Shawe Rosenthal - Management's Workplace Lawyers

HIGHLIGHTS FOR THE MONTH OF NOVEMBER 2007

By: Kraig B. Long

Union's Loss Of Majority Support Found Where Employees Sought Vote To Remove The Union

Payment Of Wages And Benefits For Sixty Days Following Plant Closure Satisfied WARN

Title VII Complaint Process

Personal Protective Equipment

NLRA Remedies

NLRA Retaliation

Attorney-Client Privilege

I-9 Update

Unusual Behavior May Signal Need For FMLA Leave

RECENT DEVELOPMENTS

Union's Loss Of Majority Support Found Where Employees Sought Vote To Remove The Union

In Wurtland Nursing & Rehabilitation Center, the National Labor Relations Board (NLRB) reversed the administrative law judge's decision and held that the employer did not violate the National Labor Relations Act by unilaterally withdrawing recognition from the Union as the employees' bargaining representative.

In its decision, the Board recognized the general rule that an employer may unilaterally withdraw recognition from the Union when the Union has actually lost the support of the majority of the bargaining unit employees. The Board disagreed, however, with the ALJ's finding that an employee petition containing more than 50 percent of the employees' signatures in the unit and stating that the employees wished "for a vote to remove the Union" failed to show that the union lost the support of the majority of employees. The Board found that a reasonable reading of the petition indicated that the employees were rejecting union representation, and not seeking simply a vote to determine whether to remove the union. The Board distinguished petitions held to be insufficient evidence of loss of majority support, where employees were merely asking for a vote on union representation without indicating how they would vote, such as where the employees stated that their contract expired and "would like to have a vote on whether to have a union or not" or where the petition stated that it wants "to find out if the majority of employees would like to vote on the union."

The Board held, in this case, that the employees' statement that they wished "for a vote to remove the Union" was objective proof of the employees' withdrawal of support for the Union, and that the employees asked for a vote believing it was a means to their desired end of removing the Union. In finding that the employer established an actual loss of majority support at the time it withdrew its recognition of the Union, the Board emphasized that the evidence establishing loss of the support of a majority of the unit employees does not have to be "unambiguous." An employer may prove loss of the majority by a preponderance of the evidence.

Payment Of Wages And Benefits For Sixty Days Following Plant Closure Satisfied WARN

The United States Court of Appeals for the Fourth Circuit recently held that an employer did not violate the Worker Adjustment and Retraining Notification Act (“WARN Act”) when it ceased all operations at its plant without prior notice of the shutdown, but thereafter, paid full wages and benefits for the next sixty (60) days to all of its employees who did not accept work with the successor employer.

Facts of the Case: When employees arrived at work on October 31, 2005, they discovered that the employer had ceased all operations at the plant. The employees received a memorandum advising that the plant had been sold and that the employer would continue their employment until the earlier of December 31, 2005, or the date they accepted employment with the successor company. Employees would not be required to report to work, and would continue to receive their wages based on a forty-hour workweek and would remain eligible for their benefits for the next 60 days, so long as they did not accept employment with the successor company. The plaintiffs were 22 employees who accepted full-time employment with the successor company in late November 2005 and then stopped receiving their wages and benefits as stated by the prior employer. The employees sued, claiming that the employer violated the WARN Act when it failed to give 60 days notice of the October 31 shutdown and therefore should be required to continue paying their wages and benefits for 60 days after October 31, regardless of their employment with the successor company during that period. The trial court rejected the employees’ claim and found for the employer.

The Court’s Ruling: In Long v. Dunlop Sports Group Americas, Inc., the Fourth Circuit agreed with the trial court. The Court rejected the employees’ argument that because they no longer worked at the plant after the October 31 shutdown, they suffered an “employment loss” at the time of the shutdown and were entitled to notice 60 days prior thereto. The Court recognized that the WARN Act requires that “[a]n employer shall not order a plant closing or mass layoff [resulting in an employment loss for 50 or more employees] until the end of a 60-day period after the employer serves written notice of such an order.” The Court, however, recognized that the purpose of the notice requirement is fulfilled, and the Act is not violated, when the employer agrees to pay employees their full wages and benefits for a period of 60 days after the plant closure or until the employees accept employment with the successor company.

