MHCA Labor and Employment Law Update

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Labor and Employment Law Update

Presented by Chad Richter MHCA 2021 Annual Convention Tuesday, September 28, 2021

Criteria for Successful Completion: Registrants must be in attendance for at least 80% of the course. Attendance must be verified on the CE Verification Form. Conflicts of Interest: This continuing education is being offered without the influence of bias. No conflicts of interest have been identified and no off-label products will be discussed. Presentations by MHCA do not imply endorsement of any product, individual, or therapeutic practice. Commercial Support/Sponsorship: This continuing education is being offered without the influence of bias. No conflicts of interest have been identified and all commercial support and/or sponsorships have been properly disclosed and documented. Presentations by MHCA do not imply endorsement of any product, individual, or therapeutic practice.

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© 2021 Jackson Lewis P.C.

Labor and Employment Law Update

Chad Richter

Jackson Lewis P.C. • Omaha • 10050 Regency Circle, Suite 400, Omaha, Nebraska 68114

[email protected] • (402) 391-1991

1. Traditional Labor

2. COVID

3. Biden Administration and Supported Legislation

4. Marijuana

5. Noncompetes, Restrictive Covenants

6. Discrimination Trends (Equal Pay, Pregnancy, Hairstyle Discrimination, COVID/Disability)

7. Paid Leave

8. Layoffs

9. Remote Work/Back-to-Work

10. Other Notable Court Decisions

11. Harassment Claims

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Roadmap

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Traditional Labor

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E E

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EESupervisors

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People

Managers

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E

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Managers

Quit and Leave

Quit and Stay

Workplace Violence

Sabotage

Department of Labor

Wage & Hour

EEOC

State Human Rights

LAWSUITOSHA

Public Relations Problem

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People

UNION

Supervisors

Morale Problems

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Good Wages

Work Keeping You Interested

Promotion

Good Working Conditions

Job Security

Personal Loyalty to Employees

Full Appreciation of Work Done

Sympathetic Help on Personal Problems

Feeling “in” on Things

Tactful Disciplining

Supervisors Employees

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The Rise and Fall of Labor Unions in the U.S.

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Union Renaissance

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1955)35%(

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Union Membership Rates

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The Impact on Organized Labor

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Organized Labor’s Continued Decline

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1960s

2020(6.3%)

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UNIONS TODAY…Fighting for their very

survival

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National Labor Relations Board

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• Federal agency created by the National Labor Relations Act.

• Has exclusive jurisdiction over private sector labor relations.

• Processes election petitions and resolves unfair labor practice (ULP) charges.

• HQ in D.C. with 26 regional offices across the country, each headed by a Regional Director.

• 5 members; appointed by the President with advice of the Senate.

• NLRB “prosecutor” is its General Counsel, appointed by the President with advice of Senate.

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National Labor Relations Board Members

Marvin E. Kaplan(R)

Board Member

Term Expires 8/27/25

Lauren McFerran

(D)Chairman

Term Expires12/16/24

David Prouty(D)

Board Member

Term Expires8/27/26

John F. Ring(R)

Board Member

Term Expires12/16/22

Gwynne Wilcox(D)

Board Member

Term Expires08/23


Labor Environment Has Hardly Changed

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1983 2020

Union Members in Millions

Union Members in Millions

Over half of the 14.3M union members live in just seven states:

• California, • New York• Illinois• Pennsylvania• New Jersey• Ohio• Michigan

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Labor Union Focus in 2021

Diversification

Labor Unions refocused efforts on different industries to gain media attention and stay relevant• Amazon organizing • Google employees

launched a union with close ties to CWA

Pandemic

Labor Unions have successfully used the pandemic as an opportunity to highlight potential unsafe conditions

• The definition of a “supervisor” under the NLRA

• Section 2(11) of the NLRA states

• The term “Supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of merely routine or clerical nature, but requires the use of independent judgment

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One of the Most Litigated Issues at the Board

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The Road to Unionization

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30-35 Days

Organizing Election

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Petition

Demand for Recognition Strike for Recognition

Bargaining Order

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Hey Boss…What should I do with this union card?

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Meeting the Challenge: Freedom of Speech

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Section 8(c) of the NLRA Says:

The expressing of any views, argument, opinion or [facts], or the dissemination thereof, whether in written, printed, graphic, or visual form including [oral, electronic,] , shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act...

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Facts

Opinions

Examples

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Meeting the Challenge: Your Free Speech Rights Just Remember

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Disadvantages to Employees on the Topic of Unions

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Dues

Fees

Fines

Assessments

Strikes

Constitution

By-laws

LM-2

ULPs

Petitions

Risk of negotiations

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Section 8(c) of the NLRA Says:

“The expressing of any views, argument, or opinion, or the disseminationthereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.”

