07/06/2015

June 2015 General Counsel’s Report

June 2015 General Counsel’s Report

Tilley v. Kalamazoo County Road Commission, No. 14-1679 (6^th Cir., Jan.. 26, 2015) – Counsel reported that the 6^th Circuit Court of Appeals addressed an FMLA jurisdictional issue in this decision. The case arose when an employee failed to make a report deadline because he went to the hospital believing he was having a heart attack. His wife reported his illness to the employer. An “employee representative” of the employer sent FMLA paperwork to the employee, including a statement of rights and responsibilities. The employer’s employment manual contained an unqualified statement that employees “are covered under FMLA if they are fulltime employees who have accumulated 1,250 work hours.” Three days after this mailing the employee was terminated for failing to timely complete his assignment. The employee filed suit and the employer filed a Motion for Summary Judgment on the grounds that the employee was not eligible for MFMLA leave as the employer did not employ 50 or more employees within a 75 mile radius.      

The Court of Appeals overturned the summary judgment and held that there was a genuine issue of material fact as to whether the employer was equitably estopped from denying eligibility in light of its communications. It held that to maintain this argument the employee must prove a definite misrepresentation to a material fact; a reasonable reliance on the misrepresentation; and a resulting detriment to the party making the reliance. The court held that the employee had presented sufficient evidence to meet this test and to get the matter before a jury.

Definition of “spouse” under the FMLA – Counsel reported that on February 25, 2015 the Department of Labor issued a final rule revising the regulatory language and extending FMLA coverage to workers in legal same-sex marriages. Previously the definition did not include same-sex spouses if the employee resided in a state that did not recognize same sex marriages. Now the definition includes marriages that are lawful in the state in which they were performed.

Alternative Energy Applications, Inc., 61 N.L.R.B. Slip Op. 139 (DEC. 16, 2014) – Counsel reported on a case involving an employee who was given a $1.00 an hour raise by the employer just two weeks after the hire date. The employee was told that he was prohibited from discussing his raise with anyone else. He was also told that the employer had terminated employees in the past for violating this rule. He violated this rule. Later in the month he violated a work rule and caused damage to a customer’s home; he then called OSHA and mad a safety complaint. Before he could be terminated he damaged another customer’s home. After his termination he filed an 11(c) discrimination complaint under the OSH Act. The employer’s attorney sent a letter to OSHA denying that he was terminated for foiling a safety complaint and pointing out that the terminated, in part, for disclosing his pay rate to other employees. The NLRB relied heavily on this admission against interest his is NLRA claim. The NLRB held that the employer had violated 8(a)(1) of the NLRA by instructing employees not to discuss wages and threatening discharge for violating this rule. Comments about pay are ”inherently concerted” activity and thus protected.

OSHA-New Injury Reporting Requirements and Interim Enforcement Procedures – Counsel reported on the new procedures recently implemented by OSHA to handle the significant increase in catastrophic injury reports since the rule change on January 1, 2015. To sort through the increased number of injury reports OSHA has established three categories of reports for follow up action.

Category 1 reports are those involving a fatality; the inpatient hospitalization of two or more employees; any injury involving a worker under age 18; an employer with a history of the same or similar events in the previous 12 months; repeat offenders (those prior willful, failure to abate or repeat violations); and reports of imminent danger. These will result in an immediate inspection. The remaining reports will fall in either Category 2 or 3.

To determine into which other category an event falls the Area Director will consider several matters. These include:

(1)  Are employees still being exposed to the hazards that caused the injury or illness?

(2)  Was the employee exposed to a serious hazard?

(3)  Were temporary workers or other vulnerable populations injured or made ill?

(4)  Does the employer have a prior OSHA inspection history?

(5)  Is there a whistleblower inspection pending?

(6)  Is the employer a Cooperative Program Participant (VPP, etc.)?

(7)  Did the incident involve health issues such as a chemical exposure or heat stress?

If answers to these questions indicate that an inspection is warranted one will be initiated as soon as resources permit, but usually within five days.

If no inspection is deemed necessary a Rapid Response Investigation (RRI) will be opened. An RRI will result in a letter being sent to the employer requesting information regarding the incident which resulted in the report. The information requested will include:

1. A confirmation that any hazard has been abated and what abatement steps were taken.
2. Results of the employer’s accident investigation.
3. Confirmation that a copy of RRI letter was posted.

This information will have to be provided to OSHA within five (5) days of the receipt of the RRI letter.

Ruffin v. MotorCity Casino, No. 14-1444 (6^th Cir., January 7, 2015) – Counsel reported that this matter addressed a question of overtime for casino security guards who worked an eight-hour shift with on paid 30-minute lunch break. During their meal period they were free to eat, drink, socialize, use the internet, watch TV, play cards, but they were required to remain on casino property and monitor their radios. If their meal period was interrupted they were permitted to make up the lost break time. They were also required to attend a 15-minute unpaid roll call meeting prior to each shift. The guards argued that their lunch periods should be counted as work time for FLSA overtime provisions. If this were the case they would actually have worked 41.25hours a week with the 15-minute roll call meetings included. The 6^th Circuit disagreed with them. The court did not agree that the requirement that the guards monitored their radios was a substantial duty to transform their paid non-working meal break into work time. The meal periods were not spent primarily for the employer’s benefit.

