accommodation for a temporary disability under the ADA and to better accommodate her need for intermittent leave under the FMLA. In Karaffa v. Montgomery Township, a pregnant employee who was usually assigned rotating morning, evening and overnight shifts was reassigned only to morning shifts as an accommodation for her gestational diabetes. Following her FMLA leave, the employee sought to return to the morning shift assignment. The Court noted that she had been assigned the shift in connection with her need for intermittent FMLA, and thus it was not a position she held “when leave commenced.” Moreover, under the ADA, this morning shift assignment was an accommodation for her temporary disability of gestational diabetes, which no longer existed following the birth of her child. Thus, under both laws, the employer was required only to reinstate her to the original rotating shift assignment.
Maryland Anti-Discrimination Law. The Maryland Court of Special Appeals recently held that the University of Baltimore School of Law articulated legitimate, non-discriminatory reasons for not hiring an older applicant and selecting a younger individual for a professorship position instead. In Dobkin v. Univ. of Baltimore School of Law, a 56-year old man applied for an immigration law professor position, along with more than 800 others. He was not granted an interview. A 32-year old female was selected, and he then sued for age discrimination, alleging that he was a more experienced and more qualified for the position. The University moved for summary judgment, arguing that he had no evidence of discrimination, and the trial court agreed. On appeal, the state Court of Special Appeals upheld the dismissal of the case. The Court noted that the University offered legitimate, non-discriminatory reasons for its decision to not even interview the applicant, in that “he had no clinical teaching experience, and his academic credentials did not compare favorably to other applicants. He did not graduate from a top ten U.S. law school and had no judicial clerkship experience.” The Court further noted that “a disgruntled employee’s self-serving statements about his [or her] qualifications and abilities generally are insufficient to raise a question of fact about an employer’s honest assessment of that ability.” The Court determined that an employer should be able to choose the particular qualifications to best suit its needs.
Generally, deductions from an exempt employee’s pay will cause the loss of the exemption, rendering the employee non-exempt and therefore entitled to overtime pay. One exception to this general rule, however, is a deduction due to a disciplinary suspension, as illustrated in the case of Watkins v. City of Montgomery.
The Fair Labor Standards Act requires that, in order to be deemed “exempt” from the obligation to pay overtime compensation, an employee must receive a salary and meet certain duties tests. Of relevance here, the salary cannot be “subject to reduction because of variations in the quality or quantity of work performed.” There are a number of exceptions to this general no-deduction rule, however, including unpaid disciplinary suspensions for violations of safety rules of major significance or workplace conduct rules. The FLSA regulations provide that “safety rules of major significance” include rules relating to the prevention of serious danger in the workplace or to other employees. As for “workplace conduct rules,” while that term is undefined, the regulations provide that the employer have a written policy, applicable to all employees, that sets forth unpaid suspensions as a consequence for violations of such rules.
Thus, in the Watkins case, a federal court in Alabama found that the City had implemented the requisite disciplinary policy providing for unpaid suspensions. The City’s disciplinary suspensions of 12 fire suppression lieutenants (for violations such as driving to the wrong address, leaving early without permission, disrespecting a superior officer, violating the weight policy, and violations of state and federal law) in accordance with that policy were legally permissible and did not destroy their exempt status.
Thus, in order to ensure that this exception is available, employers should include as part of a written disciplinary or corrective action policy the provision that unpaid disciplinary suspensions may be imposed for violations of company policies or workplace safety rules. This policy can and must be equally applicable to all employees, exempt and non-exempt alike. Without this written policy, an employer that imposes a disciplinary suspension of less than a full week on an exempt employee, and makes a deduction from that exempt employee’s pay based on the suspension, runs the very real risk of having that employee lose the exemption. This would result the employer becoming liable for overtime pay for that employee.