Maine’s Law Court Blows the Whistle on McDonnell Douglas

Maine’s highest court has closed out the year with two notable decisions involving the state’s Whistleblowers’ Protection Act (WPA).  The decisions revise the method for analyzing WPA cases on summary judgment and, as a result, are likely to have impacts that are more procedural than substantive. 

When a party files a motion for summary judgment, they are essentially arguing that no factual dispute exists with respect to the key aspects of the case and that a court can therefore decide the case as a matter of law, without having to go to a trial.  In employment discrimination cases, courts have for years relied on a framework developed by the U.S. Supreme Court to determine whether or not a factual dispute exists that would prevent summary judgment from being awarded. The framework, known as McDonnell Douglas, generally sets out a procedure for presenting evidence of discrimination.  The procedure involves shifting burdens, where the employee must first establish a prima facie case of discrimination, which the employer must then rebut with an explanation as to why it had legitimate reasons for any actions it took.  Assuming the employer provides that explanation, the burden then shifts back to the employee to point to sufficient evidence in the record that would allow a jury to conclude that the employer’s conduct was nonetheless motivated, at least in some measure, by discrimination. 

In Brady v. Cumberland County (November 10, 2015) and Cormier v. Genesis Healthcare, LLC (December 15, 2015), the Law Court announced that it would no longer use the McDonnell Douglas framework for adjudicating WPA cases on summary judgment.  In brief, the Law Court noted that because of the way a WPA claim is defined under Maine law, an employee must produce evidence of causation—i.e. evidence that the employer had an unlawful motive for taking an adverse action—as part of his or her prima facie case.  This is in contrast to claims under Title VII, where employees are not required to produce evidence of causation until the third step of the McDonnell Douglas framework—after the employer has produced a legitimate non-discriminatory explanation for its actions. Noting this difference between the WPA and Title VII, the Law Court concluded that, for WPA cases, the second and third steps of the McDonnell Douglas framework are duplicative.  Consequently, rather than employing the McDonnell Douglas burden-shifting framework, the Law Court explained that when analyzing WPA cases on summary judgment, it will consider evidence in a “unitary way and simply determine whether the record as a whole would allow a jury to reasonably conclude that the adverse employment action was motivated at least in part by retaliatory intent.” 

In a sense, then, the Brady and Cormier decisions do not signal a significant change.  In WPA cases, employees and employers will still need to present the same evidence to prevail on summary judgment; the difference is that the Law Court will not go through the exercise (or require the parties to through the exercise) of sorting that evidence through a burden-shifting framework.  Instead, in a nod to judicial efficiency, the Court will simply consider all the evidence at once to determine whether there is sufficient evidence to suggest that an adverse employment action was motivated at least in part by protected activity.

Recent Decision Provides Case Study on Managing Suspected Alcohol Impairment

If an employer suspects that an employee may be coping with a substance abuse issue, such as alcoholism, what steps can it take to ensure that the employee is not coming to work impaired?  A recent federal court case explored this issue and found that an employer acted within the scope of the law when it required an employee to undergo a breathalyzer test for alcohol and, based on the results of that test, terminated the employee from his safety-sensitive position.

The employee in the case, Foos v. Taghleef Industries, worked with machinery that required him to follow several safety protocols to ensure his own safety and that of others.  During his employment, the employee went out on a number of FMLA-covered leaves.  When requesting to return from his last leave, his physician submitted a return to work note that identified his diagnosis as “acute alcoholic pancreatitis.”  Upon receiving the physician’s certification, a health and wellness manager became concerned that the employee might be consuming alcohol at work.  The concern was based on the employee’s history of pancreatitis (which the employer did not know was related to alcohol prior to the doctor’s certification), as well as information that the employee had been hurt in a bar fight (which resulted in one of the employee’s previous FMLA-covered leaves).  Based on these concerns in light of the employee’s safety-sensitive position, the company concluded that it had reasonable grounds to believe that the employee was coming to work impaired.  When the employee returned from work, the company therefore sent him to the hospital for a breathalyzer test.  The company then terminated the employee after his test came back positive.

Although the employee claimed that the alcohol test was unlawful under the ADA, the court concluded that, under these facts, it was reasonable for the company to inquire into whether the employee was able to perform his job.  The alcohol test was therefore “consistent with business necessity.”  Also bolstering the employer’s case was that it applied the same procedures any other time it suspected an employee was returning to work in an impaired condition.  In other words, there was no evidence that the company singled out this employee for treatment that was distinguishable from other employees.

Although this decision certainly provides some guidance as to the steps an employer can take to ensure an employee is not coming to work impaired, it is just that: a guidepost.  Each case – and each employee – must obviously be analyzed on an individual basis.

Second Circuit Upholds NLRB’s Views on Employee Social Media Use

Last year, the National Labor Relations Board held for the first time that “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.  For a brief overview of this case, Three D, LLC, see our previous blog post here.