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TIPS…

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Threats

Interrogation

Promises

Spying

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WORKING IN A UNION ENVIRONMENTDisadvantages of Union Representation

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Assigning, Directing

Hiring

PaperworkTraining

Coaching, Counseling, Discipline

Helping Out

Supervisors Perspective

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Meeting the Challenge: Solicitation/Distribution Rules for Non-Employees


GET OUT!

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Meeting the Challenge: Solicitation/Distribution Rules for Employees

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Non-Work Areas Work Areas

Solicitation OK, if all employees involved are on non-work

time

OK, if all employees involved are on non-

work time

Distribution OK, if all employees involved are on non-work

time XX

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• What are they?

• How can I spot them?

• What should I do if I see them?

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Early Warning Signs…

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National Labor Relations Act

Section 7

“Employees shall have the right to self-organization, to form, join, or assist labororganizations, to bargain collectively through representatives of their ownchoosing, and to engage in other concerted activities for the purpose ofcollective bargaining or other mutual aid or protection”

Protected Concerted Activity


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• NLRA protects concerted activity by employees.

• Applies equally to both unionized and union-free workplaces.

• Protected concerted activity: Typically, 2 or more employees acting together to attempt to improve their terms and conditions of employment.

• Employees are protected against retaliation for discussing or complaining about terms and conditions of employment.



How does it apply to you?• Group protests

• Complaints on behalf of others

• Social Media posts

What would you do if it happens?



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• Policies • Accommodation Requests

• Vaccine Mandates • Accommodation Requests

• Litigation Tracker


COVID - Update

• Paycheck Fairness Act

• Raise the Wage Act

• Healthy Families Act

• FAMILY Act

• Domestic Workers’ Bill of Rights…


Biden-Backed Legislation

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• Reversal of Trump-era rulemaking

• Increased budgets, beefed-up enforcement

• Pursuit of new, untested theories; seeking new frontiers to pursue cases (e.g. gig economy)


Federal Agencies (EEOC, NLRB, DOL)

• Moving toward legalization in all 50 states.

• Recreational use now legal in 19 states.

• Still illegal under federal law, even for medicinal purposes.


Marijuana: The Evolving Law

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• In most states, zero-tolerance drug policies OK

• Trending:• Laws prohibiting discrimination in the workplace on the basis of marijuana use;

• Laws barring pre-employment testing; random employee testing

• Remember obligations under disability law


Marijuana: What It Means for Employers

• Biden EO Urges Curtailing Restrictive Covenants

• 22 states weighing changes to regulation of noncompete agreements• Recent new laws in OR, IL, NV, CT, NJ, VA, D.C.

• Including banning noncompetes for low-wage workers

• Noncompetes, similar contracts under greater scrutiny by courts, enforcement agencies (DOJ).


Noncompetes/Restrictive Covenants

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• 44 states, Puerto Rico have pay equity/equal pay laws

• Pay transparency: A political hot potato• States enacting their own pay transparency measures

• Trending: Salary history bans; Ban the Box


Equal Pay

• More than 300 suits filed from 2018-2020

• Recent circuit court decisions:• Lindsley v. TRT Holdings, Inc., 5th Cir, January 7, 2021

• Kellogg v. Ball State University, 7th Cir, January 5, 2021

• Freyd v. University of Oregon, 9th Cir, March 15, 2021


Pay Equity in the Courts

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Pregnancy Discrimination Act falls short of requiring accommodation in all cases

State laws• More than 30 states and D.C. have pregnancy accommodation laws

Pregnant Workers Fairness Act• Would prohibit practices that discriminate against making reasonable accommodations for

qualified employees affected by pregnancy, childbirth, or related medical conditions.

Lactation laws• Under FLSA, employers must provide reasonable break time, suitable place for an employee

to express breast milk. • More than 30 states, Puerto Rico, D.C., at least 5 cities have laws relating to breastfeeding in

workplace.


Pregnancy Accommodation

CROWN “Creating a Respectful and Open World for Natural Hair” Act

• Prohibits discrimination based on natural hair style and texture

• Defines discrimination to include traits historically associated with race, such as hairstyles


Hairstyle Discrimination

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• Telecommuting a reasonable accommodation? • Has the ground shifted, post-COVID?

