New NLRB Election Rules Take Effect Today
Today, April 30, 2012, is the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:
• On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.
• Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.
• The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.
• When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”
• Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.
• The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.
• At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.
• Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.
• Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.
Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.
A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.
EEOC Releases Guidance on Use of Arrest and Conviction Records in Employment Decisions
On April 25, 2012, the EEOC issued updated Enforcement Guidance regarding an employer’s use of arrest and conviction records in making employment decisions. The agency also issued a Question and Answer (Q&A) document that helps explain the Guidance.
According to the EEOC, a policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for adverse employment hiring decisions based on criminal records, and provides hypothetical examples interpreting the standard.
Arrests and convictions are treated differently for purposes of Title VII, since the fact of an arrest does not establish that criminal conduct has occurred. The EEOC acknowledges that an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The Guidance notes, “[a]lthough an arrest standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.”
In examining whether an employer’s policy of screening individuals based on criminal convictions violates Title VII, the EEOC will look to see whether the employer’s policy provides an opportunity for an individualized assessment for those people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity. Under the new enforcement rules, the following should be considered by an employer when screening based on criminal convictions:
• The Nature and Gravity of the Offense or Conduct. The Guidance notes: “Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). … With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.”
• The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence. The Guidance points out that the amount of time that had passed since the applicant’s criminal conduct occurred is probative of the risk he poses in the position in question. For example, the Guidance notes that the risk of recidivism may decline over a certain period of time.
• The Nature of the Job Held or Sought. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”
The Guidance also lists examples of employer best practices for considering criminal records in connection with employment decisions. Among other examples, the Guidance advises employers to (1) develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, (2) identify essential job requirements and the actual circumstances under which the jobs are performed, (3) determine the specific offenses that may demonstrate unfitness for performing such jobs, (4) determine the duration of exclusions for criminal conduct based on all available evidence, and (5) record the justification for the policy and procedures.
NLRA. The U.S. Court of Appeals for the D.C. Circuit found that an employer was required to reinstate an employee who the NLRB determined had been unlawfully terminated despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB’s determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees. One employee had been terminated after having a confrontation with a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event in which he spoke critically about the employer, claiming that the employer failed to adequately staff its newsroom and that he had considered starting a rival newspaper. In a separate incident, an employee was terminated after making a surreptitious recording of a meeting with management where he expected to receive discipline but was denied the right to union representation. With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in protected activity when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether or not he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was not unlawful under state or local law.
Age Discrimination. Finding that a 41 year old former tree trimming foreman had presented sufficient evidence such that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit reversed a lower court’s grant of summary judgment for the employer and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the 41 year old plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to the employee. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where plaintiff was working was injured by a falling tree. The plaintiff had been in his truck and not out with his crew at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report. After losing his age discrimination case on summary judgment, the plaintiff appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered probative of pretext even though the supervisor did not make the ultimate termination decision, since the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, since the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew rather than in his truck.
New Jersey Law Against Discrimination. A New Jersey appellate court recently held that a non-Jewish worker could bring a hostile work environment claim based on anti-Semitic comments made by his supervisors. In Cowher v. Carson & Roberts, the plaintiff, a truck driver, claimed that his supervisors, wrongly perceiving him to be Jewish, directed anti-Semitic comments at him on a daily basis for approximately 14 months. He allegedly told the supervisors to stop making the comments, but they did not do so. The employee ultimately resigned for unrelated reasons and later sued, alleging a hostile work environment based on the New Jersey Law Against Discrimination (LAD). The lower court rejected the claim, ruling that the supervisors’ comments were not actionable because New Jersey did not recognize a cause of action premised upon perceived membership in a protected group, other than disabled persons. In reversing the lower court, the appellate court stated: “there is no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act and does not protect those who are perceived to be members of a different class …” Thus, the Court reasoned, if the employee could demonstrate that the discriminatory comments would not have occurred but for the perception that he was Jewish, then his claim is covered by the LAD.
FLSA and Independent Contractors. A Florida federal district court recently held that a group of technicians who engaged in the installation, service and repair of cable television, high-speed internet, and digital telephones were independent contractors and not employees. In Scantland v. Jeffrey Knight, Inc., the plaintiffs performed services for a company that installed telecommunications equipment. Each of the individuals signed an independent contractor agreement with the company. The plaintiffs brought suit against the company for additional monies due under the FLSA, claiming that, despite signing the agreements, they were actually employees and not independent contractors. The Court held that the decision as to whether an individual is an independent contractor or an employee is controlled by the “economic realities” of the situation. Courts look beyond mere labels to see whether the putative employee depends on the alleged employer for his economic livelihood based on the parties’ actual working relationship. In this case, the Court found significant the fact that, in practice, the plaintiffs did in fact exercise control the manner in which the work was performed. For example, they could, in their discretion, hire and pay their own employees to assist in performing the work. In addition, the plaintiffs purchased and used their own equipment to perform the work. Because the plaintiffs were paid per job completed and were required to bear their own costs, they maintained control over their profits and losses. The fact that the plaintiffs were engaged in work that required special skills also weighed in favor of their independent contractor status.
Arbitration Agreements. A Maine federal district court denied an employer’s motion to compel arbitration after concluding that the arbitration agreement contained an illusory promise to arbitrate. In Canales, Jr. v. University of Phoenix, the employee received an employee handbook that contained an arbitration agreement. The handbook stated: “All covered disputes shall be resolved pursuant to these procedures and the result is final and binding on both the Company and the employee.” Despite this language, the handbook acknowledgment form signed by the employee stated “Since the … policies … described in the Employee Handbook are necessarily subject to change, I acknowledge that revisions may occur, and I understand that such revisions may supercede, modify or eliminate existing policies.” The acknowledgment form further provided that any revisions must be in writing and approved by the company president. The employee brought suit in federal court and the employer moved to compel arbitration. The Court denied the motion to compel arbitration, reasoning that the language in the acknowledgment form allowed the employer to unilaterally change or eliminate the terms of the employee handbook without any waiting period or notice to the employee. This rendered the agreement to arbitrate illusory because the employer could suddenly change the terms of the arbitration agreement to avoid arbitration. This case serves as a reminder to employers to ensure that they have an arbitration agreement that is separate from the employee handbook. The agreement should contain a requirement that notice be given before any changes are made and should provide that the agreement cannot be changed once the right to arbitration has been invoked.
In a recent informal discussion letter, the EEOC responded to an inquiry as to the application of Title VII’s prohibition against religious discrimination to healthcare workers’ requests for exemption from employer-mandated vaccinations. The letter also provides practical tips that employers should observe in addressing religious accommodation claims.
The EEOC opinion letter states that absent undue hardship, religious accommodation could be required for an applicant or employee with a sincerely held religious belief against vaccination who seeks exemption from the requirement as an accommodation. The letter also addresses the broader issue of what religious beliefs are potentially entitled to accommodation under Title VII, provided that a reasonable accommodation could be provided without undue hardship. The letter observes: “Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”
Whether a practice is considered religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons. An employee’s belief or practice can be “religious” for Title VII purposes even when the employee is affiliated with a religious group that does not espouse or recognize the employee’s belief or practice, or if few, or no other individuals adhere to it. Referencing the EEOC’s Compliance Manual, the letter states that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”
Factors that alone or in combination might undermine an employee’s assertion that he sincerely holds the religious belief at issue include:
• whether the employee has behaved in a manner markedly inconsistent with the professed belief;
• whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
• whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
• whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
The EEOC warns, however, that no one factor is dispositive and that while prior inconsistent conduct is relevant to determining sincerity, an employee’s degree of adherence to a religious belief may evolve over time.