Embed Size (px)
Citation preview
Presented by: Crystal Barnes, Lockheed Martin
Jim Murphy, Ogletree Deakins (Washington DC)
Christopher Humber, Ogletree Deakins (Washington DC)
Moderated by: Denise Giraudo, Ogletree Deakins (Washington DC)
© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Keeping Up With The Times:
Equal Employment and Traditional Labor
May 23, 2017
www.ogletree.com
Today’s Topics
• LGBT Issues In Today’s Workplace
• Reassignment as an Accommodation: Is Competition Required?
• The NLRB Under President Trump: Will Balance Be Restored?
www.ogletree.com
LGBT Issues
In Today’s Workplace
www.ogletree.com
Fortune 500 by the Numbers
• 92% include sexual orientation in non-discrimination policy
• 82% include gender identity in their non-discrimination policy
• 53% offer transgender-inclusive health care coverage
• 47% have made public commitment to the LGBT community
www.ogletree.com
LEGAL FRAMEWORK• Title VII
Hively v. Ivy Tech Comm. Coll. of Ind., 853 F.3d 339 (7th Cir. Apr. 4, 2017)
• Federal Contractors: Amended Executive Order 11246 and OFCCP Guidance
• EEOC Guidance
What You Should Know About EEOC and the Enforcement Protections for LGBT Workers www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm
Fact Sheet: Bathroom/Facility Access and Transgender Employees www.eeoc.gov/eeoc/publications/fs-bathroom-access-transgender.cfm
• OSHA Best Practices: A Guide to Restroom Access for Transgender Workers
www.osha.gov/Publications/OSHA3795.pdf
www.ogletree.com
State and Local
States, cities, and counties with laws that
prohibit employment discrimination on the
basis of sexual orientation and/or gender
identity
www.ogletree.com
Case studies
1. Transition planning
2. Single-sex facilities
3. Dress codes and appearance
4. Reasonable accommodation
5. Coworker concerns
www.ogletree.com
Case Study 1: “Sam to Sally”Transition Planning and Announcement• Long-time employee, Sam
• Customer-facing position in family-oriented service establishment
• Begins to wear hair accessories, make-up, and jewelry typically worn by women
• Sam tells store managers he plans to transition
• Executive visits the store, notes Sam’s bling and scrunchie, and comments about it to HR
www.ogletree.com
Case Study 2: “Everyone Goes”Bathroom/Locker Room Usage• Employee is a biological male. In June, he notifies the supervisor that
he plans to transition and present as a female at the end of the year, but wants to begin using the women’s restroom immediately.
• Employee also mentions that he shared his transition plans with some coworkers a few weeks ago, and they have been bullying him since.
• When notified of his coworker’s transition plans, Jim-Bob reacts angrily. To make a point, he claims to have discovered that he is a woman and begins using the women’s room.
www.ogletree.com
Case Study 3: “Suit and Tie”Dress Codes and Appearance Standards• Employee who is transitioning from male to female comes to work at
grocery store wearing bright pink nail polish
• Handbook states that employees may wear only clear or neutral-colored polish only, and deli employees may not wear any nail polish.
• Manager wants to ask Employee to remove the pink nail polish.
www.ogletree.com
Case Study 4: “On the Road Again”Reasonable Accommodation• Gender variant employee’s position requires out-of-state travel
• Employee asks to be excused from travel to states that have enacted restroom legislation
• Employee points to CA’s ban on state-funded travel to these states to buttress their concern
• Employee also points to an incident that occurred during travel where they were confronted in a bathroom in TX
www.ogletree.com
Case Study 5: “Complaining Coworker”Coworker Concerns and Comments• Employer is a manufacturing plant in rural Virginia.
• Employee is a female line technician working the third shift.
• Employee, with the full support of the employer, begins to transition and present as a man.
• Employee begins to use the men’s restroom.
• A male coworker complains to HR that his privacy rights are being violated and that he is being subjected to discrimination based on his traditional religious convictions.
www.ogletree.com
Reassignment as Reasonable Accommodation:
Does ADA Require Preferential Treatment?
www.ogletree.com
ADA Does NOT Require Reassignment without Competition
• The following Courts of Appeals have held that the ADA does not require preferential reassignment for disabled employees:
▪ Fifth Circuit
▪ Sixth Circuit
▪ Eighth Circuit
▪ Eleventh Circuit
• EEOC v. St. Joseph’s Hospital, December 7, 2016: “the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.”
