Legal Blog

Labor & Employment Telebrief 1.08.14

To listen to the Telebrief click on play arrow. Labor and Employment Attorney Howard K. Kurman By Howard K. Kurman, Esquire An Edited Transcript.  

Issues Discussed:

  1. NLRB Press Release- Jan. 6, 2014 – Re: Decision NOT to appeal decision invalidating their NLRB notice posting rule.
  1. “Laurus Technical Institute”      case- violation of LNRA by terminating an employee for violating      employer’s NO Gossip policy
  2.  EEOC activity in 2013 – Spike in cases      under the ADA (reasonable accommodation leave request for non-traditional      disabilities.
  3. Wage & Hour Issue –      Distinction between exempt and non-exempt in cases of closing of company      due to inclement weather
  4.  Social Media  – Case Dec. 27, 2014 – Terminating of      Coach of Pocatello High School (Idaho) girls basketball coach due to face      book posting
  5.  US District Court for District of Oregon      – discharge after an injury (Was this an essential function of the job?)

  Introductory Remarks:  Welcome to the first telebrief of 2014. We do these on the 2nd and 4th Wednesday of the month.  We will also be sending out some information shortly about the executive breakfast sessions that we will do in April and May of this year and if anybody has any hot suggestions of what they would like to see, send them in to Jeannie and we will consider adding that to the materials that we are planning on sending. As always, plenty to talk about from the standpoint of labor and employment   I. NLRB Press Release- Jan. 6, 2014 – Re: Decision NOT  to appeal two Federal Courts of Appeals decisions invalidating their NLRB notice posting rule.   On Monday, January 6th the NLRB put out a press release which I found to be interesting and somewhat comical as wellThey have decided NOT to appeal two Federal Courts of Appeals decisions invalidating their NLRB notice posting rule.    Background   In 2013, the NLRB was pushing a posting requirement for all employers which would have mandated that all employers post a notice informing employees not only rights under the National Labor Relations Act from a route of measure standpoint but a very detailed roadmap in an attempt I think to help employees organize into labor unions.  Keeping in mind that the percentage of the unionized work force is at low ebb and has been for awhile, I believe that it was the NLRB’s intention in passing this posting rule to make it much easier for employees to organize by having employers post these notices.   These cases or these rules were challenged by employer groups (the Chamber of Commerce, National Manufacturers Association) and two of those cases went to Federal Courts of Appeals, one to the fourth circuit, one to the sixth circuit, both of which courts invalidated the board rule and stated that the board overstepped its bounds in mandating or requiring employers to post these particular posters. The NLRB made sounds about appealing this case to the Supreme Court.   Jan. 6 – NLRB posts on website that it will NOT week Supreme Court review of appeals courts’ decisions re: posting rule   And, in what I think is a little strange…. NLRB posted on its website on January 6 that it has decided NOT to seek Supreme Court review of two U.S. Courts of appeals decisions invalidating the NLRB’s notice posting rule which would have required most private sector employers to post a notice of employee rights in the workplace.  They went on to say that the NLRB remains committed to ensuring that workers’ businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act.  Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.  They go onto say that they will continue to post this on their website (i.e. the substance of the poster) and they say it may be viewed, displayed and disseminated voluntarily –    Commentary  “ which I say that I am sure there will be many, many employers who are just shopping it a bit waiting to download that poster from the NLRB’s website to post it some place in their facilities.” “Just a ridiculous statement by the NLRB and I think that essentially what they perceived was that they were not going to win at the Supreme Court, at least not with the present constituency of Republicans on the board and that, therefore, from a saving face standpoint, it would be better for them not to appeal it than to appeal it and lose. So that just happened two days ago.  Again TAKE AWAY / ACTION ITEM Nobody is under an obligation to post anything having to do with rights under the National Labor Relations Act so if someone tries to tell you that you are under that obligation, you are not and you are not obligated to download anything from the NLRB’s website on that.    II. “Laurus Technical Institute” case- violation of LNRA by terminating an employee for violating employer’s NO Gossip policy                                                   Speaking about the NLRB, there was an interesting case decided by a National Labor Relations Board administrative law judge on December 11. The case was called “Laurus Technical Institute” and in this case the administrative law judge, Donna Dawson, found that the employer had violated the NLRA by terminating an employee for violating the employer’s unlawful rule about speaking to co-workers and managers not in her chain of command about terms and conditions of employment which were encompassed within the employer’s “no gossip” policy.   The employer’s No Gossip policy reads as follows: (This is right from the decision)   “…gossip is not tolerated at Laurus Technical Institute.  Employees that participate in or instigate gossip about the company, an employee or customer will receive disciplinary action.  Gossip is an activity that can drain, corrupt, distract and downshift the company’s productivity, morale and overall satisfaction.  It has the potential to destroy an individual and is counter protective to an organization.  Most people involved in gossip may not intend to do harm but gossip can have a negative impact as it has the potential to destroy a person’s or organization’s reputation and credibility.”     So this policy, which was contained in the employer’s handbook, defined gossip as talking about a person’s personal life when he/she is not present, talking about a person’s professional life without a supervisor present, making negative or untrue or disparaging comments or criticism of another person and creating, sharing or repeating information that can injure a person’s reputation, a rumor about another person or a rumor that is overhead or hearsay.   Essentially this woman was terminated by the employer for having engaged or violated this No Gossip policy and took the case to the NLRB and the Administrative Law Judge wound up saying that because this was an overly broad policy, it violated the Section 7 rights of the employees rights about talking, potentially talking, about terms and conditions of employment that she would be reinstated with full back pay to her prior position.    Significance   The reason I bring this up is that it is a continuation of many of the cases and many of the Circumstances that we talked about in 2013 having to do with the board’s paying attention to policies and procedures that were contained in non-union employer handbooks.   TAKE AWAY/ ACTION ITEM  

