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Labor and Employment Law Newsletter
Winter 2000

Articles:


THINK YOUR FACILITY IS NON-UNION? THINK AGAIN.
Charles P. Roberts III

Winston-Salem Office
Everyone knows that unions have been on the decline for the past 40 years. Approximately 14 percent of the workforce in the United States is unionized, and a large percentage of that paltry group consists of public employees. The current estimate of unionized employees working for private employers has been stalled at approximately 10 percent for several years. Moreover, unions seem to have little relevance to the new "dot.economy," where many employees share ownership of their companies and are players in the stock market through their 401K and employee stock option plans. Many have said that the National Labor Relations Act, signed into law during the Great Depression, is obsolete.

You'd think these facts would spell doom for the unions and that Congress would be considering dismantling the National Labor Relations Board. You'd think, but you'd be wrong. Faced with its own obsolescence, the NLRB is fighting for relevance by conferring "union" rights on non-union employees in effect, making all workplaces "union" workplaces, regardless of whether the employees even want unions. The NLRB is doing this in two primary areas: protected concerted activity and Weingarten rights. If the Board is successful in these areas, we fully expect it to continue its encroachment upon the non-union workplace.

Protected Concerted Activity
Protected concerted activity is nothing new. The concept is found in the NLRA itself. Section 7 provides that "employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." What is new is the Board's extremely expansive view as to the type of activity that constitutes "protected concerted activity."

"Your Work Rules May Be Illegal"
One tactic used by the Board is to find that an employer's work rule is illegal on its face in other words, the rule itself is against the law, regardless of the manner in which it is interpreted or applied. For example, perhaps your company prohibits employees from walking off the job before the end of their shift without their supervisor's permission. A perfectly reasonable rule, you might justifiably think. But not according to a recent decision by the NLRB. In NACCO Materials Handling Group, Inc., 331 NLRB No. 164 (2000), the NLRB held that such a rule was facially illegal because it did not explain that employees have rights under Section 7 to walk off the job in protest of working conditions, such as the heat, the cold, excessive overtime, unfair job assignments, or any number of other job-related complaints.

Another recent tactic is to find that employers' reasonable confidentiality rules deter their employees from acting in concert for their "mutual aid or protection." The Board has long taken the position, supported by the federal courts, that employers may not prohibit employees from discussing their wages and benefits. If an employee is discharged for violating such a rule, the NLRB will order reinstatement with back pay. NLRB v. Main Street Terrace Care Center (6th Cir. 2000); Handicabs, Inc. v. NLRB, 95 F.3d 681 (8th Cir. 1996).

But the current Board has gone far beyond talk about wages and benefits. It is finding that all types of discussions are "protected," even though they may violate other employees' confidences or create problems with the employer's customers. In Office Depot, 330 NLRB No. 99 (2000), the employer discharged its employee for telling a customer's employee, "Oh, you work for the scab newspaper." The Board ordered that the employee be reinstated with back pay, finding that the employee's comment "was an expression of support for the [customer's] employees [who were on strike] and amounted to making common cause with the protected concerted activity of another employee."

Three-Day No-Call, No-Show
The Board is also challenging a company's three day no-call/no-show rule (the rule, adopted by most employers, which provides that an employee who fails to show for three consecutive days of work or to call in during that time is considered a voluntary quit). In a case that our firm is handling, the NLRB is alleging that two non-union employees who told their supervisor they were "sick of the crap," walked off the job, and did not return for four days were unlawfully discharged because they were "concertedly protesting the company's failure to adjust their grievances in a manner they deemed satisfactory." Whatever.

Confidential Medical Information
Not even medical information is sacred. In Lockheed Martin Astronautics, 330 NLRB No. 66 (2000), the Board held that an
employer unlawfully directed two security guards not to discuss another guard's medical condition and restrictions. The employer argued that the restriction was justified by the confidentiality provisions of the Americans with Disabilites Act ("ADA"). The Board, however, said that the guard with the medical condition had told her co-workers about her condition and restrictions, and that these co-workers had a right under Section 7 to discuss matters that might adversely affect them by increasing their work load. In Medeco Security Locks v. NLRB, 142 F.3d 733 (4th Cir. 1998), the court upheld an NLRB decision finding that an employer unlawfully instructed an employee not to discuss his drug screen results (which were negative) with other employees.

