POSTED BY SCOTT T. SILVERMAN ON MAY 30, 2012

On May 26, 2012, Board Member Terence F. Flynn submitted his resignation to  President Barack Obama and to NLRB Chairman Mark Gaston Pearce.  The resignation is effective July 24, 2012.  However, Mr. Flynn immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.

Mr. Flynn was sworn in as a Board Member on January 9, 2012, following a recess appointment by the President.  However, he had recently come under fire for alleged ethical transgressions. The Board’s inspector general, David P. Berry, issued a report in early May that found that Mr. Flynn, a Republican, had committed serious violations by leaking drafts of board decisions and details of internal deliberations to Peter Schaumber, a former labor board chairman who had been co-chairman of Mitt Romney’s labor advisory committee.

On May 29, 2012,  NLRB Chairman Pearce and Members Brian Hayes, Richard Griffin and Sharon Block met with the agency’s staff to answer questions and issued a joint statement.   The NLRB will be able to continue to conduct business with its four (4) remaining members.  The Board's composition will now be three (3) Democrats and one (1) Republican.  We therefore expect that the Board will continue to implement its pro-labor agenda.

POSTED BY SCOTT T. SILVERMAN ON MAY 25, 2012

In a decision filed on May 18, 2012, Oliveira v. Citicorp North America, Inc. and Citigroup, Inc., Case No. 8:12-cv-251-T-26TGW (M.D. Fla. 2012), Judge Richard A. Lazzara of the Middle District of Florida held that a complete waiver of class and collective actions in either a judicial or arbitration forum was enforceable.  This decision directly conflicts with the National Labor Relations Board's ("NLRB") holding in In re D.R.Horton, Inc., 357 NLRB No. 184 (2012), that such agreements violate employees' right to engage in protected concerted activity under the National Labor Relations Act. 

Plaintiffs brought FLSA overtime claims, alleging that they were improperly categorized as exempt.  Defendants moved to compel arbitration on the basis of handbook acknowledgements, which both required employees to bring all claims in arbitration and waived any right to collective or class arbitration.  While the parties agreed that FLSA claims are subject to arbitration, plaintiffs, relying on D.R. Horton, argued that the collective action waiver was unenforceable. Judge Lazzara disagreed, reasoning that the Eleventh Circuit has enforced waivers of FLSA collective actions in mandatory arbitration agreements. Caley v. Gulfstream Aerospace Corporation, 428 F.3d 1359 (11th Cir. 2005). The court noted that district courts outside of the Eleventh Circuit are split as to whether to follow D.R. Horton, but determined that it was bound to apply the Eleventh Circuit precedent of Caley. 

As previously reported, the NLRB continues to apply D.R. Horton and has brought unfair labor practice proceedings to enjoin enforcement of such arbitration agreements.  Given the divergent authority, employers are cautioned to review their arbitration agreements and to carefully consider whether to amend them.  Until further notice, courts in the Eleventh Circuit will likely enforce such waivers in employment-related lawsuits, but this will not prevent the NLRB from bringing unfair labor practice charges against employers who have such agreements.  It is expected that the Eleventh Circuit will soon be asked to consider the continued vitality of Caley and this issue may wind up in front of the Supreme Court.  We will continue to provide updates as new developments occur. 

POSTED BY RICHARD D. TUSCHMAN ON MAY 18, 2012

Premarital sex is not protected activity under Title VII.  But it can lead to pregnancy, which is a protected status under Title VII.  Which raises the question:  can an employer use an employee’s pregnancy as evidence of premarital sex, and terminate her employment because the employer has a moral objection to premarital sex? 

The answer is yes.  But as the Eleventh Circuit’s recent decision in Hamilton v. Southland Christian School illustrates, the court will closely scrutinize the employer’s motivations if the employee alleges pregnancy discrimination. 

The Eleventh Circuit summarized the facts of the case as follows:

In January 2008, Jarretta Hamilton began teaching at Southland Christian School. Sometime in January 2009, she and her then-fiancé conceived a child. They got married the next month. On Sunday, April 5, 2009, Hamilton met with John and Julie Ennis, Southland’s administrator and assistant administrator, to tell them that she was pregnant and to ask for maternity leave during the next school year. During that meeting, she admitted that she had conceived the child before getting married. Southland fired Hamilton the following Thursday, purportedly because she had sinned by engaging in premarital sex and, as John Ennis put it, “there are consequences for disobeying the word of God.”

