The NLRB Has Gifted Employers Some Very Nice Decisions This December

By Kathleen J. Jennings (kjj@wimlaw.com)

December has been a busy month for the National Labor Relations Board (NLRB), which has been putting some very nice presents under the tree for employers. These gifts have come in the form of rulings that have turned back many Obama-era rules or precedents.

  • On December 12, 2019, the NLRB ordered an agency judge to approve a settlement that, among other things, absolved McDonald’s Corp. of any responsibility as a joint employer for labor violations by its franchisees. This is considered a major victory for employers in the franchise space, and it paves the way for anticipated rules governing the joint employer relationship from the Department of Labor, the EEOC and the NLRB. We are looking for some of these to be announced in January 2020.
  • On December 13, 2019, the NLRB announced changes to union election procedures that are likely to slow down that process. One of the major changes is that all disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. In other words, the election can be delayed while the parties litigate and resolve issues concerning unit scope and voter eligibility. Furthermore, the NLRB announced that some time periods for actions have been enlarged, and all time periods that apply to election rules will be calculated in business days, rather than calendar days, as had been previously done. During the Obama Administration, the NLRB issued new rules that were often characterized by employers as “quickie election” rules because they greatly sped up the union election process, which employers generally considered to be an advantage for the unions.
  • On December 17, 2019, the NLRB ruled that businesses can ban workers from using company email for union and other organizing purposes. In that decision, which overruled precedent from the Obama era, the Board stated that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” (Caesars Entertainment Inc. , N.L.R.B., Case 28-CA-060841, decision 12/17/19).
  • Also on December 17, 2019, the NLRB ruled that employer rules that require employees to maintain confidentiality of workplace investigations into matters such as sexual harassment are lawful. (Apogee Retail , N.L.R.B., Case 27-CA-191574, Decision 12/17/19). This overruled an Obama-era case that required employers to justify such confidentiality policies.
  • On December 23, 2019, the NLRB held that Wal-Mart’s dress code policy limiting the wearing of union insignia was lawful. (Wal-Mart Stores Inc. , N.L.R.B., No. 13–CA–114222, 12/16/19).

The current NLRB’s Republican majority means that we can expect to see more pro-employer rulings in 2020.

Happy New Year to all of our readers!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

OK Boomer—Are You Going to Sue for Age Discrimination?

By Kathleen J. Jennings (kjj@wimlaw.com)

As “OK Boomer” becomes a rallying cry for the younger generations, employers need to think twice about allowing that kind of banter in the workplace. Why? Because it could be evidence of age discrimination.

A recent case involving a tech startup illustrates how some comments by younger workers may be perceived to be evidence of age discrimination. (Robillard v. Opal Labs, Inc., D. Or., No. 3:16-cv-00780-AC, 12/17/19). Greg Robillard, at the ripe old age of 41, was hired as Lead Enterprise Engineer by Opal Labs. Robillard alleges that during his employment with Opal, the (younger) Senior Director of Engineering, said “thanks dad” when referring to Robillard, and that others at Opal referred to him as “old Greg,” and “Dad.” Robillard understood the terms to be perjorative, dismissive, and used to undercut him. The (younger) Vice President of Product referred to a job applicant as “some old guy in his forties,” and criticized others for referring to their computer displays as “monitors” as opposed to “screens.” Robillard also recalled other Opal employees posting a meme depicting Steve Buscemi dressed as a high schooler on Opal’s internal messaging system called “Slack.” Also, executive team members described Facebook as an activity for old people.

Robillard was eventually terminated, purportedly for poor job performance. He was replaced by a 32-year-old. He sued, asserting a number of claims including age discrimination, retaliation, and failure to pay overtime wages. Opal moved for summary judgment. The District Court granted summary judgment on the overtime claim because Robillard was an exempt employee. However, the Court denied summary judgment on the age discrimination because there were disputed issues of fact as to the reason that Robillard was terminated. However, the Court ruled that the comments alleged by Robillard were not direct evidence of age discrimination. For example, the court found the “thanks dad” statements were not overtly ageist in nature, as parents may be less than forty years old. However, these comments may nevertheless be offered by a plaintiff as evidence of discriminatory intent or animus.

The Takeaway: If any of you needed a reason to tell your employees to stop saying “OK Boomer,” here it is: all boomers are over the age of 40, so mocking the attitudes of this group could be perceived as mocking people over the age of 40—who are protected from discrimination by the Age Discrimination in Employment Act.

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

 

Dance Like Everyone Is Watching—And Taking a Video

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s holiday party season, so it is time for our annual reminder that what happens at the company holiday does not stay at the company holiday; rather, it may end up in an EEOC Charge or the statement of facts in a lawsuit if you are not careful.

It is easy to forget that the company holiday is an extension of the workplace because people may be all dressed up and partaking of adult beverages. Maybe there is even some music and dancing. Nevertheless, it is important for everyone, and especially your managers and supervisors, to remember that they must conduct themselves professionally at these functions. Any harassment directed at an employee at a company function can be actionable.

And they need to remember this: everyone at the party will have a camera on his or her person. At the first sign of any inappropriate behavior, you can count on at least one partygoer to whip out a smartphone and take a picture or video. Not only will this be embarrassing, it will be evidence. So dance like everyone is watching you—because they are!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.