  • If anyone out there have “no gossip” rules or broad “no communication” rules or “no

discussion “rules that would involve your employees even if they are non-union employees, go back and look at them. If you need some assistance on whether or not they would pass muster under the National Labor Relations Act, then certainly feel free to give me a call or send me an email.

  • This is just another indication that this entire issue is front and center on the board’s

Radar screen and will continue to be so in 2014.   III.   EEOC activity in 2013 – Spike in cases under the ADA (reasonable accommodation and leave request for non-traditional disabilities.      I wanted to talk about the report by a law firm out in Chicago having to do with EEOC activity in 2013.  I think that it is interesting in a couple of respects.   The report indicated that there had been a spike in cases on the EEOC’s docket under the ADA and that many of these cases had to do with the issue of reasonable accommodation and leave request for non-traditional disabilities including mental impairments cancer and HIV.    Remember that not only does an employer have an obligation to recognize disabilities, which are very broadly defined under the Americans with Disabilities Act and the amendments thereto, but it also has an obligation, a statutory obligation to engage in what is called an interactive process in discussing potential accommodations that somebody with a disability may need.   What we find increasingly at least on the management side is that many, many cases now are being filed under the ADA with regard to not only the underlying disability but the alleged failure of the employer to engage in interactive discussions with the employee about what can be done to accommodate a particular disability.   TAKE AWAY/ ACTION ITEM:   When you (the employer) are faced with someone who may be extending his or her FMLA absence or leave, you need to take the next step further which is to say the extension of a leave may indeed be viewed as a reasonable accommodation to that particular employee’s disability even if that person may not have any existing FMLA leave left.   One of the things that the EEOC is paying increasing attention to is where you have employees who may need let’s say another two or three weeks added onto his or her FMLA leave and where the employer cannot demonstrate an undue burden as a result of providing that leave, that may be unreasonable on the part of the employer to deny that leave.  These cases are coming increasingly to the forefront of the EEOC.   IV.  Wage & Hour Issue – Distinction between exempt and non-exempt in cases of closing of company due to inclement weather and similar situation that require changes in opening/closing hours of operation   Let me turn to a wage and hour issue.  It is topical with the weather that we have been experiencing and may experience further on in the winter and that is the issue of closings on the part of a company because of inclement weather, snow, and sleet whatever.    I wanted to remind you of the distinction between those employees who are exempt and those employees who are non-exempt.     If your company closes as a result of the weather, you are not obligated as an employer to pay a non-exempt employee for hours that are missed and many times of course you could say that they could use whatever leave time that they have in order to be paid for that day.    However with exempt employees, it is different. If you close your entire operation as a result of weather so that you decide that because the weather has created such hazardous conditions that you simply cannot open your facility, obviously you do not have to pay non-exempt people because they are hourly and they have not worked.  On the other hand, if an exempt employee would have been ready and willing to come to work but cannot come into work because you have closed the facility, you are obligated to pay that exempt employee.   Different scenario – when a company stays open in inclement weather or opens late/closes early   If you have a situation where you may open two hours late or you have a statement that says employees can use their leave but the company will be open, you certainly can dock an exempt employee if that exempt employee choses to take a personal day off.  The difference is  between the company that totally closes in which case it is obligated to pay an exempt employee and the company that says it is open or is opening two hours late and where you have an exempt employee says I simply do not choose to come in because it is unsafe in which case you are theoretically under the FMLA could choose to dock that exempt employee.   