Hamilton sued the school alleging pregnancy discrimination.  The district court granted summary judgment to the school on the grounds that Hamilton had not produced evidence of a non-pregnant comparator who was treated differently.  But on appeal, the Eleventh Circuit reversed the trial court’s ruling.  The court noted that a plaintiff in a Title VII case does not have to show a comparator if there is enough other circumstantial evidence to raise a reasonable inference of discrimination. 

In this case, such evidence existed.  “Hamilton presented evidence,” wrote the court, “that, in making the decision to fire her, Southland was more concerned about her pregnancy and her request to take maternity leave than about her admission that she had premarital sex.”  Therefore, the court remanded the case to the district court, where it will either be settled or proceed to trial. 

For employers, the Hamilton decision should serve as a reminder to proceed carefully when proceeding with a termination of a pregnant or other “high-risk” employee.  If an employer cannot demonstrate that only legitimate, non-discriminatory reasons motivated its termination decision, reconsideration of that decision may be in order.

POSTED BY SCOTT T. SILVERMAN ON MAY 15, 2012

According to a D.C. federal court, another regulation issued by the National Labor Relations Board (the "Board") is unlawful.  This time, the Board's so-called "quickie election" rule, which would shorten the time period between an union petition and the election, has been struck down.  This is an important outcome for employers, because the new regulation, if it had been approved, would have resulted in a greater percentage of union victories and a consequential increase in union organizing.  For the time being, at least, those outcomes have been avoided.

In Chamber of Commerce of the United States of America, et al. v. National Labor Relations Board, Civil Action No. 11-2262 (JEB) (D.D.C. May 14, 2012), Judge James Boasberg of the D.C. District Court held that the Board's regulation was invalid, because no quorum existed for the final vote in favor of its adoption.  Although expressing no formal opinion on other challenges, Judge Boasberg strongly hinted that a properly constituted quorum of the Board could vote to adopt a final version of the regulation.  Until then, however, Judge Boasberg held that the Board's prior procedures govern representation elections.

On June 22, 2011, the Board formally proposed to amend its procedures governing election disputes in a Notice of Proposed Rulemaking ("NPRM"), which was issued by a 3-1 vote. Member Brian Hayes ("Hayes") dissented. On November 30, 2011, the remaining three members of the Board voted to prepare a final rule containing certain of the amendments contained in the NPRM, which passed by a 2-1 vote, with Hayes again dissenting.  Thereafter, a final rule was prepared and circulated in the Judicial Case Management System ("JCMS").  Both Chairman Mark Pearce and Member Craig Becker voted to approve the rule, and it was forwarded to the Solicitor for publication in the Federal Register on the same day.  However, Hayes did not register a vote on the final version in JCMS.

The Board argued that, because Hayes had continually voted against the new regulation, he had sufficiently indicated his opposition to be counted toward the quorum.  However, Judge Boasberg disagreed with the Board's position, reasoning that, under 29 U.S.C. §153(b), "three members of the Board shall, at all times, constitute a quorum," and, therefore, three members' participation was necessary for the vote on the final version of the rule. Judge Boasberg noted three (3) facts that led him to consider Hayes absent: (1) Hayes took no action whatsoever in response to the JCMS notice; (2) no one requested that Hayes provide a response; and (3) only a short amount of time passed between the circulation of the JCMS notice and the forwarding of the rule for publication.  Hayes' mere Board membership was insufficient for a quorum.

In response to the decision, the Board announced that it has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.  Further, Acting General Counsel, Lafe Solomon, withdrew the guidance to regional offices that he had issued on the new procedures and advised regional directors to revert to previous practices governing election petitions.  The Board stated that it is considering its options. However, it will likely seek a stay of the decision pending appeal, or may seek to revote, with its current composition of three Democrats and two Republicans.  Still, consistent union avoidance strategies continue to be paramount in this ever-changing landscape.

POSTED BY SCOTT T. SILVERMAN ON MAY 11, 2012

On April 30, 2012, the National Labor Relations Board ("Board")  issued a complaint alleging that 24 Hour Fitness USA, Inc. violated the National Labor Relations Act ("Act") by requiring that all employment disputes be resolved by an arbitration in which only individual, and not class or collective, claims could be brought.

