By: Dan Cohen – 12/31/14
Before we ring in the New Year and start thinking of all the promise 2015 holds in store for us, I thought I would look back and recap 2014 and what it meant to employers here in Michigan. Not unlike most of the Obama Presidency, 2014 saw a significant erosion of employer rights and the adoption of new rules and regulations that employers must know and abide by. Much of the erosion was at the hands of the Obama NLRB, which operated throughout 2014 as a full, five member democratic majority Board. Certainly, it can be said that most of the developments chronicled below create more work for employers, require the adoption of new policies and increase the cost of doing business. So, let’s look back at the top newsmakers from 2014:
- On January 30, 2014, the NLRB issued its decision in William Beaumont Hospital finding an employer’s directive to an employee not to discuss its on-going investigation a violation of the NLRA.
- The NLRB issued its decision in MCP, Inc. on February 6, 2014 finding an employer’s confidentiality rule overly broad in violation of §7 of the Act.
- On February 12, 2014, President Obama signed Executive Order 13658 raising the minimum wage for federal contractors and subcontractors to $10.10 (a $2.85 increase), effective January 15, 2015.
- No recap would be complete without mentioning that the inaugural posting on “The Emplawyer’s Blawg” took place on February 18, 2014.
- The Sixth Circuit Court of Appeals confirmed an employer’s absolute right to rely upon the restrictions placed upon the plaintiff by her own doctor at the time in Horn v. Knight Facilities Management, No. 12-2688 (February 25, 2014). While this was no landmark decision, it makes the year in review because it was my case.
- The final rules of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”) went into effect on March 24, 2014 creating additional Affirmative Action obligations for federal contractors and subcontractors. The NLRB issued its decision in Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014) striking “negativity” and “positive and professional” policies as overly broad in violation of §7 of the NLRA.
- On April 22, 2014, in EEOC v Ford Motor Co., Case No. 12-2484, the Sixth Circuit accepted the EEOC’s argument that teleconferencing technologies are now commonplace and thus working from home may often be a reasonable accommodation.
- The NLRB issued its decision in Professional Electric Contractors on June 4, 2014 striking a policy which banned “boisterous” activity as overly broad in violation of §7 of the Act because it discouraged lively debate about wages, hours and working conditions.
- The EEOC released new guidance on Pregnancy Discrimination on July 14, 2014.
- On August 4, 2014, the U.S. Department of Labor announced that LinkedIn agreed to settle a case, paying approximately $6 Million in unpaid overtime wages to hundreds of employees. The DOL charged LinkedIn with failing to record, account and pay for hours worked in a workweek as required by the Fair Labor Standards Act (FLSA).
- Michigan’s minimum wage increased to $8.15 on September 1, 2014
- On September 2, 2014, Administrative Law Judge Julia Stern of the Michigan Employment Relations Commission (“MERC”) struck down the MEA’s August Window resignation provision. The provision, set forth in the MEA By-laws, limited the time union members could resign their membership from the MEA to the month of August.
- On October 23, 2014, the Michigan Court of Appeals, in Braska v. Challenge Manufacturing Co., ruled that Michigan’s Medical Marijuana Act preempts the misconduct provision of the Michigan Employment Security Act, which until now had disqualified employees from receiving unemployment benefits where they were terminated for failing a drug test.
- On December 11, 2014, the NLRB issued its decision in Purple Communications, Inc., striking an employer’s policy prohibiting employees from using the employer’s email system during non-working times.
- On December 12, 2014, the NLRB issued its final rule on “quickie” elections. The final rule is to take effect on April 14, 2015.
- On December 18, 2014, the Michigan Court of Appeals decided another one of my cases, Doe v. Henry Ford Health Systems, favorably for my client. The case involved a data breach resulting in no harm or injury to a class of individuals. The Court of Appeals reversed the lower court and ruled that invasion of privacy was an intentional tort which could not be supported by negligence and that a plaintiff could not support a claim by relying on the prospect that some harm might occur in the future.
So, there you have it. Let’s not dwell on it. Let’s learn from it. And, now let’s look forward to 2015. Happy New Year!
By: Bill Pilchak – 12/23/14
On December 11, 2014, the National Labor Relations Board issued its opinion in Purple Communications, Inc., 361 NLRB No. 26 (2014), which involved an attempt by the Communications Workers of America to organize workers. When the union lost the election, it filed objections and an Unfair Labor Practice Charge contending that its efforts had been hampered by the company’s e-mail policy, which provided:
INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY
Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:
. . . .
- Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
. . . .
- Sending uninvited email of a personal nature.
