By Pamela Wolf, J.D.
It has long been well-established that women face economic challenges rooted in workplace issues that are predominantly related to being a working woman while still juggling all the family responsibilities that typically fall more on the shoulders of women than on those of men. Could it be that Congress is getting serious about looking for ways to resolve some of those challenges and the resulting burdens that fall so heavily on women?
On Tuesday, May 21, Senator Tom Harkin (D-Iowa) Chair of the Senate Health, Education, Labor and Pensions (HELP) Committee pointed to both the successes of women in the American workplace and the challenges that still remain as he kicked off a hearing on the topic: “Economic Security of Working Women: A Roundtable Discussion.”
“America’s working women have made incredible strides in the workplace,” Harkin said in a statement. “And as women succeed, America succeeds and our economy succeeds. But huge challenges remain. Too many working women are stuck in poor-quality, low-wage jobs, living in or near poverty, struggling to make ends meet.”
Stubborn challenges remain. Foreshadowing comments that would be made by witnesses invited to address the committee, Harkin continued: “In addition, even as women have entered the workforce, they are still usually the primary caregivers for children and elders. Yet our workplaces have not kept up with the changing times, and most women do not have access to the supports they need to be successful workers and caregivers.”
The senator also pointed to the challenges that women face during pregnancy: “While more and more pregnant women want to, or must, work throughout their pregnancies, women who are pregnant often risk losing their jobs — despite existing legal protections — or face employers that refuse to provide the most basic accommodations.”
Commenting on the challenges faced by women workers who need to take leave from work, Harkin said: “Many working women still have no access to any caregiving leave, like maternity leave, at all, and most lack access to paid leave. Forty percent of workers are still not covered by the Family and Medical Leave Act (FMLA). … Even women who are fortunate enough to be covered by the FMLA are often forced to return to work too soon, because they cannot afford to take the unpaid leave that the law provides.”
Senator Harkin also pointed to challenges women face when a child gets sick or a parent needs to be accompanied to the doctor, noting that 40 million Americans do not even have a single paid sick day they can use to take care of themselves or a sick family member. “Some of these workers even risk losing their jobs for missing a single day of work,” he said. “As a result, these working caregivers constantly face agonizing choices. Do you stay home with a sick child, knowing you are putting your job and your income at risk? Or do you leave a sick child unattended to ensure that you keep your job and your income?
Perhaps the greatest challenges are faced by low-wage workers, who often have “impossible schedules that threaten their family’s well-being,” according to Harkin. “Workers cannot get full-time hours, or face widely varying weekly schedules. Many receive their schedules at the last minute or are kept constantly on-call, with little to no control over their working hours. Finding reliable child care or sticking to a budget becomes impossible under these circumstances.”
How can these challenges be mitigated? The roundtable discussion addressed these and other challenges faced by women in the workforce and offered sometimes differing perspectives on how best to make workplaces more responsive to the needs of women.
A panel of eight women were invited to share their views with the HELP Committee: Neera Tanden, President, Center for American Progress, Washington, D.C.; Ellen Bravo, Executive Director, Family Values at Work, Milwaukee, Wis.; Amy Traub, Senior Policy Analyst, Demos, New York, N.Y.; Fatima Goss Graves, Vice President for Education and Employment, National Women’s Law Center, Washington, D.C.; Lori Pelletier, Executive Secretary-Treasurer, Connecticut State Federation of Labor, Rocky Hill, Conn.; Armanda Legros, Low-wage worker, Jamaica Estates, N.Y.; Gayle E. Troy, Human Resource Manager, Globe Manufacturing Company, LLC, Pittsfield, N.H.; and Rhea Lana Riner, President, Rhea Lana’s, Inc., Conway, Ark.
The recommendations by two particular panelists underscore whether the challenges faced by women should be addressed by the federal government through mandates requiring minimum protections and/or benefits, or through employer incentives instead that are aimed to create a workplace in which the needs of women would be met while at the same time the burdens placed on business operations would be minimized.
Public policy solutions. Neera Tanden, President of the Center for American Progress, an independent, nonpartisan educational institute dedicated to improving the lives of all Americans through progressive ideas and action, suggested several public policy solutions that would likely have an immediate and positive impact in the lives of working women.
