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Employer Law Report

Another Federal District Court upholds NLRB expedited election rules

Posted in Labor Relations

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend of quicker elections will continue.

The employer community has great concerns about the NLRB rule and the resulting reduction in the time for union representation elections. It is often referred to by employer groups and representatives as the “quickie election rule” or the “ambush election rule.” The time between petition filing and election is a crucial period for employer communication to employees. When a union files a petition for representation election, the union is usually at the peak of its support among employees. Between petition filing and election, the union’s representatives will actively campaign for employee votes in the upcoming election. Employers have the same right to communicate lawful and honest information to employees in an effort to influence them to vote to stay non-union. An abbreviated time for communication makes it much more difficult for the employer to convey the message, especially in a large workforce. Therefore, shortening the time between petition and election may give unions an advantage. Although, it is interesting to note that in the months since the rule took effect the union percentage win rate in elections has been about 62 percent, which is very close to the overall union win rate in elections for the past few years. Continue Reading

New app allows consumers to buy based on which companies are female-friendly

Posted in EEO, Workforce Strategies

Thanks to Summer Associate Christopher Hawthorne for his assistance with this blog entry.

In an era of consumers making choices based on whether companies have ethical labor and sourcing practices, a new app now tracks how female friendly a company is. “Buy Up Index,” reveals whether a company’s workplace policies and practices accommodate and empower its female employees. Through this app, consumers no longer have to rely on the company’s public persona.

The app uses four criteria—women employees, women’s leadership, corporate citizenship, and marketing—to create an overall score that grades the company’s treatment of its female employees. Employers are graded from A to C.  From maternity leave to the representation of women in leadership roles, Buy Up Index gives insight as to which employers are at the forefront of gender and diversity issues in the workplace.

With this type of information at consumers’ fingertips, companies should be aware that their internal policies and practices may be available to those on the outside and used for the purpose of encouraging or discouraging consumers from purchasing their products or services. While the app promises that it fact-checks the data thoroughly, it remains to be seen how accurate or complete the data really is. Given the increasing transfer of information electronically, employee policies designed to encourage recruitment and retention of female employees may have the added benefit of increasing the company’s goodwill and bottom line.

Sixth Circuit Court of Appeals reverses district court’s ruling in Title VII retaliation case, proving that getting the entire story is key for employers

Posted in EEO

The Sixth Circuit Court of Appeals reverses district court’s summary judgment ruling in Yazdian v. ConMed Endoscopic Tech., Inc., on a Title VII retaliation claim, finding a reasonable jury could conclude the former employee was terminated for engaging in protected activity.


Reza Yazdian, an Iranian-American Muslim, was employed with ConMed Endoscopic Tech., Inc. from April 1, 2005 through July 26, 2010, as a territory manager. In 2009, Yazdian received favorable ratings in all categories and was described as a talented salesman. Yazdian’s direct supervisor from 2008 until the time of his termination was Timothy Sweatt, and Sweatt reported directly to Scott Jackson.

In or around 2009, Yazdian began noting incidents that he believed demonstrated Sweatt’s prejudice against Iranians and Muslims. In April 2010, Yazdian closed a major sale and drafted a news article about the sale he wished to have published in ConMed’s internal newsletter. After much back and forth, Sweatt stated that the article would not be published as written. Sweatt went on to describe the article as “embarrassing,” “poorly worded,” and “far too self-serving.” Yazdian confronted Sweatt about the comments stating “[y]ou don’t like the way I write, you don’t like the way I talk, I guess you don’t like my race, either.”

During a June telephone meeting, Yazdian accused Sweatt of creating a hostile work environment. Shortly after that call, Yazdian called Scott Jackson and requested a transfer to another division that was under a different manager. Yazdian also told Jackson that Sweatt was creating a hostile work environment, treating him differently from other territory managers and possibly discriminating against him. Jackson took no action.

Sweatt, Jackson and Karen Hutto, Vice President of Human Resources, met to discuss the tension between Sweatt and Yazdian and, after the meeting, Sweatt drafted an email to Hutto detailing examples of Yazdian’s “behavioral issues.” Hutto reviewed the email and directed an HR manager to prepare a written warning. Yazdian, however, was never provided an opportunity to respond or present his side of the story.

