No More No-Gossip Policies?

A National Labor Relations Board (NLRB) administrative law judge ruled recently that the “no-gossip” policy of Laurus Technical Institute, a for-profit technical school located in Georgia, broke federal law because it was overly broad, ambiguous and restricted employees from discussing or complaining about any terms and/or conditions of employment, even though nothing in Laurus’s policy directly addressed discussions about wages, hours or other employment terms and conditions.

Kate Gold, partner in the Los Angeles office, recently told Human Resource Executive Online during an interview on the topic of the Laurus decision and no-gossip policies for employers, “Though the NLRB has been focused on other policies that could violate an employee’s right to engage in protected concerted activity — such as social media or confidentiality policies — no-gossip policies can be especially problematic.”

Kate went on to say “I would not include it among the top 10 or even the top 20 essential policies an employer should include in a handbook or policy manual, such as an at-will, anti-harassment or reasonable accommodation policy. However, given the type of concern raised by a no-gossip policy, there could be other employer policies that are problematic for the same reasons. The issue raised by an overbroad no-gossip policy is whether it constitutes an unlawful restriction on an employee’s right to engage in protected concerted activity under Section 7 of the National Labor Relations Act.”

For the full text of the article click here.

President Obama Signs Two Executive Orders to Limit Workplace Discrimination

By: Mark E. Terman and Dennis M. Mulgrew, Jr.

On April 8, 2014, at an event commemorating National Equal Pay Day (an annual public awareness event that aims to draw attention to the gender wage gap), President Obama signed two executive orders designed to limit workplace discrimination.  The first prohibits federal contractors from retaliating against workers who discuss their salaries with one another, while the second instructs the Department of Labor to establish new regulations requiring federal contractors to submit summary data on compensation paid to their employees, including breaking down the data by gender and race.

The protections offered by the anti-retaliation Order overlap with many already existing under state and federal law.  For example, the NLRA protects employees’ right to engage in “concerted activities” and thus already prohibits employer discipline against employees who discuss their wages.  Further, some state laws, such as California Labor Code §232, already preclude an employer from disciplining an employee who discloses the amount of his or her wages.  Nonetheless, the Order may add to these protections, such as by expanding them to management employees (who are not protected by the NLRA), and providing an alternative option for bringing retaliation claims (i.e., through the Office of Federal Contract Compliance Programs rather than the NLRB).

The effects of the Order requiring the collection of compensation data will be unclear until the regulations themselves are formulated.  Based on the Order’s mandate to “avoid new record-keeping requirements and rely on existing reporting frameworks to collect the summary data” and to develop regulations that “minimize, to the extent possible, the burden on Federal contractors and subcontractors,” it is possible that the federal government will require that the data be submitted along with a federal contractors’ annual EEO-1 Report.

The President’s signing of these Orders appears to tie into the White House’s previously announced plans to accelerate change in areas it believes are within the authority of the Executive Branch, without the need for legislation.  Indeed, the Orders’ provisions mirror parts of the Paycheck Fairness Act (“PFA”), a proposed piece of legislation that would add procedural protections to the EPA and the FLSA to address male–female income disparity.  (The PFA came up for a vote in the U.S. Senate on April 9, 2014, where it was blocked by a Republican filibuster).  Similarly, in February 2014, President Obama issued an Order raising the minimum wage for federal contractors, at a time when Sen. Tom Harkin (D-Iowa) and Rep. George Miller (D-Calif.) were urging a bill to raise the federal minimum wage to $10.10 per hour and index it to inflation.  Then, in March 2014, President Obama directed the Labor Department to revamp regulations governing which types of employees business may classify as overtime-exempt “executives” or “professionals.”  With regard to the Order requiring the collection of compensation data, the OFCCP has been working internally on releasing a proposed compensation data collection tool for the past three years.  See http://www.dol.gov/ofccp/Presentation/Compensation_Data_Collection_Tool.htm (publicizing the OFCCP’s August 10, 2011 Advance Notice of Proposed Rulemaking regarding a new compensation data collection tool).

The high profile nature of the Orders provides yet another impetus for employers to evaluate their existing policies, and plan for the future.

Are College Football Players on Scholarships “Employees?” An NLRB Regional Director Says “Yes”

By: Mark D. Nelson

On March 26, 2014, the National Labor Relations Board’s Regional Director (RD) in Chicago ruled that Northwestern University’s football players who receive scholarships are “employees” under the National Labor Relations Act and have the right to form a union.   The potential implications of this ruling are significant.  If the decision is not overturned by the National Labor Relations Board (NLRB) or a federal court, every private college and university in the country that has scholarship athletes could face the unionization of athletes in sports that generate significant revenue.  Public universities could also be affected under state labor laws.