“At the federal level, mandating paid sick days, paid family and medical leave, and a more flexible workplace, and strengthening pay equity legislation could empower women to meet their full potential,” Tanden said in her written testimony. She also suggested that in light of the fact that almost two-thirds of minimum-wage workers and 70 percent of tipped minimum-wage workers are women, “making the minimum wage a living wage would help close the pay gap and lift millions of Americans out of poverty.”
According to Tanden, fostering policies that permit women “to be full participants in today’s workforce” will boost the bottom line of businesses and also ensure America’s competitiveness in the global economy. She suggested that the following policy solutions would empower women to meet their full potential:
- Paid sick days, as proposed in the Healthy Families Act, and paid family and medical leave insurance, as proposed in the Family and Medical Insurance Leave Act, or FAMILY Act
- Pay equity, as proposed in the Paycheck Fairness Act
- High-quality, affordable early childhood education and universal pre-K
- A higher minimum wage and tipped minimum wage
Incentivizing employers. Gayle Troy, Human Resources Manager at Globe Manufacturing Company, LLC, appearing on behalf of the Society for Human Resource Management (SHRM), focused on a solution that would be flexible enough to accommodate the needs of employees while still providing desired predictability and stability that support business operations.
“SHRM and its members believe the United States must have a 21st century workplace flexibility policy that reflects the nature of today’s workforce, and that meets the needs of both employees and employers,” Troy stated in her written testimony. “It should enable employees to navigate their work and personal needs while providing predictability and stability to employers. Most importantly, such an approach must encourage employers to offer greater flexibility, creativity and innovation to meet the needs of their employees’ families.”
Troy pointed to a set of five principles that SHRM developed in 2009 to help guide the creation of a new workplace flexibility public policy. “In essence, SHRM believes that all employers should be encouraged to provide paid leave for illness, vacation and personal days to accommodate the needs of employees and their family members,” she said. “In return for meeting a minimum eligibility requirement, employers that choose to provide paid leave would be considered to have satisfied federal, state and local requirements and would qualify for a statutorily defined ‘safe-harbor.’” The five SHRM principles are:
Shared needs: A “safe-harbor” standard where employers voluntarily provide a specified number of paid leave days for employees to use for any purpose, consistent with the employer’s policies or collective bargaining agreements (CBA). A federal policy should:
- Provide certainty, predictability, and accountability for employees and employers.
- Encourage employers to offer paid leave under a uniform and coordinated set of rules that would replace and simplify the confusing — and often conflicting — existing patchwork of regulations.
- Create administrative and compliance incentives for employers that offer paid leave by offering them a safe-harbor standard that would facilitate compliance and save on administrative costs.
- Allow for different work environments, union representation, industries, and organizational size.
- Permit employers that voluntarily meet safe-harbor leave standards to satisfy federal, state, and local leave requirements.
Employee leave: Employers should be encouraged to voluntarily provide paid leave to help employees meet work and personal life obligations through the safe-harbor leave standard. A federal policy should:
- Encourage employers to offer employees some level of paid leave that meets minimum eligibility requirements as allowed under the employer’s safe-harbor plan.
- Allow the employee to use the leave for illness, vacation, personal, and family needs.
- Require employers to create a plan document, made available to all eligible employees, that fulfills the requirements of the safe harbor.
- Require the employer to attest to the DOL that the plan meets the safe-harbor requirements.
Flexibility: A federal workplace leave policy should encourage maximum flexibility for both employees and employers; it should:
- Permit the leave requirement to be satisfied by following the policies and parameters of an employer plan or CBA, where applicable, consistent with the safe-harbor provisions.
- Provide employers with predictability and stability in workforce operations.
- Provide employees with the predictability and stability necessary to meet personal needs.
Scalability: A federal workplace leave policy must avoid a mandated one-size-fits-all approach and instead recognize that paid leave offerings should accommodate the increasing diversity in workforce needs and environments; it should:
- Allow leave benefits to be scaled to the number of employees at an organization; the organization’s type of operations; talent and staffing availability; market and competitive forces; and collective bargaining arrangements.
- Provide pro-rated leave benefits to full- and part-time employees as applicable under the employer plan, which is tailored to the specific workforce needs and consistent with the safe harbor.