Lying and Stonewalling
In its latest bizarre ruling as we went to press, the Board held that it was illegal for an employer to (1) prohibit false or misleading statements by employees, or (2) require cooperation in company investigations.

The moral: beware of terminating your gossips and grief-givers unless you have independent grounds or have at least made an
informed assessment of your legal risk. Although concerted activity usually involves more than one employee, even an individual employee will be protected if he or she is bringing group complaints to the attention of management, or if he or she is seeking to induce or prepare for group action. (And don't forget that terminating your squeaky wheels can also subject you to liability under many employment laws' anti-retaliation provisions.)

The Right To A Witness In Investigatory Interviews
The second prong of the NLRB's new strategy is in the area of employer investigations. For many years, the NLRB has held that unionized employees have the right to have a union representative present during an investigatory interview that the employee reasonably believes may lead to disciplinary action. In 1974, the United States Supreme Court approved this rule in the case of NLRB v. Weingarten, Inc., 420 U.S. 251 (1974). Since that time, this right has been referred to as an employee's "Weingarten" rights.

Except for a brief period in the early 1980s, the NLRB viewed this right as being applicable only to unionized companies. This past July, however, the Board extended Weingarten rights to non-union employees.

It remains to be seen whether the Board's new, expansive view will be supported by the courts. We can only hope that it will not. But in the meantime, it appears that non-union employers may be as encumbered as their brothers and sisters in the union arena.

Chuck Roberts practices in the trad-itional labor area.
 
 
"WEINGARTEN FOR DUMMIES"
 
The Weingarten right applies only in the case of an investigatory interview, where the employee reasonably believes that the
interview may lead to discipline. It does not apply to meetings that are not investigatory in nature. Other key provisions of
Weingarten are as follows:

  • The employer is NOT required to inform the employee about his or herWeingarten rights.
  • The employee MUST request a witness for the right to attach.
  • The employee MUST be allowed to have a co-worker present, if requested, during the interview.
  • The employee NEED NOT be allowed to have a relative, attorney, or other non-employee present as his or her "witness."

Once an employee, faced with an investigatory interview from which discipline is likely to result, requests to have a co-worker present, the employer should follow these guidelines:

  • The employer MAY allow the interview to proceed with the co- worker present.
  • The employer MAY tell the employee that it will dispense with the interview and make a decision based on the information already gathered. The employee can then make the decision as to whether he or she would rather participate in the interview alone and have the chance to present his or her side of the story. The employee who chooses not to participate in the interview loses any benefit that might have been gained through the participation.
  • The employer MAY NOT force the employee to go forward with the interview with no witness present.
  • The employer MAY NOT discipline or take other action against the employee for insisting on a co-worker witness or for refusing to participate in the interview without a co-worker witness.
  • During the interview with the co-worker present, the following rules apply:
  • The employee MAY consult with the co-worker during the course of the interview.
  • The co-worker MAY make comments or offer suggestions.
  • The co-worker MAY NOT disrupt the interview.

CHUCK ROBERTS
 
 
BLUE'S DO'S: CONDUCTING A HARRASSMENT INVESTIGATION
William A. "Zan" Blue
Nashville Office

You have the word that Sally is upset because Bob is making improper comments about her body. Or perhaps Juan is upset because Jerry Jeff is making fun of Juan's accent. Or Maudie is upset because the Gen-Y'ers in her department make fun of her relatively advanced age. Or Muhammed is upset because the Christians are always disparaging his Islamic beliefs.

Whatever the reason, you have a harassment complaint. This is a critical time in your career. Are you going to handle the investigation in a way that brings credit upon your company; that results in either no charge or lawsuit, or a frivolous one that is promptly dismissed; and that causes you to advance to the heights of your corporate hierarchy?

