The NLRB's Latest Digital Developments

Thursday, October 23, 2014

Last May, we highlighted a pending National Labor Relations Board (NLRB) case where the Board requested comments on whether it should reconsider its view that employees do not have a statutory right to use employer-owned email systems for protected concerted activities. Based on its request in Purple Communications, Inc., the Board appeared to be setting the stage for a potential reversal of its position in Register Guard—as well as a significant re-evaluation of what restrictions an employer may, and may not, impose on the use of its electronic communications systems.

It appears now, however, that the Board is still rehearsing its script:  last month, the Board issued its decision in Purple Communications, 361 NLRB No. 43, (Sept. 24, 2014), and explained that it would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.”  As a result, the Board’s decision did not reach the merits of whether Register Guard should be overturned.   This means that policies prohibiting any non-business use of an employer’s email system will most likely continue to be lawful—at least in the near term.

In another recent development, the Board held for the first time that merely “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  Among the issues In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), was whether a bar unlawfully terminated several employees after discovering their discussions on Facebook.  The employees had learned that they owed additional taxes as a result of an accounting error by their employer and had taken to Facebook to vent their frustrations.  One of the employees did not offer any written comments, but did “like” another employee’s post.  The Board found that the comments—including the mere “liking” of another post—qualified as protected concerted activity because they concerned a group discussion of workplace complaints.  It was therefore unlawful for the bar to terminate the employees for their participation in the exchange.

The Board’s conclusion that “liking” a social media post may qualify as protected activity is not altogether surprising.  Other courts, for example, have found that “liking” a post qualifies as speech protected by the First Amendment, reasoning that “liking” a comment is just as much a substantive statement as the comment itself.  It is perhaps no surprise, then, that the Board’s decision appears to “like” the same logic.

What Employers Need to Know About Employer Payment Plans

Thursday, October 16, 2014

Some employers may have offered employees pre-tax dollars to help purchase insurance. Such arrangements are called Employer Payment Plans.  Now, however, Employer Payment Plans are prohibited under the Affordable Care Act (ACA) because they are considered group health plans. Under the ACA, group health plans may not establish any annual limit on the dollar amount of benefits for any individual and must provide certain preventive care services without imposing any cost-sharing requirements for these services. Since Employer Payment Plans do not satisfy these requirements, any employer that maintains an Employer Payment Plan for its employees will be subject to a penalty of $100 per day per affected individual.

Nonetheless, an arrangement under which an employee may choose to either receive cash or have an after-tax amount applied toward health coverage is not considered an Employer Payment Plan.  Employers may therefore establish payroll practices by which they forward post-tax employee wages to a health insurance issuer at the direction of an employee without establishing a group health plan, if:
  1. No contributions are made by the employer;
  2. Participation in the program is completely voluntary for employees;
  3. The employer does not endorse the program (although the employer may permit the insurer to publicize the program to its employees and the employer may collect premiums through payroll deductions or dues check offs and remit these funds to the insurer); and
  4. The employer receives no consideration in the form of cash or otherwise in connection with the program, other than reasonable compensation, excluding any profit, for administrative services actually rendered in connection with payroll deductions.

Supreme Court Will Hear Three Employment Discrimination Cases

Thursday, October 9, 2014

The United States Supreme Court held its traditional first of October meeting to determine which cases it will hear during the 2014-15 term.  The Court has accepted three employment discrimination cases.

Young v. United Parcel Service.  The question is whether the employer has to accommodate pregnant employees who are unable to handle some of the physical requirements of the job, i.e. UPS employees who have to carry heavy boxes.  The UPS employee has appealed to the Supreme Court claiming that her needs while pregnant were not accommodated by UPS’s “pregnancy-blind policy”; the policy limited accommodations to employees who were injured on the job, who were defined as “disabled” and who had lost their DOT certification.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.  “Did Abercrombie and Fitch discriminate against a Muslim job applicant when she was rejected based on her desire to wear a head scarf at work?”  The significant question is whether the employer has to have “actual knowledge” that a practice is religious before it is required to accommodate the practice in the workplace.  Abercrombie claims that the job applicant did not explicitly indicate that her scarf had religious meaning.

Mach Mining, LLC v. EEOC.  This case involves the extent to which courts may enforce the EEOC’s duty to conciliate cases pre-litigation.  Mach moved for summary judgment alleging the EEOC had failed to fulfill its statutory duty to conciliate the case in good faith.  There is a split among the Appellate Circuits as to whether or not the EEOC’s duty to conciliate is reviewable by a court.

Inflexible Leave Policies and the EEOC

Monday, October 6, 2014

The last several years have seen the Equal Employment Opportunity Commission (“EEOC”) take an aggressive stance on inflexible leave policies.  According to the EEOC, these policies – which subject employees to termination after a maximum period of leave – are unlawful because they do not consider whether an additional period of leave might be a reasonable accommodation for individuals with a disability.  The EEOC has achieved considerable success pursuing class-action lawsuits against companies that maintain fixed leave policies, including lawsuits against Supervalu, Inc. and Sears, Roebuck & Co. that settled to the tune of $3.2 million and $6.2 million, respectively.
In May, however, the EEOC’s smooth sailing hit some headwinds when the Tenth Circuit Court of Appeals issued its decision in Hwang v. Kansas State University finding that a state university lawfully terminated a professor after she had exhausted her leave under a six-month maximum leave policy.  Although the court readily acknowledged that the professor was a capable teacher, it noted that the professor, by her own admission, had been unable to perform any duties of her position for six months.  Given the length of the absence, the court found it difficult to conceive how an absence so long “could be consistent with discharging the essential functions of most any job in the national economy today.”  And, even if it were, the court concluded that it was still “difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

In reaching its conclusion, the court briefly addressed the EEOC’s guidance that employers must modify a “no-fault” leave policy if an employee with a disability needs additional unpaid leave as a reasonable accommodation.  According to the court, the EEOC’s guidance did not address the preliminary question it was trying to tackle, which was:  when is a modification to an inflexible leave policy a reasonable accommodation?  Without giving a definitive answer to that question, the court found that, in this particular case, granting an additional period of unpaid leave beyond six months was simply not reasonable.

Although the Hwang decision has the potential to turn the tide on the EEOC, the agency has not sent out any signals that it sees muddy waters ahead.  Just one month after Hwang, the EEOC announced that it had reached another settlement with Princeton HealthCare Systems for $1.35 million, resolving claims concerning PHCS’s 12-week leave policy.  In its press release, the EEOC noted that “addressing emerging and developing issues under the ADA is one of six national priorities” identified in its Strategic Enforcement Plan.  Whether the EEOC chooses to clarify its position through additional guidance, or through further litigation, remains to be seen.