The Court explained that the required WARN Act notice must precede the date when the employment loss resulting from the plant shutdowns occurs, and need not coincide with the date of the shutdown itself. Thus, the Court ruled that the date of the “employment loss” resulting from the plant closure in this case was December 31, when the employer ceased paying its employees full wages and benefits, and that the employer’s notice of the shutdown at the time of the shutdown complied with the WARN Act. As such, the Fourth Circuit held that the 22 employees did not suffer an employment loss because they continued to be paid and receive benefits until they voluntarily terminated their employment to accept employment with the successor company.

Lessons Learned: Employers who fail to provide the statutory 60-day notice prior to a mass layoff or facility closing affecting more than 50 employees should pay employees for a period of 60 days following the announcement of the shutdown to satisfy the notice requirements. As the Fourth Circuit noted in this case, the WARN Act protects employees’ expectations of wages and benefits, not their expectation of performing work.

TAKE NOTE

Title VII Complaint Process. In EEOC v. V&J Foods, Inc., the Court of Appeals for the Seventh Circuit held that an employer’s complaint process was too complicated for a teenage employee to understand, and therefore, it was not unreasonable for the former teenage employee to have failed to use it for her sexual harassment complaints. The Court held that an employer’s complaint procedure must take into account “the capabilities of the class of employees in question” to be reasonable. The Court held in this case that the employer’s complaint mechanism was “likely to confuse event adult employees” as it did not provide a clear path for complaints of harassment. The Court commented specifically on the absence of a toll-free number dedicated to receiving harassment and similar complaints. Because it was part of the employer’s business plan to hire teenagers, the Seventh Circuit held that the employer was obligated to tailor its complaint procedures to the understanding of an average teenager. While recognizing that an employer is not required to tailor its complaint procedures for each individual employee, the Seventh Circuit confirmed that an employer must ensure that its procedures are understandable to the average employee. Thus, if your employees cannot speak English, then a complaint procedure that is only in English would not be reasonable.

Personal Protective Equipment. The Occupational Safety and Health Administration (OSHA) announced a new rule requiring employers to pay for almost all of the OSHA-required personal protective equipment (PPE), including replacement PPE. The final rule goes into effect on February 13, 2008, and gives employers three months (until May 2008) to comply. The new regulations provide that employers must provide all PPE at no cost to full and part-time employees. The rule does not create any new requirements regarding what kinds of PPE that employers must provide. The rule does not require employers to reimburse employees who voluntarily choose to use PPE that they own. The rule does not require employers to pay for items not used to protect against hazards in the workplace, such as uniforms or items worn to keep clean. The new rule provides further that employers need not pay for replacement PPE instances where the employee lost or intentionally damaged the equipment. OSHA defines lost equipment to include even a single instance where an employee fails to come to work with his PPE.

NLRA Remedies. In Anheuser-Busch, Inc., the National Labor Relations Board held that the employer violated its duty to bargain when it installed surveillance cameras without first notifying and bargaining with the union, but that no make-whole remedy would be issued for the 16 employees who were discharged or suspended for misconduct captured by the cameras. In this case, the Board held that installing the cameras was an unlawful unilateral change under the NLRA, and issued a cease and desist order against the employer. The Board held, however, that the employer’s discovery of the misconduct through the use of the surveillance cameras confirmed that the employer’s discipline of the employees was for cause, thereby precluding a Board make-whole remedy.

