The latest thing you can’t ask employees to do: New ruling

Yet another common employer policy has come under fire from the National Labor Relations Board (NLRB). It doesn’t matter if your workforce is unionized or not — if you’ve got this policy, it could be deemed illegal. 

What’s the policy? Asking workers to keep internal investigations confidential.

In a case that involved the telecommunications giant T-Mobile USA Inc., an administrative law judge for the NLRB just ruled that asking employees to keep information that’s shared/discussed during internal investigations confidential infringes upon workers’ rights under the National Labor Relations Act (NLRA).

Employee reports harassment

Angela Agganis was a customer service rep for a T-Mobile USA store in Oakland, ME, when she went to a T-Mobile HR representative, Karen Estes, to report a sexual harassment allegation against her coach.

Afterwards, Estes informed Agganis that she would have to file an incident report. Estes then gave Agganis T-Mobile’s “Notice and Acknowledgement of Duty to Cooperate and Confidentiality,” and she told Agganis to sign and date the notice form.

The notice stated, in part:

“You should keep confidential all communications between you and the Corporate lnvestigator(s) concerning this matter throughout the pendency of this investigation unless permitted by law. This includes all questions and answers during this interview, any written statement that you provide to the investigator(s), and all other information or documents provided to the investigator(s) in connection with this matter.”

Then, in conclusion, the notice stated:

“By signing below, you acknowledge that (1) you have read this document, understand it and agree to adhere to it; and (2) failure to adhere to the duties set forth above may cause harm to T-Mobile and subject you to performance improvement action up to and including dismissal.”

After reading the form Agganis asked if it was correct that she could be disciplined, up to and including termination, for discussing the situation with her co-workers.

Estes confirmed Agganis was correct.

Unfair labor practice

When T-Mobile’s worker’s union, the Communications Workers of America, caught wind of this, it filed an unfair labor practice charge with the NLRB.

The union claimed the notice violated employees’ NLRA rights to freely discuss the terms and conditions of their work.

Section 7 of the NLRA gives employees the right to take part in “concerted activities for the purpose of collective bargaining or other mutual aid or protection … ”

The NLRB has been interpreting this clause very broadly in recent years. It has said it gives employees the unequivocal right to discuss the terms and conditions of their employment. The underlying reason being that employees need to have the ability to plan or coordinate activities that may lead to union representation.

As a result, the NLRB has been on a scorched-earth crusade to eliminate any employer policies that have the potential to prevent employees from taking any such actions.

The ruling

Did the administrative law judge who heard the case agree with the Communications Workers of America’s charges against T-Mobile?

Yes. The judge said the notice and confidentiality requirement did violate employees’ NLRA-protected speech rights.

T-Mobile must now rescind the confidentiality notice and policy, and post a notice about the rescission where employees will see it.

What’s particularly troubling for employers about this case is that T-Mobile actually included a clause in the confidentiality notice that said:

“Please note that nothing in this Notice and Acknowledgement impacts your rights to discuss terms and conditions of employments as protected by law … “

But the judge said that wasn’t enough to save T-Mobile. Why? In essence, the judge said the statements requiring employees to keep all communications between employees and investigators confidential may have carried enough weight with employees to discourage them from speaking up about the terms and conditions of their employment.

Another thing that’s important about this case is that it applies not just to unionized workforces, but to all workforces. While the NLRB is commonly associated with unions, it has the power to made decisions that affect all employers.

Other common policies the NLRB has axed recently include:

  • “no-personal use” email polices
  • prohibitions on discussing wages
  • social media policies prohibiting employees from discussing work matters
  • prohibitions against discussing employee discipline, and
  • handbook policies prohibiting negative comments about fellow team members.

Oops: This FMLA policy was missing something kind of important

It’s time to double-check that your FMLA policy and notices aren’t missing this critical, but apparently easy to overlook, piece of info. 

What is it? The 12-month period your company uses to calculate an employee’s remaining FMLA eligibility.

In other words, are you clearly articulating the date ranges you’ll use to add up how much of employees’ 60-day allotment they’ve used?

The Illinois Department of Corrections (IDC) didn’t, and the legal pickle it’s in can teach a lot of employers what happens when this piece of vital info is missing from your written FMLA policy and/or other documentation.

The IDC was sued by Michael Caggiano, a former corrections residence counselor at IDC’s Westside Adult Transition Center, after IDC terminated Caggiano for accumulating too many unexcused absences.

Caggiano had taken off to care for his ill mother and had requested that his absences count as FMLA leave.

He’d taken plenty of FMLA leave in the past for the same reason. Only this time, IDC claimed he’d exceeded his 60-day FMLA allotment, so his absences would need to go down as unexcused. That resulted in him accumulating more unexcused absences than IDC’s attendance policy allowed. So Caggiano was terminated.

Never told how it was calculated

Caggiano cried foul and filed an FMLA interference lawsuit against IDC. Among a few different arguments Caggiano states for why his FMLA leave was interfered where assertions that:

  • he was never formally told how his FMLA leave was being calculated or from what date the calculation started, and
  • he still had more than enough FMLA eligibility remaining to cover his unexcused absences.

IDC filed a motion for summary judgment with the court in an attempt to get Caggiano’s FMLA interference lawsuit thrown out.

It claimed Caggiano received all of the FMLA leave he was entitled to, and therefore he was no longer protected by the law. So he couldn’t sue for interference, IDC claimed.