Flexible work options: Employees and employers can benefit from a public policy that meets the diverse needs of the workplace in supporting and encouraging flexible work options such as telecommuting, flexible work arrangements, job sharing, and compressed or reduced schedules. Federal statutes that impede these offerings should be updated to provide employers and employees with maximum flexibility to navigate work and personal needs. A federal policy should:
- Amend federal law to allow employees to manage work and family needs through flexible work options such as telecommuting, comp time, flextime, a part-time schedule, job sharing, and compressed or reduced schedules.
- Permit employees to choose either earning compensatory time off for work hours beyond the established workweek, or overtime wages.
- Clarify federal law to strengthen existing leave statutes to ensure they work for both employees and employers.
The next step in the quest to help women experience greater economic success remains to be seen. For his part, however, Harkin had this to say: “We know from successful policies in cities and states around the country that it is possible to implement stronger measures to help working women succeed. Raising the minimum wage, allowing women to earn paid sick days and paid family and medical leave, ensuring equal pay, requiring accommodations for pregnant workers, and allowing workers to have input into their work schedules — these are winning policies for everyone. Families benefit. Businesses will benefit from a more loyal and healthier workforce. And our economy benefits when women workers have steady employment and a steady paycheck.”
Perhaps the HELP Committee, as a result of the hearing, will prompt Congress to take much-need action to give working women more help in the workplace — even a little help, regardless of the approach, will likely go a long way.
In a memorandum issued May 21, the NLRB announced that it has entered into a program with the Occupational Safety and Health Administration (OSHA) to accept referral of complaints that would otherwise be time-barred under the OSH Act.
During the OSHA intake process, those seeking to assert an OSHA whistleblower claim often learn that their claims are untimely under Section 11(c) of OSH Act, which establishes only a 30-day statute of limitations. According to the memo, OSHA estimates that this happens in 300 to 600 cases each year. The Board states that “it is likely that some of these cases may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions.”
To address these situations, the agencies agreed to notify all parties who file an untimely whistleblower charge of their right to file a charge with the NLRB. OSHA personnel will advise the parties they may file a charge with the Board and that the Board’s time limit to file (6 months) is longer than OSHA’s (1 month). OSHA personnel will be providing parties with contact information for the appropriate NLRB Field Office and also a toll-free number, 1-844-762-6572, to the NLRB.
Excluding employees from meetings, micromanaging, and other facially neutral conduct can show unlawful intent
By Lorene D. Park, J.D.
When it comes to nonverbal interactions, most supervisors know that threatening body language, touching, more-than-minor pranks, or adverse employment actions like termination can support discrimination, hostile work environment (HWE), or other claims under employment laws. But those same supervisors may think it is no big deal to merely watch an employee’s work extra closely, to exclude non-essential personnel from a meeting, or take other seemingly neutral actions. Courts do not always view it that way. Micromanaging could mean an employee needs guidance, but it could also mean a supervisor is looking for reasons to fire someone (perhaps in retaliation for protected activity). And excluding someone from a meeting, particularly if he or she typically attends such meetings, could be viewed as shunning an employee.
We are often told by courts that Title VII is not a general civility code. For this reason, facially neutral conduct may not be enough by itself to show a hostile environment, discrimination, or retaliation. However, nonverbal communication makes its way into employment litigation more than you know and, in the right context, even arguably neutral actions will suggest improper motives. Here are some examples.
The cold shoulder. An employer should have the discretion to make routine decisions like where to place employee desks and who to include in meetings, right? The answer is “usually.” In several cases employees’ allegations of being excluded from meetings, moved away from coworkers, or otherwise isolated have supported HWE, discrimination, and retaliation claims. In one case, a federal court in Texas refused to dismiss the retaliation claim of an administrative assistant who was moved to a different desk area, left out of meetings in which she was previously included, and ignored by her supervisor after she was named as a witness in another employee’s discrimination suit (Slaughter v College of the Mainland).
Similarly, a federal court in Pennsylvania refused to dismiss the HWE and retaliation claims of a female manager who alleged that after she complained of unequal pay, her supervisor left her out of critical business meetings, canceled one-on-one meetings with her, and started directing questions to her subordinates instead of going directly to her (McSparran v Commonwealth of Pennsylvania). Clearly, timing and other circumstances matter.
