Category Archives: employers

Strike4Democracy’s National Day of Action and the Impact on the Workplace

Contributed by Jeffrey Risch, February 16, 2017

In a protest against President Trump’s immigration policies and plans, organizers around the country are coordinating a national protest day set for Friday, February 17th — encouraging workers to “walk out” or “don’t work” if they can. Some workplaces are already being impacted, and Friday could be chaotic.

11058927 - protesters crowd landscape background illustrationIn response to this activity, employers should keep in mind the following:

  1. Don’t overreact and cause more chaos (remain calm, stay cool);
  1. Turn to one’s regular attendance policies. For example, a single “no call, no show” in one instance results in what, under the standard attendance policies?  Some measure of discipline is generally appropriate / lawful under federal labor law (the National Labor Relations Act) when an employee “strikes” or “boycotts” or “walks off” for a cause that the employer has NO CONTROL over. So, obtain the reason or circumstance behind the absence — did the worker not call in at all, called in sick, or called‎ and said “I’m refusing to come in today”? Employers may treat the workers as they would on any other day of absence; and
  1. Be careful — the discipline communication should NOT reference the word “strike” or “boycott” (such language is not helpful, it is just not necessary and will escalate the problem most likely). Simply explain that the absence under the CBA, or policy, requires “X” discipline or “X” points under a points policy. ‎Speak with your trusted advisors to ensure the most appropriate decision is made. Remember, for every action there is a reaction.

Missouri Has Become the 28th Right-to-Work State

Contributed by Beverly Alfon, February 10, 2017

On February 6, 2017, the newly elected GOP Governor Eric Greitens, signed into law a right-to-work (RTW) bill that passed the state’s Republican-controlled state legislature.

Nuts and Bolts of the Missouri RTW law

  • Effective date:  August 28, 2017
  • Who it applies to:  Both private and public sector employers (except those in the airline and railroad industries, as well as certain federal employers).
  • What it prohibits:
    • No employee can be required to become or remain a union member as a condition of employment.
    • No employee can be required to pay dues, fees or assessments of any kind to a union (or any equivalent of a dues payment to any charitable organization).
  • Penalties for violations:  Criminal sanctions – a violation is a class C misdemeanor, punishable by a fine of $750 and up to 15 days in jail. Civil sanctions – private parties may obtain injunctive relief, damages and an award of attorneys’ fees.
  • Effect on collective bargaining agreements:  For collective bargaining agreements (CBA’s) entered into before August 28, 2017, the law has no effect. However, the law will apply to any CBA renewal, extension, amendment or modification after August 28, 2017. This will likely jolt Missouri unions to seek contract extensions of existing CBA’s in order to delay the impact of the law.

Unions Continue to Battle

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Flag of Missouri

The Missouri AFL-CIO has submitted different versions of a proposed initiative petition to the secretary of state’s office that is aimed at reversing the RTW law. Basically, with enough signatures, it would present the opportunity for Missouri voters to decide in 2018 whether to adopt a constitutional amendment that would protect contracts that require employees to pay union representation fees.

Perspective

Seven of eight states that surround Missouri have existing right-to-work laws, including Kentucky, which passed a right-to-work law last month. The current tally of RTW states includes: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina,  North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming. Just last week, the New Hampshire senate passed a RTW bill, which is awaiting passage by the state House.

On a federal level, two Republican Congressmen re-introduced the National Right to Work Act last week. The bill would amend the National Labor Relations Act and the Railway Labor Act to prohibit the use of union security clauses which require union membership and payment of dues and fees.

If there was any doubt, this flurry of activity confirms that the right-to-work movement is recharged.

Salary History — Time to Update Job Applications, Again

Contributed by Noah A. Frank, February 6, 2017

By now, employers should well know that they may not make unlawful inquiries of applicants based on protected classes (e.g., age, religion), as well as arrest history. In the past few years, we’ve seen an increase in legislation (and litigation) that impact employers’ ability to gather information and check an applicant or employees’ background, such as state and local “ban the box” laws, which generally prohibit employers from asking about criminal convictions until an applicant is made a conditional offer of employment. And, even when and where checking an applicant or employee’s background is permissible, employers are required to comply with the Federal Fair Credit Reporting Act and other applicable federal, state and local laws which limit and set strict requirements that must be complied with when doing background checks.

wageWhat’s New?

