Archive for the ‘Labor & Employment’ Category

Joint Employer Status and the NLRB

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Tags: , , , , , , , , ,
Posted in NLRB, NLRB, Union | No Comments »

READY OR NOT – HERE THEY COME

Many of you may have attended 4th of July parties with fireworks as we celebrated our country’s birthday. While we want fireworks at a 4th of July party, you do not want them on your jobsite. But your friends in organized labor may have other ideas. At the dawn of the Obama administration in January 2009, we expected a significant push by organized labor to leverage its success in the 2008 elections to try to regain lost ground in terms of private sector union membership. Instead, the focus turned to healthcare and a number of issues that prevented the passage of laws like the Employee Free Choice Act that would have dramatically simplified union organizing. President Obama also made a mess through his recess appointments to the National Labor Relations Board which, as of the writing, are before the Supreme Court with three lower courts having held them to be unconstitutional.

Now, however, contractors need to be aware of the fact that the stars are aligned in such a way that you should expect to see some type of union activity on your jobsites over the next several months. The NLRB is fully staffed with the most pro-union majority in its history. It is aggressively moving forward to give unions additional weapons to use on jobsites such as bannering, street theater and the ever popular large inflatable rat. The NLRB has also given unions almost complete control over the scope of the bargaining unit they can try to organize. It is expected that the Department of Labor will soon try to restrict the access of employers to effective legal representation in dealing with these types of issues. Since all of these administrative actions could be reversed with the election of a pro-business candidate in 2016, organized labor is ready to try to put the remaining days of the Obama administration to good use.

NOW is the time for you to learn about the variety of tactics unions might employ, where and how they might be utilized and what you can do to prepare for them. On Tuesday July 15, 2014 from 7:00am – 8:30am I will be presenting an interactive seminar on this topic. This session is designed for field superintendents, project managers and company executives. Don’t be caught unprepared!

 

Tags: , , , , , , ,
Posted in bannering, Construction, Construction Contracts, NLRB, NLRB, Union | No Comments »

EEOC Compliance in Pennsylvania

Harmon & Davies is presenting a seminar through Lorman on August 19, 2014, on EEOC Compliance in Pennsylvania.  Attorneys Tom Davies, Laura Gallagher and Kimberly Overbaugh will provide a federal and state overview of employment and labor laws, including new initiatives of President Obama’s administration, and then discuss handling investigations, responding to EEOC/PHRC Charges, social media and the hiring process, and common mistakes and how to avoid them.  Please join us and bring your questions for a panel discussion.  For more information, go to  http://www.lorman.com/training/384528?discount_code=M9763581&p=13389&s=direct or contact us at 291-2236.

 

 

Tags: , , , , , , , ,
Posted in Labor & Employment | No Comments »

Busy Week at the OFCCP – Does it affect your company?

          On August 27, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced its long awaited Final Rules regarding significant revisions to the affirmative action obligations pertaining to the hiring of veterans and the disabled under the Vietnam Era Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act of 1973, respectively.  For many years, most federal contractors have been developing two separate affirmative action plans:  one relating to the employment of Minorities and Women under Executive Order 11246, and the other relating to the employment of the Disabled and Veterans under the two statutes mentioned previously.  Up until now, the AAP for the Disabled and Veterans did not include any numerical goals, but the new Rules establish such goals and include new data collection and analysis requirements for contractors.  Broadly, the goal for employment of the Disabled is 7%, but whether this is looked at in each job group or in the work force as a whole is dependent upon whether the contractor has 100 employees or more.  The goal for the employment of Veterans is 8%, although there is a procedure established that would allow a contractor to develop a different goal based upon the “best available data.”  If your firm does business with the U.S. Government as a contractor or subcontractor, you are probably subject to these new requirements.

           Also, on August 23, the OFCCP announced the rollout of its updated Federal Contract Compliance Manual, a 500 page multi-chapter manual which provides guidance for OFCCP Compliance Officers in areas such as the conducting of desk audits of affirmative action programs, on-site reviews of supply and service contractors, and the appropriate remedial actions to take in the event of demonstrated noncompliance.  This revised manual has been in the works for several years and seeks to incorporate some of the practices of the OFCCP under the Obama administration.  For example, it provides guidance to Compliance Officers as to when and how to seek additional employment data from contractors for further analysis during the desk audit phase of an OFCCP audit.  The Compliance Manual itself does not have the force of law, but it does allow us to anticipate the most likely actions of the OFCCP during any possible audits.