Erasing an employee. Removing an employee’s name from a company website or taking other actions that communicate he or she is no longer at the company, even though there has been no termination, can signal to a court that an employer intended to discharge the employee but was perhaps waiting until the timing would be less suspicious or it had a “legitimate” reason to do so. In such cases, the legitimate reason will likely be called into question, and the employer’s pre-termination actions could suggest pretext. Indeed, in a Texas case, an employer that removed an employee from its website and moved her personal belongings from a shared desk while she was on FMLA leave signaled to the court that it never intended to reinstate her and that her leave was a motivating factor in the decision to fire her upon return (Kendall v Walgreen Co).
Micromanaging. In many cases, employees provide evidence that a supervisor subjected them to greater scrutiny, asserting that the supervisor was looking for mistakes in order to paper the file and justify an adverse employment action that was really taken for an unlawful reason. For example, the Tenth Circuit recently reversed the dismissal of an attorney’s ADEA and Title VII claims based in part on evidence that her supervisor subjected older women to heavier workloads and greater scrutiny as compared to younger male attorneys (Ridgell-Boltz v Colvin).
Difficult assignments. Allegations that an employee was subjected to greater scrutiny for unlawful reasons often go hand in hand with allegations that he or she was given a heavier workload, more difficult assignments, or insufficient time to complete tasks. It is beyond dispute that being given difficult assignments or heavy workloads is just part and parcel of working in certain professions. But in some circumstances, it can appear suspicious. In a California case, evidence that a supervisor made a pilot’s job onerous by requiring him to report to a hangar that involved a 75-mile commute and to take a temporary assignment in Afghanistan — after the supervisor allegedly said he wouldn’t let the “senior guys” retire in place — supported the pilot’s age discrimination claim. The onerous assignments may not have been enough to show an HWE or constructive discharge, but they were evidence of discriminatory intent (Offield v Holder).
Enforcing policies. Discipline may not be facially neutral, but enforcing policies arguably is. Where employers face trouble is when they start enforcing policies that were previously ignored or when they enforce a policy inconsistently between employees. For example, whistleblower claims by a CVS manager survived summary judgment after a Tennessee court noted that he had been a model employee for 13 years but then, after he complained over the pharmacy dispensing out-of-date medications, he was terminated for a single violation of a “zero tolerance” policy that hadn’t even been reduced to writing (Walls v Tennessee CVS Pharmacy, LLC).
While it would be impractical, if not impossible, for employers to scrutinize every neutral action taken or business decision made by supervisors, certain actions deserve at least some special consideration because they appear on a regular basis in employment cases. As the examples above show, these often include “shunning” (usually isolation from coworkers or exclusion from meetings), micromanaging, assigning heavy or difficult workloads, or strictly enforcing policies. As to these actions, context is key when courts are deciding if they are merely the “ordinary tribulations of the workplace” or are something more. In particular, answers to the following questions can be determinative on questions of intent and pretext:
- Is the exclusion from meetings, change in workspace, scrutiny, or heavy workload something new? If so, courts will look closely at what preceded the change to provide context (and possibly find pretext). For example, did the employee who is being excluded or scrutinized recently complain of what he or she believed was unlawful conduct?
- Was the employee the only one being subjected to the action? If so, the question becomes why? Considerations may include the employee’s history, recent interactions with the decisionmaker, and any recent protected activities by the employee, such as FMLA leave, complaints of unlawful activity, or requests for accommodation.
Note that even if a court finds inconsistency or suspicious changes, discrimination or other claims will not necessarily succeed in the end. However, such considerations can go a long way in raising triable questions as to intent or pretext.
By Lisa Milam-Perez, J.D.
Union and nonunion employers alike have had to keep a watchful eye on the NLRB in recent years. The agency has begun to forage on new turf — the ubiquitous employee handbook — as it seeks to unearth violations of employees’ protected rights under the NLRA. The Board has challenged a number of common handbook provisions, resulting in disparate holdings even under quite similar facts, and leaving confusion and consternation in its wake. Here’s a look at the latest developments on that front.