Now, the Second Circuit Court of Appeals has affirmed the Board’s decision. Although the Second Circuit issued its ruling as an unpublished summary order, which means that it does not have precedential effect, employers should not discount the effect that this ruling will have on the Board’s aggressively pro-employee agenda.

Three D argued on appeal that the Board incorrectly ruled that a discussion by a group of employees on Facebook was protected under the NLRA.  Although the discussion ostensibly related to the terms and conditions of employment, because it involved the issue of taxes and wages, the company argued that the employees crossed the line by incorporating obscene and disloyal comments into their discussion.  According to the company, the Board ignored the company’s legitimate interest in preventing the disparagement of its reputation, particularly where the employees’ Facebook discussion was viewable – and was in fact viewed – by customers.

The Second Circuit disagreed, however, finding that almost “all Facebook posts by employees have at least some potential to be viewed by customers” and that, even though customers did see the Facebook discussion at issue, the “discussion was not directed toward customers and did not reflect on the employer’s brand.”  Consequently, the employees’ comments – including the act of “liking” the comments – were protected and precluded the company from disciplining the employees.

The decision raises an important question for employers in the area of social media, which is:  when does an employee’s post “reflect on the employer’s brand?”  Here, even though the employees’ posts referenced the name of the company and alleged it had mismanaged its employees’ taxes, the comments were not found to reflect on the company’s brand.  The Second Circuit’s decision therefore suggests than an employee’s disparaging comments will have to be far more specific before losing protection under the Act, particularly where the comments arguably relate to terms and conditions of employment.  In other words, an employee’s online post does not become unprotected simply because it contains obscenities and is viewed by the company’s customers.  According to the Second Circuit, this conclusion simply reflects “the reality of modern-day social media use.”

NLRB Announces New Joint Employer Standard

In July of last year, the National Labor Relations Board released an advice memorandum directing regional offices to treat the franchisors and franchisees of McDonald’s as joint employers in a series of unfair labor practice cases pending throughout the country.  The memorandum, which was issued by the NLRB’s Office of General Counsel, did not carry the weight of law but nonetheless provided a strong indication of the Board’s future direction.

Last month, the Board took a major step in turning the advice in the July 2014 memorandum into actual law.  The Board held in a 3-2 decision that companies may be held to be joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.”  The Board’s decision in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015), overturns long-standing precedent that had found franchisors to be too far removed from the day-to-day decisions of franchisees to be considered joint employers.  In reaching their decision, the three members of the majority explained that the NLRB’s standards simply did not recognize the realities of today’s workforce in which far more contingent workers are employed by employment agencies.

The genesis of the Browning-Ferris dispute began in August 2013, when a regional director for the NLRB held that a Browning-Ferris subsidiary was not a joint employer of workers provided by a subcontractor under a labor services agreement.  The International Brotherhood of Teamsters appealed the regional director’s determination and the NLRB granted review.  In granting review, the Board explained that it intended to consider the continuing vitality of two of its cases from 1984.  In those two cases, the Board had announced a joint employer standard that required a showing that a joint employer exercised “substantial direct control” over an employment relationship.

The Board majority noted that the two 1984 cases were based on an earlier decision from the U.S. Court of Appeals for the Third Circuit, NLRB v. Browning-Ferris Industries of Pennsylvania, Inc.  In that case, the Third Circuit had found that employers could be considered joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.”  Returning to the standard in that case, the Board majority found that, since 1984, the NLRB had improperly focused on “actual control” of workers in determining a joint employer status, rather than the common law principle that focuses on the “right to control” employees.

Under the new standard announced by the majority Board, companies may be considered joint employers if they are employers within the meaning of the common law (i.e. have the “right to control”) and they share or codetermine those matters governing the essential terms and conditions of employment.  Consequently, not only will evidence of direct control be relevant to determining joint employer status, but evidence of indirect or potential control over working conditions will also influence the determination.

New Social Media Privacy Law in Maine

Maine has a new Employee Social Media Privacy law that prohibits employers from requiring employees and job applicants to provide access to their social media accounts. In passing the law, Maine joins at least twenty other states with similar legislation. The new law goes into effect on October 15, 2015.

The Employee Social Media Privacy law follows previous efforts by the Maine Legislature to protect the privacy of social media accounts, which efforts we have summarized here and here. Under the newly enacted law, a social media account is defined as an account with an electronic medium or service through which a user creates, shares, and views user-generated content, including emails, videos, blogs, text messages, and other similar content. Expressly excluded from the definition, however, are social media accounts that are opened at the request of an employer, provided by an employer, or intended for use primarily on behalf of an employer.

In general, the new law prohibits employers from requiring employees and job applicants to provide access to personal social media accounts, and prohibits employers from taking adverse action against an employee or applicant who refuses to provide access. The law also specifically prohibits so-called “shoulder surfing,” or the practice of requiring an employee or applicant to sign into an account in the presence of the employer. In addition, employers may not require employees or applicants to disclose any personal social media account information, add any individuals to the employee’s or applicant’s list of social media contacts, or alter account settings that would affect the ability of third-parties to view the contents of an account. Employers found in violation of the law are subject to fines assessed by the Department of Labor.