On July 13, 2010 Sweatt called Yazdian to inform him about the written warning and informed Yazdian that the reason for the warning was his “ongoing unacceptable conduct and behavior, particularly in his communications.” Sweatt provided the written warning and several supporting examples. In fact, Sweatt referenced Yazdian’s comment that Sweatt was creating a hostile work environment. Yazdian stated he would provide a response through his counsel in writing. Sweatt again drafted an email to HR and Jackson outlining the comments made by Yazdian during the call. Sweatt closed the email by stating, he was “not optimistic that there was anything close to a recognition [by Yazdian] of needed behavioral changes much less a commitment for improvement” to which Jackson asked what “next steps” should be taken. Sweatt found termination was the only appropriate next step.

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Employment law and recent events: Confederate flag unrest

Posted in EEO, Workforce Strategies

Thanks to Porter Wright Summer Associate Carolyn Alford for her assistance in preparing this blog post.

The recent tragedy in South Carolina, where a reputed white supremacist opened fire on a crowd of Black churchgoers, has propelled the Confederate flag as a symbol of racism back into the public spotlight, after a picture surfaced of the shooter posing with a gun in front of a Confederate flag. The attention the Confederate flag has received nationwide will no doubt be reflected in the workplace as well. But what are an employer’s responsibilities when an employee or manager wants to display the confederate flag or any other symbol that incites such deep and conflicting emotions?

Case law interpreting the meaning of the flag has evolved in recent years. In 2002, a Kansas court determined that an employee could display a Confederate flag tag on his car because it did not impede his coworkers’ ability to perform their jobs. The court held that the meaning of the flag, be it a representation of southern heritage or of white supremacy, depended upon one’s perspective and the court was not prepared to say either was incorrect. However, a decade later, a New York court in Devers v. SNC-Lavalin Generation, Inc. found that “there is no question that the display of the Confederate flag recalls a history of racial oppression.”

While the Confederate flag is recognized as offensive by many, its display in the workplace is oftentimes not enough to support a hostile work environment claim. The Devers court recognized the objectionable nature of the flag, but found it, accompanied by isolated racist remarks, insufficient to support a hostile work environment claim. In Walton v. United States Steel Corp., an Indiana court found a co-worker’s Confederate flag tattoo “was not sufficiently severe and pervasive to establish a hostile work environment.” The Alabama court in Carter v. Daehan Solutions Ala., LLC., similarly determined that co-workers’ Confederate flag apparel was not “frequent, severe, or physically threatening and humiliating enough to constitute a hostile work environment.”

Those who bring the Confederate flag or other symbols representing white supremacy into the workplace occasionally, though unsuccessfully, argue that their display of the symbol is actually protected under Title VII because it speaks to their national origin or religious beliefs. In Storey v. Burns, the employee claimed his confederate flag lunch box sticker and bumper stickers were based on his national origin of “Confederate Southern American” and his religious belief, Christian. The employer required the employee to cover the stickers and when he refused, the employer terminated him. On a motion to dismiss, the court ruled against the employee because neither his national origin nor his religious belief required him to display stickers with the confederate flag. “His personal need to share his heritage cannot be equated with something endemic to national origin or a religiously mandated observance.” The employer, according to the court, therefore was not discriminating against him based on his religious beliefs or national origin when it terminated him for failing to remove the stickers.  Similarly in Swartzentruber v. Gunite Corp., an employee sported a tattoo of a KKK member standing in front of a burning cross. The employer required that the tattoo be covered except when washing. The employee argued that his tattoo contained religious symbols entitled to Title VII religious protection, but the court found no evidence that the act of covering up his tattoo conflicted with his religious beliefs and it granted employer’s summary judgment motion.

In the public sector, courts use a balancing test to decide whether employees have a First Amendment right to display the Confederate flag, which weighs the employee’s First Amendment rights against the employer’s interest in avoiding workplace disruption. Under this test discussed by the federal district court in Maryland in Buker v. Howard Cnty., the “employee bears the burden of demonstrating that he was speaking as a citizen on a matter of public concern” and is therefore protected by the First Amendment.  In Duke v. Hamil, the court upheld a senior police officer’s demotion for displaying the flag on his Facebook page where the police departments interest in safeguarding its good working relationships and its reputation outweighed the officer’s free speech rights. The court considered the facts that the Confederate flag was considered offensive by many, especially when associated with law enforcement, and that the officer shared it with a broad audience during a politically charged election season.