N.B.  It does not mean that you have to do it just means that you could under the law.  So pay attention to that distinction as we may or may not get some of that snow day talk during the course of January and February and even into March.   V.  Social Media – Case Dec. 27, 2014 – Terminating of Coach of Pocatello High School (Idaho) girls basketball coach due to Face book posting   2014 promises to be another year when cases involving social media will be in the forefront.  This was the case that was published on December 27 that actually arises out of a grievance that was filed in an educational context.   Background – The issue and judgment   Here you have the former girls’ basketball coach at a school called Pocatello High School in Idaho who was fired for posting a Facebook picture showing her fiancé touching her breast while they were at a sort of social event.  Both she and her fiancé were wearing bathing suits and had their arms around each other in the photograph.  Her fiancé had his other hand covering her clothed breast. Her Facebook page was publically available and students were among her Facebook friends.  The teacher removed this Facebook picture within 24 to 48 hours of its being posted.  Nevertheless, it came to the attention of the high schools administration and the district terminated this particular person who is also the girls’ basketball coach for having exhibited “immoral and indecent acts”.   She timely filed a grievance and a three member grievance panel concluded that her conduct was not immoral, indecent or violation of the Idaho Code of Ethics for professional educators.  They concluded that while certainly it was an error in judgment,  she  removed the photograph when the problem was brought to her attention,  subsequently acknowledged that her decision was a mistake and expressed sincere regret for this lapse in judgment.   Therefore, the grievance panel found that they thought that the discharge was unduly harsh and unfair and reinstated her and converted the discharge to a suspension.    TAKE AWAY/ ACTION ITEM   While I realize that this was more in a unionized context, I think it is instructive because as employers, I think we need to be very careful about how we react to things that are posted.  Some are certainly totally inappropriate and warranting of severe disciplinary action if not outright dismissal; some are more innocuous and I think that there are many employers today including many of my clients who regularly may come into contact with Facebook postings of employees that are publically posted as opposed to needing a password to get onto the post.   I think that we have to be very discriminating when it comes to taking disciplinary action with regard to these posts because some may warrant disciplinary action and some may not.  Some may also be protected under Section 7 of the National Labor Relations Act as we talked about in the past.    So..just pay particular attention and do not react precipitously to some post which at first blush may seem to be totally inappropriate and wrong and warranting of termination.  I suggest that you need to take a good look at these if they come to your attention.   VI.  US District Court for District of Oregon – discharge after an injury  (Was this an essential function of the job?)   Another case that I wanted to bring to your attention was decided at the end of November . It was decided by the United States District Court for the District of Oregon and deals with the discharge of an employee after an elbow injury left her unable to lift heavy boxes and essentially what the employer relied upon was its historical practice to show that the lifting of these boxes was an essential job function.  What the court said was that although the injury had permanently restricted the employee from lifting heavy boxes in her job as a shipping clerk, the employee raised the tri-able issue as to whether or not this lifting was actually an essential job function.  This goes really to points that I have made in the past about updating job descriptions and making sure the job descriptions are accurately  reflective of the essential functions of the job.  Just because something may have been an essential function 10 or 15 years ago does not necessarily mean that it is an essential function today.  Therefore  what the court said here was:  

