Showing 89 posts from 2011.

NLRB Cannot Award Back Pay to Undocumented Workers Even When Employer Knew of Worker’s Illegal Status

September 1, 2011 by Hinshaw & Culbertson LLP

Seven undocumented workers filed unfair labor practice charges against their employer, asserting that their rights under Section 7 of the National Labor Relations Act to be free to bargain collectively regarding working conditions were violated when they were fired after complaining as a group about how a supervisor treated them. The workers settled with the employer. Pursuant to the formal settlement agreement the National Labor Relations Board (NLRB) ordered the employer to reinstate the workers and pay them lost wages. The employer argued that the workers could not be bound by the agreement based on the U.S. Supreme Court’s prohibition on awarding back pay to undocumented workers who violate the Immigration Reform and Control Act (IRCA). An administrative law judge ruled against the employer on the grounds that the employer had violated the IRCA by failing to verify the workers’ work authorization status. On appeal, an NLRB three-member panel unanimously found that because the Supreme Court decision used IRCA-violator-neutral language in its decision, the NLRB had no remedial authority to enforce a back pay award to undocumented workers. However, two NLRB members issued a concurring opinion warning employers that the decision should not be construed as closing the door on other possible monetary remedies for undocumented workers. In light of the concurring opinion, employers should be mindful that, going forward, the NRLB will consider any remedy within the board’s statutory powers to prevent an employer from being unjustly enriched by its unlawful conduct when the employer discriminates against undocumented workers.

EPPA Permits Employer to Request Polygraph Test After Receiving Credible Evidence that Employee Stole from Employer

September 1, 2011 by Hinshaw & Culbertson LLP

A bank discovered that $58,000 was missing from one of its locations. Surveillance videos showed that the manager at the location had instructed his employees to ignore certain anti-theft policies, and employees confirmed that the manager had repeatedly violated the policies. The employer fired the manager for violating the policies. Before informing the manager of his termination, however, the employer requested that the manager submit to a polygraph test regarding the missing money. The manager refused and, after being fired, sued the employer for violating the Employee Polygraph Protection Act (EPPA). The EPPA prohibits employers from requesting that an employee take a polygraph test, except where the request is made as part of “an ongoing investigation” into a “specific incident of economic loss” and based upon a “reasonable suspicion” that the employee was involved. The U.S. Court of Appeals for the Fifth Circuit found that the employer’s request was made as part of an investigation into a “specific incident of economic loss” because while the EPPA does not allow employers to use polygraph tests as “fishing expeditions” whenever money is lost, the employer here requested the test only after receiving other evidence suggesting that the manager had taken the money. The court also found that the employer’s suspicion of the manager was reasonable because the “totality of the circumstances” established not only that the manager had the opportunity to take the money, but also gave “reason to believe that [he] was actually capitalizing on that opportunity.” Employers should be aware that requesting or even suggesting that an employee take a polygraph test violates the EPPA, unless the employer has evidence prior to making the request that credibly suggests that the employee stole the employer’s money or property.

NLRB Clarifies Double Eagle Rule

September 1, 2011 by Hinshaw & Culbertson LLP

Employees of a condominium complex were governed by an employee manual that included a rule prohibiting employees from being on the property unless working or picking up a paycheck. A maintenance employee took a personal leave to deal with a legal claim that had been raised against him. While on leave, the employer was informed that the employee had been seen loitering on the premises and discussing his legal issues with residents. The employee was warned about this conduct, but was subsequently found engaging in the same conduct. As a result, the employee was reassigned to a less desirable position. The employee later resigned. An unfair labor practice charge was filed against the employer based on the argument that the rule under which the employee was punished was overly broad. The administrative law judge hearing the matter ruled that the rule was overbroad and that discipline imposed pursuant to an unlawfully overbroad rule is itself unlawful. This premise is commonly referred to as the “Double Eagle rule.” The National Labor Relations Board (NLRB) reversed, and in doing so provided some clarification regarding the proper application of the Double Eagle rule. Specifically, the NLRB ruled that the rule does not apply where the conduct for which discipline was imposed is “not similar” to conduct protected by Section 7 of the National Labor Relations Act. Additionally, an employer may raise an affirmative defense by establishing that the employee’s conduct actually interfered with his or her own work, or that of others, and that such interference, rather than the violation of the rule, was the true reason for the discipline. Employers should strive to have narrowly tailored workplace rules that specifically fit their workplaces, and to ensure that the basis for any termination based on misconduct is well-documented, including the effects of that misconduct on the business.

Worker Denied Ability to Maintain Discrimination Claim Based on Sexual Orientation

September 1, 2011 by Hinshaw & Culbertson LLP

After working on the 2007 Country Music Awards production, a theater producer complained to his union that one of his co-workers harassed him based upon his homosexual orientation. Shortly thereafter, according to the employee, the union local stopped referring him for jobs. The employee sued, alleging violations of the Tennessee Human Rights Act and Title VII of the Civil Rights Act of 1964, as amended, for gender discrimination and retaliation, and also alleged violation of the union’s duty of fair representation. The U.S. Court of Appeals for the Sixth Circuit dismissed the employee’s claims because neither federal nor the applicable state law prohibit discrimination based upon sexual orientation. Courts have uniformly held that the reference to “sex” in Title VII does not refer to sexual orientation. The employee had attempted to circumvent those decisions by arguing that he was discriminated against for failing to conform to sexual stereotypes, a claim which has been found to be viable under Title VII. The court rejected this argument, finding that the employee’s claim was simply one for discrimination based on sexual orientation, which is not prohibited under Tennessee or federal law. Employers—especially those that conduct business in numerous states—must be mindful of both state and federal anti-discrimination laws, which are often different in terms of what constitutes a protected characteristic. More than 20 states prohibit discrimination based upon sexual orientation. Read more about this case here.