On January 23, 2017, Philadelphia’s newest restriction was signed into law, restricting an employer’s ability to ask applicants about their wage and salary history, effective May 23, 2017.  Philadelphia Bill No. 160840, amending Chapter 9-1100 of the Philadelphia Code. Except as specifically authorized by another law permitting disclosure or verification of wage history or “knowingly and willingly” disclosed by an applicant, this ordinance makes it unlawful for an employer to: inquire into or require disclosure of an applicant’s wage history, condition employment or an interview based on such disclosure, or even use information gained from the former employer at any stage of the employment process, including negotiating an employment agreement!!

This Is Significant!

First, Philadelphia has been on the forefront of employment regulations, and is often followed by other cities, so employers should be prepared for the possibility that their state, county, or city may adopt or implement similar rules.

Second, laws precluding inquiry into salary and wage history substantially inhibits salary negotiation, and may even encourage applicant dishonesty. An employer would be unable to verify an applicant or employee’s statement of their prior wages (for example, by reviewing a recent W2 or paystub from a prior employer) in reviewing and determining what salary or wage should be offered in order to meet-or-beat an applicant’s current compensation.

Third, as the ordinance makes it unlawful to “condition employment” on such wage history, the discovery of falsified information later on may not be a valid basis to protest unemployment or cut off damages in a civil matter – unlike in states where falsification of application and employment documents may be considered misconduct that could subject the employee to discipline up to and including termination (like Illinois).

What To Do About This

The new Philadelphia ordinance will require that Philadelphia employers make changes to their job applications and other onboarding materials and practices to limit inquiries into wage/salary history. Additionally, it serves as a reminder to all employers, no matter where they are located, of the importance in regularly reviewing their job applications and other onboarding materials and practices to ensure that they comply with the most current labor and employment laws on a federal, state, and local level, including but not limited to laws limiting employer inquiries into statuses protected by law such as wage/salary history, age, marital, housing status, military statuses, and credit/criminal conviction history. Competent employment counsel should be consulted for an audit of employment forms, policies and practices to ensure that the company is doing “it” right.

EEOC Quietly Updates Strategic Enforcement Plan for 2017-2021

Contributed by Noah A. Frank, January 3, 2017

The EEOC’s new Strategic Enforcement Plan (SEP) highlights its enforcement priorities and alerts employers to areas most likely to attract the EEOC’s investigative eye, including the types of charges the EEOC is most likely to litigate on a complainant’s behalf.

The EEOC recognizes that employment law is continuously developing and that related practices are continuously evolving.  As a result, this SEP is intended to reflect current issues. This new four year SEP (which remains in effect until superseded, modified or withdrawn by vote of a majority of members of the Commission) emphasizes:

  1. 41191023_sEliminating Barriers in Recruitment and Hiring.  As with the prior SEP, this priority includes exclusionary policies and practices such as “channeling or steering” persons into particular positions due to a protected trait, restrictive application processes, and screening tools for employment.
  1. Protecting Vulnerable Workers – Including Immigrant or Migrant Workers, and Underserved Communities from Discrimination. The focus is on discriminatory policies including job segregation, unequal pay, and harassment. The shift here is to underserved communities.
  1. Addressing Emerging and Developing Issues. Despite many courts’ attempts to rein in the EEOC, the agency recognizes the following developing issues worthy of particular scrutiny: age and religious discrimination; coverage of LGBT persons under Title VII; disability discrimination, including qualification standards, inflexible leave policies, and temporary workers; accommodating pregnancy-related limitations; issues related to workers engaged on-demand (gig economy), including through staffing agencies, and  independent contractor relationships; and “backlash discrimination” against Muslim/Sikh/Arab/Middle Eastern/South Asian communities.
  1. Enforcing Equal Pay Laws.  Previously focused on gender-based discrimination, the EEOC expanded this priority to all protected classes.  In light of this, employers may see claims of willful protected class discrimination added to wage and hour disputes.
  1. Preserving the Exercise of Rights under the Law. The EEOC is targeting policies and practices that discourage or prohibit individuals from exercising their rights or disrupt investigative or enforcement efforts. This includes vague and overbroad waivers and provisions in settlement agreements that prohibit filing EEOC charges or assisting in the investigation or prosecution of claims. Unlike the prior SEP, this SEP removes “retaliatory actions” due to the EEOC’s inconsistent application, shifting the focus to “Significant Retaliatory Practices” that effectively dissuade others from exercising rights (e.g., terminating the HR Manager for investigating a complaint to send a message to other employees to not complain in the first place).
  1. Preventing Systemic Harassment. The EEOC’s focus includes prevention programs (training and outreach) to deter future violations.