Or are you going to handle the investigation in a way that results in six-figure legal fees, shame raining down upon the heads of your company and yourself, and needless ruination of careers and marriages (your own included)?  Well, gather `round, y'all, because Uncle Zan is going to tell you how he'd handle it.  No matter how much Sally, Juan, Maudie, or Muhammed tells you they don't want anyone to get in trouble and don't want anyone to know they complained, do the investigation. You have a complaint, and you must do something. If you don't, later they will say they tried to complain but no one would listen. Only if they sign written statements saying they want nothing done can you even consider doing nothing, and even that is risky because later they will claim that you pressured them into signing the statements to protect the men/Anglos/youngsters/Christians.

Have Sally/Juan/Maudie/ Muhammed prepare a written statement of what happened. Have someone help them if necessary. This is wholly counterintuitive, but you must do it anyway. If they are not willing to make statements in writing, then you have another problem. Deal with that if it arises, but insist on a written statement. False allegations can ruin careers and lead to defamation lawsuits you cannot defend. One solution - "Bob, we have heard rumors you have been making improper comments to Sally. We do not believe this is true, but you know how perceptions can become reality. Here is the sex harassment policy. Read it. Let's go over it. Sign it, and it will be put in your file. We are sure you have done nothing wrong, but let's make sure you know the difference. If any further allegations arise, well, we will have to do something appropriate." On the other hand, if Sally provides the written statement, then move to the next step.

Choose the investigative team. The ideal team consists of one HR person and one lawyer. The lawyer ought to be one who pratices in this area on a regular basis. The HR person should conduct the investigation and write the necessary reports. The lawyer should advise the HR person, and review and revise any documents generated. You want a final report that you would not be ashamed to see on the front page of The New York Times.

Decide on the issue of privilege. If you rely on the "advice of counsel" defense ("what we did must be legal 'cause our lawyer told us to do it"), you may have a problem. Since "advice of counsel" is a pretty weak defense (you want to be able to say you did right, not imply that you would have done better if your lawyer had given better/different advice) and because it arguably waives attorney-client privilege, I don't recommend it. Otherwise, you should have no trouble shielding your attorney's advice, recollections, and notes from disclosure if litigation ensues.

Prepare an investigation plan in writing. This is time consuming. You do not want to do it. It is expensive for special outside counsel to do, and inside counsel is swamped. Do it anyway. List witnesses and documents. Plan the timing. Have an HR assistant arrange a schedule for interviews in writing with sensitivity to confidentiality concerns. You think this is easy?

Conduct the interviews. But only after reviewing the policy. Do not assume there is a policy, and do not assume it has been published. Amazingly, in 2000 A.D., many companies, large and small, have not properly published a policy. If you have one, then read it. Read it every time you conduct an investigation. (You can be sure the complaining employee's lawyer will read it.) Be sure the policy is adequate to your task. Many are not. Review the internal complaint procedure. Be sure there is one. "Well, we don't want to encourage complaints." Well, yes we do. At minimum, follow your policy. If your policy is inadequate, go beyond it.

Back to the interviews. Interview everyone who might have knowledge, even if only to hear them say they do not know what you are talking about. Write it down. Remember, these notes may be published on the front page of the Times. So be careful what you write. If you doubt credibility, do not put that on the same notes with the substantive information. You do want the witness to sign the notes.

Ask open-ended questions. Establish that the witness knows about the policy and the internal complaint procedure. If 12 witnesses know about the policy and how to use it, how credible will the plaintiff be when she says she knows nothing, nothing about it and is shocked, shocked to hear that it exists? Listen carefully to what the witness says. Listen more carefully to what the witness does not say. This is rocket science. Repeat, this is rocket science. It is not for amateurs, however well intentioned.

Let the open-ended questions lead to specific questions and then to leading questions "reflecting" what you have heard. Take your time. Be impartial. Be perceived as impartial. It takes time you don't have and produces results you don't want, often unrelated to the original complaint. Do it anyway.