Update on NLRB Quickie Election Rules – Counsel provided information that the NLRB Quickie Election Rules became effective on April 14^th 2015. President Obama vetoed a Congressional Resolution (S.J. Res. 8) which would have blocked implementation of the rule. Several lawsuits have been filed challenging the rules, they are currently effective unless and until they are enjoined by the courts. These rules effectively cut in half the period of time from the filing of a petition for an election until a vote. The current process takes 42 days while the new rules shorten the period to 21 – 22 days. This will greatly hamper the ability of employers to effectively oppose the union.

Report of General Counsel Concerning Employer Rules, March 18, 2015 – Counsel reported on a new report by the general counsel to the NLRB. In this thirty page memorandum the general counsel raises concerns that some “work rules” used by employers have a “chilling effect” on Section 7 rights under the NLRA. The memorandum further states that the mere maintenance (or existence) of these rules could lead to employees construing them as prohibiting them from exercising their Section 7 activities. The memorandum raises concerns about a broad list of rules, such as rules concerning:

-        Confidentiality

-        Employee conduct toward the company and supervisors

-        Employee conduct towards fellow employees

-        Employee interaction with third parties, such as the media and government agencies

-        The use of company logos, copyrights and trademarks

-        Unauthorized departures from work

The memo draws a fine and confusing line between what is considered to be an “illegal” rule vs. a “legal” rule. For example, the memorandum advises that the following rule. Prohibiting “Disrespectful conduct or insubordination, including but not limited to, refusing to follow orders from a supervisor or a designated representative” is illegal because an employee could reasonably understand the rule to preclude protected, concerted activity. But, in spite of the preceding the memorandum indicates that this rule would be legal – “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.” Another example – it is illegal to prohibit employees from “walking off the job”, but it is legal to prohibit employees from “leaving company property without permission.” The former, according to the general counsel of the NLRB, can reasonably be interpreted to prohibit strikes and walkouts – a violation of Section 8(a) of the Act. Obviously common sense does not play any role in determining whether a rule should or should not be included in an employee handbook. So, even if you have had your employee policy manual reviewed as recently as 12/31/14, you may wish to invest some additional money to have your labor counsel take another look at it in light of this recent memorandum.

OSHA Confined Space in Construction – Counsel reported that the new construction industry confined space standard was published on May 4, 2915. It will become effective on August 3, 2015. The new rule will be codified in 29 CFR Section 1926.01 – 1926.1213. It will address general requirements; permit required confined spaces; the permitting process; entry permits; training; duties of authorized entrants; duties of attendants; duties of entry supervisors; rescue; employee participation; and the providing of records to the Secretary of Labor.

Jacobs v. N.C. Administrative Office of Courts, No. 13-2212 (4^th Cir. March 12, 2015) – Within a month of being hired the plaintiff was promoted to a position that required her to work at the front counter. She had suffered from psychological problems as a child, including situational performance anxiety, a mood disorder and selective mutism. She was not under the care of a doctor. She reported this problem and her supervisor encouraged her to see a doctor. She continued to work and demonstrated performance issues, including sleeping on the job. These were never documented by the employer. Then she sent an email to her supervisors and disclosed her anxiety disorder and requested an accommodation. Her supervisors met with her and she secretly recorded the meeting. At that time they advised her that she was being terminated because of her performance issues. She filed suit under the ADA. The 4^th Circuit denied the employer’s motion for a summary judgment. The Court concluded that her social anxiety disorder constituted as a disability under the ADA. The Court concluded that her allegation that working at the front counter caused her extreme stress and panic attacks which was sufficient to create a disputed issue of the fact, sufficient to survive summary judgment.

EEOC v. Ford Motor Company, No. 12-2484 (6^th Circuit, April 10, 2015) – in this matter the employee suffered from irritable bowel syndrome and asked to work from home on an as-needed basis up to four days a week. Ford initially tried to accommodate this schedule permitting work from home four 10-hour days from home on a two month trial basis. This did not work. They then provided the employee two other opportunities to work from home on an alternative schedule, but these failed also. The employee then made the initial request a second time. Ford permitted some of its strongest employees to telecommute on a predictable schedule with the agreement that they would come into work as needed even on days on which they scheduled to telecommute. They made other offers of accommodation to the employee, all of which were rejected. Finally the employee was terminated based on continued poor performance. They even offered to try to find her a different position that was more suited to telecommuting. She refused and filed an EEOC lawsuit. The district court granted summary judgment to Ford, but the 6^th Circuit reversed. The court than granted en banc review and reversed the panel and granted summary judgment for Ford. The employee had an interactive job and no evidence in the record demonstrated that technology allowed her to perform her highly interactive job from home.

Mach Mining LLC v. EEOC, No. 13-1019 (U.S. Supreme Court, April 29, 2015) – The EEOC brought a sex discrimination charge against the employer. The EEOC first sent a letter to the employer and the complainant advising them that a representative of the EEOC would contact them to begin conciliation efforts. A year later the EEOC sent a letter to the employer stating that conciliation efforts had failed. The employer answered the EEOC complaint stating that the EEOC had failed to satisfy its obligation to conciliate in good faith. Under Title VII a lawsuit cannot be filed unless the EEOC is unable to obtain a conciliation agreement. The EEOC must identify the employee claiming discrimination. Then the EEOC must attempt to engage in discussion with the employer regarding the same. The EEOC has “expansive discretion” to decide how to conduct and when to end conciliation efforts. A sworn affidavit from the EEOC will suffice to show that it has met the conciliation requirement. On top of this if a court finds that the EEOC failed to conciliate, the employer’s remedy is inconsequential. The court will merely order the EEOC to conciliate and will stay the proceedings until this has occurred. The EEOC’s failure to conciliate will not result in dismissal of the case.