The question of the validity of the NLRB’s foray into the rulemaking when it issued its notice posting rule ultimately turned on a question of free speech, not the Board’s authority to issue such a regulation. In National Association of Manufacturers v NLRB, the D.C. Circuit vacated a controversial NLRB rule requiring employers to notify employees of their rights under the NLRA, upholding a challenge brought by several employer groups. However, rather than ruling on the NLRB’s authority under NLRA Sec. 6 to promulgate the posting rule, as argued by the parties, the appeals court concluded that the rule violated employers’ free speech rights as protected by Sec. 8(c) of the Act.
Posting rule. The rule declared that it is an unfair labor practice for an employer to fail to post the notice — that is, it “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Sec. 7.” Two additional enforcement devices contained in the rule included the fact the Board could suspend the running of the six-month limitations period for filing any unfair labor practice charge, and that it could consider an employer’s “knowing and willful refusal to post the notice as evidence of unlawful motive.”
Although the parties devoted large parts of their briefs to the question of whether Sec. 6 gave the Board authority to promulgate its posting rule, the D.C. Circuit focused its analysis on Sec. 8(c), the NLRA’s free speech provision. The appeals court observed that although Sec. 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both. Under the rule, an employer’s failure to post the required notice constitutes an unfair labor practice. Moreover, the Board may consider an employer’s “knowing and willful” noncompliance to be evidence of antiunion animus in cases in which unlawful motive is an element of an unfair labor practice.
Compelled speech. Plaintiffs here, like those in other compelled-speech cases, objected to the message the government ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it “fails to notify employees, inter alia, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.”
At this juncture, the appeals court posed the question: How can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Sec. 8(c) necessarily protects — as against the Board — the right of employers (and unions) not to speak. The Board rule violated Sec. 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving unlawfully motivated firings or refusals to hire. Consequently, the Board’s posting rule was vacated.
NLRB quorum. Although neither party raised the issue, as an aside, the appeals court also examined whether the NLRB had a valid quorum at the time that the challenged posting rule was promulgated. At the time the rule was proposed, there were four active members of the NLRB. However, because Member Becker was appointed during an intrasession recess of the Senate, his appointment was declared constitutionally invalid. The three remaining members of the Board were confirmed by the Senate, but Chairman Liebman’s term expired on August 27, 2011, prior to the August 30 publishing of the final rule in the Federal Register. Ultimately, the court determined there was no problem here, because Chairman Liebman signed the final rule on August 22, and the rule was filed with the Office of the Federal Register on August 25, before Liebman’s term expired, when the Board still had a constitutionally appointed quorum. Once the rule was filed with the Office of the Federal Register, the Board had taken all the steps necessary to issue the rule.
The conventional wisdom is that age discrimination claims are difficult to prove. Age must be the motivating factor for the discriminatory act; a mixed motive won’t cut it. Moreover, direct evidence of age discrimination is hard to find. Employers rarely make self-incriminating remarks … or do they?
In the last several months, at least four federal district courts have considered whether employer comments – specifically questions about older employees’ retirement plans – were enough to get these employees in front of a jury on their age discrimination claims. Every time, the answer was “yes.”
“You should be retired now, playing golf.” In mid-April, the federal district court in Colorado allowed the oldest and highest-paid store manager in his district, a 60-year-old who was fired after others complained about his yelling and use of profanity, to avoid summary judgment against his age discrimination claim. The employee had worked for the store for 40 years. In addition to evidence that no other managers had been fired solely for using profanity (in fact, the district manager who fired him regularly used profanity at work), the court was persuaded by evidence that several managers made comments about his age and inquired into when he planned to retire. For example, a retail operator asked, “Why are you still working? You should be retired by now, playing golf.” Two district managers asked when he was going to retire. For these reasons, and because there was also a question on whether he was performing his job satisfactorily, a reasonable jury could find that the store’s decision to fire him was not based on profanity but was motivated by his age (Roach v Safeway, Inc, DColo, April 18, 2013).
“At your age … you hadn’t even thought of retiring?” Just a few days earlier, the Southern District of Mississippi found a vice president’s comment that he couldn’t believe an employee hadn’t considered retirement “at his age” was direct evidence of age discrimination. After almost 40 years with the company, the 73-year-old employee was terminated when he refused to retire, resign, or accept an offer from his employer to stay in his current position for another couple of months to transition his responsibilities to others. His termination notice came one week after this conversation with the vice president, who asked him about his retirement plans and said, “At your age, David, you hadn’t even thought about retiring?” The court found it noteworthy that the vice president’s comment not only spoke of the employee’s retirement but also specifically referenced his age. This direct evidence of discrimination created a question of fact that precluded summary judgment (Hawthorne v Truck Trailer and Equipment, Inc., SDMiss, April 15, 2013).