          Harmon & Davies, P.C. has been working with federal contractors (both those providing supplies or services, as well as construction) to assist them with developing Affirmative Action Plans and dealing with the OFCCP during audits or investigations.  Please contact us if you need assistance in these areas.

This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Tags: , , , , , , , ,
Posted in Affirmative Action Plans and OFCCP Compliance, Labor & Employment, OFCCP | No Comments »

Spankasauras and the Land of the Hostile Work Environment

 

The Eastern District Court of Pennsylvania recently held that a white female detective with the Philadelphia Police Department plausibly alleged that the city subjected her to a hostile work environment based upon the cumulative effect of alleged harassing conduct that included, among other things, a lieutenant calling her a “spankasauras” and “gabbygail.” 

Alone, such isolated or sporadic incidents would not support a claim of hostile work environment harassment, but the court found that such events viewed in conjunction could be deemed to create a humiliating and hostile work environment.  In the matter of Salvato v. Smith, the plaintiff alleged that in addition to being called names, she was treated differently than her male and black female coworkers in that the plaintiff was constantly questioned about her whereabouts, denied training opportunities, was not allowed to take personal calls from her child’s school, had her log-in times scrutinized, was denied requests for a steady shift, had her sick-leave scrutinized, received a warning letter in her personnel file, and was denied a transfer.   Moreover, much of the activity occurred after the plaintiff filed a grievance with the Fraternal Order of Police and a complaint with the EEO unit for discrimination. 

Although it remains to be seen how this case will play out, this case serves as a reminder to employers to be mindful of how supervisors treat employees after a grievance is filed.

This article is authored by attorney Kimberly J. Overbaugh and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Tags: , , , , , , , , ,
Posted in Anti-Harassment Policy, Harassment, Labor & Employment | No Comments »

Supervisors must have Authority to Hire and Fire

On June 24, 2013, the U.S. Supreme Court held in Vance v. Ball State University that when analyzing harassment claims, to determine whether the employer is vicariously liable, a “supervisor” is an individual who has the authority to take tangible employment actions against others.  Individuals who do not has this authority should be treated as “co-workers.”

As background, in the 1998 Faragher and Ellerth decisions regarding employer liability for sexual harassment, the Supreme Court held that an employer can be held liable for harassment by coworkers only if the employer did not take sufficient steps to prevent and correct harassment, but the employer is strictly liable for the harassment by a supervisor if it resulted in a tangible employment action (such as discharge or demotion).  In Vance, the Supreme Court clarified that in order the employer to be strictly liable, a supervisor must be a person who has the authority to hire, fire, demote, promote, transfer, or discipline, or otherwise take tangible adverse employment actions against employees.

The Vance opinion will allow employers to demonstrate in more cases that they have taken appropriate measures to prevent and correct harassment because fewer individuals will meet the definition of supervisor.  In addition, because whether an individual is deemed a supervisor is more clear, employees (probably on the advice of counsel) may be more likely to try to resolve matters internally.  However, employers should be aware that even if higher-level, non-supervisory employees such as shift leads and foremen do not have the authority to take tangible employment action, they may still be held to a higher standard than regular co-workers, so employers should be sure they are properly trained on harassment.

In addition, given the importance of the term supervisor under this decision, employers should make sure their job descriptions accurately reflect the authority given to each position.  Employers should also review policies regarding decision-making procedures and complaint procedures to ensure that the authority given to various positions is accurate and consistent with the Company’s intentions.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Tags: , , , , , , , , , , ,
Posted in Anti-Harassment Policy, Labor & Employment | No Comments »

EEOC Tests its Guidance on Use of Criminal Records

On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions.  The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina.  The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.

As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.

The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence.  The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.

Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process.  Both deny the allegations.

The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job.  The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.

The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year.  The previous contractor excluded candidates with a criminal record within 7 years.  The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.