• Long COVID is a disability• HHS, DOJ guidance

• Individualized assessment needed


Disability Discrimination


Potential Accommodations

TELEWORK OR OTHER FLEXIBLE WORK ARRANGEMENT

LEAVE OF ABSENCE (PAID OR UNPAID DEPENDING ON CIRCUMSTANCES

ADDITIONAL SAFETY PRECAUTIONS

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• More than 15 states, more than 20 municipalities require private employers to provide paid sick leave

• 10 states provide paid FMLA (or recently approved)

• Some states, localities adopted COVID-19-specific paid leave measures after FFCRA expired

• Momentum builds for federal measure…


Sick Leave (Paid and Unpaid)

American Families Plan would provide:

• 12 weeks of paid parental, family, and personal leave by year 10 of the program.

• up to $4,000 a month, with a minimum of two-thirds of average weekly wages replaced (would rise to 80 percent for lowest-wage workers).

Healthy Families Act would require:

• Employers with 15 or more employees to provide at least one hour of earned paid sick leave for every 30 hours worked, up to a maximum of 56 hours per year

• Employers with fewer than 15 employees may opt out, but must provide employees at least 56 hours of unpaid leave in a year.


Sick Leave (Paid and Unpaid)

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• “Wandering workers” = compliance woes

• Wage-hour risks for nonexempt employees• Establish clear work schedules

• Enforce timekeeping, overtime policies

• Ensure meal, rest periods are taken

• Comply with expense reimbursement laws


Remote Work

• Under the FLSA, any work-related expense incurred by an employee that would bring the employee’s pay below the minimum wage (or cut into overtime pay) should be reimbursed.

• State laws can be much more of a concern. An increasing number of states regulate the payment of business expenses which can have a significant impact on your policies.

• Many employers are revising their business expense reimbursement policies to account for equity and fairness for the virtual worker.


Reimbursement of Business Expenses

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Court Decisions of Note

• The Employee worked for a railway for 35 years. During the course of his employment, the Employee frequently violated the Employer’s attendance policy, which prohibits “excessive attendance,” leading to disciplinary action.

• The Employer did not consistently enforce its attendance policy until 2014 when it adopted a new enforcement strategy with more accountability for violations.

• In 2015, the Employee was diagnosed with epilepsy. As accommodations, he was granted time off to attend doctors’ appointments and time off when he experienced “triggering events,” such as fewer than 4 hours of sleep, that could increase the risk of a seizure.

• The Employer reminded the Employee that violations of the attendance policy could result in disciplinary action. Over the next year, the Employee was disciplined several times for excessive absenteeism and ultimately terminated in May 2016.

• The Employee sued for failure to accommodate under the ADA and state law, on the grounds that regular work attendance was not an essential function of his job, since the Employer had been previously lenient about his attendance.


ADA: Failure to Accommodate

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Lawful

• The Fifth Circuit Court, affirming summary judgment in the Employer’s favor, concluded that the Employee’s regular worksite attendance, in fact, was an essential function, because the position was essential to operations and his failure to regularly show up to work forced the Employer to find coverage.

• Further, the court explained that, while the Employer was lenient about attendance in the past, it had now opted for more strict enforcement and provided employees with notice of this change.

Takeaway: It’s important to ensure that there is strict adherence to attendance policies, that employees are on notice of attendance policies, that employers implement and consistently enforce such policies, and that attendance is listed in the job description as an essential function of the job.

Weber v. BNSF Railway Co., 2021 U.S. App. Lexis 5547, No. 20-10295 (5th Cir. Feb. 24, 2021)

• The Employee, an assembly worker, began a medical leave of absence after suffering significant injuries in a car accident in June 2016.

• In connection with her application for FMLA leave, her doctor temporarily certified that she could not perform “any and all” job functions and that she was “totally disabled (unable to work).”

• After her anticipated return to work date was extended multiple times, the Employer terminated her employment in December 2016 after learning that she would not be able to return to work in any capacity until February 2017.

• The Employee brought suit, claiming the Employer violated the ADA when it did not grant her extended leave as an accommodation.


ADA: Leave as an Accommodation

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Lawful

• The Seventh Circuit held that the Employer did not violate the ADA when it terminated the Employee after it became clear that she would require several additional months of leave after having already been granted a 2½-month leave of absence for her disability.

• The court also held that the Employee could not establish that she was a “qualified individual” with a disability under the ADA, because her doctor had made clear she could not return to work in any capacity.

• The court also rejected the Employee’s claim that the Employer should have offered her additional leave as a reasonable accommodation, citing its previous holding in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), that a “multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” The court stated that the 4 months of leave requested by the Employee, on top of the 2½ months she had previously been granted, was “plainly not a reasonable accommodation,” as affording her such prolonged leave would have “effectively excuse[d] her inability to work, which the ADA does not require of employers.”