In the 2007 Register Guard decision, the (Bush era) NLRB had ruled that the e-mail system was the property of the company, and that the employer could ban the use of its e-mail system for personal reasons, as long as it did not enforce the policy discriminatorily. That last caveat presented a daunting challenge: Employers couldn’t allow announcements that Girl Scout Cookie orders had arrived but prohibit dissemination of news of a union-organizing meeting. One wonders how many employers could show that no personal communications were tolerated. Nevertheless, Register Guard at least allowed policies to prohibit use of e-mail. Purple Communications reversed Register Guard, saying:
“[W]e decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”
In other words, employees cannot be restrained from using company e-mail for concerted protected activity, such as publicizing a particular union, notifying co-workers where and when discussions with organizers and business agents will occur, and in fact campaigning for “yes” votes in a scheduled election unless such communications interfere with timely performance of work or occur during working time.
The Obama-era Board has granted access to e-mail, despite Purple Communication’s cogent argument that workers need access to e-mail less today than they did in 2007, given the abundance of social media connections that those interested in forming a union may pursue.
Employers should revisit their e-mail (and social media) policies to assure that their policies do not likewise forbid Section 7 activities. Merely having such a policy could give an unsuccessful union a second bite of the apple if it loses the election, or enable a union to change an economic strike (where workers may be permanently replaced) into an unfair labor practice strike (where workers must be returned after the strike).
Employers will wonder what fall-back position may be taken. First, the Board has suggested that “special circumstances” might justify a total ban on the use of e-mail, although those circumstances are expected to be exceedingly rare. Second, the decision did not address use of the company email system by non-employees (e.g., union officials) who presumably may still be denied the right to use the company e-mail. Third, the decision is limited to those employees who already have access to the email system in the course of their work and does not require employers to provide such access. And finally, Purple Communications says employers may apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline. Some employers already constrain personal use of internet and e-mail to mid-day breaks. Such a window is not likely sufficient and consideration should be given to expanding the window to all non-working time.
Moreover, the decision does not affect the employer’s right to monitor employee mail communications. Thus, by retaining provisions in the policy that all e-mail is the property of the company and may be reviewed at any time, some employees might be disinclined to proclaim union loyalties in the public forum. Still, companies facing an organizing effort are not encouraged to review e-mail transmissions to gauge pro-union sentiments or step up their monitoring efforts, because that could constitute “surveillance” of protected activity.
Along with the “Quickie/Ambush” election rules http://mi-worklaw.com/nlrb-issues-final-rule-on-quickie-elections/, the Purple Communications decision will strengthen the hand of unions seeking to organize workers. Hopefully, an ever-more-educated workforce in most segments of the economy will continue to turn away from unions as they have been doing for the past two decades.
By: Bill Pilchak – 12/18/14
By now, most will have heard news reports that the Michigan Legislature has permitted a group of Satan-worshipers to erect a small display on the grounds of the state capitol, which the group has deemed a “Satanic Temple.” Just like the Snake described in Genesis, the serpent in the display promises knowledge, while the devil lurks behind him. John Truscott, a member of the Michigan State Capitol Commission said: “We are restricted by the Constitution and bound by the Constitution to recognize their First Amendment rights.” Thankfully, a nativity scene will also be displayed on the Capitol lawn during the Christmas season.
Those paying attention to the news will remember another item circulating last month about a group sending a Satanic coloring book to Orange County, Florida, education officials so that it might be distributed in the same fashion as Bibles. The coloring book shows children wearing satanic images, such as inverted pentagrams and goat’s heads on their T-shirts, and includes activities that teach children to draw inverted pentagrams. The boy featured in the coloring book is “Damian,” the name of the child in the 1976 Movie, the Omen, where a U.S. ambassador played by Gregory Peck, finds that the son he is raising is actually Satan’s child.
Now that religion has been largely forced underground at work, in government and in society, Satanists are flexing their muscle. Employers are probably wondering if and when this trend will reach their workplaces, and if they too will be forced to accommodate Satanism as a protected religion.
A great body of law on the subject of Satanism as religion already exists. Satanists in prison often assert their legal rights to practice their religion. Approximately 35 federal cases of that sort can be found. Unfortunately, Satanism is hard to distinguish from beneficial religions, especially since the Supreme Court has recognized non-mainstream religions and even privately-held ethical beliefs to be “religions” in conscientious objector cases.
Accordingly, most prison cases on the subject assume Satanism is a religion and decide the case on other grounds. Cases refuse to allow the Satanic Bible into prisons because it preaches hate and preying upon the weak and thus presents a safety problem. Hendrickson v. Caruso, 2008 U.S. Dist. LEXIS 117875 (WD MI, 2008) noted that the Satanic Bible teaches hate and authorizes the killing of human beings. The case says it teaches: “Hate your enemies with a whole heart…The only time a Satanist would perform a human sacrifice would be if it were to serve a two-fold purpose…Intense, calculated hatred and disdain should accompany this step of the [destruction of a human] ceremony…” (Bracketed material partly in original).
