Category Archives: employees’ rights

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

Contributed by Beverly Alfon, August 17­, 2017

Labor LawMuch has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).

Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th Cir. 2017). In its decision, the Board reasoned: “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’” T-Mobile appealed the NLRB’s decision to the U.S. Court of Appeals for the Fifth Circuit.

Specifically, T-Mobile challenged the Board’s determination that the following provisions from its employee handbook violated the NLRA because they discouraged unionizing or other concerted activity protected by the Act. Provision (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals.

On July 25, the Fifth Circuit held that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. The Court reasoned:

In this case, where the record does not suggest that the rules have been applied in the context of union or collective activity, the ‘reasonable employee’ is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, ‘[the Board] must not presume improper interference with employee rights.’

The Court did agree with the Board’s finding that a reasonable employee would construe policy (3) to prohibit protected activity. It reasoned that unlike the other policies such as the “workplace conduct” policy and “commitment –to-integrity” policy, the recording policy blanketedly forbids certain forms of clearly protected activity. For instance, it would prohibit an off-duty employee from taking a picture of a wage schedule. Notably, last month, the U.S. Court of Appeals for the Second Circuit upheld a similar NLRB decision on workplace recordings.

Bottom line: This federal appeals court decision in T-Mobile USA Inc. v. NLRB gives employers and their counsel additional basis for defending legitimate personnel policies in the face of numerous NLRB decisions issued over the past several years that have been viewed as an attempt to diminish management’s right to set basic employee standards in the workplace. However, it seems that blanket policies prohibiting workplace recordings continue to require careful wording and business justification.

The Risks of Email Communications

Contributed by Carlos Arévalo

Martin Lomasney, an early 20th Century Boston politician, once said “never write if you can speak, never speak if you can nod, never nod if you can wink.” Just last week, the United States Court of Appeals for the Seventh Circuit issued a decision illustrating the dangers of email communications and gave new life to a plaintiff’s claims that the reasons for her termination were the result of discrimination on the basis of her military service and disability.

In 2012, LuzMaria Arroyo, a United States Army Reservist and Veteran, sued her former employer Volvo Group of North America, LLC in federal court for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniform Services Employment and Reemployment Act (“USERRA”) and the Americans with Disabilities Act (“ADA”). In granting summary judgment, the district court found that Arroyo failed to show that her military service was a motivating factor for her termination. To meet the “motivating factor” standard, a direct admission from the employer is not required. Rather, a plaintiff can rely on circumstantial evidence that creates a “convincing mosaic” from which a reasonable jury could infer a discriminatory motive.

17103126_sIn its decision, the Seventh Circuit highlighted emails between members of management where they often complained about the burden placed on Volvo by Arroyo’s frequent use of military leave for training and/or deployments. One email made reference to “the undue hardship [Arroyo’s military leaves] were causing to [Volvo’s] operation.” Other emails questioned the need to extend Arroyo travel time plus the additional eight hour rest period before reporting to work following her military leave. Yet another contained an exchange between supervisors discussing disciplining, suspending or possibly firing Arroyo for her absences, but noting that Volvo likely had no recourse due to Arroyo’s military service. An email recommended that Arroyo be offered a severance package upon her return from deployment, which Arroyo rejected.  When Arroyo later requested accommodations related to her diagnosis of PTSD after her second Iraq tour, a supervisor reported in an email that “[Arroyo was] really becoming a pain with all this.” Her accommodation request was followed by progressive disciplinary steps, which standing alone were minor in nature, but cumulatively led to her termination. Ultimately, the Seventh Circuit noted that a jury could reasonably conclude that Volvo was looking for reasons to discharge Arroyo based on absences from work due to her military service, reversed summary judgment and sent the case back to the district court for trial.

So what can be learned from this decision?  At least one thing is certain:  members of management should heed Lomasney’s advice and not trade emails criticizing employees’ rights pursuant to USERRA, ADA or any other statutory provision.  While Volvo might still succeed at trial – even the Court acknowledged that Volvo granted Arroyo a considerable amount of military leave and did not directly discipline her for those absences – those critical comments will still have an impact and potentially undermine Volvo’s arguments that Arroyo’s military service was not a motivating factor in her termination.