Prepare your notes. Be careful. Write down facts, not conclusions. What is the difference? Excellent question. If you cannot see, touch, smell, taste or hear it, then it is a conclusion. It might be the right conclusion, but it is still a conclusion. Save the conclusions for the report. Have the witness sign the notes after making corrections. Corrections are good; they show the notes were reviewed carefully.

Write the report. This is agonizing. It will be evidence. You might be wrong. Someone might be lying. People lie. They do it all the time. People report what they perceive as facts when they are not facts. They do it all the time. People report conclusions when they think they are reporting facts. They do it all the time. Rewrite the report. Do not keep your earlier drafts. This is not the destruction of evidence. It is not evidence until it is a report. For now it is a draft work paper. We are not accountants. Our work papers are not evidence. When it is finished it is a report and it is then and only then evidence. Some will disagree with this. They are wrong.

Present the report in person to the decision makers. Who are they? It depends on the company, but they should be senior management whom the company will be proud to present as witnesses. Because they will be witnesses.

Decide on what to do. This is agonizing. Careers and marriages hang in the balance. People will be affected for the rest of their lives. Little children may cry. And less importantly, shareholder value will be affected. This is rocket science. It is not for the faint of heart. If it was easy, then everyone could do it, anyone would do it, and none of us would get paid for it. Good luck if you choose to do this. You'll need it.

Zan Blue is head of the Nashville office and practices primarily in the areas of preventive advice, comprehensive auditing, and litigation, as well as the traditional labor area.


QUARTERLY QUIZ:
What is the "8 and 80" rule? Answer here.


OSHA's "PROTECTIONS FOR SELF-AUDITS NOTHING TO WRITE HOME ABOUT. HO-HUM.
David L. Smith

Atlanta Office
Many employers conduct voluntary safety audits of their facilities so that they can find and remedy unsafe conditions. Although you might think that such a proactive approach would be commended, OSHA's philosophy for years has been to use these self-audits as a "gotcha" weapon against employers, using the information obtained to locate unsafe conditions and to form the basis for citations.

Both the House and Senate have generated "OSHA Reform Bills" designed to, among other things, protect employers' safety and health audits from disclosure to OSHA.

In response, OSHA proposed in October 1999 and finalized in July 2000 its policy on "Treatment of Voluntary Employer Safety and Health Self-Audits." The policy gives the appearance of protecting employer self-audits from disclosure, providing for

  • An end to routine initial requests for self-audit reports;
  • An end to citations for violations discovered during a self-audit and corrected before inspection;
  • An end to use of self-audit reports as evidence of "willfulness";
  • A "good-faith" penalty reduction for employers who conduct self-audits.

But look again. In reality, the OSHA policy is unlikely to result in substantial change.

"No routine initial requests for self-audit reports." The key word here is "routine." The Agency still has the right to obtain and use audit reports when it has some "independent basis"for believing that a specific hazard exists. This could mean, for example, that when OSHA inspectors observe a single improperly guarded machine, they might then obtain and review the company's audit reports to determine the extent to which machine guarding hazards at the facility have been identified and abated. Other ways an OSHA compliance officer might establish this "independent basis" might include employee complaints, employee interviews, accident/near miss reports, or fatalities or catastrophic accidents reported to the Agency.

"No citations for violations discovered during a self-audit and corrected before inspection." This is nothing more than a restatement of the Agency's longstanding enforcement practice. It also contains a huge, gaping hole. All bets are off if the inspection is triggered by a fatality or catastrophic accident, or even by an employee complaint of an accident, illness, or injury. In such cases, OSHA can cite the employer for the (corrected) violation and use the audit report to prove that the employer knew of the hazard. And references in the audit report to similar hazardous conditions at the facility can form the basis for further investigation and citation for any uncorrected items.

"No use of self-audit reports as evidence of `willfulness.'" Oh, yeah? "Willful" citations, for which penalties can be 10 times higher, can still be issued if the OSHA inspector determines that the employer is not responding sufficiently to a known violative condition.