NLRA Retaliation. In BE & K Construction Co., the National Labor Relations Board reversed its prior decision that an employer’s filing and maintaining an unsuccessful lawsuit against charging party unions established that the lawsuit was retaliatory against the unions for engaging in protected concerted activity. When the unions attempted to delay the employer’s construction project by lobbying for the adoption and enforcement of a baseless emissions standard; handbilling, picketing and encouraging strikes without revealing the reasons for their disagreement; and filing a lawsuit alleging a health and safety code violation without regard to its merits, the employer filed suit against the unions. The lawsuit was ultimately dismissed by the trial court and the Ninth Circuit. In light of the Ninth Circuit’s decision, the Board initially concluded that the employer’s lawsuit was unlawful based on Board precedent that if a lawsuit “resulted in a judgment adverse to the plaintiff [employer]” and was found to have been filed to retaliate against the unions for engaging in protected activities, the Board may find that the Act was violated. After remand of the case from the Supreme Court invalidating the Board’s standard that all reasonably based but unsuccessful lawsuits could be determined to have been filed for retaliatory purposes, the Board concluded that filing and maintaining a reasonably based lawsuit does not constitute an unfair labor practice, regardless of the motive for initiating the lawsuit. The Board applied its new standard to both ongoing and completed litigation, concluding that its holding was necessary to protect the fundamental First Amendment right to petition.

Attorney-Client Privilege. A New York court has recently bolstered the principle that employees have no expectation of privacy in e-mail correspondence when using their employer's e-mail system. In Scott v. Beth Israel Medical Center, the Court found that an employee's use of his employer's e-mail system to communicate with his attorney (regarding a dispute with the employer) waived any privilege attached to those communications. The Court based its ruling on several key points: the employer had a policy, known to the employee, stating that use of company email may only be for business purposes and that any e-mail created, received, saved or sent on the employer’s e-mail system belongs to the employer; and that the employee has no personal privacy right in any of the material. The court concluded the employee’s e-mails were not protected by the attorney-client or work product privileges because they were not made in confidence (a necessary component of the privileges) given the forewarnings made to the employee, who still chose to use the employer’s e-mail system for communicating with his lawyer.

I-9 Update. Since our November 13, 2007 E-Lert announcing that the U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9 and a related updated handbook for employers, the USCIS has added a new document to the list of documents that an employer may accept from newly hired employees during the employment eligibility verification process. Employers may now accept an Unexpired Employment Authorization Documents (I-766) to establish both identity and employment eligibility. While employers should immediately begin using the revised Form I-9, the USCIS has indicated that it will eventually publish a notice that provides employers with a 30-day transition period to implement the new form. Employers can access the revised Form I-9 at http://www.uscis.gov/i-9.

TOP TIP

Unusual Behavior May Signal Need For FMLA Leave

In Stevenson v. Hyre Electric Co., the Court of Appeals for the Seventh Circuit held that an otherwise model employee’s sudden unusual behavior in the workplace may have been sufficient notice to the employer that the employee suffered from a serious health condition and needed leave under the FMLA. The employee, who had no history of misconduct or serious health problems, became very intimidating and belligerent towards her co-workers and supervisors after a stray dog climbed through a window in the warehouse where the employee worked and approached her. The Court held that the employee’s behavior was so unusual and bizarre that it put the employer on constructive notice that the employee suffered from a serious health condition and was in need of FMLA leave. The Court noted the example of an employer observing an employee break her arm and concluded that this observation gives the employer notice of the need for FMLA leave without the employee saying a word. Accordingly, the employee’s termination for failing to appear for work following the incident was unlawful because the employer should have known that employee was in need of FMLA leave based on her behavior.

While this case presents a more extreme example of an employer being on notice of the need of leave, without an employee using “magic words” to invoke the protections of the statute, it serves as a clear reminder that when an employer has knowledge of facts or circumstances sufficient to establish a probable basis for FMLA leave, it must proceed with deference to the employee’s rights under the FMLA. Employers must continue to be cognizant of any circumstances that may suggest that an employee suffers from a serious medical condition or is otherwise in need of FMLA leave, even though the employee has not explicitly asked for or communicated with words by the employee.

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.

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