1 ACC L&E Roundtable Rick Albert Krista Cabrera Kamran Mirrafati Archana Acharya Discussion Topics: Combating The Rise Of California Disability Discrimination Lawsuits The National Labor Relations Board Affecting You Whether Or Not You Have A Union Attorney Advertising Prior results do not guarantee a similar outcome Models used are not clients but may be representative of clients 321 N. Clark Street, Suite 2800, Chicago, IL 60654 312.832.4500
Case Study - The Never-Ending Leave 2 Q: How far does the employer have to go to accommodate? Q: What can employers do to avoid the threat of litigation? Case Study: Disability/Pregnancy Discrimination & Failure to Provide Reasonable Accommodation
3 Overview of Disability Discrimination Law The Fair Employment & Housing Act ( FEHA ) prohibits employment discrimination and harassment based on a person s disability or perceived disability unless The person is unable to perform the essential functions of the job and no reasonable accommodation exists that would enable him/her to perform such functions; or The person would create an imminent and substantial danger to self or others by performing the job and no reasonable accommodation exists that would remove or reduce the danger
Overview of Interactive Process for Reasonable Accommodations 4 Employers must engage in a (a) timely and (b) good faith interactive process to figure out potential reasonable accommodations. This means employers must explore all possible means of reasonably accommodating a person before making an employment decision unless It imposes an undue hardship on the employer s business The person is unable to perform the essential functions of the job and no reasonable accommodation exists that would enable him/her to perform such functions; or The person would create an imminent and substantial danger to self or others by performing the job and no reasonable accommodation exists that would remove or reduce the danger
DFEH Updates FEHA Regs - effective April 1, 2016 5 The adequacy of whether an employer has taken reasonable steps to prevent or correct discrimination will be evaluated on a case by case basis, with examples of specific factors to be considered. (See 2 C.C.R. 11023(a).) Employers must have a harassment, discrimination, and retaliation policy that complies with the new California Code of Regulations Section 11023(b).
Pregnancy Discrimination an Enforcement Priority 6 One of the six national priorities identified by the EEOC s Strategic Enforcement Plan for FY 2013-1016 is to address emerging and developing issues in equal employment law, including issues involving the intersection between the ADA and pregnancy-related limitations.
7 Pregnancy in the Spotlight 2015 Supreme Court case Young v UPS and EEOC pregnancy discrimination guidelines. A pregnant woman is entitled to the same rights given to other employees who have taken leaves for reasons not related to pregnancy.
8 Stereotypes and Assumptions EEOC Enforcement Guidance (6/15): Adverse treatment of pregnant women often arises from stereotypes and assumptions about their job capabilities and commitment to the job. Recent EEOC Press Releases: Temp agency refused to give pregnant ee assignment because the job was in a warehouse where she could get hurt. "An employer cannot make hiring decisions based on what it thinks is in the best interests of a pregnant applicant," said EEOC. "Every woman has the right to make decisions about her health and ability to work when she is pregnant.
9 New DFEH Regs Address PDL Regs clarify that PDL need not to be taken in one continuous period of time. (2 C.C.R. 11042(a)). Regs clarify that eligible employees are permitted to take four months of PDL per pregnancy, not per year. (2 C.C.R. 11042(a)(1)).
Overview of the NLRA & NLRB National Labor Relations Act (NLRA) applies to nearly all private employers. ALL of the rights under the NLRA apply EQUALLY to both union-represented and non-union employees.
Overview of the NLRA & NLRB Key provision of NLRA is Section 7: Employees shall have the right to selforganization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities
Overview of the NLRA & NLRB Section 7 of the NLRA protects both union and non-union employees who engage in PROTECTED CONCERTED ACTIVITY. Definition: actions or complaints by two or more employees to improve/change wages or working conditions. Actions by an individual employee are also protected if he/she is working to initiate or induce group action or if the working conditions at issue affect two or more employees.
Policies and Handbooks Using Section 7, the NLRB has become a referee of personnel policies that have nothing to do with union or concerted activity on their face Policies that could be construed to have a tendency to chill protected concerted activity may be ruled unlawful.
Confidentiality Policies Do not to discuss details about your job, company business or work projects with anyone outside the company. Never give out information about customers or employees. Do not disclose company information that is not already disclosed as a public record. Do not disclose information which could adversely affect the Employer s interests, image and reputation or compromise personal and private information of its members. Blanket policy mandating confidentiality during investigations. ALL ARE INVALID RULES!
