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.