"A `good-faith' penalty reduction for employers who conduct self-audits." This also appears to be a mere restatement of the Agency's long-standing practice of providing a penalty reduction of up to 25% for employers who have implemented an effective safety and health program, of which audits are only one part.

So, although OSHA's new policy is an improvement, it's hardly cause for uncorking the Dom Perignon. Absent more experience under the new policy, we thus strongly encourage employers to continue to treat self-audits with the utmost care:

  • DON'T conduct an audit unless you are prepared to respond to the possible findings;
  • DO limit any written audit recommendations to actions that are readily achievable and not unusually costly;
  • DO carefully and thoroughly respond to each recommendation in a timely manner and document that response;
  • DO involve counsel in the audit report generation process in an effort to establish, where possible, a legal privilege from disclosure; and
  • DON'T volunteer to provide audit reports to the OSHA inspector except in very limited circumstances, and only upon the advice of counsel.

David Smith practices with the OSHA group. He is co-author of "State Plans," Occupational Safety and Health Law, published by BNA Books.
 
  
 ... AND REASON FLAILS...

Sort of &*%*@!# reminds you of the benefits of $%&&#!@ detached housing. More Tourette's Syndrome news: A condominium resident with Tourette's Syndrome whose involuntary nocturnal hooting and foot-stomping disturbed his neighbors received a settlement of $310,000 in exchange for his promise to move away.

Busy bees in California. During the month of September, Governor Gray Davis (D-Calif.) signed into law measures allowing employees to sue individual co-workers who harass them in violation of the state fair employment law . . . prohibiting non-job-related medical inquiries (even post-offer) and requiring that disabilities be evaluated without respect to mitigating measures (CAUTION to clients with California operations: these new provisions make the California law on disabilities stricter than the Americans with Disabilities Act) . . . and prohibiting discrimination or retaliation against victims of domestic violence who take time off from work (1) to receive treatment for abuse; (2) to receive counseling; or (3) to make arrangements for a safe place to live. The state already had a statute protecting such employees when they had to appear in court proceedings associated with the abuse.

A great, big, whopping ADA loophole. A Texas court held that an individual suing under the ADA cannot be required to use mitigating measures to lessen the effects of his or her medical condition, even if such measures are available. Apparently, if those nearsighted airline pilots had just left their glasses at home, they would have had a case.


REASON PREVAILS...

Enjoy! Several plaintiffs have been slammed by the courts recently. Savor the following: Plaintiff who called his supervisor a racial epithet and threatened to blow up his workplace (a Catholic medical center) was ordered to pay attorneys' fees and costs after his national origin discrimination case was thrown out . . . Plaintiff with sleep apnea that was completely controlled by medication was ordered to pay sanctions to the court for his frivolous ADA claim . . . EEOC was ordered to pay sanctions based on a "wholly illusory" race discrimination case filed against Burger King . . .

Lawful to fire wife-beaters. A federal court in New York dismissed an ADA lawsuit filed by a police officer who was discharged for assaulting his common-law wife. The officer contended that he was terminated because he had a history of depression.

OK, but what planet was this jury living on? The Eighth Circuit reversed a $1.2 million verdict on a fraud claim brought by a courier for a drug testing laboratory. The employer had allegedly promised during the employee's hire that she could use her own car for deliveries and receive a mileage allowance. The next year, while the policy was still in force, she paid off her car loan. Four years after her hire (and three years after she paid off the car) the employer changed the policy to require use of a company car for deliveries. The employee claimed that the change in policy was "financially ruinous" to her, and a jury of her peers agreed. However, the Eighth Circuit said that there was no evidence that the laboratory intended to defraud the employee.

"Subjective" and "discriminatory" are not synonymous (duh). The full Eleventh Circuit has held that an employer may base employment decisions on subjective criteria as long as it presents evidence of the non-discriminatory factual basis for the subjective criteria. The court stated that "attitude, articulateness, and enthusiasm, as well as appearance," are important traits in employees although hard to quantify.