The RD found that the university, through the football program, exerts significant control over the football players.  During the six-week training camp immediately before the season, athletes are given daily itineraries that dictate football-related activities for that day.  During training camp, the players spend between 50 and 60 hours every week engaged in football-related activities.  In season, the players spend between 40 and 50 hours per week in practice, travel and playing games.  The coaching staff sets all of the details for away games and the activities of the players throughout the trip.  During the off season, players are expected to spend 12 to 25 hours of work on football activities.  In addition, the players must follow rules set by the coaching staff, including regulations concerning personal conduct, alcohol and tobacco use, and internet conduct and protocol.

The economics of college football played a large part in the RD’s decision.  From 2003-2012, the football program generated almost $235 million in revenue for the university through ticket sales, TV deals, merchandise and licensing agreements.  For their football services, the players receive tuition, fees, books, and room and board for up to five years.  These benefits have a monetary value up to $76,000 per year and $380,000 over five years.  The players do not receive a paycheck, but the RD found that the players “nevertheless receive a substantial economic benefit for playing football.”  Another significant fact was that each season the players had to sign a “tender” for their scholarships, which the RD determined to be “an employment contract.”  According to the RD, “it is clear that the scholarships that players receive are in exchange for the athletic services being performed” since the scholarships are tied to the players’ athletic performance; the scholarships can be revoked if players quit the team or violate team rules.  On the other hand, the RD found that walk-on players were not employees because they do not receive scholarships or any other economic benefit from the school.

Northwestern can appeal this decision to the NLRB in Washington D.C. and the legal battle could go on for several years.  In the meantime, the RD will schedule an election for the scholarship football players to vote on being represented by the College Athletes Players Association (CAPA).

Among the several questions/issues raised by this decision are:

Would scholarship athletes in sports that generate little or no revenue be considered employees?

As employees, are the football players entitled to minimum wage and overtime pay?

Are they covered by the Occupational Safety and Health Act and other employment-related laws?

Will this decision impact college graduate assistants, who are not employees under current NLRB law?

This unprecedented ruling is consistent with other recent Labor Board decisions establishing new law or reversing long-standing decisions, which make the National Labor Relations Act more favorable to labor unions.  This agenda is unlikely to change in the near future.

Firing Employees Who Don’t Get Flu Shots: What Risks Do Hospitals Face?

By: Mark D. Nelson

As hospitals continue to see an onslaught of flu patients, they also face challenges to flu vaccination policies designed to reduce the spread of flu to patients and fellow employees.  Hospitals are understandably concerned with protecting patients, visitors and employees from contracting the flu and the potentially serious consequences to the health of elderly and infant patients.  However, protecting patients against flu can create legal liability when employees are disciplined, discharged or suffer other adverse action because they do not get a flu shot.

Employment Considerations for Flu Vaccination Policies—The National Labor Relations Act

What limitations exist on a hospital’s ability to create and implement a flu/other vaccination policy?  Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining.  This means that unionized hospitals cannot unilaterally implement such a policy without first giving the union notice of the intended policy and bargain over the policy if the union requests to do so.

A hospital does not have to bargain if the union has “clearly and unmistakably” waived its right to bargain over the issue.  A waiver is typically found in the “Management Rights” clause, which was the case in a recent National Labor Relations Board (NLRB; the Board) decision, Virginia Mason Medical Center, 358 NLRB No. 64 (2012), where the Board found a clear and unmistakable waiver in the Management Rights clause.  That clause stated, in relevant part, that the Medical Center has the right to “operate and manage the Hospital, including but not limited to the right to require standards of performance and…to direct the nurses…to determine the materials and equipment to be used; to implement improved operational methods and procedures…to discipline, demote or discharge nurses for just cause…and to promulgate rules, regulations and personnel policies….”

The Union representing the Medical Center’s registered nurses filed an unfair labor practice charge with the Board and a hearing was held before an NLRB Administrative Law Judge (ALJ).  The ALJ ruled, and the Board agreed, that the Management Rights clause did not specifically mention wearing facemasks (which the flu policy required in certain areas for non-immunized nurses), but it did “specifically allow the Hospital to unilaterally ‘direct the nurses’ and ‘determine the materials and equipment to be used’ [as well as] implement improved operational methods and procedure.’”  The ALJ noted that the Hospital had several infection control policies that required nurses to wear masks under various circumstances, and found that requiring non-immunized nurses to wear masks was within the Hospital’s authority to “determine the materials and equipment to be used [and] implement improved operational methods and procedures.”