NLRB Releases Report on Social Media Cases

September 1, 2011 by Hinshaw & Culbertson LLP

On August 18, 2011, the National Labor Relations Board’s (NLRB) Acting General Counsel issued a report that highlights numerous cases involving the use of social media by both employees and employers and the effect of such use on the workplace. More ›

Hostile and Boorish Bullying Does Not Support Race-Based Hostile Work Environment Claim

September 1, 2011 by Hinshaw & Culbertson LLP

A Caucasian employee severely injured when an African-American co-worker dropped a 940-pound steel coil on him sued his employer, arguing that his co-worker’s bullying behavior created a race-based hostile work environment under the Civil Rights Act of 1866 (42 U.S.C. § 1981). The U.S. Court of Appeals for the Seventh Circuit held that although the co-worker’s conduct was hostile and boorish, because the employee was not the target of racial slurs, epithets or overtly race-related behavior, the conduct was insufficient to create an abusive working environment. Furthermore, the court found it significant that the employee did not report his concerns to the proper official as required under the employer’s harassment policy. While the employer in this case escaped liability, employers should, in order to avoid lawsuits, be proactive and create positive work environments where employees are not subjected to abuse for any reason.

Employee Statement Advising Supervisor to Bring Boxing Gloves is Metaphoric

September 1, 2011 by Hinshaw & Culbertson LLP

A construction company issued warnings to its electricians for taking breaks that exceeded a 15-minute limit and told them that future infractions would lead to progressive discipline. One electrician responded that if he was laid off for such an infraction “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves.” A second electrician echoed the statement that “it’s going to get ugly.” Both electricians were fired for making statements that managers interpreted as physical threats in violation of the company’s zero-tolerance policy for workplace violence. The electricians successfully challenged their terminations as violations of Section 7 of the National Labor Relations Act (NLRA), which protects concerted activity. The U.S. Court of Appeals for the D.C. Circuit upheld the National Labor Relations Board’s decision reinstating the employees. The court held that when viewed objectively, the statements were metaphoric figures of speech that expressed the electrician’s willingness to “fight” for better work conditions. The statements were “single, brief, and spontaneous reactions” of resistance that were not so egregious as to remove them from the NLRA’s protections. Employers encountering similar employee statements are advised to object to them as acts of insubordination, as well as threats of physical violence. Although the court stated that the electricians’ statements were not obscene, it recognized that the NLRA does not tolerate “obscene insubordination” simply because it is not accompanied by physical threats.

National Labor Relations Board Identifies new test for Assessing Bargaining Units in Non-Acute Care Facilities

August 31, 2011 by Hinshaw & Culbertson LLP

In a decision made public on August 30, 2011, the National Labor Relations Board has stated that it will no longer apply a special standard when determining whether bargaining units in non-acute health care facilities are appropriate under the National Labor Relations Act. Instead, employees in health care facilities other than hospitals will be subject to the same “community-of-interest” standard that the Board utilizes in other workplaces. More ›

EEOC Warns Against Keeping Personal and Occupational Health Information in Single Electronic File

August 1, 2011 by Hinshaw & Culbertson LLP

Maintaining an employee’s personal health information and occupational health information in a single electronic medical record could violate the requirements of Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA), according to an informal discussion letter recently released by the Equal Employment Opportunity Commission (EEOC). An employer’s right to access occupational health information from individuals providing health services unrelated to employment is strictly limited under both the ADA and GINA. Although neither the ADA nor GINA specifically addresses whether encryption, password authentication, or other security safeguards are necessary for electronic records maintained by employers, the EEOC stated that it does not interpret either statute’s confidentiality provisions to apply only to paper records. Therefore, maintaining personal health information and occupational health information in a single electronic medical record, particularly one that allows someone with access to the electronic medical record, presents a real possibility that the ADA and GINA, or both, will be violated.

Title VII Caps Damage Awards per Plaintiff, not per Claim

August 1, 2011 by Hinshaw & Culbertson LLP

A female employee sued her employer under Title VII of the 1964 Civil Rights Act (Title VII) after being fired, asserting three separate claims: (1) sex discrimination in setting of sales quotas, (2) retaliation for making complaints about discriminatory treatment on the basis of her sex, and (3) discriminatory termination. The jury found in favor of the employee on all three claims and awarded $200,000 in compensatory damages on each claim, $150,000 in back pay for both her retaliation and termination claims, and $2.4 million in punitive damages, for a total of $3.45 million in damages. The district court applied the U.S. Supreme Court’s prohibition on double recovery in back pay to her termination and retaliation claims and reduced the back pay award from $600,000 to $150,000. The district court then applied Title VII’s damages cap, which limited the amount for compensatory and punitive damages and reduced the employee’s award from $2.4 million to $200,000. On appeal the employee sought $200,000 in damages on each of her successful Title VII claims because they were “separate, distinct, and independent causes of action,” which could have been filed separately. The U.S. Court of Appeals for the Fifth Circuit upheld the trial court’s reduction of the damages award based on the Civil Rights Act of 1991, which amended Title VII to allow jury trials and compensatory and punitive damages. The statutory language provides that a “complaining party” may recover compensatory and punitive damages under Title VII, and the amount awarded “shall not exceed, for each complaining party” a designated amount based upon the size of the employer. The compensatory and punitive damages cap on the employer here was $200,000. In light of this case, when assessing whether to settle or litigate discrimination complaints, employers need to be mindful that Title VII caps damages per plaintiff, not per claim. Additionally, employers need to be cognizant of the fact that its number of employees determines the amount of the Title VII damages cap.

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