As if NYC having both a hurricane and an earthquake this summer wasnt crazy enough, there have been some notable decisions and developments in workplace law since my last blog post on legal issues all the way back in July (what?! I’ve been busy!). From agencies behaving badly, to employers acting crazy, the world of workplace law does not rest or take a summer vacation! So, get some coffee, pull up a chair, and join me in my post-summer workplace law update. Since I have been away for some time, this post is a departure from my usual blog post format in that it features highlights of these widely varied developments.
I. EEOC/Employment Law News
If there are any themes in recent Equal Employment Opportunity Commission (“EEOC”) news it’s that (a) Federal Judges in Michigan continue to punish the EEOC for shooting first and asking questions later, and (b) disability discrimination is suddenly squarely in the EEOC’s cross-hairs.
A. EEOC Shot Down for Shooting from the Hip (A Serious 2.6 Million Dollar Smackdown)
In August, in EEOC v. Cintas Corp. (link), federal judge Sean Cox ordered the EEOC to pay Cintas $2,638,443.93 representing fees, expenses, and costs Cintas incurred defending itself in the EEOC suit. In so ordering, Judge Cox lambasted the EEOC by noting the following: “the EEOC’s failure to engage in the required ‘integrated, multistep enforcement procedure’ mandated by Title VII before filing Section 706 action, is fatal to the EEOC’s claims on their behalf in this lawsuit” and “constitutes unreasonable conduct”. Of significance is the Court’s observation that “[t]he EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the . . . . plaintiffs filed their initial complaint, and after it filed its own complaint years later.” In addition, the Court noted that “[t]he EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs” and “did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.” Finally (and incredibly), the Court noted that:
“[i]n addition to these shortcomings by the EEOC, the EEOC engaged in other egregious and unreasonable conduct. During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation.”
Needless to say, this behavior by the EEOC is simply not good enough. This is particularly so in light of the fact that a similar finding was made by another federal judge in Michigan in EEOC v. Peoplemark, Inc. (link) back in March of 2011. In that decision, Magistrate Judge Brenneman, Jr. ordered the EEOC to pay Peoplemark $751,942.48 in fees for similarly continuing and prolonging litigation that it reasonably should have known it could not win. Just to be clear, employment litigation is often extremely contentious, and plaintiff-side and management-side counsel can attest to encountering unreasonable conduct by their adversaries. However, this is no excuse for the EEOC. We rightfully expect them to engage in best practices, and, at a minimum, comply with statutory mandates in how they prosecute cases. Will we see any changes coming out of the EEOC’s Indianapolis District Office as a result? Stay tuned.
B. Disability Discrimination Takes Center Stage at the EEOC
Is it just me, or does it seem like the EEOC has suddenly ramped up its focus on disability discrimination? In a completely unscientific study, I have noticed that the agency reported 7 disability discrimination cases in July 2011 (including an historic 20 million dollar Verizon settlement), 12 in August 2011, and already another 12 in the first 16 days of this month. See for yourself: http://www.eeoc.gov/eeoc/newsroom/release/index.cfm . If nothing else, this should signal to employers that they should brush up on their manager training, HR compliance, and FMLA/ADA policies. You certainly don’t want to find yourself in the situation that Walgreens now finds themselves.
1. EEOC v Walgreens
One of the disability discrimination lawsuits filed by the EEOC in September 2011 is against Walgreens for allegedly terminating a diabetic employee (Ms. Hernandez) that opened a $ $1.39 bag of chips to stave off an attack of hypoglycemia (low blood sugar). She was an 18 year employee with a clean disciplinary record, and it is alleged that she paid for the chips as soon as she came off her cashier shift. It is also alleged that Walgreens knew about her diabetes. Considering that Walgreens now has a significant retail food operation in its pharmacies, I can only assume that it has a zero-tolerance shoplifting policy that requires all customers and employees to purchase food before eating it. However, given the apparent medical emergency that was averted in this case, I can assume that the EEOC is asserting that a reasonable accommodation in this case would have been to show some flexibility in their zero-tolerance shoplifting policy and allow the employee to pay after eating to raise her blood sugar. This is hinted at in EEOC San Francisco Regional Attorney William R. Tamayo’s statement in the press release where he said, “Employers clearly have an affirmative duty to accommodate employees with disabilities. Ms. Hernandez took action to raise her blood sugar in what could have turned into an emergency situation. Accommodating disability does not have to be expensive, but it may require an employer to be flexible and open-minded. One wonders whether a long-term, experienced employee is worth less than a bag of chips to Walgreens.” See: http://eeoc.gov/eeoc/newsroom/release/9-8-11c.cfm
Absent proof that Ms. Hernandez only paid for the chips after being confronted by management, I struggle to see what Walgreens is thinking by not resolving this case early. Without more, it appears that store management was rigidly applying a corporate zero-tolerance shoplifting policy without regard to the particular facts of the case, and is essentially treating the matter as a theft case. This is wrong on a number of levels, not the least of which is the fact that with such a prevalence of diabetes in America, it is foreseeable that other employees may be similarly forced to open food items before paying for them in an effort to prevent an attack. Will they fire them too? Is it company policy to intercept diabetic employees attempting to eat unpaid for items? If so, does Walgreens assume liability for employees that suffer a diabetic attack on the job? What does Walgreen’s marketing department think of the damage being done to the Walgreens brand as a result of the negative publicity this case is getting? It all seems crazy to me, so you can bet that I will be watching this case closely.