The new law does provide some exceptions and does not, for example, apply to information about an employee or applicant that is publicly available, or restrict the ability of an employer to require the disclosure of certain information that the employer reasonably believes to be relevant to an investigation of employee misconduct or workplace violations. The Employee Social Media Privacy law also clarifies that nothing in the law prevents employers from implementing policies governing the use of employer-owned electronic devices and communication systems.

Going forward, employers should review their social media policies to ensure they are consistent with the Employee Social Media Privacy law. In addition, although the new law creates an exception for social media accounts that are created or used at the request of an employer, employers may need to revisit how such accounts are used and clarify the ownership in such accounts. Failure to do so may lead to complications, not only under the Employee Social Media Privacy law, but other privacy-related laws such as the federal Stored Communications Act.

Recent Decision Explores Issues of Mental Disability and Violence in the Workplace

A federal district court recently grappled with whether an employer’s termination of an employee for engaging in violent behavior was lawful, where the employee’s behavior was related to an underlying mental impairment.  Joining other courts, the district court found that the employer was justified in letting the employee go for unacceptable workplace behavior, even though the conduct may have resulted from her underlying conditions with anxiety and depression.

In Felix v. Wisconsin Department of Transportation, Felix was employed as a customer service agent and driving test proctor.  Her job involved both working behind a counter to process driver’s license applications, and administering road tests.  During her employment, Felix experienced anxiety at work that resulted in panic attacks.  Her employer accommodated these incidents by letting Felix take breaks to do breathing exercises and calm down.

The incident leading to Felix’s termination occurred after she suffered a particularly acute panic attack, when a supervisor found her lying on the floor and crying loudly while trying to speak.  She had visible cuts on her wrist and could be heard saying things like “everybody hates you” and “they want to get rid of you.”  After an ambulance arrived and Felix calmed down, she was moved to a break room.  The next day, Felix was informed that she would need to undergo an independent medical exam to determine whether she was fit to return to duty, as the DOT was concerned both for her own safety and the safety of applicants with whom she drove.  Ultimately, the medical examination concluded that Felix remained at increased risk for potentially violent behavior toward herself and others.  Based on those results, the DOT terminated her employment on the grounds that she was unfit for duty.

Affirming the DOT’s decision, the court determined that it was undisputed that Felix’s termination was due to her behavior, which led the DOT to determine she was unfit for duty.  The court noted that, absent a disability, the DOT would have been justified in terminating any employee who engaged in similar behavior.  Although Felix argued that the DOT was wrong in its assessment of her fitness for duty, the court explained that was beside the point:  the issue was not whether the DOT’s reliance on the medical report was wrong, but whether the DOT’s explanation for her termination was dishonest and pretext for terminating her because of a disability.  In short, the court found that the DOT was not required to tolerate Felix’s conduct, and that her termination was due entirely to unacceptable workplace conduct, not because of a disability.

For Employers, Recent Decision Highlights Complexity of Medical Marijuana Laws

Last month, the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tests positive for marijuana in violation of the employer’s drug policy.  Although the impact of the decision is largely limited to Colorado, as the case involved only the interpretation of Colorado law, it nonetheless highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The employee in this case used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s constitution.  At the time of testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.  The employer, however, had a zero-tolerance drug policy, and when the employee tested positive, it terminated his employment.  The employee sued, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.”

The key issue for the Colorado Supreme Court was whether the employee’s medical marijuana use was a “lawful activity.”  Notwithstanding Colorado’s constitutional amendment allowing for the use of medical marijuana, the Court concluded that for an activity to be “lawful” under the off-duty conduct statute, it must be lawful under both state and federal law.  Because marijuana use remains unlawful under federal law, the Court held that the employee had not engaged in a “lawful activity” that prohibited his termination.

Because only Colorado law was at issue in the Court’s decision, the case is not likely to have immediate impacts in other jurisdictions with medical marijuana laws.  Unlike Colorado, for example, Maine’s medical marijuana statute provides certain employment-related protections that, for obvious reasons, were not at issue in the case.  Nonetheless, the case highlights the continuing divide between federal and state law and the need for employers to proceed with caution in this area.

Final Right to Work Blog (127th Maine Legislature)

Efforts to pass “Right to Work” legislation in Maine have been defeated for the second time in four years. Three bills that were able to survive on minority reports after being heard and worked by the Legislature’s Joint Standing Committee on Labor, Commerce, Research, and Economic Development were defeated in mid-June by both the Democratic House and Republican controlled Senate.

LD 489, a very conventional Right to Work piece of legislation, was sponsored by Rep. Lawrence Lockman (R-Amherst) who has aggressively championed the policy for years. After more than an hour of heated floor debate in the House of Representatives the majority “Ought Not to Pass” motion was accepted by a vote of 90-52. Eleven Republicans representing swing districts and communities with high union density sided with Democrats.

