Sunday, March 29, 2015

"English-Only" Rule Violates NLRA

Check out the opinion in Valley Health System, LLC. An NLRB judge (Administrative Law Judge, or ALJ) held that an employer's "English-only" policy violated the National Labor Relations Act (NLRA).

The employer is a hospital with the following policy:
[The employer's] rule requires all employees to speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.”
So, what's the problem? English-only policies are a dangerous game, my friend. First, you've got some discrimination concerns. The EEOC Compliance Manual, Sec. 13 on National Origin Discrimination tells us that English-only policies are okay . . . sometimes:
An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin . . . . An English-only rule is justified by "business necessity" if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule: 
  • For communications with customers, coworkers, or supervisors who only speak English 
  • In emergencies or other situations in which workers must speak a common language to promote safety 
  • For cooperative work assignments in which the English-only rule is needed to promote efficiency 
  • To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.
So, why did this policy go down in flames under the NLRA? Per the ALJ's opinion:
I conclude that employees would reasonably construe Respondents’ English-only rule to restrict them from engaging in concerted activity. To that end, I find Respondents’ rule akin to rules that infringe upon an employee’s right to engage in “negative speech” and “negative conversations.” Because Respondents’ English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment. As such, I find that Respondents’ language restrictions would prohibit speech that “cut(s) to the very essence of activity which the Act protects because all other actions contemplated by the statutory scheme flow out of employees’ discussions about their wages, hours and other terms and conditions of employment . . .”  
Even assuming EEOC’s standard is applicable in this case, I find Respondents’ rule is not justified by business necessity. Here, Respondents argue that their rule is justified in order to maintain hospital efficiency and minimize disruption in patient care by employees speaking in languages other than English . . . . However, Respondents’ English-only rule goes far beyond patient-care areas, where courts have afforded hospitals latitude in restricting Section 7 rights. Instead, Respondents’ rule requires employees to speak only English while on duty, between themselves, staff, customers, visitors, and in non-patient areas . . . . 
Accordingly, I find that Respondents violated Section 8(a)(1) by maintaining an unlawful English-only rule to the extent it requires employees to speak and communicate only in English in all areas to which patients and visitors have access, other than immediate patient care areas.
Well, that's certainly a broad interpretation of the NLRA (at this point, employers should expect no less). That said, one ALJ's opinion hardly resolves the issue for all time. English-only policies are a mine field, and this case is just one example of a detonation.

HT:



Thursday, March 26, 2015

How does a pregnant employee establish discrimination for failure to accommodate?

Yesterday, the Supreme Court issued its opinion in Young v. UPS, addressing pregnancy accommodation under the Pregnancy Discrimination Act (PDA) provisions of Title VII. In this post, I break down the holding.

Issue

The employee worked as a UPS driver when she became pregnant. She had a lifting restriction and therefore sought an accommodation - light duty work. UPS did not accommodate her. At the time, UPS provided light duty work as an accommodation to employees who (1) were injured on the job; (2) had disabilities and were entitled to accommodations under the ADA; or (3) lost their CDLs due to medical condition or injury.

Justice Breyer -
Public domain as work of federal government.
The PDA prohibits discrimination against pregnant employees, but does not specifically require reasonable accommodations for pregnant employees. However, it does require employers to treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U. S. C. §2000e(k). So, did UPS have an obligation to provide the pregnant employee with the accommodation?

Majority Holding

Justice Breyer tells us to just apply the McDonnell Douglas burden-shifting framework (well-known to any employment law practitioner). After Young, the prima facie showing under the PDA will look like this:
(1) The employee belongs to the protected class; 
(2) she sought accommodation; 
(3) the employer did not accommodate her; and 
(4) the employer did accommodate others “similar in their ability or inability to work.” 
(modified quote from pp. 20-21). The burden then shifts to the employer to put forward a “legitimate, nondiscriminatory” reason for its actions. The burden then shifts back to the plaintiff to show that the employer’s proffered reasons are in fact pretextual.

So far, this seems like familiar territory for employment lawyers. But how in the heck does that help us resolve this case? Well, here's where things get a little wacky. Justice Breyer announces a new test for how the employee can survive summary judgment on the final turn of the burden-shifting framework:
[T]he plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.
What is a "significant burden"?
The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.
What's a "large percentage'? Not clear. Apparently "most" will suffice.