IDC’s motion was denied.

The court said during the summary judgment phase of a case, “The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion.”

The party opposing the summary judgment motion was Caggiano, so the court had to view all the evidence in front of it in the light most favorable to him.

What was most favorable to him?

The big problem with IDC’s argument: It produced no evidence that had clearly articulated to Caggiano when its 12-month period for calculating FMLA leave began.

As attorney Jeff Nowak points out over at his FMLA Insights blog, the result of this was that the court calculated Caggiano’s leave in the way most beneficial to Caggiano. (Nowak also expounds on the benefits of always using the “rolling method.”)

And under the court’s calculation, Caggiano would’ve still had two weeks of FMLA eligibility to cover his unexcused absences.

As a result, the court determined, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [Caggiano].” So it’s sending the case to trial, where IDC will have to convince a jury it provided Caggiano with a clear explanation of how it calculated his FMLA leave.

Analysis: Clearly define your 12-month period

This lawsuit demonstrates how important it is to clearly define how you calculate leave — in both your general FMLA policy and your notices to employees.

In addition, it’s a good idea to provide written updates on how much FMLA leave employees have remaining. This is the only way to remove suspicions that an employee didn’t know what the official count was.

Was employee’s nap FMLA protected? How one court ruled

Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick? 

The answer, unfortunately, is all too familiar: It depends.

All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.

In the most recent case to cross our desks, an employer’s smartly crafted policies won the day.

Migraines caused her to miss work

The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.

Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.

Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.

At this point, the hospital laid out a procedure that Lasher was to follow when migraine symptoms flared up — symptoms severe enough to prevent her from doing her job, that is. The procedure required Lasher to let the nurse operations manager on duty, or at the very least one of her colleagues, know when she needed to remove herself from her duties.

Lasher acknowledged that she understood this procedure, and she agreed to follow it in the future.

The hospital approved all of Lasher’s FMLA leave requests, including an occasion when she developed migraine symptoms during her shift.

‘Major infraction’

Fast forward months later, and Lasher had a migraine flare up while on duty. She then left a pregnant patient unattended without informing anyone.

She was then found sleeping in an adjacent vacant room.

The hospital labeled it a “major infraction” of its procedures. It said it created an employee, as well as a patient, safety issue. So it fired Lasher.

She then filed an FMLA interference lawsuit. In essence, she claimed her nap was FMLA-protected.

The hospital filed for summary judgment in an attempt to get Lasher’s lawsuit thrown out.

The court granted summary judgement in favor of the hospital, and tossed the suit.

It ruled that for Lasher’s FMLA interference claims to survive summary judgment, she had to show:

  1. she was an FMLA-eligible employee
  2. the hospital was an employer as defined under the FMLA
  3. she was entitled to leave under the FMLA
  4. she gave the employer notice of her intention to take leave, and
  5. the employer denied her FMLA benefits to which she was entitled.

Where Lasher’s claim fell apart was in satisfying the fourth element of that test. The court ruled Lasher failed to provide notice of her intention to take FMLA leave, despite an established procedure for providing notice that Lasher had agreed to follow.

The court then added:

“An employee seeking FMLA leave need not mention the statute expressly, but she must convey enough information to apprise her employer that she is requesting leave for a serious health condition that renders her unable to perform her job.”

Even using this somewhat lenient standard, Lasher’s actions fell short.

Case closed. Lawsuit tossed.

But before putting a bow on the case, the court pointed out some of the other facts the hospital had on its side. For starters, it had a track record of approving Lasher’s prior leave requests without fail. Plus, the hospital itself was the one to suggest Lasher apply for FMLA leave in the first place.

Both of those elements gave Lasher a pretty steep hill to climb to prove that the hospital intended to interfere with her FMLA rights.

Cite: Lasher v. Medina Hospital

EEOC broadens its reach with 2 new discrimination lawsuits

The EEOC has officially unveiled yet another way employees can sue you for discrimination.  

The agency announced that it has filed its first two sex discrimination cases based on sexual orientation.

EEOC‘s Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center. The agency filed a separate suit in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, doing business as IFCO Systems NA.

In the case against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee’s manager repeatedly referred to him using anti-gay epithets and made other offensive comments about his sexuality and sex life.

When the employee complained to the clinic director, the director responded that the manager was “just doing his job,” and refused to take any action to stop the harassment, according to the suit.

After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment, the EEOC claimed.

Retaliation alleged, too

In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as “I want to turn you back into a woman” and “You would look good in a dress,” the agency said.

At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints.

Long time coming

Although these are the first lawsuits of their kind filed by the EEOC against private employers, the agency has maintained its stance that sexual orientation bias is covered under Title VII since 2013. No federal appeals court has ruled Title VII covers sexual orientation, however.

In a ruling last summer that covered only federal employees and contractors, the agency determined that sexual orientation discrimination is, by its very nature, discrimination because of sex.

In that case, EEOC explained the reasons why Title VII’s prohibition of sex discrimination includes discrimination because of sexual orientation:

  • Sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex
  • Sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII, and
  • Sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

Prior to filing the two landmark lawsuits, the agency has administratively handled a number of cases where employees have alleged discrimination based on their sexual orientation.

In the past, a number of courts have ruled that sexual orientation isn’t covered under federal anti-discrimination law — saying that discriminating against an employee based on sexual preference is different than discriminating against someone because of their gender.

We’ll keep you posted.