LD 404 (a bill to prevent public employers from acting as collections agents) and LD 1319 (legislation to restrict public sector union officers from being compensated for days spent on union activities) were also killed by slightly narrower votes when they picked up one and four additional Republican votes, respectively.

Maine’s State Senate is controlled by Republicans who wield a 20-15 majority and so it was somewhat surprising when LD 489 was also killed in that body with a 21-14 vote. LDs 404 and 1319 suffered similar fates.

Previously, the conventional wisdom to observers had been that the Republican Senate would advance an “Ought to Pass” minority report, the Democratic House of Representatives would adhere to killing the bills, and they would eventually die in non-concurrence between the bodies. It appears that strategically organized attempts to beat back the legislation, led by the Maine AFL-CIO, were extremely successful in identifying and securing votes from Republican state senators in high-union density districts.

Maine Law Court Weighs In Again on Whistleblower Claims

The Maine Supreme Judicial Court, acting as the Law Court, recently issued a decision reiterating the scope of protected activity under the Maine Whistleblowers’ Protection Act.  The decision is a win for employers and clarifies that an employee’s subjective belief that there has been a violation of law is not enough to bring a report about the alleged violation within the protections of the WPA – the employee’s belief must also be objectively reasonable.

The issue in Galouch v. Department of Professional and Financial Regulation was whether reports made by a Maine Bureau of Insurance employee – Patricia Galouch – qualified as protected activity where the reports related to concerns Ms. Galouch had about a court reporter.  The court reporter was under contract with the Bureau to provide certain services, and Ms. Galouch believed the reporter had breached the terms of her service agreement.  Ms. Galouch believed these breaches violated certain rules governing the Bureau’s procurement of services, and she reported her concerns to her supervisor.  The supervisor directed Ms. Galouch to refer contract issues to the Bureau’s contract administrator and instructed her to not address the contract issues herself, as they fell outside her job responsibilities.  Ms. Galouch, however, continued to communicate with the court reporter directly. Soon thereafter, the court reporter terminated her contract with the Bureau and explained she could no longer tolerate Ms. Galouch’s behavior.  The Bureau placed Ms. Galouch on administrative leave while it investigated allegations that she had exceeded the authority of her position.  As a result of the investigation, which was subsequently expanded to include other performance issues, the Bureau terminated Ms. Galouch’s employment.

The key issue for the Law Court was whether Ms. Galouch’s report concerning the court reporter’s contract qualified as protected activity under the WPA.  More specifically, the issue was whether Ms. Galouch had “reasonable cause” to believe that the court reporter’s conduct was unlawful.  The Law Court found that even if Ms. Galouch subjectively believed the reporter’s conduct was unlawful, there was no evidence demonstrating that a reasonable person would have believed so.  While acknowledging that the WPA “does not require an employee be able to cite to a particular statute or rule that may have been violated,” the Law Court held that Ms. Galouch’s “subjective belief alone is insufficient to meet the WPA’s ‘reasonable cause’ requirement.”

Right to Work - Chapter 4

Yesterday, May 6, 2015, the Joint Standing Committee on Labor, Commerce, Research, & Economic Development held work sessions on a number of bills pertaining to “Right to Work” policy. The Maine AFL-CIO held a morning rally in the cafeteria of the Burton M. Cross Building to coincide with  the work sessions. Roughly 100 members, activists, and officers gathered to hear speeches from trade union leaders and pro-union legislative leaders, namely Sen. John Patrick (D-Oxford). Before the 10:00 am legislative session began, AFL-CIO organizers coached attendees on how to speak with their representatives and senators about the union position on the proposed legislation. This did not only include members of the LCRED committee, but also the overall membership of both legislative bodies in anticipation of divided committee reports that would send the bills to the House and Senate.

The committee sent out three divided reports. Party line votes were taken on LDs 404, 489, and 1010 with un-enrolled committee member Rep. James Campbell (U-Newfield) siding with Democrats in opposition. Democrats have a majority on the committee, but divided reports mean the Republican controlled Senate will be able to move the Ought to Pass Minority Report of each bill in that chamber. However, House Democrats will likely kill the bills in the legislature’s lower body where no one in their caucus is expected to break ranks.

If supporters were able to get the minority reports through the legislature, however unlikely, Governor Paul LePage has made clear his desire to sign such policy into law.

The committee did vote outright to kill one of the major bills in question: LD 1353, sponsored by Sen. Andre Cushing (R-Hampden). The bill received a unanimous “Ought Not to Pass” report.

Additionally, Rep. Karleton Ward’s (R-Dedham) bill, LD 1319, which deals with employees receiving compensation on days they’re involved in union activity, was postponed and will be worked today, May 7, 2015, at a 2:00 pm session of the committee.