Confidentiality Policies No unauthorized disclosure of business secrets or other confidential information. Do not disclose confidential financial data, other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers. Rule prohibiting disclosure of information acquired in the course of one s work located among rules relating to conflicts of interest and compliance with SEC regulations ALL ARE VALID RULES
Policies Regarding Third-Party Communications Policies prohibiting employees from discussing wages or working conditions with each other, with third parties (i.e., customers), the media, or the general public, are generally unlawful
Policies Regarding Third-Party Communications Do not contact the media. Associates are not authorized to answer questions from the news media... When approached for information, you should refer the person to the Media Relations Department. Rule requiring pre-authorization from management to contact media. If you are contacted by any government agency you should contact the Law Department immediately for assistance. Do not use any Company logos, trademarks, graphics, or advertising materials in social media. ALL ARE INVALID RULES!
Policies Regarding Third-Party Communications The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry.... Answer all media/reporter questions like this: I am not authorized to comment for the Company. Let me have our public affairs office contact you. Respect the laws regarding copyrights, trademarks,.... Do not infringe on Company logos, brand names, taglines, slogans, or other trademarks. ALL ARE VALID RULES
Policies Regarding Employee Conduct Be respectful to the company, other employees, customers, partners, and competitors. Do not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors. Be respectful of others and the Company. No defamatory, libelous, slanderous, or discriminatory comments about the Company, its customers and/or competitors, its employees, or management. Rule prohibiting disrespectful conduct or insubordination. ALL ARE INVALID RULES!
Policies Regarding Employee Conduct Rule prohibiting rudeness or unprofessional behavior toward a customer, or anyone in contact with the Company. Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of Company business. Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers, and vendors. Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, coworker, customer, or vendor will result in discipline. (Rule located within a section focused on serious misconduct such as threats and assaults) ALL ARE VALID RULES
Policies Regarding Photography & Recording Taking unauthorized pictures or video on company property is prohibited. No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any employee or Company operation. A total ban on use or possession of personal electronic equipment on Company property. Prohibiting the possession of cell phones, making personal calls or viewing or sending texts while on duty. ALL ARE INVALID RULES!
Policies Regarding Email Employers cannot prohibit employees from using email for non-job related solicitation and anything nonbusiness related. Employees now have the right to use email systems for union organizing or discussing working conditions. Policies limiting non-business uses of email to nonworking time should be valid. Policies allowing email monitoring for legitimate business reasons (without discriminatory enforcement) should also be valid.
Arbitration Policies The Board held in D.R. Horton that mandatory arbitration provisions that preclude filing of joint or class claims violate employees Section 7 rights Circuit courts have generally rejected D.R. Horton so far, but Supreme Court has yet to directly rule on the issue. NLRB will continue to litigate cases until a ruling from the Supreme Court.
Solicitation & Distribution Policies May lawfully prohibit non-employee solicitation and distribution. May also lawfully prohibit employee (1) solicitation during working time, (2) distribution during working time, and (3) distribution in working are But, must be consistently enforced. Employees are not inherently entitled to use employer bulletin boards to post materials. But, if employees are allowed to post non-work related materials on bulletin boards, the employer may not treat union materials any different, and cannot pick and choose which communications can be posted.
Workplace Access Policies Non-Employees: May generally implement a nondiscriminatory rule prohibiting all solicitation and distribution of materials by non-employees on the employer s premises. An employer cannot discriminate against non-employee union representatives if it allows a quantum of other outside solicitations. Private property rights may give way to the extent there is no other reasonable means of contacting employees.
Workplace Access Policies Off-Duty Employees: A no access policy applicable to off-duty employees is only valid if it: It is applied to all off-duty access, not just to employees accessing plant to organize. It is consistently enforced against all employees without exceptions; lax enforcement is a killer. It is clearly disseminated to all employees long before employer becomes aware of any organizing campaign. It is applied only to interior of the facility (or exterior working areas); cannot limit access to parking lot or to other exterior non-working areas.
Social Media Policies Negative comments by employees on Facebook or Twitter or Likes or Retweets of those comments can be protected concerted activity if comments relate to terms and conditions of employment. Bottom line: Treat social media similarly to other forms of communication.
Social Media Policies Questions to consider before taking disciplinary action: Does the post address wages or working conditions. What is the context? Does the post trigger an obligation to act? Who is doing the posting? What about the employer s reputation?
Social Media Policies Sample policy language disapproved by NLRB: Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act). Think carefully about friending co-workers. Prohibition on disparaging or defamatory comments. What to do? The Acting General Counsel has indicated that more specific, robust, and appropriately placed Section 7 disclaimers may be useful, and also indicates that employers should give examples in their policies of conduct that would be prohibited and not run afoul of Section 7. The Board has also published an approved social media policy.
30 Contact information Rick Albert 213-972-4644 ralbert@foley.com Kamran Mirrafati 213-972-4797 kmirrafati@foley.com Krista Cabrera 858-847-6718 kcabrera@foley.com Archana Acharya 213-972-4560 aacharya@foley.com