While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII.  Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime.  Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment.  Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction.  In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.

This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

Tags: , , , , , , , , , , ,
Posted in Labor & Employment | Comments Off on EEOC Tests its Guidance on Use of Criminal Records

Don’t Make Fun of the Guy Wearing Pastel Shirts

I can’t tell you how many times I’ve heard other guys give a male wearing a pastel shirt a hard time about his “feminine” color choice, but employers might be more apt to snuff out such joking after a recent decision by the Eastern District of California where the court held that, among other things, that calling a male worker’s pastel shirts “girly” was evidence of sex stereotyping.  Although this decision was rendered in California where the notoriously liberal Ninth Circuit has already recognized harassment and discrimination rooted in sex stereotyping as an actionable Title VII claim, the court’s message should cause all employers to worry about whether they are doing enough to create a work environment free of sex-based harassment. 

Indeed, in the matter of Felix v. Cal. Dep’t of Developmental Servs., two special investigators with California’s Department of Developmental Services alleged that they were subjected to years of coworkers’ derogatory name calling and pranks.  The plaintiffs sued under Title VII of the 1964 Civil Rights Act and California’s Fair Employment and Housing Act.  The alleged harassment consisted of, among other things: (1) coworkers joking that one of the plaintiffs dressed in “girly” clothes because he wore pink, lavender, and soft blue colored shirts; (2) coworkers making references to one of the plaintiffs and a male coworker having nipple rings and piercings on their penises that were chained together; and (3)   coworkers sending one of the plaintiffs yellow balloons with a card claiming that he had a secret admirer, which was intended to imply that he was a homosexual because an openly gay male co-worker’s favorite color was yellow.    

The court found that calling a male employee’s clothes “girly” and implying that he had a sexual relationship with male co-workers demonstrated plausible sex-based harassment under Title VII and the FEHA.  This decision should cause employers to question whether they are doing enough to eliminate potential harassment claims from the workplace.  The attorneys at Harmon & Davies are here to assist employers with such matters. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Tags: , , , , , , , , , , , , , , , ,
Posted in Sexual Harassment | No Comments »

Forgetting to provide employees with notice of their right to elect COBRA health care continuation coverage under an Employee Retirement Income Security Act governed group health insurance plan, within the 44 day statutory notice period for doing so, may be a costly mistake for employers.  In Fama v. Design Assistance Corp, the Third Circuit held that a former employee, who resigned from a company, was entitled to $2,930 in statutory damages after her former employer was 293 days late in providing the former employee with notice of her right to continued health care coverage.   In so holding, the court said that COBRA penalties of $10 a day are appropriate where an employer does not exhibit bad faith and an employee incurred medical expenses during the lapse in coverage.

  This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Tags: , , , , , , , , , , , , , , , , , , , , ,
Posted in Labor & Employment | No Comments »

Earlier this year, the Northern District of Illinois held that there was nothing discriminatory about a company ordering a black employee to submit to a single drug test following a workplace incident where the employee threw coffee on another employee and exhibited abnormal speech, screaming, yelling, and profanity.  In the matter of Berry v. ArcelorMittal USA LLC, the court noted that the company’s drug policy stated that “any employee suspected of being impaired by drugs may be required to submit to a drug screening test to determine their fitness for work.”  The company’s drug testing policy was worded in such a manner that it left the decision of whether to order the employee to submit to a drug test to the supervisor’s perception of the employee’s behavior.  Thus, the wording of the drug testing policy helped the employer defeat the plaintiff’s argument that his white co-worker, with whom he had engaged in a conflict on the date in question, should have also been ordered to submit to a drug test because the court found that the supervisor credibly testified that he perceived  the plaintiff, and not the co-worker, as behaving erratically and therefore justifiably ordered only the plaintiff to be drug tested. 

This case serves as a good example of why it is important for companies, and especially construction companies, to have well written drug testing policies.    The attorneys at Harmon & Davies are available to assist employers with drafting their drug policies. 

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

Tags: , , , , , , , , , , , , , , , , , , , , , ,
Posted in Construction, Drug and Alcohol Testing and Policies | No Comments »