The Confederate flag has always been a divisive symbol, with staunch supporters on both sides of the debate.  But recently, in the wake of the shootings, those that once accepted displaying the flag have reversed course. Amazon and Walmart, among others, now ban the sale of Confederate merchandise and the South Carolina government has stopped flying the Confederate flag on statehouse grounds. Perhaps these changes of opinion signal a shift in the social thinking on the flag, which may further seep into judicial consideration of employer policies and practices related to it. Employers should be careful to consider the use of the Confederate flag in context when it is displayed by employees on employer grounds and take action and investigate if complaints are raised.

DOL memo says most workers are FLSA employees, not independent contractors

Posted in Wage & Hour

Following on the heels of its proposed rule expanding the number of employees entitled to overtime under the FLSA, the Department of Labor’s Wage & Hour Division has issued an Interpretation Letter that addresses independent contractor misclassification. Though the Letter, issued by WHD Administrator David Weil, contains no earthshaking new compliance obligations for employers, it does suggest that businesses can expect a more aggressive enforcement regime from the Department of Labor on independent contractor issues. In fact, the Letter directly states that “applying the economic realities test in view of the expansive definition of “employ” under the Act, most workers are employees under the FLSA.”

In reaffirming the “economic realities” test for evaluating independent contractor status, the Administrator’s Interpretation Letter makes clear that no single factor is determinative of the issue, but rather that businesses claiming that their workers are independent contractors should use the economic realities factors as a guide to answering the ultimate question whether the workers are economically dependent on them or really are in business for themselves. As a reminder, those factors as discussed in both the Interpretation Letter and WHD Fact Sheet #13 are:

  1. The extent to which the work performed is an integral part of the employer’s business.
  2. Whether the worker’s managerial skills affect his or her opportunity for profit and loss.
  3. The relative investments in facilities and equipment by the worker and the employer.
  4. The worker’s skill and initiative.
  5. The permanency of the worker’s relationship with the employer.
  6. The nature and degree of control by the employer.

In light of this new Interpretation Letter, businesses should plan to review all of their independent contractor relationships to ensure that appropriate agreements are in place and that relationships that may have started as independent contractor arrangements have not morphed over time into employment relationships.

U.S. Supreme Court decision on same-sex marriage – workplace implications

Posted in Employee Benefits/ERISA, Leave Administration, Workforce Strategies

The United States Supreme Court decision in Obergefell v. Hodges  requiring that all states recognize same-sex marriages is one of the more significant constitutional law decisions from the Court in many years. The impact of the decision extends in some ways to the workplace and to the day-to-day responsibilities of human resource and benefits professionals.

Of course, the immediate impact is the legalization of same-sex marriages in all states, regardless of where the marriage was performed. That means that all spousal privileges associated with employment must be extended to same-sex married couples. Examples include:

  • FMLA: Time off to care for a spouse with a serious medical condition and time off associated with a spouse’s military deployment.
  • Spousal participation rights in group medical or other employer-provided fringe benefits plans, including the right to COBRA coverage in the event of divorce or other qualifying event that triggers spousal election rights.
  • Application of employer policies with spouse-specific terms, such as bereavement or other time off policies.
  • Protections afforded by state or local law or employer-adopted policies that prohibit discrimination based on marital status.


Also, employers that have adopted policies extending benefits or other privileges to “domestic partners” may decide  to re-visit the need for those policies in light of the Court’s decision. In reviewing any existing policies concerning domestic partner benefits, be aware that some state and local governments have enacted laws mandating equal treatment for domestic partner relationships.

The focus of the ADA turns to websites in the digital age: Is your site compliant?

Posted in Other Articles

Americans with Disabilities Act compliance can take you beyond workplace and employment issues. If you operate a business accessible to the public then the ADA public accommodation rules are important to you as well. That can mean more than just making sure your physical facilities are accessible. If you maintain a website for use by customers, such as for online shopping, have you considered whether your website is accessible to persons with disabilities? Our colleagues wrote on the Technology Law Source blog about how you can make sure your site is compliant. We definitely think it’s a worth-while read for any business.

Employer’s DNA test of employees in defecation investigation results in $2 million verdict for violating GINA while real “Poopetrator” remains on the loose

Posted in Employment Outtakes, Workplace Privacy

We would like to thank Adam Bennett, one of Porter Wright’s summer law clerks, for his significant contributions to this blog post.