We’re thinking along the lines that you’ll be retiring. Similarly, in March the Eastern District of Pennsylvania ruled that comments made by decision-makers – hospital executives who expressed their belief that the 63-year old physician whose contract they refused to renew would be retiring – were sufficient to give rise to a plausible inference that the hospital acted with age bias. When the physician’s contract was not renewed after more than 30 years, his position was replaced by one for a hospitalist, and that position was then filled by a 29-year-old physician. That evidence was enough for the court to deny the hospital’s motion for summary judgment on the employee’s age discrimination claims (Sesso v Mercy Suburban Hospital, EDPa, March 13, 2013).
Do you plan to retire soon? Finally, an older pharmacist terminated ostensibly for performance issues could advance his age discrimination claims based on pretext evidence of his supervisor’s age-related comments, the Northern District of Alabama ruled in late January. In essence, the employee alleged that his district supervisor made age-related remarks, and that after he complained about them to his supervisor’s superior, he suffered a series of reprimands that led to his termination. Over a period of three years, there were three age-related comments alleged, with the most recent uttered months before the employee’s termination, so the court wasn’t convinced these were direct evidence of age discrimination. However, they amounted to significant circumstantial evidence; for example, during his first annual review, the supervisor asked him when he planned to retire, and at his next annual review, the supervisor asked how old he was now. He also called the pharmacist an “old man” in front of other workers. Because the supervisor was the decision-maker in his termination, and a reasonable jury could infer age-related bias from his remarks, the jury could also infer that the supervisor continued to harbor age-related bias when he made his decision (Harris v CVS Caremark Corporation aka CVS Pharmacy, NDAla, January 29, 2013).
To be fair, in most of these cases the comments by management weren’t the only evidence of age discrimination. But in every case, they were found to be significant evidence. So can we agree that, at the very least, it really isn’t a good idea anymore to ask our older employees when they plan to retire?
It’s been called “as deplorable and despicable as it is patently offensive,” and “probably the most offensive word in English.” But can the single use of the “n-word” be enough to create a hostile work environment? A recent decision out of the DC Circuit suggests that it could indeed be enough.
In Ayissi-Etoh v Fannie Mae (No. 11-7127, April 5, 2013), an African-American employee was promoted to a team leader position three months after he started working for Fannie Mae. However, he was the only one of 12 newly promoted employees not given a raise. Concerned, he met with the chief audit executive. When the employee asked about not receiving a raise, the executive allegedly responded, “For a young black man we are happy to have your expertise … I think I’m already paying you a lot of money.” Several months later, in a meeting with a company vice president, the employee stated that he felt he was still being given staff-level work. In response, the executive allegedly yelled “Get out of my office n***er.”
Not surprisingly, the employee sued, asserting claims for race discrimination, hostile work environment, and retaliation. Although a federal district court granted summary judgment to Fannie Mae on all counts, the appeals court revived the employee’s claims. The court opined that the vice president’s single use of the “deeply offensive racial epithet” might well have been sufficient on its own to establish a hostile work environment. However, it ultimately didn’t reach this conclusion because it found that the incident was preceded by the “young black man” statement and followed by the employee having to work with the vice president for nearly three months until the VP was fired when outside investigators found it “highly likely” that he had in fact uttered “a highly offensive racial slur.”
One step further. Going a step further, however, Judge Kavanaugh, in a concurring opinion, wrote, “as I see it, the alleged statement by the Fannie Mae Vice President to [the employee] itself would establish a hostile work environment.” In Judge Kavanaugh’s view, being called the n-word by a supervisor “suffices by itself to establish a racially hostile work environment.” He acknowledged that cases in which a single incident can create a hostile work environment are rare, but “saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment.”
Pointing out that courts and commentators both agree that a single physical act, such a physical assault, can create a hostile work environment, and that several courts have recognized that a single verbal or visual incident, such as racially hostile graffiti that amounts to a death threat, may be sufficiently severe to justify finding a hostile work environment, Judge Kavanaugh observed that “perhaps no single act can more quickly alter the conditions of employment, and create an abusive working environment, than the use of n***er by a supervisor in the presence of his subordinates.”
1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the senate, or is instead limited to recesses that occur between enumerated sessions of the senate; and
2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.
The NLRB currently has three members of five members. Chairman Pearce, a Democrat, was appointed by the President and confirmed in 2010. However, the two other current members, Robert Griffin, Jr. and Sharon Block, were the ostensible “recess appointments” made in January 2012 to head off a confirmation battle with the Senate. Those two appointments, made at a time when the Senate was arguably not in recess but in “pro forma” sessions, were found to be unlawful in Noel Canning. As a consequence, the D.C. Circuit ruled that the Board did not have a quorum and so could not lawfully act.
The Noel Canning reasoning strikes at the validity of many other Board decisions. If the recess appointments in question are not counted toward a quorum, then under the Court’s New Process Steel case, the decisions since those appointments would be invalid because the five-seat board may not delegate its authority to a panel with fewer than three members. The Court now will effectively determine the validity of all NLRB decisions made by the Board after those recess appointments were made.
It is likely too late for the Court to act on the petition during the current Term. Once granted cert, which is expected, the case would be heard during the Court’s next Term. Stay tuned.