24 Hour Fitness, which operates centers across the country, requires employees as a condition of employment, to execute an arbitration agreement, in which they forego any rights to file collective or class action lawsuits or arbitrations.   Earlier this year, in D.R. Horton, Inc., 357 NLRB No. 1 (2012), the Board had held that such a requirement violates the protected rights of employees to engage in concerted activity under Section 7 of the Act.

The Board's San Francisco Regional Office issued a complaint, which charged that the company had enforced its policy by asserting it in numerous actions in an effort to compel employees to submit common claims to individual arbitrations.  The company engaged in an unfair labor practice by violating protections guaranteed by the Act, according to the complaint issued by the agency’s San Francisco Regional Office.

The Board's action demonstrates that employers must examine their arbitration policies to see if they are in compliance.   An effort by employers to compel employees to bring all employment-related claims through individual arbitration may be found to constitute an unfair labor practice.

POSTED BY SCOTT T. SILVERMAN ON MAY 11, 2012

With the summer almost upon us, private, for-profit companies may be thinking of high school or college students as a resource for unpaid labor, through "summer internships."  This is almost always unlawful!

According to the Department of Labor ("DOL") Fact Sheet, internships in the “for-profit” private sector will most often be viewed as employment, unless a six-factor exclusion test is met.  Interns in the “for-profit” private sector who qualify as employees must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. The determination of whether an internship program meets the exclusion depends upon all of the facts and circumstances. However, the DOL states that the employer must meet all six criteria to exempt interns from payment, and that the exclusion is "quite narrow":

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

In the unlikely event that an employer decides  that its program  meets this test, it must have a document for the student to sign, which should replicate the six factors and include the intern's acknowledgement that the position is an unpaid internship. The document should also specify the ending date of the experience.

In the more likely scenario that the summer hire qualifies as an employee, the employer would simply follow its normal hiring procedures.  However, it is vital that the employer include a written acknowledgement that the work is only for the summer and the employment position will terminate on a date certain.

POSTED BY CHRISTOPHER DUKE ON MAY 8, 2012 

Today's employers are often called upon to conduct internal investigations into claims of workplace misconduct. When performed correctly, a proper workplace investigation can effectively shield an employer from liability in the face of many types of employment related claims. However, a poorly performed or ineffective workplace investigation can not only fail to protect the company from liability, but can actually increase potential exposure to an employee's claim. Now more than ever it is important for employers to learn the proper way to conduct an internal investigation.

Topics to be covered include:

• Whether and to what extent to initiate a formal investigation
• How to choose the right investigator
• Best practices for conducting witness interviews
• How to discipline violators when warranted

Armed with the information provided at this seminar, employers can feel confident in their ability to conduct an effective workplace investigation.

POSTED BY RICHARD D. TUSCHMAN ON MAY 1, 2012 

The Equal Employment Opportunity Commission has updated its enforcement guidance on employers’ use of arrest and conviction records in making employment decisions.

The enforcement guidance consolidates and clarifies prior EEOC guidance in light of judicial decisions on the use of arrest and conviction records.  The guidance clarifies that the selective use of arrest and conviction records may constitute disparate treatment discrimination in violation of Title VII.  The guidance also explains how a neutral policy or practice that has the effect of screening out a protected group may violate Title VII under a disparate impact theory if the employer cannot show that the policy or practice is job related for the position in question and consistent with business necessity.   Exclusions based  solely on arrests will never meet this test,  but conviction-based screens may, if the employer considers the nature of the crime, the length of time since the crime, and the job requirements.

Of particular interest are the “best practices” the EEOC recommends when employers are considering using criminal records in making employment decisions.  These “best practices” are:

General

• Eliminate policies or practices that exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination and how to implement policies and procedures consistent with Title VII.

Developing a Policy

• Develop a narrowly tailored written  policy and procedure for screening  applicants and employees for criminal conduct. 
• Identify essential job requirements and the actual circumstances under which the jobs are performed.
• Determine the specific offenses that may demonstrate unfitness for performing such jobs.
• Identify the criminal offenses based on all available evidence. 
• Determine the duration of exclusions for criminal conduct based on all available evidence.
• Include an individualized assessment. 
• Record the justification for the policy and procedures.
• Note and keep a record of consultations and research considered in crafting the policy and procedures. 

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity. 

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential.  Only use it for the purpose for which it was intended.