Ingles Solamente Reglas

English-only rules are not as common as they once were, but many employers still require employees to speak English only in the workplace.  Justifications for these rules vary, but the Equal Employment Opportunity Commission has long given such requirements a wary eye.  The National Labor Relations Board has now weighed in on the legality of English only rules, and has concluded that an employer’s English only rule violated the National Labor Relations Act.

The employer was a hospital.  Among other things, the hospital’s employee handbook required employees to communicate only in English in the work environment when conducting business at the hospital or with each other, and when patients were present. The Board’s Office of General Counsel took the position that the English-only rule was so overbroad that it inhibited non-native English speaking employees from being able to communicate freely about working conditions and/or other terms and conditions of employment.

The hospital countered that its policy was lawful in accordance with guidance provided by the EEOC, which allows English-only rules if justified by business necessity.  Such rules will be justified, according to the EEOC, if the rule will allow for safe and efficient operations.

A Board Administrative Law Judge began the analysis by noting that the Board was not bound by the EEOC guidance.  The ALJ went on to note that she would follow the Board’s precedent, and essentially ignore the EEOC guidance. Although the ALJ repeated three times that she was not bound by the EEOC’s guidance on English only rules, interestingly the ALJ noted that she did not believe that the hospital had a business necessity which would justify the English only rule.

The ALJ applied the Board’s test for evaluating workplace polices and concluded that employees would reasonably interpret the rule to restrict them from engaging in protected activity under the Act, and as such, the rule was unlawful. The ALJ noted that the rule required employees to speak English not only in patient areas, but also at any time while on duty, between themselves, staff, customers, visitors and in non-patient areas.

The ALJ’s decision to ignore and basically contradict the guidance provided by the EEOC is yet another frustration for employers.  We previously discussed the Board’s holding that a rule requiring confidentiality during a workplace investigation contradicted EEOC guidance regarding internal investigations.

This decision is just the latest attack in the Board’s all out assault on employer policies.  While this decision was only the decision of an ALJ, we believe that based on the Board’s track record, the decision will likely be upheld. As a result, if you have an English only rule, now would be the time to revisit that need for the rule.

A New Joint-Employer Standard from the NLRB

In a long-awaited decision, a split National Labor Relations Board has adopted a new test to determine joint-employer status, expanding the possibility that an employer utilizing staffing or temporary workforce agencies may be considered a joint-employer.  In Browning-Ferris Industries of California, Inc., the NLRB determined that both the recycling facility and the staffing agency providing labor to the facility were employers under the new, employee-friendly test.

The NLRB’s decision held that a joint-employer relationship may be found if two or more entities “are both employers within the meaning of common law, and if they share or codetermine those matters governing the essential terms and conditions of employment,” such as wages, hours, work assignments, and control over the number of workers and scheduling.  The Board further found that a joint employer is not required to exercise its authority to control terms and conditions of employment, and recognized that control may be “reserved, direct and indirect.”

Here, the relationship between the staffing agency and the facility was controlled by a temporary labor services agreement, which specifically indicated that the staffing agency was the sole employer of the laborers, and that the agreement did not create an employment relationship between the laborers and the facility.  The agreement set forth required qualifications for the laborers and a wage rate schedule, including a provision which indicated the laborers could not be paid a higher rate than that of a similar facility employee without approval.  The agreement further provided the facility with the authority to discontinue use of any laborer at any time.  The facility determined the schedule of working hours, overtime, and break times, as well as the number of laborers needed and productivity standards.  Facility managers and supervisors communicated with staffing agency supervisors regarding the positions to be occupied, daily operating plans, and concerns regarding productivity and job performance and at times addressed these concerns directly to the laborers.

The laborers were to comply with the facility’s safety policies, procedures and training requirements, and received occasional training and education from facility managers.  Additionally, staffing agency laborers were only to be assigned to the facility for six months, but that provision of the agreement was never invoked.  Further, although the agreement provided the facility the ability to review the staffing agency’s records regarding the laborers, the facility had never asked to inspect personnel files.  The agreement further provided sole responsibility for disciplinary action to the staffing authority, although the agency was prompted to take such action in two instances after being notified by the facility of misconduct.

Based upon a careful review of the facts in light of the new standard, the NLRB found the recycling facility to be a joint-employer of the temporary staffing agency employees.  Specifically, the majority found that the facility had significant control over employment-related decisions such as hiring, firing and discipline as well as employee wages and wage increases as detailed by the agreement.  The majority further found that the facility exercised direct and indirect control over operational decisions and productivity standards.  Additionally, the facility exercised “near-constant oversight of employees’ work performance,” at times directly communicating with the laborers and using staffing agency supervisors to communicate directives in other circumstances.

The NLRB justified its new standard by noting changes in today’s workplace arrangements and pointed towards these changes as “reason enough” to adopt a new joint employer test.  This new standard is employee-friendly, and may expose employers to potential liability as joint employers under the NLRA.  Employers should carefully review this decision for its potential impact on any arrangements they may have with temporary staffing agencies and other contractual arrangements which provide workforce assistance.

President Issues Executive Order Mandating Paid Sick Leave for Employees of Federal Contractors

As previously reported on this Blog, recent news reports indicated that President Obama would be issuing an Executive Order mandating paid sick leave for the employees of federal contractors. The President did just that on Monday (Labor Day). We have read the Executive Order and our analysis regarding its contents remains the same as when we reported on this issue last month. The Executive Order can be read here. The Executive Order is broad and much about the Order remains unanswered. We expect to have more answers to these questions when regulations are released by the Department of Labor on or around September 30, 2016. The requirements of the Executive Order will not go into effect until 2017.