With properly crafted language in a Management Rights clause or elsewhere in a collective bargaining agreement, a unionized hospital has the right to unilaterally implement a new flu vaccination policy or modify an existing policy.

Employment Considerations for Flu Vaccination Policies—Disability and Religious Discrimination

Hospitals, of course, have reached different decisions on how to balance the interests of patients and employees. As such, policies vary in the flexibility given to employees regarding non-vaccination and the resulting consequences:

    • Vaccination encouraged but not mandated
    • Vaccination mandated with exemptions for medical contraindication, religious beliefs (discipline/other adverse consequences for non-exempted employees)
    • Vaccination mandated and masking required for medical contraindication, religious beliefs (discipline/other adverse consequences for failure to be vaccinated or wear mask, as applicable)
    • Vaccination required (discipline/other adverse consequences for non-compliance)

Flu vaccination policies also differ regarding applicability.  Some policies apply only to employees who come into direct contact with patients.  At the other end of the continuum, the policy applies to all employees, independent contractors, students, interns, vendors and others who provide services inside the hospital.

Union and non-union hospitals should consider the potential for discrimination claims based on a flu vaccination policy that requires any group of employees to get a flu shot or face adverse consequences (such as discharge) if they fail to do so for any reason.  The Equal Employment Opportunity Commission (EEOC) would likely find such a policy to be unlawful.  The EEOC has taken the position in its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance that

“[a]n employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”

http://www.eeoc.gov/facts/pandemic_flu.html– 48k – 2009-10-21

A federal district court in Ohio refused to dismiss a complaint by a registered nurse alleging religious discrimination because she was fired for refusing to comply with the hospital’s mandatory flu vaccination policy.  Chenzira v. Cincinnati Children’s Medical Center, S.D. Ohio, No. 1:11-cv-00917 (12/27/12).   The employee’s refusal was based on her “religious beliefs” in veganism. The court rejected the hospital’s argument that her veganism was merely a “social philosophy or dietary preference.”  According to the court, it was plausible the employee could show that she held her belief in veganism with the same sincerity as traditional religious beliefs.  However, this case is far from over.  The court noted that its ruling on the motion to dismiss “in no way addresses what it anticipates as the hospital’s justification for its termination of the employee — the safety of patients at Children’s Hospital.”

Not all refusals to get a flu shot are based on medical or religious reasons.  A hospital in northern Indiana fired seven employees who refused to get flu shots.  One oncology nurse who was fired said it was “a personal thing.”  The nurse said she gets other vaccinations but it should be her choice whether she gets the flu vaccine.  She said she opposes “the injustice of being forced to put something in [her] body.”  Absent a violation of applicable state law, it is doubtful this employee would have a claim against the hospital for her termination.

Considerations in Creating a Flu Vaccination Policy

Current CDC guidelines do not require hospitals to mandate flu vaccination in any form; the CDC recommends active encouragement of employees to get a flu shot.  However, some hospitals believe it is appropriate to do more to try to protect vulnerable patients from catching the flu in the hospital and then suffering severe health consequences.  These hospitals mandate that at least some groups of employees must be vaccinated.  ”

Terminating or taking other adverse action against an employee who cannot get the vaccine because of a disability (as defined in the Americans with Disabilities Act and/or applicable state law) exposes a hospital to meaningful risk of a discrimination lawsuit.  The same is true for employees who raise a “religious objection.”

Hospitals should evaluate such refusals on a case-by-case basis and explore possible reasonable accommodations of the employees’ refusal to get vaccinated, and the policy should so inform employees. Possible reasonable accommodations could be exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a mask when in proximity to patients and coworkers.  From my perspective as a former hospital board chairman, this approach presents a balancing of the hospital’s interest in protecting patients from flu exposure while protecting the legal rights of certain employees who decline to get vaccinated.  In the final analysis, many hospitals believe that risk of harm to patients may trump an individual’s right to refuse when flu epidemics are declared.

Editor’s Note: See our coverage on this topic for non-health care employers here.

