Appeals Court Upholds NLRB Decision on Contractor Handbilling

By Glenn Rissman on May 2, 2012 Posted in Labor Law

The U.S. Court of Appeals for the District of Columbia Circuit recently let stand a decision of the National Labor Relations Board (NLRB or the Board) on whether a property owner can bar employees of an onsite contractor from distributing union-related handbills on the property. The case, New York-New York, LLC v. NLRB, has been hotly contested for more than a decade.

In general, a property owner may not bar its employees from distributing union-related handbills on the property. The property owner generally may bar non-employees from distributing union-related literature on its property. The New York-New York case is unique because it involved handbilling by employees of a contractor of the property owner, where the handbilling individuals normally worked on the property. (The case did not involve picketing, which is different from handbilling. At worksites with more than one employer, such as a construction site, picketing is only permitted if the protest is clearly directed exclusively at the primary employer.)

The New York-New York Hotel and Casino in Las Vegas contracted with Ark Las Vegas Restaurant Corporation to operate restaurants at the New York-New York complex. Off-duty employees of Ark entered New York-New York’s property and began handing out union literature on the sidewalk outside the hotel’s main entrance and in hallways outside two of Ark’s restaurants in the hotel. The handbills asked customers to urge Ark management to sign a union contract. New York-New York asked the Ark employees to leave the property. When the Ark employees failed to leave, New York-New York called the police, who cited many of the handbillers for trespassing. The union filed an unfair labor practices charge against New York-New York.

The NLRB found that New York-New York had committed an unfair labor practice. The Board ruled that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. The Board did not base its decision on whether or not the individuals working for Ark were employees of New York-New York. The Board devised its own analysis: a property owner may exclude from non-working areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the property owner’s business only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline. The Board refused to treat the Ark employees the same as nonemployees of New York-New York because they were regularly employed on New York-New York’s property. The appellate court said that the Board had discretion over the issue and refused to disturb the Board’s ruling.

The decision is important because it demonstrates how the National Labor Relations Act can impact a non-union employer. We will continue to update this issue if New York-New York seeks further review of the decision.

DOL Issues New FMLA Forms Only Changing Expiration Date

By Stearns Weaver Miller on May 1, 2012 Posted in Legislation & Regulations

The new Family Medical Leave Act (“FMLA”) forms issued by the Department of Labor (“DOL”) have one change: the expiration date is now February 28, 2015. The forms can be found here . The forms do not make reference to the amendments to military family leave or include the safe harbor language from the Genetic Information Nondiscrimination Act (“GINA”). Employers will need to add the GINA safe harbor language to the FMLA medical certification form for the employee’s own health condition to prevent healthcare providers from disclosing employees’ genetic information. Here is the safe harbor language:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

EEOC Says Transgender Workers Are Protected from Discrimination Under Title VII

By Stearns Weaver Miller on May 1, 2012 Posted in Discrimination & Harassment, Legislation & Regulations

As we blogged about in December, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) recently found that transgender employees are protected against job discrimination pursuant to the Equal Protection Clause, which only applies to public sector employees. Whether or not the same protection was available under Title VII, which applies to the private sector, remained an open issue. See post, Federal Court to Georgia: Transgender Employees Are Protected. On April 20, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) addressed this issue and found that transgender workers are indeed protected under Title VII. See decision.

Mia Macy, a former soldier and policy officer who recently transitioned from male to female, filed a formal complaint with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) alleging that she was denied a job as a ballistics technician by ATF because of her sex, gender identity and sex stereotyping. Macy appealed an administrative procedure in place that allowed ATF to treat her complaint differently (and with less rights) than a traditional Title VII complaint. The EEOC agreed to adjudicate her claims under the same administrative procedure as other complaints because it found that “gender identity,” “change of sex,” and/or “transgender status” fell under the broader protected class of “sex” pursuant to Title VII.

While the EEOC’s decision only concerned a jurisdictional issue and is only binding on the federal sector, the decision highlights the fact that there has “been a steady stream of district court decisions recognizing that discrimination against transgender individuals on the basis of sex stereotyping constitutes discrimination because of sex.” A federal court could likewise find that a transgender individual would be protected from discrimination in the private sector.