II. NLRB/Labor News
While I have resisted the urge to suggest that this current version of the NLRB is causing the sky to fall (unlike some of my fellow labor & employment practitioners), I have recently warned that this administration wants there to be a lot more union elections, and more union victories in these elections (see here, where I discuss the proposed “ambush elections” and “attorneys as persuaders” rule changes). Well, further proof of that is to be found in the fact that, as expected, the NLRB has announced that it has issued its final rule requiring employers to post “Right to Unionize” posters, beginning November 14, 2011. I take a closer look at this below. So, why isn’t the sky falling? Well, because the original charge that the sky is falling was in response to the NLRB taking an interest in so-called “Facebook firing” cases, and was based on nothing more than wild speculation despite the Board relying on existing precedent that made it fairly clear that no new law or policy was being applied (as I discussed here). The NLRB has recently confirmed their uncontroversial stance on social media policies via issuing a report on social media cases from the acting general counsel, as discussed below.
A. Forcing Employers To Encourage Their Own Unionization
As noted above, like notices that tell employees their rights under state and federal employment discrimination laws, employers will soon be required to post notices telling their employees that they have the right to form or join a union. This applies to unionized AND non-union companies starting November 14, 2011. To be fair, the new “right to unionize” notices also tell employees that they have a right not to join a union, but let’s be real here!
The notices basically require the employer to do the union’s work of telling their employees that they have the right to unionize.
The notice is designed to increase union organizing, and when seen in the context of the other policy changes being pursued by the NLRB and DOL, you can see the government clearly trying to create an atmosphere conducive to more successful union organizing drives. As I have said, employers who hope to stand a chance under these new rules of engagement MUST be proactive before it is too late. My firm (and a select few others), provides superb union avoidance trainings and strategies to help them educate and empower their managers and employees on the implications of unionization. To wait until the new rules are adopted would be sheer negligence, bordering on recklessness. Make no mistake about it that the rule changes are setting the stage for unions to increase organizing efforts, almost guaranteeing that scores of non-union companies will face union organizing drives like nothing seen in this country in decades. Why? Because the new rules will give the unions a new sense of confidence that they will likely win any elections that the NLRB orders. The new rules are stacked heavily against employers. If you don’t believe me, read (or re-read!) my prior post on the proposed rules here.
B. The NLRB “Friends” Social Media Policies
It is not all doom and gloom from the NLRB these days. Contrary to what some were saying a few months ago (perhaps in an attempt to drive traffic to their blogs?), the NLRB has indeed seen an employer social media policy that it likes. You may recall that back in February 2011 when the original “Facebook firing” case settled, some opined that the NLRB was on a warpath against all employer attempts to regulate employee online speech. My view was and remains that this was simply not the case, and that employers could look to NLRB precedent for guidance on how to draft a social media policy that can survive NLRB scrutiny. See Demystifying the Facebook Firing Case. Well, on August 18, 2011, the Acting General Counsel of the NLRB released a report on the various social media cases the NLRB has handled, and the report confirms that the NLRB is primarily concerned with employer social media policies that are too broad, and consequently create a chilling effect on employee concerted activity. It is well worth a read, and will give social media policy drafters valuable guidance on language and context. You can find it here.
Some quick notes re immigration developments. On the employment front, the push for federal legislation mandating E-verify use nationwide has come into unexpected resistance from conservative and tea party groups. Immigrant’s rights groups and agricultural employers have long opposed such legislation. It is unclear what effect, if any, this new opposition will have on the legislation. http://www.marketwatch.com/story/e-verify-facing-unexpected-opposition-from-conservative-taxpayer-tea-party-groups-media-campaign-launched-today-with-first-national-ad-letter-to-congress-2011-09-15
News on deportations and removals is that the Obama administration, via the DHS, has announced that prosecutorial discretion will be used to prioritize certain cases for removal proceedings, over others. DHS will consult a long list of factors before deciding whether to seek removal or deportation of any given immigrant. Presumably, this was done in response to growing concern over how the Secure Communities (S-Comm) program has been applied, versus its announced objectives. Apparently, people with minor infractions were being deported in large numbers, despite the government assertion that S-Comm was intended to remove immigrants with serious criminal histories.
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