ALJ ignores GC. In late April, an NLRB law judge struck down a communications policy embodied in Kroger Co. of Michigan’s handbook. The challenged provision required employees, whenever they published “work-related information” online and identified themselves as Kroger employees, to include a disclaimer stating “the postings on this site are my own and do not necessarily represent the postings, strategies, or opinion of the Kroger Co. family of stores.” According to the ALJ, this requirement was a tedious enough burden on employees that it would dissuade them from exercising their protected statutory rights online. It was overbroad, the ALJ said, in that it applied to all manner of online communications in which work-related information was discussed, including Facebook postings.
Unfortunately for Kroger, it mattered little that, in drafting its policy, the company used language that was approved by the NLRB acting general counsel Lafe Solomon in a 2012 report on social media cases. The ALJ was unpersuaded by the GC guidance (which lacked precedential value). The ALJ also rejected Kroger’s argument that another regional director had settled charges against an employer by allowing it to maintain a policy nearly identical to the one here. “It simply does not matter what position a Regional Director took in a different case three years ago in order to settle that case,” the law judge said.
In another recent decision, an ALJ invalidated several overly broad handbook rules and found the employer’s attempt to repudiate them was insufficient. One faulty provision was an “inappropriate conduct” rule that barred disclosure of confidential company, customer, and employee information, including confidential information maintained in personnel files. This clause would lead employees to reasonably believe they were restricted from being openly critical of the employer’s treatment of its workers and from discussing wages, benefits, and related information with coworkers or union reps, the ALJ found.
Another rule directed employees to refrain from posting certain information and comments on the Internet. It was not restricted to confidential or even company information; it didn’t distinguish between protecting information about customers or company business (restrictions that would conceivably be lawful) and the sharing of other information; and thus it was inherently overbroad. Also problematic: It prohibited the posting of any information without the company’s prior approval.
Division of Advice OK’s at-will statements. The Division of Advice found nothing unlawful in a handbook provision that prohibited anyone other than the company’s senior vice president from modifying employees’ at-will employment status, or its express statement that “[n]o statement, act, series of events or pattern of conduct can change this at-will [employment] relationship.” The employees would not reasonably construe the policy to prohibit Sec. 7 activity, according to a recent advice memo. Taken in context, it was clear the at-will statement wasn’t aimed at employees’ protected conduct under the Act but rather, was meant to guard against lawsuits based on the contention that the handbook was an enforceable employment contract, according to the Division of Advice. Therefore, the clause did not conflict with potential attempts by employees to unionize.
This latest directive was good news for employers in light of ongoing concerns in recent years that the Board was levying a direct attack on at-will employment clauses. The controversy first erupted in February 2012, when a regional director filed a complaint contending that an at-will provision maintained by the Hyatt Hotels violated Sec. 7 rights. The problem, according to the complaint, was that employees had to acknowledge receipt of the provision, which essentially forced them to affirm that their at-will status could not be changed — leading them to reasonably believe they could never unionize. The at-will policy in question here, though, did not require employees to effectively waive their right to participate in future Section 7 activity.
Since that time, the General Counsel’s office has issued advice memoranda on several at-will employment clauses, deeming them lawful, and ALJs have considered and condoned numerous at-will provisions brought before them. The agency’s position (once seen as murky, at best, and as “a ruse” by at least one management lawyer) appears to have crystallized: At-will provisions are lawful as long as they don’t require employees to acknowledge their at-will status is unchangeable (and, consequently, that efforts to unionize thus would be futile). It should be noted, though, that in a February 2014 directive to regional directors, the General Counsel’s office mandated that all cases involving at-will provisions in employer handbooks must be submitted to the Division of Advice (unless they are otherwise resolved through extant advice memoranda) — signaling that careful scrutiny of such provisions may continue.