  • Summary judgment in favor of the employer was not appropriate on the basis that the essential functions precluded the employee from being a qualified individual.


  • The employer did not engage in the required interactive dialogue with this particular employee as to whether or not certain assisted devices or other things could have been used in an attempt to accommodate her disability.

    So it involves two other things that we were talking about a few minutes ago.   Just because somebody is disabled does not mean that the job description that may have been created five or ten years ago is still in play. While you certainly can create essential functions for a job which would require specific lifting requirements or specific physical requirements, those things have to be accurately related to the actual job duties and responsibilities of the person.  You cannot just stick in something and say that historically this has been required of the job.    Secondly you need to make sure that in an accommodation issue that you actually discuss or have a dialogue with the employee having to do with whether or not the accommodation that is requested by the employee is reasonable or whether it places an undue burden on the employer with regard to whether or not the particular disability can be accommodated because all disabilities cannot be accommodated. Sometimes the accommodation that is requested by the employee is impractical in the extreme. It is costly or it may involve actually changing job duties or having someone else permanently help that employee which is not required under the ADA.   I bring this to your attention because these cases are coming with a lot more frequency today as are those in religious discrimination which in 2013 increased quite dramatically as well.  There you have issues of accommodating the religious beliefs or religious customs of an employee and you have the same analysis which is can you accommodate the religious customer habit or practice of the individual without creating an undue burden on the part of the employer.  So you are going to get increasing accommodation issues both with regard to ADA and religion issues in 2014.    Closing Remarks   So those were the developments of the day and, as always, I am happy to answer any questions anybody may have either in this forum or privately at my phone number 410-209-6417 or my email   Jeanne Hyatt:   Thanks everyone. I wanted to mention to people that Howard addresses Workplace Bullying in a Baltimore Business Journal podcast. It is 10-minute in duration.  You can go to the BBJ website and access that podcast, which became available two days ago on Monday and there is additional information on this topic in an article Howard wrote, which is being published in the BBJ this week.   Q & A   Participant:                         The NLRB decision not to appeal – That is a really important decision that they have made.   Howard Kurman:              I am not sure that the NLRB did it really willingly. I think they did it because they realized that the Supreme Court may not have accepted their petition for service.   Secondly, even if they accepted it, I think they would have lost and the language that would have been probably in the Supreme Court’s decision may have been further damaging to them then simply this issue of the poster so I think they thought there was much to lose and probably not a high probability of success so this was their face-saving mechanism and that is why I said I think it was almost comical that they put this statement out. You can still download this if you want to read the report.   Participant:                         I think this broad expansion of what protected concerted activity means, you know they are being so activist in that arena.   Howard Kurman:              Well they have to be Ann because you know with 6% of the labor force unionized the amount of work traditionally that they would have to do in terms of petitions and unfair labor practices is diminished so they got to find some way to justify those hours that they spend on their budget.  I think it’s as simple as that frankly.   Participant:                          I agree.  Thank you, Howard. Always very informative.  I appreciate it.   NEXT TELEBRIEF:  Wednesday, January 22, 2014 at 9 am