If a recent federal court case is any sign of the times, employers should think twice before engaging in their own forensic crime scene style investigations of employee questionable behavior—even if the employee is suspected of repeatedly defecating in public areas of the workplace. Employers sometimes forget that the Genetic Information Nondiscrimination Act (GINA) prohibits requesting employee genetic information. Any improper request for employee genetic information is likely to lead to legal woes and a lot of dollars flushed down the drain.

A federal court jury recently granted two former employees of Atlas Logistics Group Retail Services LLC a $2.23 million award. Lowe v. Atlas Group Retail Servs. Atlanta, LLC, No. 1:13-CV-2425-AT (decision denying summary judgment to employer here). Atlas was determined to track down a serial defecator with a penchant for seeking relief in the open areas of a company warehouse. Its loss prevention manager compared employee work schedules to the timing and location of the defecation episodes in order to create a list of employees who may have been responsible. After creating a list of suspects, Atlas requested cheek swabs from the mouths of the two employees to run DNA analysis. Atlas hoped to link the DNA samples to the “evidence” of the wrongdoing. The two employees complied but sued under GINA after they were found innocent. (Apparently the culprit remains on the loose.)

Except in extremely limited circumstances set forth in EEOC regulations, GINA makes it unlawful for an employer to request, require, or purchase an employee’s genetic information. Based on the statutory language, Atlas violated GINA when it asked the employees for a cheek swab.  The violation occurred even though the former employees voluntarily complied with the request. The employees’ case survived summary judgment and went to trial where they prevailed.

While the facts of this case might be humorous and sensational, GINA is no laughing matter. In 2013, Fabricut Inc. was forced to pay out $50,000 to an applicant when the applicant filed suit based on a pre-employment medical examination and questionnaire. The questionnaire requested information about the applicant’s medical history, including questions about the existence of cancer, tuberculosis, diabetes, and mental disorders in her family. While the medical examination might have been justifiable, the questionnaire violated GINA. More recently, Founders Pavilion, a nursing and rehabilitation center, settled a discrimination lawsuit with the EEOC for $370,000 because it too requested applicant medical history as part of its pre-employment medical examination process. The Fabricut and Founders Pavilion cases represent more typical GINA cases and the type of wrongdoing GINA set out to prohibit.

Employers that request genetic information of applicants and employees must be aware that these requests will come at a high price.

U.S. Supreme Court grants certiorari in a case challenging the constitutionality of fair share fees for public-sector unions

Posted in Labor Relations

In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision in Harris v. Quinn, Justice Alito wrote a majority opinion that blasted Abood v. Detroit Board of Education, the 1977 Supreme Court decision that was the seminal case upholding the constitutionality of fair share fees in the public sector. In Harris, Justice Alito noted that Abood rested on “questionable foundations”, but since Abood was not directly at issue in Harris (rather, the defendants in Harris were arguing for an extension of the holding in Abood), the majority did not address whether Abood should be overruled. In contrast, in Friedrichs, the validity of Abood has been directly challenged and it appears the Supreme Court is now willing to revisit Abood and decide whether forced fair share fees for public-sector unions should now be deemed unconstitutional. Continue Reading

Proposed FLSA regulations greatly expand overtime coverage

Posted in Wage & Hour

Today, the Department of Labor announced a proposed rule that would extend overtime pay to an additional 5 million Americans.  Currently, those executive, administrative, professional, outsides sales, and computer employees who make above $23,660 annually are exempt from the minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA). Under the proposed regulation, the salary threshold for white collar exempt employees’ pay would more than double to $50,440, or 40th percentile of weekly earnings for full-time salaried employees in 2016. The regulations also seek to increase the total annual compensation requirement needed to exempt highly compensated employees to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers, or $122,148. Finally, the rules propose to establish a mechanism for automatically updating the salary and compensation levels going forward. The department is also requesting comments on the proposed duties tests and the possibility of including nondiscretionary bonuses to satisfy a portion of the standard salary requirement, but has not yet proposed language on this issue. The proposed rules are the result of a Presidential Memorandum sign on March 13, 2014 by President Obama directing the Department of Labor to update the regulations defining which white collar workers are protected by the FLSA’s minimum wage and overtime standards. 79 FR 18737 (Apr. 3, 2014). For a complete copy of the proposed rules, visit http://www.dol.gov/whd/overtime/NPRM2015/OT-NPRM.pdf.