Board rejects numerous handbook policies. The fervor surrounding the NLRB’s scrutiny of employee handbooks arose while the agency was hampered by challenges to the legitimacy of Board members’ (and, to a lesser extent, the acting general counsel’s) appointments. Thus, the NLRB’s jurisprudence on the issue could be readily called into question. However, the Senate-sanctioned, five-member NLRB has now begun to field handbook cases that have percolated up from the regions, and its members have recently found a number of provisions unlawful on their face:
• A “standards of behavior” policy prohibiting “negative comment about our fellow team members” (including managers) and engaging in “negativity or gossip,” and requiring employees to “represent [the Respondent] in the community in a positive and professional manner in every opportunity” (Hills and Dales General Hospital);
• A bus company’s rules barring disclosure of “any company information,” including wage and benefit information; prohibiting employees from making statements about work-related accidents to anyone but the police or company management; prohibiting “false statements” about the company; barring participation in outside activities that would be “detrimental” to the company’s image, “discourteous or inappropriate attitude or behavior to passengers, coworkers, or the public,” and prohibiting employees from engaging in “disorderly conduct during working hours” (First Transit, Inc);
• A social media policy in an employee handbook which required that employees’ contacts with parents, school representatives, and school officials be “appropriate,” and also included a provision subjecting employees to potential discipline for publicly sharing “unfavorable” information “related to the company or any of its employees” (Durham School Services).
In addition, an employer last month agreed to rescind its nationwide social media policy to resolve an NLRB complaint alleging the policy interfered with employees’ rights to discuss terms and conditions of employment on social media. Under the terms of its settlement with the Board, the employer will mail notices advising employees that they will not be prohibited from using social media to discuss their terms and conditions of employment.
Board’s handbook approach condoned. Finally, the NLRB recently secured a ruling from the Fifth Circuit enforcing its order which found a nonunion employer had unlawfully maintained an overly broad confidentiality rule that barred discussions of “personnel information” outside the company. The rule would in effect, if not expressly, prohibit employees from discussing wage information, thus chilling their protected rights. The very existence of the provision was violation enough, the appeals court agreed, even absent evidence of enforcement.
Thus, the circuit court that had slapped the NLRB’s wrist in D.R. Horton, Inc v NLRB as the agency moved to invalidate employers’ mandatory arbitration agreements gave its seal of approval to the Board’s rejection of a nonunion company’s handbook rule in what, incidentally, had been a divided decision below. In fact, in his dissent, Member Hayes noted that the D.C. Circuit has been “particularly critical” of the Board’s failure to give a fair reading to employers’ confidentiality rules in their entirety and predicted that, were the case to go up before that court on review, “it will likely suffer the same rebuke.” The Fifth Circuit saw it differently, however.
Drafting tips for the wary. Where does this leave employers as they strive to fashion workable handbook policies that can survive NLRB scrutiny while simultaneously meeting the organization’s business needs? While it can be difficult to reconcile the various holdings in recent years, a few instructive principles emerge:
• Context matters. As former Member Hayes noted, a particular handbook provision cannot be read in isolation, and the agency’s rulings are rife with examples of this principle in action. However, there is little sympathy for the “in context” defense if it would expect an employee to reconcile clauses, “when read together,” from far-flung pages of the handbook. An employer won’t fare well with claims that a broad confidentiality rule on page 3 is meant to apply only to a provision on protecting intellectual property discussed on page 16. If a particular policy must be placed in a remote location from its “context,” clearly reference and cite to the relevant provision that purportedly informs the intended meaning.
• Prior restraint is a no-no. A general rule requiring employees to request permission before posting online communications constitutes unlawful interference. As Kroger Co. learned, a seemingly innocuous requirement (such as a straightforward disclaimer) may be seen as unduly cumbersome for employees in the eyes of a law judge.
• “Ambiguous” equals “overbroad.” While ambiguous terms are often used to afford some wiggle room in enforcing a handbook rule, “ambiguity” often equals “overbroad” in the NLRB’s perusing eyes. Provide specific examples of the conduct that a particular rule is intended to proscribe (stressing, of course, that the examples are illustrative and not exhaustive). Extra points are awarded for noting exceptions — e.g., a statement that your confidentiality rule “is not intended to prohibit employees from discussing wages or any other specific terms and conditions of employment.”
• Take “advice” with a grain of salt. As the Kroger Co case above makes clear, reliance on the General Counsel’s guidance when drafting handbook provisions isn’t foolproof.