D.C. Court Puts a Hold on NLRB Posting Requirement

By Glenn Rissman on April 17, 2012 Posted in Employment Litigation, Labor Law

On March 27, we posted an entry on the decision of a federal court in Washington, D.C. that some portions of the NLRB’s rule requiring employers to post a “Notice of Employee Rights” are not valid. Under the NLRB’s posting rule, employers are required to make the posting by April 30. The court’s decision is now on appeal to the U.S. Court of Appeals for the District of Columbia. The appellate court has entered an injunction prohibiting the NLRB from enforcing the posting rule, at least for now. The appellate court wants to maintain the status quo while it is deciding the appeal, which is being handled on an expedited basis. For the time-being, employer’s are relieved of their obligation to post the NLRB’s “Notification of Employee Rights.” More is sure to follow. Please visit us for updates on the status of the NLRB’s posting requirement.

NLRB Continues its Attack on Overly Broad Social Media Policies

By Glenn Rissman on April 6, 2012 Posted in Employee Handbooks & Policies, Labor Law

We have been commenting on the National Labor Relations Board’s (NLRB) recent decisions on the lawfulness of social media policies. An NLRB Administrative Law Judge recently struck down a portion of a company’s social media policy that prohibited employees from commenting on work-related legal matters without the express permission of the company’s legal department.

The case of In re G4S Secure Solutions (USA) Inc. involved a host of alleged violations of the National Labor Relations Act (NLRA). One of the alleged violations concerned G4S’s social media policy. The policy prohibited employees from posting photos, images, or video of employees in uniform or at a G4S place of work on any social networking site. The policy also prohibited employees from commenting on work-related legal matters without express written permission from the legal department. The policy stated in bold, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.”

The NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the NLRA. Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The NLRB found that the portion of the social networking policy prohibiting employees from commenting on work-related legal matters was unlawful because it reasonably would be construed as prohibiting protected activity. The NLRB rejected the employer’s disclaimer in the policy. The disclaimer said that the policy would not be construed or applied to interfere with employees’ rights under federal law. However, the NLRB judge said that lay employees cannot be assumed to have the knowledge to discern what is federal law and thus cannot know what actions are permitted under the disclaimer. Because employees cannot be expected to know what was permitted under the disclaimer and what was prohibited, the rule prevented employees from discussing working conditions and other terms of employment, in violation of the NLRA.

The NLRB upheld the portion of the rule prohibiting the posting of photographs on social networking sites. The NLRB reasoned that the rule did not ban the taking of photographs or workplace conditions but merely prohibited posting the images on social networking sites. The NLRB said that the prohibition was not an unreasonable impediment to self-organization.

The lawfulness of social networking policies remain in a state of flux. No doubt that G4S thought that the inclusion of the disclaimer language in its social media policy would protect it from a claim that the policy ran afoul of the NLRA.

Title VII Retaliation Does Not Cover Complaints About Investigatory Process

By Glenn Rissman on March 29, 2012 Posted in Discrimination & Harassment, Employee & Management Counseling

In a recent decision, the Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, ruled that an employee who was terminated after complaining about the way her employer conducted a sexual harassment investigation did not have a claim for retaliation under Title VII. Brush v. Sears Holdings Corp. is interesting because the plaintiff, Brush, was the employee who conducted the sexual harassment investigation!

Brush worked in loss prevention for Sears and was tasked, with a co-worker, to investigate the claims by an assistant manager, “Jane Doe,” that she was being harassed by her store manager. Brush and her colleague interviewed Doe and felt that she was holding back information. Against Sears policy, Brush decided to interview Doe alone to see if she would be more forthcoming. During the follow-up interview, Doe reported that the store manager had raped her several times. Doe asked Brush that she not say anything to Doe’s family or report the alleged rape to the police. Brush told her superiors and Sears terminated the store manager, who had already been suspended. Brush wanted Sears to report the alleged rape to the police. Sears declined to do so, citing the incomplete nature of the investigation and Doe’s own desire not to involve the police. Brush continued to push Sears to notify the police.

Sears ultimately terminated Brush’s employment for violating company policy while conducting the investigation for: (1) meeting with Doe alone during the investigation; (2) suggesting to Doe that she had been raped without asking an open-ended question to elicit Doe’s story; and (3) failing to investigate properly by obtaining video evidence. Brush sued Sears for retaliation under Title VII, claiming that she was terminated for her opposition to an allegedly unlawful employment practice by Sears.

The court rejected Brush’s retaliation argument. The court said that Brush’s disagreement with the way in which Sears conducted its internal investigation did not constitute protected activity. To qualify as protected activity, a plaintiff’s opposition must be to a practice made unlawful by Title VII. The court found that disagreement with internal procedures did not equate with protected activity opposing discriminatory practices. Brush’s opposition was to Sears’ failure to involve the police, i.e., the adequacy of the investigation, and not to an employment practice that Title VII declares to be unlawful. Brush did not engage in statutorily protected activity and had no claim for retaliation under Title VII.