The Dos and Don’ts of Implementing a Mandatory Flu Shot Vaccine Policy

By: Meredith R. Murphy

As another flu season approaches and the lines are forming for annual flu shots, many employers are questioning the legality of requiring their employees to receive a flu vaccine shot when they recognize business and safety needs for ensuring their work environments and workforce are better protected from the flu virus.  This need is especially acute for non-hospital employers who care for individuals with compromised immune systems, such as rehabilitation centers or schools.  While a different set of considerations come into play when a hospital is assessing how to implement a flu vaccine policy (see our post on this topic by Mark Nelson here), non-hospital employers have business needs and health concerns that may make implementation of a flu vaccine policy desirable or necessary.

So, what should an employer consider before implementing such a policy?

  • DO  evaluate the business need for the policy. Whether it be concern for patients, clients, or customers or, rather, a need to ensure that your workforce is less likely to be on leave due to a flu outbreak, an employer must be prepared to identify its reasonable business interest if the policy is challenged.
  • DO consider what type of policy suits business needs. Some employers are implementing mandatory policies for all employees to receive a flu shot.  Others are only requiring that certain categories of employees receive a flu shot, i.e., those with regular access to patients or individuals with compromised immune systems.  Still others are implementing a policy that “strongly encourages” flu vaccinations.
  • DO review any applicable Collective Bargaining Agreements. Under the National Labor Relations Act, a flu vaccination policy is a mandatory subject of bargaining.  This means that a unionized employer cannot unilaterally implement such a policy without giving the union notice of the policy and bargain over the policy if the union requests.  However, as set forth under recent National Labor Relations Board caselaw, a union may waive a right to bargain over such a policy by way of a Management Rights Clause.  See Virginia Mason Medical Center, 358 NLRB No. 64 (2012).   If unionized, employers should evaluate the breadth of their clause to see if the union has waived the right to bargain regarding the employer’s right to direct employees, to determine materials and equipment to be used and/or to implement improved operational methods and procedures.  In the Virginia Mason case, the NLRB specifically recognized this type of waiver language as permitting the Medical Center to require non-immunized nurses to wear facemasks.
  • DON’T refuse to engage in an interactive process with any objecting employees.  Employers should be prepared to work with an employee’s health or religious objections to receiving a flu shot.  The Equal Employment  Opportunity Commission (EEOC) has taken the position that employees may be exempt from a mandatory vaccination requirement based on an ADA disability or a “sincerely held religious belief, practice, or observance.” See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21. Further, the EEOC has issued an informal guidance letter on health care workers’ requests from employer-mandated vaccinations under Title VII, opining that Title VII defines religion very broadly and that an “employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group      that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.   See http://www.eeoc.gov/eeoc/foia/letters/2012/religious_accommodation.html.  Courts have recognized that such “sincerely held” beliefs may include lifestyle choices such as veganism. See Chenzira v. Cincinnati Children’s Medical Center, No. 11-917, 2012 WL 6721098 (S.D. Ohio December 27, 2012).  In such instances where an employee expresses a health or religious-based objection to a mandatory flu vaccine policy, the employer should discuss reasonable accommodations with the employee, e.g., exempting the employee from the policy entirely, transferring the employee to another position temporarily (until the flu threat ends as determined by local health officials) or permitting the employee to wear a facemask when in proximity to patients and coworkers.
  • DON’T  terminate any employee who refuses a flu shot without engaging in the interactive process if they are objecting for health or religious reasons.  Further, any disciplinary measures should be uniformly implemented in the case of employees in violation of the policy.  Employers may also want to consider progressive discipline for first-time offenders, e.g., issuing a warning letter for an initial failure to show proof of a flu shot or failure to wear a facemask.
  • DO ensure that any policy implemented is enforced uniformly. Require proof that employees have received a flu shot.  In the case of objectors, seek a waiver that the employee is unable or objects to vaccination and then engage in the interactive process to agree upon a reasonable accommodation.
  • DO consider making flu shots available to employees on-site to maximize compliance with any flu shot policy.
  • DON’T implement a policy without contacting your state’s Department of Health or any other related agencies.  These agencies can provide guidance on the manner in which vaccine policies should be implemented for various categories of employers or regarding possible accommodations for objecting employees.