Starting 2017 on the Right Foot

Because state and local administrative agencies (e.g., city and county civil rights departments) often follow the EEOC’s lead, all employers, regardless of size, should take note of the EEOC’s stated priorities. An audit of human resources practices and policies should be part of your 2017 New Year’s (legal) resolutions.

Are Mandatory Arbitration Agreements Headed for the Supreme Court?

Contributed by Carlos Arévalo, October 25, 2016

This past June, our blog reported on the Seventh Circuit’s decision in Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), which found that the Federal Arbitration Act does not require enforcement of an arbitration agreement based on the employee’s right under the National Labor Relations Act (NLRA) to engage in protected concerted activity. Specifically, in Lewis the Seventh Circuit held that employment arbitration agreements that include class action waivers violate the NLRA and cannot be enforced. This was the first time that a circuit court had adopted the NLRB’s position in D.R. Horton, Inc., 357 NLRB 184 (January 3, 2012).

Gavel2A couple of months later, the Ninth Circuit, in Morris v. Ernst & Young, LLP, (9th Cir. (Cal.) August 22, 2016), followed suit and also found that an arbitration agreement that required employees to bring claims in “separate proceedings,” thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the NLRAJust like in Lewis, the employees in Morris had to sign arbitration agreements as a condition of employment. Stephen Morris subsequently filed a class and collective action against the company, alleging he and others had been misclassified as employees exempt from overtime under the Fair Labor Standards Act and California state law. In response, the employer filed a motion to compel arbitration pursuant to the agreements the employees had signed. The district court ordered individual arbitration for each and dismissed the complaint. The Ninth Circuit, however, reversed and held that such agreements interfere with the employees’ rights under Sections 7 and 8 of the NLRA regarding concerted activity.

Back in 2013, three circuit courts ruled that the NLRA does not prohibit class waivers. First, the Eighth Circuit ruled that class waivers were appropriate in Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). The Second Circuit did likewise in Sutherland v. Ernst & Young, 726 F.3d 290 (2nd Cir. 2013).  Finally, the Fifth Circuit reversed the NLRB’s decision that such agreements were unenforceable in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Then, in 2014 the Eleventh Circuit arrived at the same conclusion and upheld class waivers in Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014).

Certainly, this split among circuits makes it more likely that the Supreme Court will soon address whether employees will be able to waive their right to participate in collective actions if they choose to sign arbitration agreements. Indeed, petitions for writs of certiorari seeking review by the Supreme Court were filed in Lewis on September 2nd and in Morris on September 8th. How this issue is ultimately resolved, of course, depends largely on the outcome of the 2016 election.

Irrespective of who fills the vacancy left as a result of Justice Scalia’s passing, employers should still seek labor and employment counsel’s guidance with respect to arbitration agreements to determine if they are enforceable and/or if necessary revisions and amendments are required. Similarly, employers, with counsel’s assistance, should develop new strategies in light of potential changes that may be in the offing.

Officials Not Entitled to Qualified Immunity in First Amendment Retaliation Claim

Contributed by Carlos Arévalo, September 9, 2016

Recently, the United States Court of Appeals for the Second Circuit ruled that police officials in Madison, Connecticut are not immune from liability for a fired police officer’s claim that she was retaliated against for her First Amendment speech. The case of Ricciuti v. Gyzenis, No. 12-432 (2nd Cir. August 24, 2016) involves a police officer who shortly after being hired inquired about the poor condition of police vehicles and was told that the department needed funds to cover overtime. On her own initiative, Rebecca Ricciuti prepared a work schedule that would have reduced the amount of overtime and presented it to a supervisor. In response, Ricciuti was told by the supervisor that “scheduling was none of her business” and that he needed the overtime to “pad [his] pension.”

pay-overtimeRicciuti later raised her concerns with the Chief of Police, Robert Nolan, who asked her to provide her suggestions. Ricciuti, working with Officer Scott Pardales, prepared a proposal that identified the scheduling problems and contained proposed reforms. The proposal generally addressed scheduling, but did not specifically make reference to the supervisors assigning themselves unnecessary overtime. Separately, however, Ricciuti prepared a second document – an overtime matrix – which directly addressed what Ricciuti deemed questionable overtime practices. In the matrix, Ricciuti characterized the department’s overtime practices as “mismanagement.”  In addition, Ricciuti identified unnecessary overtime costs of approximately $100,000.  Ricciuti claimed that she prepared the matrix on her own after researching publicly available documents. Officer Pardales shared the matrix with an elected official. Meanwhile, Ricciuti shared the matrix with a local critic, who had also been researching the overtime issue.