The decision in Brush is fact specific. The victim specifically requested that Sears not involve the police. Sears disciplined the harasser. Had either of these facts been different, the court may well have recognized that Brush’s opposition to the way Sears handled the investigation was protected activity under Title VII.

Failure to Notify Carrier of Workers’ Comp Injury Could Foreclose Employer’s Defenses in Subsequent Law Suit

By Glenn Rissman on March 27, 2012 Posted in Disability & Leave, Employment Contracts & Corporate Issues

A recent case from Florida’s Third District Court of Appeal, Ocean Reef Club, Inc. v. Wilczewski, highlights the importance of employers reporting workplace injuries and illnesses to their workers’ compensation carrier. Although the Third District Court of Appeal has jurisdiction over only Miami-Dade and Monroe Counties, employers throughout the State should take notice.

The plaintiffs in the case worked as a hair stylist and nail technician in a beauty salon owned by Ocean Reef. They claimed that chemical fumes present in the salon caused them to experience asthma like symptoms, headaches, and respiratory problems. The employees notified their supervisor of the health problems.

The trial court found that Ocean Reef could not rely on workers’ compensation immunity and the Third DCA agreed. The Third DCA determined that because Ocean Reef had knowledge of the claims and failed to notify the carrier, it could not now claim it is entitled to workers’ compensation tort immunity. The Third DCA interpreted the workers’ compensation statute as requiring the employer to report an injury to its carrier within seven days of knowledge of the injury. Because Ocean Reef failed to report the injuries to its carrier within the seven day period, the court concluded that it could not assert the workers’ compensation tort immunity as a defense to the employees’ civil lawsuit. Further, the court imputed the carrier’s determination that the injuries did not occur in the course and scope of work to Ocean Reef and said that Ocean Reef could not advance the irreconcilable argument that the tort immunity applied because the injuries did occur in the course and scope of work notified the workers’ compensation insurance carrier. Two years after they left Ocean Reef’s employment, they filed lawsuits against Ocean Reef for negligence. At that time, Ocean Reef notified the workers’ compensation insurance carrier. The carrier denied the claims because the injuries were not suffered in the course and scope of employment and because the claims were barred by the applicable statute of limitations. In the separate negligence lawsuit, Ocean Reef argued that the tort claims were barred by workers’ compensation immunity, which protects employers from employee tort suits arising from workplace injuries and accidents.

One of the judges on the appeals panel wrote a well reasoned dissent that refuted the notion that Ocean Reef had a duty to notify the workers’ compensation carrier of the injuries. The dissent interpreted the workers’ compensation statute to make the employee legally responsible for initiating the benefits delivery process, not the employer. The dissent also argued that the majority opinion opens the door for every workers’ compensation claim to be converted into a negligence claim by the injured worker’s assertion that the injured worker gave notice of the workplace injury to the employer, but the employer failed to report the alleged injury to the carrier.

The Florida Supreme Court may have the final word. We will continue to follow the issue and keep you advised.

Despite Court Ruling Striking Several Key Provisions, Employers Must Still Post NLRB Notification of Employee Rights By April 30

By Stearns Weaver Miller on March 27, 2012 Posted in Labor Law

A federal district court in Washington, D.C. has recently said that certain provisions of the National Labor Relations Board’s “Notification of Employee Rights” rule, which most employers are required to post by April 30, are not valid [for information about the rule, see our blog posts, The NLRB, Again, Postpones Notice-Posting Rule Until April 30, 2012 and NRLB Issues Final Rule Requiring Posting of Notice to Employees]. While the court said that the National Labor Relations Board (“NLRB”) has broad rulemaking authority to implement the notice in Subpart A, it found two blanket provisions in Subpart B to violate the law: (1) deeming the failure to post the notice to be an unfair labor practice per se; and (2) automatically tolling the six month statute of limitations for an employee who files an unfair labor practice charge for such a failure. The court said that the NLRB can consider the circumstances of each failure to post claim and make specific findings regarding whether the failure is an unfair labor practice and/or whether the staute of limitations may be tolled on a case-by-case basis. See opinion. While the NLRB will need to revise Subpart B of the rule, employers must still post the NLRB notice (Subpart A) by April 30.

Unpaid Internships = Cheap Labor? Think Again.