Right to Work - Chapter 3

The Maine Legislature’s Joint Standing Committee on Labor, Commerce, Research & Economic Development heard testimony Monday on six proposed bills that would seek to alter the relationship unions have with employees and effectively make Maine a “Right to Work”, or “pseudo-Right to Work” state. The work session for these bills will be today, May 6 at 2:00 pm.

Rep. Larry Lockman (R-Amherst) is sponsoring  LDs 404 and 489 and Rep. Joel Stetkis (R-Canaan) is sponsoring  LD 1351 – all bills dealing with public employers. These three pieces of legislation imply, in various ways, that the employees of public institutions not be required to join a union as a condition of employment.

LD 1319 is sponsored by Rep. Karleton Ward (R-Dedham). His bill would prevent public employees from collecting compensation on days when they participated in activities involving their business agents.

 

Sen. Andre Cushing (R-Hampden) is also proposing a pair of bills that were heard at Monday’s public hearing. The first, LD 1010, would exclude negotiations around the use of private contractors from collective bargaining proceedings with public entities. However, the marquis bill in question may be Sen. Cushing’s LD 1353 which is the only one of these six proposals to directly address private employer unionization and stands as a fairly straightforward “Right to Work”  bill. The legislation would, of course, exclude membership in a union as a condition of employment with private entities.

The hearing was heavily attended, lasting through the morning and into the afternoon. However, it did not draw excessively large crowds. Estimates placed the opposition, mainly composed of union members and officers, as outnumbering proponents of the six bills roughly “3 or 4 to 1”. The Maine AFL-CIO is expected to make a bigger demonstration of opposition on the morning of Wednesday, May 6 which will occur before these bills’ afternoon work sessions.

Right to Work Laws - Chapter 2

The Maine Joint Standing Committee on Labor, Commerce, Research and Economic Development has scheduled public hearings regarding bills which address different aspects of Right to Work.  The hearings are scheduled for Monday, May 4, 2015 at 9:30 a.m. at the Cross State Office Building, Room 208.

The primary bill being considered, LD 1353, Right to Refrain from Joining a Union, is a straightforward right-to-work bill presented by Senator Andre Cushing. This bill applies broadly to not only the public sector but to the private sector.  It defines as employers all persons, firms, associations, corporations, public employers, public school employers, public colleges, public universities, public institutions or public education agencies.  The bill would specifically prohibit a person from being required as a condition of employment to be a member of a labor organization or to pay any dues to a labor organization or a third party in lieu of payment.

Other bills being heard are LD 404, An Act to Prohibit Public Employers from Acting as Collecting Agents for Labor Unions, LD 489, An Act to Ensure the Right to Work without Payment of Dues or Fees to a Labor Union as a Condition of Employment, LD 1010, An Act to Afford Public Employers Flexibility to Achieve Efficiency and Quality in Management, LD 1351, An Act to Ensure that Membership of Public Employees in Union is Voluntary, and LD 1319, An Act to Ensure that Wages and Benefits of Maine State Employees Serve a Public Purpose.

Because these pieces of legislation have expanded into the private sector, there should be considerable support and opposition for them from the usual suspects. My next chapter will report what happened at the public hearings and when these bills are scheduled for work session.

When Is Telecommuting a Reasonable Accommodation Under the ADA?

Earlier this month, the Sixth Circuit Court of Appeals shared its perspective on this question and held that telecommuting was not a reasonable accommodation for an employee where her essential job duties required regular and frequent in-person contact with suppliers and customers.  In some respects, the court’s conclusion that telecommuting may not be appropriate for jobs requiring regular physical attendance is rather unremarkable.  As the use of telecommuting rises, however, the decision’s common-sense approach to the issue is likely to have a lasting impact.

The employee in the case was a resale buyer who had a severe case of irritable bowel syndrome, which lasted for several years and caused her to be increasingly absent as the years progressed.  Her employer, Ford Motor Company, worked with her during that time to accommodate her condition, including several attempts to accommodate a telecommuting schedule.  Over time, however, her job performance continued to deteriorate.  At one point, she requested to telecommute four days per week.  Ford declined the request but offered other accommodations, including relocating her desk closer to a bathroom.  The employee did not accept the alternative accommodations and Ford later terminated her.

The Equal Employment Opportunity Commission subsequently sued Ford, arguing that the employee’s request for a four-day telecommuting schedule was a reasonable accommodation and that Ford’s denial of the request violated the ADA.  The Sixth Circuit Court of Appeals disagreed. Relying on a “common-sense” approach, the court focused on the highly interactive nature of the employee’s position and found that regular, in-person attendance was an essential function of her job. Although the ADA requires employers to provide reasonable accommodations to qualified employees with disabilities, the court found that the employee in this case was not “qualified” where she could not consistently be on site to perform her job.  Providing a telecommuting accommodation would not have been reasonable because it would not have allowed her to perform the essential interactive duties of her job.