EEOC busted! A federal judge in Missouri has held that an employer could lawfully exclude applicants from high-speed, repetitive motion jobs, based on pre-employment tests showing that they would be susceptible to developing carpal tunnel syndrome. The court threw out the EEOC's lawsuit against the employer without a trial.

Bay State employees still have reason to get out of bed on Monday mornings. Governor Paul Cellucci (R-Mass.) vetoed a measure that would have allowed individuals taking parental leave under the Family and Medical Leave Act to receive up to 12 weeks of unemployment insurance during the period of their absence.
 
 
CHECK US OUT!
Constangy attorneys have been published in the following recent "out-of-house" publications:

Pat Tyson (Atlanta), "Recordkeeping: Will We Ever See the Final Rule?," Safety and Health (July 2000) and "Washington Review: The Ergonomics Horse Race," Safety and Health (August 2000)...

Don Benson (Atlanta), "The High-Tech CEO Talks About Non-Compete Litigation," Competitive Edge Magazine (September/October 2000)...
 
 
MARK YOUR CALENDAR!
LABOR AND EMPLOYMENT SYMPOSIUM 2001
APRIL 25-27
ATLANTA MARRIOTT MARQUIS
 
 
ANSWER TO QUARTERLY QUIZ

The "8 and 80" rule is a special overtime provision that applies only to hospital and residential care establishments under the Fair Labor Standards Act. The rule allows employers to pay overtime based on hours worked in excess of 80 during a two-week period instead of the normal 40 during a single-week period. However, the employer must have a prior agreement with the employee, and it must also pay time and a half for any hours worked in excess of eight during a given work day. Thus, the rule is not advantageous to employers who use 12-hour shifts. On the other hand, it may be advantageous to an employer whose employees work six or seven eight-hour days in Workweek One, followed by a shorter Workweek Two of eight-hour days. In this example, the employees would be entitled to time and a half only for the hours worked in excess of 80 during the two-week period.

AUDITORS' OPIONION LETTERS
Our clients' auditors often send requests for opinion letters to Constangy's post office box at Sun Trust Bank. When this happens, the attorneys responsible for responding to the request often do not receive the request until it is already past due. Sometimes the delays can be as long as a month.

Please inform your auditors to send requests for opinion letters to Constangy's own Atlanta office. That will ensure that your attorney receives the request promptly and responds in a timely manner.
 
 
KUDOS
Pat Tyson (Atlanta) has been named Chairman of the Board of Directors of the National Safety Council, a non-profit, non-governmental, international public service organization dedicated to protecting life and promoting health . . .

Carol Sue Nelson (Birmingham) has been appointed to the Eleventh Circuit Lawyers' Advisory Committee for the Northern District of Alabama . . .

Congratulations to Pat and Carol Sue!
 

EDITORIAL
WHAT'S YOUR LABOR LAW I.Q.
Robin E. Shea
Winston-Salem Office

I recently conducted supervisory training for a client and asked the participants whether they knew what "protected concerted activity" was. They all shook their heads or stared back blankly at me.

These folks were not morons - far from it. Throughout the training on employment law subjects, such as discrimination, harassment, and retaliation, they had shown themselves to be intelligent, interested, and aware. What they weren't aware of was this employer trap buried in a law that they thought didn't apply to them because they were non-union. A trap that gets bigger and more treacherous by the day.

As this issue's excellent article by Chuck Roberts makes clear ("Think Your Facility Is Non-Union? Think Again," page 1), the National Labor Relations Board is steadily expanding its domain into the non-union workplace. And although union employers are used to dealing with the Board and its strange and unusual positions on employee relations, non-union employers are often caught off-guard.

After all, they spent years vigorously fighting off organizing efforts so they could preserve their freedom to manage their workplaces as they saw fit, right?

Don't be fooled. If you haven't already done so, read Chuck's article and see the many ways that the Board has limited your right to manage your workplace. More importantly, make sure that your supervisors and managers get training on labor issues in the non-union workplace so that they don't inadvertently subject your company to liability. Your Constangy attorney will be happy to help you, or to direct you to someone who can.