Most employers know whether they are covered by the Family and Medical Leave Act (FMLA) and that the Act requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave in a year in certain circumstances (e.g., the birth of a child, or to deal with a serious illness). If you do not, consulting the Department of Labor’s (DOL) online fact sheet is a good start. Even employers that know about notice, eligibility, certification, and other FMLA basics can make costly mistakes. Learn from these examples and avoid your own missteps.
Employers need to fully understand eligibility requirements and communicate them clearly to employees. Indeed, a federal district court in Texas ruled that an employee’s detrimental reliance on her employer’s mistaken acknowledgement that she was eligible for FMLA leave could estop the employer from asserting that she was not covered by the Act (Allen v MidSouth Bank, No. H-12-1618, February 25, 2013). A federal court in Colorado refused to dismiss an FMLA claim by an employee with recurring kidney stones who exhausted her FMLA leave and was technically no longer eligible (Bourne v Exempla, Inc, No. 12-cv-01477-PAB-BNB, March 27, 2013). Her supervisor kept granting leave without notifying her that she did not qualify under the FMLA. Generally, an employer must notify an employee of FMLA eligibility within five days of receiving notice of the employee’s intent to take leave.
One issue that has not been settled is whether a pre-FMLA eligible employee is entitled to some FMLA protections after notifying an employer of plans to take medical leave once eligible. For example, a federal court in Tennessee declined to follow another circuit’s conflicting precedent and dismissed the FMLA claims of a pre-FMLA eligible employee who had cancer, and who was fired after she told her employer of her post-eligible plans to take leave to undergo surgery (Dunn v Chattanooga Publishing Co, No. 1:12-CV-252, January 14, 2013). Stay tuned for further developments on this issue. Until the law is settled, err on the side of caution.
Notice of need for leave
To be entitled to FMLA protections, an employee must give the employer notice of the need for leave. Under DOL regulations, when timing is not foreseeable, notice should be given “as soon as practicable under the facts.” This requirement frequently crops up in litigation; employers are wise to take a broad view of what constitutes notice. For example, courts may find an employer had notice if an employee previously took leave for an ongoing condition; asks about medical leave; or has a known health condition and is seen having symptoms at work. A federal court in South Dakota recently found an employer had notice where it knew an employee had neck pain and headaches and a supervisor observed her lightheadedness and sent her to the emergency room (Jones v Bracco Ltd Partnership, No. 11-4117-KES, February 26, 2013).
Exercising caution by taking a broad view of notice does not mean an employer cannot require employees to follow call-in or other procedures for absences. For example, the Eighth Circuit affirmed the dismissal of an employee’s FMLA claims because she missed a month of work due to health issues but failed to give adequate notice of her need for FMLA leave (Bosley v Cargill Meat Solutions Corp, No. 12-1290, February 5, 2013). The attendance policy included a call-in procedure for absences and she knew of the system, which she had used many times. To the court, her vague communications through a coworker, who told a supervisor the employee was “sick,” fell short of FMLA notice.
The FMLA permits an employer to ask an employee to submit a medical certification showing the need for leave and the employee has 15 days to do so. If the certification is incomplete, the employer must provide an opportunity to cure deficiencies. Whether a certification is sufficient is frequently disputed in litigation. For example, a federal court in Michigan ruled that an employer did not unlawfully deny leave for an employee’s neck pain (and her interference and retaliation claims failed) because the only FMLA certification she provided before being fired for violating the attendance policy indicated her absences were due to a hand condition that did not prevent her from doing her job (Clum v Jackson National Life Insurance Company, No. 11-cv-10505, February 22, 2013). Employers can obtain DOL certification forms online for an employee’s and for an employee’s family member’s serious health condition, along with other FMLA forms.
After FMLA leave, an employee is entitled to return to the same position held when leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. However, before reinstatement, an employer may require a doctor’s note indicating that the employee is fit to return to their job. The note need only be a simple statement that the employee is able to return, but an employer concerned about the adequacy of the fitness-for-work statement may seek clarification from the health care provider (see, e.g., Chaney v Providence Health Care, Wash SCt, No. 87056-0, February 21, 2013). Note that a “key employee” who has been given proper notice of that designation is not entitled to reinstatement to the same position unless the employer has waived the right to impose those restrictions (see, e.g., Lane v Grant County, DWash, No. CV-11-309-RHW, January 17, 2013).
Obviously there are many other ways in which employers can make basic mistakes when dealing with their FMLA rights and responsibilities. For example, it is a bad idea to place an employee on a performance improvement plan shortly after his or her return from FMLA leave because that could easily form the basis of an FMLA retaliation claim. Employers also need to keep up with their recordkeeping, notice and posting requirements (employers must display a poster summarizing the FMLA’s major provisions and how to file a complaint). The DOL provides a plethora of information online, including required notices and recent developments (e.g., a final rule took effect March 8, 2013 with respect to military families).
The important thing is to stay informed and to make sure that the decisionmakers in your organization mind their p’s and q’s with respect to the Act’s basic requirements. Using the above examples of what NOT to do and why it matters may help in that regard.