The Sixth Circuit’s decision does not go so far as to hold that telecommuting can never qualify as a reasonable accommodation.  For positions that do not require a high degree of interaction with customers or staff, or that can be performed effectively from a remote location through the use of technology, telecommuting very well may offer a viable accommodation.  Employers should therefore continue to engage with employees requesting telecommuting as an accommodation to determine whether, under the particular facts, the request can reasonably be accommodated.

Are You Ready for a Fast-Track Union Election?

Today the National Labor Relations Board’s (NLRB’s) new representation case procedures take effect.  And as the saying goes, speed kills.

The NLRB announced the new procedures last December and, in doing so, significantly accelerated the time window from the initial filing of an election petition to the election itself.  According to the NLRB, the new procedures also:

• Provide for electronic filing and transmission of election petitions and other documents;
• Ensure that employees, employers and unions receive timely information they need to understand and participate in the representation case process;
• Eliminate or reduce unnecessary litigation, duplication and delay;
• Adopt best practices and uniform procedures across regions;
• Require that additional contact information (personal telephone numbers and email addresses) be included in voter lists, to the extent that information is available to the employer, in order to enhance information sharing by permitting other parties to the election to communicate with voters about the election; and
• Allow parties to consolidate all election-related appeals to the Board into a single appeals process

On April 6, the NLRB’s General Counsel issued a guidance memorandum, which can be accessed here, describing the key modifications embodied in the final rule, which was published at 79 Fed. Reg. 74308.

These new procedures represent an adverse game-changer for employers striving to remain union-free.  Now, once an election petition is filed with the NLRB, employers will have little time to develop effective response strategies.  In theory, an election can be conducted as quickly as 17 days after a petition is filed. 

The days of methodically drafting anti-union messages for distribution to potential bargaining unit members, training supervisors to communicate those messages lawfully and effectively, and analyzing workforce demographics to identify how best to counteract the union’s organizing efforts, in the lead up to an election, are over.   Employers need to proactively develop union avoidance plans and have them ready to implement, long before union organizers show up in your parking lot or their election petition filing is made. 

 

U.S. Supreme Court Rules on Pregnancy Accommodation

The Pregnancy Discrimination Act (PDA) specifies that the Title VII prohibition against sex discrimination applies to discrimination on the basis of pregnancy, childbirth and related medical conditions. It also says that employers must treat pregnant workers the same as other employees “not so affected but similar in their ability or inability to work.” In Young v. United Parcel Service, Inc., the U.S. Supreme Court addressed the question whether and when that clause requires employers to provide workplace accommodations to pregnant employees who may have physical limitations on tasks they can perform.  The case involved the legality of a UPS policy that made light-duty work available to certain workers, but not to pregnant employees.

The Court’s decision, issued March 25, 2015, adopts a set of rules to be applied to pregnancy accommodation claims.  Although the legal reasoning was somewhat complex, the decision permits pregnant employees who seek workplace accommodations which are denied by employers who accommodate others “similar in their ability or inability to work” to pursue pregnancy discrimination claims. While an employer may defend such claims by showing it had “legitimate, non-discriminatory” reasons for denying the accommodation, the Court made clear that this reason normally cannot consist of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. Additionally, if an employer does offer a “legitimate, non-discriminatory” reason for its actions, the employee may still proceed with her claim if she can show the employer’s reasons were pre-textual.  The Court noted that an employee might make this showing by demonstrating the employer’s policies impose a significant burden on pregnant worker – e.g., by presenting evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

The decision does not go so far as to hold that the UPS policy was inherently discriminatory or that pregnancy neutral policies are per se violations of the PDA. However, it does indicate that light duty and other accommodation policies that treat pregnant workers differently from other employees, or that have a disparate impact on pregnant employees, can be subject to challenge under the PDA, and that employers may be called on to demonstrate legitimate reasons – other than cost or convenience – for such differential treatment.

The take-away: Now is a good time to review light duty and other accommodation policies and assess the impact of such policies on pregnant employees. Employers who accommodate non-pregnant employees should be prepared to either extend such protections to similarly situated pregnant employees, or, in the words of the Court, explain why, when they “accommodated so many” they could “not accommodate pregnant women as well.”

Can Retirees Use HSAs?

Yes – and no.  A Health Savings Account (HSA) is like an IRA but for the payment of medical expenses instead of retirement income. HSA contributions are not taxed, and like IRA accounts, they belong to the employee. No matter how many times an employee changes jobs, the money in the HSA goes with the employee. Ideally, HSA contributions are invested rather than spent for immediate needs.  Over time, these investments can increase and after retirement will be available for the payment of eligible medical expenses.

In order to qualify for an HSA offered by an employer, the employee must also be covered under a High Deductible Health Plan (HDHP). The employee cannot also be covered under another health plan that provides coverage for any benefit that is covered under the HDHP.  For this reason, employees cannot participate in a Health Flexible Spending Accounts (Health FSAs) or Health Reimbursement Arrangements (HRAs) while they are contributing to an HSA, unless the Health FSA or HRA does not provide coverage included in the HDHP. These plans are called limited purpose FSAs/HRAs.