By Stearns Weaver Miller on March 19, 2012 Posted in Employee Benefits & Compensation, Employment Litigation, Wage & Hour/Employee Classification

In the third of three recent wage and hour class actions brought by unpaid interns against media and entertainment companies (Wang v. The Hearst Corp. and Glatt and Footman v. Fox Searchlight Pictures, Inc.), a former unpaid intern for the “The Charlie Rose Show” has sued Charles Rose and his production company on behalf of all interns who were paid less than the minimum wage (Bickerton v. Rose et al.). Lucy Bickerton, who worked as an unpaid “editorial intern” from June 2007 to August 2007 for about 25 hours per week, alleges that she and hundreds of others were misclassified as unpaid interns, denying them the right to earn a fair day’s wage, unemployment insurance, workers’ compensation, and Social Security contributions.

Bickerton claims, central to the show’s lean production are the substantial number of unpaid interns who work on The Charlie Rose Show each day, but are paid no wages. The show’s own website makes clear that “[i]nterns are highly involved with every aspect of running [the] daily television show.” Interns perform background research from print and online sources to prepare Mr. Rose for guest interviews, escort guests through the studio and set, and break down the set and clean up the “green room,” the area where guests await their interviews, after each taping. Despite the significant work they perform, Charlie Rose interns are not compensated for any of their work, in violation of New York Labor Law.

The lawsuit also noted that unpaid internships have proliferated among many white-collar professions, including film, journalism, fashion and book publishing.

With the summer intern season right around the corner, Florida employers should be aware that unpaid internships must be for the benefit of the intern and the employer should “derive no immediate advantage” from the interns’ activities. Per the U.S. Department of Labor, six criteria must be met in order for the internship to be lawfully unpaid:

(1) The training is similar to that which would be given at a vocational school;

(2) The training is for the benefit of the trainee;

(3) The trainees do not displace regular employees, but closely supervised;

(4) The employer that provides the training derives no immediate advantage from the activities of the trainees;

(5) The trainees are not necessarily entitled to a job at the completion of training; and

(6) The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

Two Federal Courts Greenlight Employment Arbitrations

By Stearns Weaver Miller on February 29, 2012 Posted in Employment Litigation, Labor Law

In January we blogged about the NLRB’s decision in D.R. Horton, Inc., which said that requiring employees, as a condition of employment, to sign an arbitration agreement barring collective or class actions for employment-related claims violated the law (see NLRB Says Not To Requiring Employees To Sign Arbitration Agreements Prohibiting Group of Class Action). In the face of the D.R. Horton, Inc. decision, two federal district courts have recently found that this prohibition does not apply.

In a tentative ruling issued on January 26, 2012, the federal court in Central California, said that the D.R. Horton, Inc. decision did not preclude enforcement of a class action waiver signed not as a condition of employment (Johnmohammadi v. Bloomingdales, Inc.). The employee, Fatemah Johnmohammadi, sued Bloomingdale’s on behalf of at least 200 nonexempt employees for its alleged failure to factor commissions and incentives into the regular rate of pay used to calculate overtime wages in violation of California law. Johnmohammadi had 30 days from her hire date to opt out of an arbitration agreement, which included a class action waiver. Johnmohammadi failed to opt out of the arbitration agreement.

The court said that it would likely compel arbitration citing to the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion (2011), which held that a waiver of representative actions in arbitration agreements is valid and enforceable. The court distinguished Johnmohammadi’s voluntary waiver from the waiver in D.R. Horton, Inc., which was required to be signed by the employee as a condition of employment. The court said that it would withhold its final ruling on Bloomingdale’s motion to compel arbitration until such time that the parties provided additional information about Johnmohammadi’s pending claim with the NLRB also centering on the enforceability of the arbitration agreement.

In early January, the federal court in the Southern District of New York held that an arbitration agreement requiring individual arbitration was enforceable (LaVoice v. UBS Financial Services, Inc.). Larry LaVoice, a former financial advisor for UBS Financial Services (“UBS”), brought class and collective action claims against UBS alleging violations of the Fair Labor Standards Act and New York law. UBS moved to compel arbitration on the ground that LaVoice had signed an arbitration agreement agreeing to individually arbitrate employment-related claims. The court, relying on AT&T Mobility v. Concepcion, said that it “must read AT&T Mobility as standing against any argument that an absolute right to collective action is consistent with the [Federal Aribtriation Act’s] ‘overarching purpose’ of ‘ensur[ing] the enforcement of arbitration agreements according to their terms so as to facilitate proceedings.’” The court, without explanation, rejected D.R. Horton as authority to support a conflicting reading of AT&T Mobility v. Concepcion.