• The Fourth Circuit currently has the issue on their docket in United States v. Woody.
▪ In that case, the Eastern District of Virginia held “that the ADA does not require minimally qualified disabled employees to be granted special preferences in hiring over non-disabled applicants” (Nov. 22, 2016)
www.ogletree.com
ADA Does Require Reassignment without Competition
• The following Courts of Appeals have held that the ADA does require reassignment without competition as an accommodation:
▪ Seventh
▪ Tenth
▪ DC Circuit
• Aka v. Washington Hosp. Ctr. (D.C. Cir 1998): an employer cannot insist, for business reasons or otherwise, upon hiring the “best qualified” applicant for a vacant position for which an employee would otherwise be qualified.
• Despite subsequent case law that is critical of the D.C. Circuit’s holding, the District Court strictly follows the application of Aka.
• EEOC Guidance is very clear on this point – reassignment without competition is required under the ADA
▪ We have seen increased scrutiny on nationwide policies.
www.ogletree.com
Local Updates• District of Columbia
• Ban the Box enforcement issues
• Universal Paid Leave
• Screening employees based on salary history
• Maryland
• Mandatory Paid Leave
www.ogletree.com
The National Labor Relations Board
Will Balance Be Restored?
www.ogletree.com
The Obama NLRB
UNIONS
+
WORKERS
MANAGEMENT
www.ogletree.com
Protected Concerted Activity
“employees shall have the
right...to engage in...other
concerted activities for
mutual aid and protection…”
www.ogletree.com
Major Changes Under Obama NLRB Struck down Handbooks/Policies that might “chill” the
exercise of employee rights (Lutheran Heritage test)
Expanded the concept of Protected Concerted Activity
Accelerated the timing of union elections - “Ambush Rules”
Paved the way for unionizing small pockets of employees
Created the right for employees to use company e-mail systems for union organizing
www.ogletree.com
Major NLRB Changes (cont’d) Broadened the standard for “joint employer” status
Gave unions the right to organize and represent temp/contract workers as part of the same bargaining unit as regular employees
Struck down arbitration agreements that required employees to waive the right to bring class or collective actions.
www.ogletree.com
Control of the NLRB Depends Upon . . .
Who is the Chairman?
Who holds the majority of 5 seats?
Who is the General Counsel?
www.ogletree.com
Obama Board Composition (2 vacancies)
Phil Miscimarra
Member
Exp. Dec 16, 2017
RepublicanDemocrat Democrat
Mark Pearce
Chairman
Exp. Aug 27, 2018
Lauren McFerran
Member
Exp. Dec 18, 2019
www.ogletree.com
Current Board Composition (2 vacancies)
Phil Miscimarra
Chairman
Exp. Dec 16, 2017
Republican Democrat Democrat
Mark Pearce
Member
Exp. Aug 27, 2018
Lauren McFerran
Member
Exp. Dec 18, 2019
www.ogletree.com
The Latest on the Board Vacancies
No formal nominations yet.
Anticipated Nominations – Bill Emanuel (management lawyer)
Marvin Kaplan (counsel to Occupational Safety and Health Review Commission)
Goal is Senate approval by August recess.
www.ogletree.com
The General Counsel’s Role NLRB’s chief policeman.
Establishes policies for enforcement and operations.
Example: Former GC Lafe Solomon’s challenge to Boeing’s decision to locate Dreamliner work at a non-union plant in South Carolina.
www.ogletree.com
NLRB General Counsel
Richard F. Griffin, Jr.
Holds General Counsel
position until his term
expires on Nov. 4, 2017.
www.ogletree.com
Current G.C. Policies In Effect -
Default Language in informal settlement agreements (GC Memo 11-04, Jan. 12, 2011).
Deferral of unfair labor practice charges to arbitration (GC Memo 15-02, Feb. 10, 2015).
Electronic Signatures in Showing of Interest (GC Memo 15-08, Oct. 26, 2015).
www.ogletree.com
The Hit List for a GOP-Controlled NLRB
(the abridged list….)
www.ogletree.com
Use of Employer E-mail Systems Purple Communications, Inc., 361 NLRB No. 126 (2014).