So what are the rules for retirees?  First, anyone entitled to Medicare cannot at the same time make contributions to an HSA.  Entitlement to Medicare is different from eligibility. Persons 65 or older are eligible for Medicare, but unless an individual actually enrolls in Medicare, the prohibition against maintaining a separate HSA does not apply.  Be careful!  Any person 65 or older who enrolls in Social Security is automatically enrolled in Medicare with an effective date that is retroactive for the six months preceding the Social Security enrollment.  As a result, in order to continue contributing to an HSA, an individual must not only decline Medicare but also defer Social Security.
 
Next, even though a Medicare-entitled individual cannot open or contribute to an HSA, funds in an existing HSA can still be used on a tax free basis to pay eligible medical expenses so long as the expense is covered by insurance or another arrangement. Finally, because an HSA can be used to pay the qualified medical expenses of a spouse or tax dependent, an employed spouse can pay the eligible medical expenses of the retired spouse.

In sum, although retirees can’t open or contribute to an HSA, there is enough flexibility in the rules to enable retirees to take advantage of the funds that have been set aside in these non-taxable accounts.

NLRB General Counsel Issues New Guidance on Employee Handbooks

The NLRB’s Office of the General Counsel has issued a report that provides new guidance on employee handbooks.  The report, which is available here, sets out the most recent views of the General Counsel on what he describes as an evolving area of labor law.  According to the General Counsel, Richard Griffin, Jr., the goal of the report is to help employers “to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”

The report points out that a policy in a handbook can run afoul of federal labor law if it could reasonably be construed by employees as infringing on their protected rights.  This is true even if the policy has never actually been enforced.  As a result, policies that are “overbroad” and that have potential “chilling effects” on the statutory rights of employees present a real risk to employers – even where an employer has not applied a policy in a discriminatory manner or intended a policy to have a chilling effect.

Much like the General Counsel’s previous reports on social media, this report highlights a number of handbook rules that the Board has found to be unlawful.  More importantly from a guidance perspective, the report explains the rationale behind the Board’s findings and provides examples of rules that are compliant with the law.  The first part of the report focuses on handbook rules that are most frequently brought to the Board’s attention, including rules on: (1) confidentiality; (2) employee conduct toward management, co-workers, and third-parties; (3) employee use of company logos, trademarks, and copyrights; and (4) conflict-of-interest rules.  In the second part of the report, the General Counsel presents a more in-depth study of the Board’s recent settlement with Wendy’s International, LLC, which resulted in a number of modifications to Wendy’s handbook rules.

The implicit message to employers from the General Counsel’s report is that the Board’s scrutiny of overbroad workplace rules is not going away anytime soon.  At the same time, the Board appears to be telegraphing a desire to be transparent – a fact from which employers can take at least some comfort.

Governor LePage Pushes Right to Work Legislation

Governor Paul LePage is aggressively pushing LD 489, An Act to Ensure the Right to Work without Payment of Dues or Fees to a Labor Union as a Condition of Employment.  Current law allows public employees to opt out of joining a union, but still requires the employees to pay the pro-rata share of dues.  The law specifically prohibits a public employee from being required to join or pay dues to a union.  A violation of the law would be a Class D crime and allow injunctive relief and recovery of attorneys’ fees and costs.  The Maine AFL-CIO, in its press conference on March 12, 2015, stated its strong opposition to the bill and stated that “Despite its misleading name, the stated law does not give anyone any rights or any work”.  The express concern is that right to work laws “allow workers to contribute nothing and still get all the benefits of union membership.”

This issue is national in scope and was recently enacted in Wisconsin.  At today's press conference, the AFL-CIO suggested protesting Wisconsin Governor Scott Walker’s upcoming visit to Maine. We will track the progress of this legislation as it proceeds through the Legislature.

Revised Definition of "Spouse" Under FMLA Incorporates Same-Sex Marriages

The Department of Labor has issued a final rule that amends its FMLA regulations and provides employees in same-sex marriages the right to take leave to care for a spouse with a serious medical condition.  The new rule, published on February 25, 2015, comes on the heels of the Supreme Court’s decision in United States v. Windsor, which declared as unconstitutional a provision of the Defense of Marriage Act limiting the definition of “spouse” to opposite-sex marriages.

The most significant aspect of the new rule is that spousal status is now determined based on the place where an employee entered into marriage, or the “place of celebration.”  Previously, the DOL had determined spousal status based on a “place of residence” rule, which effectively deprived same-sex employees from qualifying as a spouse if they lived in a jurisdiction where same-sex marriages were not recognized.  Under the new rule, and according to the DOL, the “place of celebration” rule will allow all legally married couples to have uniform rights regardless of where they live.