• No harbor is safe. The NLRB undoubtedly has sent mixed messages in the past on the utility of including safe-harbor provisions in employee handbooks. A savings clause, in theory, should shield your organization from Board charges, provided it makes clear to employees that you have no intention of interfering with their Sec. 7 rights. But such a provision must be drafted with care. One challenged handbook included a “freedom of association” policy expressly stating that management supported the right of employees to vote for or against union representation, without interference. But the provision “focused solely on union organizational rights,” the Board lamented, striking the clause because it failed to address “the broad panoply of rights protected by Section 7.” Truth be told, though, it’s not certain that even the most artfully drafted clause will have its intended prophylactic effect.
Facing a handbook charge? Finally, a few points to keep in mind when confronted with an NLRB enforcement action over an employee handbook provision:
• Repudiate like you mean it. The NLRB expects employers to be emphatic when attempting to repudiate a problematic handbook policy. Quietly stripping the offending provision isn’t likely to placate the agency in enforcement proceedings. An employer must be timely and unambiguous in disclaiming the improper language, and upfront in notifying employees of the change.
• “Tend to chill” is the test. An argument that none of your employees have actually interpreted your handbook provision as restricting their rights under the NLRA will be dead on arrival. Alas, that’s the frustrating nature of grappling with the NLRB. But the test is whether your handbook rule theoretically “would reasonably tend to chill” employees in the exercise of their rights, not whether it’s actually done so.
• The rule’s the thing. Similarly, whether your organization has actually enforced a challenged handbook provision in a discriminatory or heavy-handed manner is irrelevant. Again, the “reasonably tend to chill” test applies. There need not be an aggrieved employee for the Board to take issue with the rule on its face.
• Your case is unprecedented. Handbook cases remain relatively uncharted territory, and the Board’s law judges and regional directors are reaching independent decisions on a fairly blank slate. Don’t stake your litigation strategy on the presumption that your (arguably) identical facts will result in a similar outcome.
• It ain’t over til it’s over. Employee handbook complaints typically arise in relation to an employee’s (or union’s) filing of an unfair labor practice complaint — very often in response to an unrelated gripe, at which point the agency will ask to see your handbook. So even if you manage to peacefully resolve the underlying dispute with your employee, that doesn’t mean you’ve squared things with the Board.
By Joy P. Waltemath, J.D.
In April, the Sixth Circuit reversed summary judgment for Ford Motor Co. on the EEOC’s claim that Ford had failed to reasonably accommodate its employee’s request to telecommute part-time to address flare-ups of her irritable bowel syndrome (IBS), a condition that can cause fecal incontinence (EEOC v Ford Motor Co). Ford fired the employee from her position as a resale steel buyer after she asked to telecommute for up to four days per week in an attempt to control her IBS symptoms.
Employers are particularly concerned that the Sixth Circuit walked back its earlier pronouncement that telecommuting was not a reasonable accommodation for most jobs; it found instead that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Despite some well-publicized retractions of the privilege, telecommuting is a growing phenomenon. Telecommuting reportedly has risen 79 percent between 2005 and 2012, according to the Census Bureau’s American Community Survey. Yet full-time employees who work from home at least half the time (and are not self-employed) make up only 2.6 percent of the American work force, or about 3.2 million workers. Regardless of employers’ legitimate concerns, the Sixth Circuit opinion can be read as a roadmap for how to handle telecommuting as a reasonable accommodation.
Don’t confuse attendance with physical presence
The Sixth Circuit majority found that the employee (here aided by the EEOC) had evidence that she was “otherwise qualified” for her resale steel buyer position either if “physical presence at Ford facilities” was not an essential job function or if she were provided with a telecommuting accommodation. In the majority’s view, Ford kept confusing physical presence with regular attendance, pointing out that given advances in technology and the evolving nature of work, the “workplace” is anywhere that an employee can perform her job duties.
Is face-to-face physical presence necessary? Clearly teamwork was critical, and Ford believed face-to-face interactions facilitate group problem-solving. But, in an approach that employers continue to find unsettling, the Sixth Circuit was unwilling to defer wholesale to Ford’s business judgment that her physical presence was essential. The employee had evidence that experientially seemed to ring true: She said even when she was on-site at Ford, “the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.” Plus, when she had to conduct site visits, she also was not physically present in Ford’s workplace.
Is telecommuting a reasonable accommodation?