Employee use of an employer’s email system for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.
Overruled Register Guard, 351 NLRB 1110 (2007).
www.ogletree.com
Joint Employer Cases Browning-Ferris Indus., Inc., 362 NLRB No. 186 (2015)
Joint employer status can be based on unexercised contractual rights
No longer requires proof that such control has ever been exercised.
Control can be exercised indirectly or through an intermediary.
Miller & Anderson, Inc., 361 NLRB No. 39 (2016) Temp/contract workers can be included in the same bargaining unit as
regular employees of an employer.
Single bargaining obligation can be imposed upon two independent companies that share or co-determine essential terms of employment.
www.ogletree.com
Unionizing “Micro-Units” Specialty Healthcare, 357 NLRB No. 83 (2011).
New analytical standard for whether a smaller group of employees can be unionized separately from a broader group with which they have some connection.
If a group is a “readily identifiable group” and its members share a community of interest, that group can stand for election as an appropriate bargaining unit unless the employer can make a heightened showing that they share an “overwhelming community of interest” with a larger group, such that the smaller group is an arbitrary grouping.
www.ogletree.com
Overbroad Policies, Rules, and Handbook Provisions Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
Policy provision is invalid if employees “would reasonably construe” it to prohibit the exercise of their right to engage in protected concerted activity.
The Obama NLRB exaggerated the Lutheran Heritage standard and applied it on more of a could possibly construe basis.
Even if the policy was never applied
Even if no employee ever complained
www.ogletree.com
Workplace Rules Held Unlawful Under Lutheran Heritage
Requirement to be courteous and respectful to others
Prohibition against inappropriate or disparaging statements about management or the company (except for products).
Restriction on communications with media
Restriction on use of company name, logo, trademark
Prohibition on leaving work station/ workplace w/o permission
Direction to maintain confidentiality of the subject of an investigation while the investigation is open
www.ogletree.com
Protections for Profanity Numerous NLRB decisions have ruled that the use of
offensive, vulgar, and profane language may still be protected by the Act when it arises in the context of discussions of workplace issues or terms and conditions of employment.
Examples - Karl Knauz Motors, Inc., 353 NLRB No. 164 (2012)
Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014)
Pier Sixty, 362 NLRB No. 59 (2015)
www.ogletree.com
The Right to Make Unilateral Changes “Clear and Unmistakable Waiver”: “There must be an unequivocal
and specific expression of mutual intent of both parties to permit unilateral employer action with respect to a specific term of employment.” Graymont PA, Inc., 364 NLRB No. 37 (2016); Provena St. Joseph Med. Ctr., 350 NLRB No. 64 (2007).
Result – Nullifies most management rights clauses.
Compare: “Contract Coverage” standard supported by Miscimarra and the D.C. Circuit: Heartland Plymouth Court MI v. NLRB, No. 15-1034 (D.C. Cir. Sept. 30, 2016).
www.ogletree.com
Class Action Waivers D.R. Horton, Inc., 357 NLRB No. 184 (2012) and Murphy Oil
USA, Inc., 361 NLRB No. 72 (2014).
NLRB’s Position: By including waivers of the right to bring class and collective actions in arbitration agreements, employers interfere with the rights of employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act.
NLRB’s policy is pending review at the Supreme Court.
www.ogletree.com
Pending at the Supreme Court U.S. Supreme Court has granted petitions for certiorari on
whether the class/collective action waiver violates employee’s rights under the NLRA:
NLRB v. 24 Hour Fitness USA, Inc.
Murphy Oil USA, Inc. v. NLRB
Epiq Systems Corp. v. Lewis
Ernst & Young v. Morris
Patterson v. Raymours Furniture Co.
www.ogletree.com
What About the Ambush Election Rules?
…Don’t Hold Your Breath
Would require full Board action
Would require Administrative
Rulemaking
www.ogletree.com
One Thing That Didn’t Change: Weingarten Rights
May 3, 2017 – NLRB unanimously voted to reject a request to use the NLRB’s rulemaking authority to apply J. Weingarten, Inc. v. NLRB, 420 U.S. 251 (1975) to employees in non-union environments.
IBM Corp., 341 NLRB 1288 (2004) remains NLRB policy: Weingarten rights are limited to union-represented employees.