Okay, and how do we know if the employer's justification is "sufficiently strong"?
Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.
That's pretty much all we get from this decision. What the lower courts do with it from here is anybody's guess. In this case, the Court vacated the summary judgment entered by the lower court, and the plaintiff's claim has new life.

Justice Scalia's Dissent

Justice Scalia goes off in a scathing, condescending (in other words, classic Scalia) dissent. Where did Justice Breyer's "significant burden" and "sufficiently strong" test come from? According to Justice Scalia, it came from a "wave of the Supreme Wand" and "poof!" a "deliciously incoherent" framework appeared. He also chides Justide Breyer for apparently conflating disparate impact claims with disparate treatment claims by allowing a plaintiff to proceed by showing a facially neutral policy's "substantial burden" on a protected class.  

Wednesday, March 25, 2015

BREAKING: SCOTUS Decides Pregnancy Accommodation Case

A few minutes ago, the Supreme Court issued its opinion in Young v. UPS regarding pregnancy accommodation. The main holding per the syllabus:
An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation. That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination. The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.
I'll try to figure out what the heck that means and provide an update later today.


Monday, March 23, 2015

March Employment Law Blog Carnival is LIVE! #ELBC

My bad... the latest edition of the Employment Law Blog Carnival (#ELBC) went up last week and I'm just now getting to it. One of my favorite employment law bloggers, Robin Shea, hosts April Fools' Edition. The post includes a link to my blog entry The Supreme Court and the Men Who Lactate (nearly 2,000 hits to date!).

See what I did there? I promoted a link to someone else's blog entry... which has a link back to my blog. We call that "reciprocal self-promotion." It's a micro-step above my usual "shameless self-promotion."

Facebook Service: It's Real.

Facebook: Selfies, cat pictures, "Which Kardashian Significant Other Are You" quizzes . . . and now, service. From the ABA Journal article, Service via Facebook Permitted as "Best Chance" of Actual Notice:
A New York court will allow a petitioner seeking to modify his child support obligations to serve legal papers on a respondent via Facebook because personal service was not practical . . . . The court noted . . . that the petitioner presented evidence that the respondent “maintains an active social media account with Facebook.” Finding service on respondent at her last known address to be “impracticable,” the court permitted service on her via Facebook.
You can read the Court's decision here. What a great time to be alive!

HT: Janine Gismondi via email.

Friday, March 20, 2015

New NLRB Memo on Employee Handbooks

The NLRB General Counsel issued a new memo: Report of the General Counsel Concerning Employer Rules. The overall theme is that employers may violate the National Labor Relations Act (NLRA) by merely maintaining a workplace rule that chills protected activity.

Frankly, the memo is a tad on the hypersensitive side. For example, this policy gets singled out as unlawful:
Be respectful to the company, other employees, customers, partners, and competitors.
Yes, you read that correctly . . . a policy requiring employees to "be respectful" is illegal in the eyes of the NLRB GC. See also:
Do "not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors."
Overall, the memo emphasizes that context and clarity are important. If employees could reasonably construe the policy to prohibit NLRA-protected activity, then it is overly broad. And, as you can easily infer from the memo, the term "reasonably" has been stretched pretty far.

Monday, March 16, 2015

Collateral Estoppel and Unemployment Compensation Hearings

In the law, we have this concept called "collateral estoppel." The gist of it is that after a party litigates and loses on an issue once, the party may not litigate that issue again (sometimes called "issue preclusion"). It sounds simple, but it can get surprisingly complicated.

In Mathis v. Christian Heating and Air Conditioning, Inc. (E.D. Pa.), an employee raised some employment discrimination claims. The employer filed a motion to dismiss, arguing:
Defendant argued that plaintiff was barred under the doctrine of collateral estoppel from relitigating a range of issues that were decided against plaintiff in his state unemployment compensation proceedings that are central to his employment discrimination claims. In particular, defendant contended that plaintiff could not re-litigate whether he chose to leave his employment with defendant or was involuntarily terminated or whether he had a sincerely held religious belief that defendant had burdened, among other issues.
Well, did it work? No. It turns out that Pennsylvania's Unemployment Compensation law specifically addresses this issue:
[T]he law provides that “[n]o finding of fact or law, judgment, conclusion, or final order made with respect to a claim for unemployment compensation under [the Pennsylvania Unemployment Compensation Law] may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.” 43 P.S. § 829 . . . . In short, under Pennsylvania law findings of fact and conclusions of law made with respect to claims for unemployment compensation do not have preclusive effect in subsequent actions, such as the one presently before this Court.
I learn something new every day.