The DOL’s comments to the new rule suggest that employers should see a decrease in administrative burdens under the new rule.  To the extent this is true, it will probably be most apparent for multi-state employers, who will not have to “consider the employee’s state of residence and the laws of that State in determining the employee’s eligibility for FMLA leave.”

IMMIGRATION UPDATE: A Small Step in the Right Direction

Until recently, the U.S. Citizenship and Immigration Services (USCIS) did not allow the dependent spouses of H-1B (specialty occupation) visa holders to engage in any form of employment while living in the U.S.  H-4 visa holders were unable to obtain a Social Security number and were quite limited in the activities they could engage in over the course of their stay in the U.S.  By contrast, spouses of L-1 (intracompany transferee) visa holders have been allowed to obtain employment authorization from USCIS and work in the U.S. without limitation for many years.

As the result of new regulations proposed last year, effective May 26, 2015, USCIS will begin granting employment authorization to certain H-4 spouses of H-1B visa holders.   According to USCIS, this new employment eligibility is an important element of President Obama’s immigration executive actions and one of several initiatives underway to “modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.”

Not all H-4 visa holders will be eligible to work, however.   Employment authorization will be limited to H-4 spouses – not dependent children -- of H-1B nonimmigrants who are the principal beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) or who have been granted H-1B status under the American Competitiveness in the 21st Century Act of 2000 (AC21), which permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the U.S. beyond the six-year limit on their H-1B visa status.

To commence the process, eligible H-4 visa holders must file USCIS Form I-765, Application for Employment Authorization, with the required supporting evidence and the $380 filing fee. USCIS will begin accepting applications on May 26, 2015.  Upon approval of the Form I-765 and issuance of the EAD, the H-4 spouse may begin working in the U.S. in any capacity, for any employer.  These new H-4 EADs will have a duration of no more than three (3) years.

When they commence employment, these H-4 visa holders must rely on their EADs to satisfy the I-9 employment eligibility verification process.  Although employers need to closely track the expiration dates that appear on the corresponding EADs provided by their new hires to remain in compliance with I-9 obligations, it is the H-4 visa holder’s responsibility to ensure that they maintain their employment authorization without interruption.

Permissible Discrimination in Health Benefits

The intense regulation of health care benefits, especially with respect to the Affordable Care Act, has created much confusion among employers. As a result, many employers do not understand that they may offer different levels of coverage to different categories of employees.  Here are the rules.

First, employers cannot base eligibility for health benefits on the existence of a “health factor” that affects an employee or the employee’s dependents.  A health factor includes:

• Health status
• Medical condition, including both mental and physical illnesses
• Claims experience
• Receipt of health care
• Medical history
• Genetic information
• Evidence of insurability
• Disability, and
• Any other health status – related factor established by regulation

Thus, employers cannot refuse to offer health benefits because an employee or the employee’s dependents are, for example, diabetic, have a heart condition, have a history of mental illness, are genetically predisposed to disease, or are disabled.

This does not mean that an employer cannot make distinctions and offer different types of coverage to different categories of similarly situated employees. These distinctions must, however, be based on employment-based classifications that have been established in connection with the employer’s usual business practices.  If the employer classifies employees for reasons other than eligibility for health coverage ― for example, eligibility for non-health benefits or other terms of employment ― offering different levels of coverage is allowed so long as they are made in good faith and without the underlying intent to avoid offering coverage for health reasons. Permissible classifications include:

• Full-time versus part-time status
• Different geographic location
• Membership in a collective bargaining unit
• Date of hire
• Length of service
• Current employee versus former employee status, and
• Different occupations

Employers may, and often do, provide different benefits to salaried versus hourly employees, to skilled and unskilled workers, to employees at different work locations, and to new hires.  So long as the distinction created is not directed at individuals or is seen as a way to avoid the restrictions on discriminating on the basis of a health factor, employers have considerable leeway in providing different health benefits to differently situated employees.

White House Announces New Disability Resource Guide

A new resource guide for employers to use in working with individuals with disabilities is now available.  The new guide, available here and called Recruiting, Hiring, Retaining and Promoting People with Disabilities, was announced by the White House last week and is the product of a cross-agency initiative to increase equal employment opportunities for individuals with disabilities. Although authored primarily by the Equal Employment Opportunity Commission, the guide includes participation from the Departments of Education, Labor, Health and Human Services, Justice, and others.

As a quick reference tool, employers will likely find this guide helpful.  It provides answers to several frequently asked questions and suggests best practices for employers to use when hiring individuals with disabilities and maintaining those individuals over the course of the employment relationship. Perhaps most useful, however, the guide includes embedded links to other materials with additional information, including agency-specific materials produced by the EEOC and Department of Labor.

In announcing the new guide, the White House noted that 56.7 million Americans, or 19% of the American population, live with a disability.  Given the expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008, that number is not likely to decrease.  Employers may therefore find this guide a useful additional tool in their efforts to remain educated on disability-related employment issues.