Something the Sixth Circuit said that has caused a lot of consternation is that, since it first pronounced in 1997 that telecommuting was not a reasonable accommodation for most jobs, “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Here it found the employee had enough evidence to create a genuine fact dispute over whether her job was one that could effectively be performed at least part-time from home.
Don’t confuse telecommuting with flex-time. Ford said that telecommuting could not be a reasonable accommodation because resale buyers had to “interact regularly with other team members and access information that was unavailable during non-core business hours.” But the court believed Ford was confusing flex-time with telecommuting. Here the employee had specifically requested the option to telecommute during normal business hours. Ford’s stated concerns did not depend on her physical presence in the office, but rather on her consistent availability during “core” hours. The court found that Ford lacked evidence that a telecommuting arrangement, as opposed to a flex-time arrangement, was inherently problematic.
Engage in the interactive process on telecommuting requests. Ford also argued that, given the employee’s prior absences, her request to telecommute for up to four days a week was unreasonable. To that, the court countered that it was Ford’s obligation to engage in the interactive process to explore alternative accommodations, especially where the employee indicated she would accept one or two days a week as an alternative. Plus, Ford could not use the employee’s past attendance issues as a reason to deny her an accommodation because her absences were related to her disability, flare-ups of her IBS.
Offer truly reasonable alternative accommodations. Employers are also likely to be troubled by the Sixth Circuit’s finessing of the fact that Ford offered, and the employee rejected, two alternative accommodations: moving her cubicle closer to the restroom and finding an alternative position “more suitable” to telecommuting. But the court found there was a genuine fact question as to whether those alternatives adequately accommodated the employee’s disability.
Merely moving her to a cubicle closer to the restroom did not fully accommodate her disability, stated the court, if during IBS episodes she had no control over her bowels for the time it would take to reach the restroom. Nor did the majority think it reasonable to expect an employee “to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact,” it said, pointedly rejecting the dissent’s approach. As for Ford’s offer to find her an alternate job that was more amenable to telecommuting, there was no guarantee that such a position would be forthcoming, the court remarked, and anyway, reassignment is only considered “when accommodation within the individual’s current position would pose an undue hardship,” and that was not the case here.
Lessons for employers
Employers can use the Sixth Circuit opinion as a roadmap to handling telecommuting accommodation requests:
- Treat every request for telecommuting as an accommodation seriously. At least in this circuit, the class of jobs for which telecommuting as an accommodation is per se unreasonable just got a lot smaller.
- Don’t confuse “physical presence in the workplace” with regular attendance. Telecommuting employees have to come to work every workday, just as do employees who work on-site. Regular attendance is a pretty much an essential job function for both. A request to telecommute is not a request for leave or extra time off. As for face-to-face communication, be honest: to how many meetings do participants dial-in? How much business (or teamwork, or problem-solving) is conducted by phone or email vs. face-to-face?
- Don’t confuse telecommuting with flex-time. Again, while telecommuting may include flexible hours, it certainly does not have to. If an employee’s availability during normal business hours is an essential job function, that fact does not necessarily preclude a telecommuting arrangement. Similarly, flex-time may also be a reasonable accommodation, whether an employee is on-site or working remotely. For purposes of investigating a reasonable accommodation, a certain level of precision is important.
- Engage in the interactive process on the accommodation request. No matter how off-the-wall an employee’s accommodation request appears initially, employers are only going to help themselves if they engage – carefully and without making promises – in the interactive process. Have a serious, good-faith discussion; this is even more important if the employee is trying to overreach. You want the equities in your favor.
- Make sure your alternative accommodations are not illusory. Moving the employee’s cubicle closer the restroom may or may not have been an illusory accommodation. What is “closer” to the restroom, anyway? If incontinence could result simply from standing up, would this truly have been a reasonable accommodation? Similarly, “finding an alternative position within Ford more suitable for telecommuting” may also have been illusory; there was no actual position ever offered. As for the dissenting judge’s suggestion that “Depends” and a change of clothes could make this alternative accommodation reasonable, it’s not a bad idea to consider the reasonableness of an accommodation by first asking how you might perceive it were it to be offered to your spouse or parent, and second by considering how it might play before a jury.