New Jersey Federal Court Finds that the Stored Communications Act Protects Employee’s Non-Public Facebook Wall Posts – But Also Provides Guidance on Whether An Employer Can Take Action Based on The Unsolicited Receipt of An Offensive Post

By: Lynne Anne Anderson

Facebook continues to be the new “water-cooler” as co-workers regularly “friend” each other and allow access to their “wall” posts.  New Jersey’s Federal District Court recently addressed the issue of whether a Hospital’s decision to suspend a nurse based on a post on her Facebook wall – which it received unsolicited from a co-worker who was a Facebook friend of the nurse – violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701-11.  The Court also addressed the nurse’s related invasion of privacy claim.  Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 U.S. Dist. LEXIS 117689 (8/20/13).   [Opinion]

The nurse was a Hospital employee who maintained a personal Facebook account.  She chose privacy settings that limited access to her “wall” to her Facebook ‘friends,” including one of her co-workers.  Following the 2009 shooting at the Holocaust museum, the nurse posted the following to her wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children).  Other guards opened fire.  The 88 yr old was shot.  He survived.  I blame the DC paramedics.  I want to say 2 things to the DC medics.  1.  WHAT WERE YOU THINKING and 2. This was your opportunity to really make a difference!  WTF!!!!  And to the other guards….go to target practice.”

Her co-worker took a screen shot of the post, and then showed the post to the nurse’s supervisor.  As a result, the Hospital temporarily suspended the nurse, with pay, due to the concern that her comment reflected a “deliberate disregard for patient safety.”

The nurse sued claiming that the Hospital’s reliance on her Facebook post violated the Federal Stored Communications Act – and was an invasion of privacy.  The Court first addressed the issue of whether the SCA applied to Facebook wall posts since the SCA was enacted in 1986, before the WorldWideWeb was developed in 1990 and web browsers were introduced in 1999.

The Court did determine that the SCA applied to Facebook posts based on the following analysis: (1) Facebook wall posts are electronic communications as defined by the SCA; (2) Facebook is an electronic communication service provider as defined within the SCA; (3) Facebook wall posts satisfy the “in electronic storage” requirement as they are not held in temporary, intermediate storage before delivery to the website, and are in accessible storage for back-up purposes; and (4) given that the touchstone of the SCA is to protect information that the communicator took steps to keep private, if a Facebook user chose privacy settings that limited access to her “friends,” the post at issue was covered by the SCA.  The Court relied on California precedent in reaching this determination.  Interestingly, the Court also found that the privacy protection provided by the SCA is not dependent on the number of Facebook friends to whom the user provides access.

However, the Court still granted summary judgment to the Hospital because it determined that the “authorized user” exception applied because the nurse granted her co-worker access to the post by “friending” her and thereby “intending” that her co-worker would view her posts.  The Court also rejected the claim that the “authorization was coerced because the supervisor had never asked the co-worker for any information about the nurse, or the nurse’s Facebook activity.  The Court also noted that the nurse’s supervisor was not in a position to offer the co-worker any benefit in exchange for the unsolicited presentation of the Facebook post since supervisor worked in a different division and had no control over the co-worker’s compensation.

The Court also dismissed the nurse’s common law invasion of privacy finding that:

“The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook.  Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for.  Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.”

Notably, the nurse also filed a complaint with the NLRB, however the NLRB determined that the Hospital did not violate the NLRA, and that there was no privacy violation because the post was sent, unsolicited, to Hospital management.

What is the take-away from this decision?  First, employers have been waiting since the 2009 jury verdict in Pietrylo v. Hillstone Restaurant Group for guidance about what circumstances would qualify as “authorization” under the federal and NJ stored communications statutes.  Second, employers should continue to use extreme caution taking adverse action based on employees’ social media activities.  This decision, as well as recently enacted state legislation, clearly prohibits employers from directly – or indirectly – demanding access to employees’ social media accounts.  As of July, 2013, legislation has been proposed in over 30 states to prevent employers from requesting passwords, and a number of states have enacted such legislation, including California, Illinois, Maryland and Michigan.  Facebook has also condemned the practice and has updated its Statement of Rights and Responsibilities to address this issue.

In addition to potential liability under the SCA, the NLRB has been very active with regards to finding that Facebook rants about bosses, work conditions or compensation fall within the realm of protected “concerted activity” under the NLRA.  However, even the NLRB has recognized that employers have a legitimate basis to take action in response to negative postings about their customers/clientele.  The Office of the General Counsel found no violation for Facebook firings of a bartender who labeled customers as “rednecks” and hoped that they choked on glass, and of an employee of a residential facility for homeless people with significant mental health issues who joked about the condition of the facilities’ clients.