McAllister v. Innovation Ventures, LLC, No. 20-1779 (7th Cir., Dec. 30 2020)

• A director of purchasing and planning for a jewelry company took FMLA leave in early 2014 for cancer preventative surgery. A few months later, the Employer allowed the Employee to take a second leave for related surgery, even though she had exhausted her FMLA leave.

• Over a year later, in the fall of 2015, the Employer’s VP of Manufacturing informed HR that he had decided to eliminate the Employee’s position. Two days later, the Employee informed the Employer that she intended to take FMLA leave in 2016 to address complications from her earlier surgeries.

• After internal discussions and consultation with counsel, the Employer went forward with its plans to eliminate the Employee’s position.

• The Employee filed suit, alleging retaliation in violation of the FMLA and disability discrimination in violation of the ADA and state law.


FMLA: Retaliation

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Lawful

• In affirming the lower court’s order granting summary judgment to the Employer, the First Circuit Court of Appeals reiterated familiar, but important, principles:

▪ There was no evidence that at the time the VP decided to eliminate the Employee’s position he considered her to be impaired or knew of her plans to take future FMLA leave, and, thus, any claim of disability discrimination or FMLA retaliation due to the Employee’s planned leave was precluded by the VP’s lack of knowledge as the decision-maker.

▪ No reasonable jury could have found that the VP’s decision to eliminate the Employee’s position was motivated by her leaves taken over a year before.

▪ That the Employer consulted with counsel after learning of the decision to eliminate the Employee’s position and her plan to take FMLA leave the following year did not create any inference of retaliation as “the prudent step of seeking a lawyer’s advice is not the stuff on which a finding of [retaliatory] intent can be predicated.”

O’Rourke v Tiffany & Co., 988 F.3d 23 (1st Cir. Feb. 11, 2021)

• The owner of a medical practice conducted mandatory daily staff meetings for all employees that involved prayer and Bible verse readings.

• One employee, who practiced Buddhism, asked several times to be excused from the religious portion of the meetings as a religious accommodation, but her requests were denied.

• One day after renewing her request, the Employee was fired.

• Nine other employees were either fired or quit because they opposed or voiced objections to the Employer’s practice.

• The EEOC brought suit on behalf of the Employee (and other employees) alleging the Employer violated Title VII when it failed to accommodate their request for religious accommodation.

• It also alleged the Employer created a religiously-based hostile work environment by imposing its religious beliefs and practices upon its employees.


Title VII - Religious Accommodation

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Unlawful

• The court found judgment against the Employer and ordered it to provide monetary relief to the Employee and nine other employees.

• The court also ordered the Employer to conduct Title VII training for employees and managers, and prohibited the Employer from requiring or pressuring any employee to engage in religious-based activities, including meetings, social events, conversations, and prayers.

• The parties reached a post-judgment settlement in the amount of $375,000.

EEOC v. Tim Shepherd M.D., P.A. and Bridges Healthcare, P.A., Civil Action No.4:20-cv-00060-SDJ (E.D. Texas Mar. 11, 2021)

• In 2017, two Black male applicants, applied for and were offered jobs at a global information technology services provider. In the course of conducting post-offer background checks, the Company discovered both applicants had felony convictions, and it rescinded the job offers.

• The Applicants sued the Company on the basis that the Company’s hiring practices were discriminatory in violation of federal and state law.

• The Applicants argued that national statistics show that African Americans are arrested and incarcerated at a higher rate than Caucasians, and that employers tend to put more weight on criminal history for African American candidates as opposed to Caucasian candidates. Therefore, the Company’s policies had a disparate impact upon Black applicants.


Title VII – Race/Disparate Impact

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Lawful

• On September 21, 2020, the Appeals Court affirmed the lower court’s granting of the Company’s motion to dismiss.

• On February 23, 2021 the Appeals Court declined the request for an en banc rehearing of its September 21 decision, in which it ruled that, while the national statistics showed that, on average, African Americans are more likely to be arrested and incarcerated than Caucasians, “the fact that such a disparity exists among the general population does not automatically mean that it exists among the pool of applicants qualified for the jobs in question – what is true of the whole is not necessarily true of its parts.”

• The dissent argued that the case “rests of a simple question – whether a blanket policy of excluding individuals with felony convictions from employment at [the Company] has a disparate impact on black applicants. To any person with a cursory understanding of America’s troubled racial history, the answer is clearly yes.”

Mandala v. [Company], 2021 U.S. App. Lexis 5291 (2d Cir. Feb. 23, 2021)

• Harassment claims continue to be on the rise

• Proper policies

• Prompt and thorough investigations

• Eradicating risk in the workplace


Other Types of Employment Litigation

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Questions?

Thank you.

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MHCA Labor and Employment Law Update

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