We did notice one change from the draft Executive Order. In addition to “paid sick leave” including absences related to domestic violence, sexual assault, or stalking, if the time absent from work is for medical treatment/diagnosis, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, the final Executive Order also allows individuals to use paid sick leave to “assist an individual related to the employee . . . in engaging in any of these activities.” Recall from our prior post that an “individual related to the employee” is quite broad and includes “a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

Questions? Call meSchaun Henry, or your usual McNees Attorney contact.

Workers’ Compensation Update: Commonwealth Court Clarifies “Written Contract” Requirement for Independent Contractor Classification under the Construction Workplace Misclassification Act

In 2010, the Pennsylvania Legislature enacted the Construction Workplace Misclassification Act (CWMA), which, in part, attempted to clarify who is and is not an independent contractor (in the construction industry) for the purposes of workers’ compensation coverage.

Section 3(a) of the CWMA provides: “For purposes of workers’ compensation . . . an individual who performs services in the construction industry for remuneration is an independent contractor only if: (1) the individual has a written contract to perform such services; (2) the individual is free from control or direction over performance of such services both under the contract of service and in fact; and (3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.” 43 P.S. §933.3(a).

To the extent an individual does not meet such definition, the individual will be deemed an employee and the general contractor/employer will be responsible for maintaining and providing workers’ compensation coverage for such individual.  Recently, in Staron v. Workers’ Compensation Appeal Board (Farrier), the Commonwealth Court clarified the first prong of the definition – the “written contract” requirement.

In Staron, the claimant responded to an advertisement by Lee’s Metal Roof Coatings and Painting (“Lee’s”) for a painter.  Claimant was allegedly a self-employed subcontractor with 20 years experience in painting and roof work.  Claimant began working for Lee’s, using his own tools and equipment and taking very minimal direction from Lee’s.  Approximately two months into the relationship, claimant fell off a roof and was injured.  Lee’s presented claimant with a written independent contractor agreement upon his release from the hospital, which claimant freely signed.  Claimant nonetheless sought workers’ compensation benefits from Lee’s, which were granted by the Workers’ Compensation Judge and affirmed by the Workers’ Compensation Appeal Board on the basis that claimant was an employee of Lee’s and not an independent contractor.  On appeal, the Commonwealth Court found that claimant was not an independent contractor, as defined by the CWMA, because there was no written contract between Lee’s and the claimant at the time claimant was injured.  It did not matter to the Court that claimant voluntarily signed the agreement after his injury.  According to the Court, the written independent contractor agreement contemplated by the CWMA must be in place prior to any injury being sustained in order to satisfy the “written contract” requirement of the Act.

Note, the Court did not say that the contract must be signed before any work is commenced in order to render the contractor an independent contractor.  The Court simply said that the agreement must be signed prior to the contractor sustaining an injury.  Nonetheless, the best practice would be for businesses employing independent contractors and sub-contractors, particularly in the construction trades, to ensure that Independent/Subcontractor Agreements are executed prior to the commencement of any work being performed.  Remember though that the existence of a written agreement will not necessarily carry the day in a dispute over the classification of an injured worker.  The written agreement is only one part of the test.  Accordingly, businesses in the construction trade should be mindful of the other CWMA requirements for independent contractor classification and should periodically review all independent contractor and subcontractor relationships to ensure compliance with the CWMA.

President Obama to Issue Executive Order Mandating Paid Sick Leave for Federal Contractors

We recently learned that President Obama plans to issue an Executive Order mandating paid sick leave for employees of federal contractors and subcontractors. This comes as no surprise as the President has utilized his power over the contracting community in recent years to further his policy goals that have stalled in Congress (such as increasing the minimum wage of federal contractors to $10.10 per hour and prohibiting discrimination based on sexual orientation and gender identity). We took a look at the proposed Executive Order. Here are the key takeaways:

  • Contractors would be required to provide a minimum of 56 hours of paid sick leave per year and employees would be able to accrue at least 1 hour of paid sick time for every 30 hours worked. Any accrued paid sick time would carry over from year to year.
  • Paid sick leave could be used for an employee’s medical condition, obtaining care from a doctor, or caring for a child, parent, spouse, domestic partner, “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” While the Executive Order is still in draft form, it seems that one could arguably take paid sick leave to care for a close friend.
  • Paid sick leave could also be used for absences “resulting from domestic violence, sexual assault, or stalking, if the time absent from work is to seek medical attention, obtain counseling, seek relocation, seek assistance from a victim services organization, or take related legal action, including preparation for or participation in any related civil or criminal legal proceeding.”
  • Employers paying employees fringe benefits under the Service Contract Act and Davis-Bacon Act would not be able to receive credit toward prevailing wage or fringe benefit obligations by providing sick leave to satisfy the Executive Order.
  • Contractors would only be able to require certification from an employee (such as a doctor’s note) if 3 or more consecutive workdays were missed.
  • Here is one employer-friendly provision: contractor’s would have no obligation to pay out the value of unused sick time to employees upon separation of employment.
  • Detailed regulations would be issued by the Department of Labor no later than September 30, 2016.

Will this Order apply to your company? If you have federal service or construction contracts or subcontracts, the answer is almost definitely yes.

We stress that the above anakysis is based off of a draft Executive Order obtained by The New York Times. While it seems likely that the President will soon issue an Executive Order, nothing is set in stone. The new regulations would go into effect on January 1, 2017, just 20 days before the end of President Obama’s second term.

We’ll keep you updated. Stay tuned. In the meantime, if you have concerns, please consider contacting your local Chamber of Commerce, Representative, or Senator.