After negative public reaction to the matrix findings, Chief Nolan had a lieutenant conduct an internal investigation of Ricciuti.  Ricciuti was subsequently fired for “insubordination” during the investigation. Ricciuti sued police officials claiming that she was terminated in retaliation for speaking out about the department’s overtime practices. Defendants filed a motion for summary judgment arguing that under the Supreme Court’s 2006 decision in Garcetti v. Ceballos, Ricciuti’s speech “was not protected because she had spoken as an employee addressing private workplace grievances.” In Garcetti, the Supreme Court held that speech was not protected if it was made pursuant to the employee’s official job duties. The court denied the motion and concluded that officials were not entitled to qualified immunity because they should have known that they could not fire an employee for speaking out “as a citizen about a matter of public concern.”

On appeal, the Second District agreed with Ricciuti and rejected defendants’ qualified immunity argument noting that a public employee’s speech as a citizen on a matter of public concern has First Amendment protection.

While overtime practices in the Madison Police Department may be an exception to the rule, it is a certainty that employees will periodically voice concerns about management officials’ direction, policies and decisions. Such concerns may or may not be legitimate. The valuable lesson to be learned from Ricciuti and Garcetti is that public employers have to carefully consider employee speech and avoid a reactionary response to any employee condemnation or criticism of workplace practices and instead focus on whether such speech is the result of the employee’s duties evaluating internal matters or the employee simply voicing concerns as a member of the public.

Have You Checked Your State and Federal Law Posters Lately? If Not, You Should!

Contributed by Mike Wong, June 8, 2016

Under Federal, State and local laws, employers are required to post information regarding laws that protect workers in the workplace, including but not limited to wage laws, discrimination laws, workers’ compensation laws, unemployment law, protected leave laws and safety issues.  In Illinois these include the following:

  • IL Dept. of Labor State of Illinois Your rights Under Illinois Employment Laws
  • IL Workers’ Compensation Notice
  • IL Unemployment Insurance Benefits Notice
  • IL Emergency Care for Choking
  • IL Smoke Free Illinois Act
  • FLSA / Minimum Wage compliance poster
  • Equal Employment Opportunity (EEO) poster and Supplement for Pay Transparency Non-Discrimination Provision poster (for federal contractors)
  • Occupational Safety and Health Act (OSHA) poster
  • Family Medical Leave Act (FMLA) poster
  • Employee Polygraph Protection Act (EPPA) notice
  • Uniformed Services Employment and Reemployment Rights Act (USERRA) poster

An example of a local law poster, would be the poster required for the Chicago Minimum Wage.

Know the RulesWhile it is easy to post these and forget about them, it is important to review the posters as they are updated periodically. This means that you must regularly (or at least annually) check the posters to make sure that they are up to date and that all of the required posters are posted. For example, any poster addressing wages (including the state, federal and local minimum wages) should be updated any time the minimum wage is increased or changed.

This is especially important as employers can be fined for not having the correct posters up.  Indeed, the EEOC has recently again increased the fine for failing to post its posters.  Initially the fine was $100 per violation, which was increased to $110 in 1997 and then $210 in 2014.

On May 25, 2016, the EEOC announced that effective June 2, 2016, the fine for failing to have the required posters will increase from $210 to $525 for each separate offense.  This means that you could be fined up to $525 for each instance or location that you do not have the correct poster up.

Fines for failing to post the proper posters can come from investigations of charges of discrimination. However, that is not the only way that these types of violations are brought to the attention of the EEOC. In fact, the EEOC has reported that usually employers are fined after a worker reports or brings the violation to the EEOC’s attention.

Information and copies of the required posters can often be found on the state and federal administrative agency websites. Additionally, there are many vendors that offer comprehensive posters. However, if you go with a vendor’s poster, it is always important to double check the information on the poster to ensure that it covers all applicable state and federal laws, as you are the one who will be held responsible if it does not.

If you have questions, experienced labor and employment counsel can always help confirm that you have all of the required and current posters that you need to post.