Johnson v. Williams, 2011 U.S. Dist. LEXIS 148445 (DC Or., 2011) denied a copy of the Satanic Bible to a prisoner based on the prison’s argument that:
The Satanic Bible … promotes behavior that is a threat to the safety and security of staff and inmates…A Satanist is advised by the satanic bible to perform any act according to his desire. If this fulfilled desire or act is challenged by authorities, then the Satanist is told…there should be no restraint on the part of the authorities. The Satanist is encouraged to follow personal temptation even if the fulfillment of that temptation conflicts with authorities. Furthermore, the Satanist is informed that the authorities are wrong and have no right to restrain the Satanist’s desire. This means it is sanctioned for the Satanist to steal someone else’s property, take another person to fulfill personal lust, or destroy any person who has wronged the Satanist.”
Other courts have recognized that “much of the [Satanic Bible] advocates preying on the weak in any way possible for one’s own gratification…” Carpenter v. Wilkinson, 946 F. Supp. 522, 529 (N.D. Ohio 1996); McCorkle v. Johnson, 881 F.2d 993 (11th Cir. 1989) (“LaVey…declares that hatred of ones [sic] enemies is of utmost importance; revenge should be a top priority”); Winford v. Frank, 2008 U.S. Dist. LEXIS 9907 (E.D. Wis., 2008) (“The Satanic Bible…preaches self-indulgence, self-gratification and vengeance . . . [and] … that believers should rebel against the laws of man and hate authority…”); Burton v. Frank, 2004 U.S. Dist. LEXIS 9603 (W.D. Wis., 2004) (The Satanic Bible “advocates the murder of ‘totally obnoxious and deserving individuals,’ exaction of vengeance through violence, mutilation and murder of anyone a Satanist believes to be his enemy” and… “challenges its readers to rebel against the law of man and engage in symbolic acts of violence against one’s enemies”)
Employers do not have the same escape hatch as prison officials. If an employee makes it known that he/she is a Satanist, it is extremely doubtful that the employer can rely on a “safety” argument. I can safely predict this: When the followers of Satan identify themselves in the midst of a workforce of Christians and Jews who have been told of the evils of Satan, the snake, since Genesis was written, some kind of conflict will result. Expect a legal battle of Biblical proportions. I don’t know if I will be defending the employer who removes a Satanist from the workplace, but if I do, I will take some comfort in knowing that God will be on my side.
By: Dan Cohen – 12/15/14
On December 12, 2014, the National Labor Relations Board issued its final rule on “quickie” elections. The final rule is to be published today in the Federal Register and is to take effect on April 14, 2015. According to the NLRB website, the final rule:
is designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions. The Final Rule will streamline Board procedures, increase transparency and uniformity across regions, eliminate or reduce unnecessary litigation, duplication and delay, and update the Board’s rules on documents and communications in light of modern communications technology.”
The final rule should not come as a surprise with Democratic Board Member Nancy Schiffer’s term set to expire on December 16. Both Republican Board Members dissented, calling the final rule unnecessary, a violation of employee privacy and an obstacle to employees making informed choices regarding unionization
The final rule significantly reduces the amount of time in which the parties can campaign in support of their respective positions and the number of issues that can be litigated before the NLRB. Of course, these limitations clearly favor unions since employers can win most elections by simply communicating the truth about unions and what it would mean to employees be represented by a union. However, it does take time to adequately communicate that message to the workforce. And, the more employees involved, the more time it typically will take. With less time, unions can conduct their campaigns and make all of their promises and misrepresentations to the workers before filing their petitions, and employers will have little time to respond.
Up until the “quickie election rules, employers have had between 37 and 75 days to debunk union myths and provide a dose of reality to the employees depending on whether the employer chose to contest the proposed bargaining unit or other issues. The new rules limit how much an employer can do and changes the time line significantly as follows:
- Employers will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens (i.e. 7 days after receipt of the petition). Litigation inconsistent with the positions taken by the parties will generally not be allowed.
- Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties.
- Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held.
- Post hearing briefs will be allowed only if the regional director determines they are necessary.
- The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Unions will also benefit from the new requirement that employers respond to the petition by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition, which must include a list of prospective voters, their job classifications, shifts and work locations, and their available personal email addresses and phone numbers.
The “quickie” election rules are closer to reality than ever before. They are scheduled to go live in the Spring of 2015 and it is hard to imagine anything the Republican controlled Congress can/will do to derail them. Employers better start getting their messaging strategies together and otherwise getting their ducks in a row right now. If there is a petition filed under the new rules, there will be little time to react.
You may read more by linking to the NLRB Case Procedure Fact Sheet and the NLRB’s Comparison of the Old and New Election Rules.
By: Bill Pilchak – 12/11/14
Ruling Is Double-Edged Sword Depending On Who Is Suing Whom
On November 25, the Michigan Supreme Court issued an opinion on the ever-contentious issue of who may be considered independent contractors and who have “employee” status. As always, this decision presents a double-edged sword to employers and insurers, depending on who is suing whom. (more…)