ADA Claim Brought by Claustrophobic Attorney Allowed to Proceed

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

When the Americans with Disabilities Act definition of "disability" was expanded by the ADA Amendments Act of 2008, we told you to expect an increase in accommodation requests and disability discrimination claims. Many of you have experienced increased claims, and the courts are starting to feel your pain.

For example, a claustrophobic attorney has filed a claim against her former law firm alleging violations of the Americans with Disabilities Act and the Pennsylvania Human Relations Act. The crux of the attorney's claim is that the firm failed to accommodate her claustrophobia and anxiety. The facts of the case are interesting, and the eventual outcome could provide some helpful guidance to employers contemplating requests for accommodation.

The employee was previously assigned to one of the firm's offices in Moosic, Pennsylvania. However, she requested and was granted permission to transfer to the firm's Center City Philadelphia office. She was assigned an office on the 23rd floor.

Apparently, problems began on her first day at the Philadelphia office. According to her complaint, she began suffering from anxiety and claustrophobia immediately following her first elevator ride. [INSERT BIG CITY JOKE HERE]. She claimed that as a result of her anxiety at work, she was unable to eat or sleep.

The attorney allegedly sought accommodations from the firm as a result of her anxiety and claustrophobia, which she claims were denied. Under the ADA, covered employers must provide reasonable accommodations to qualified individuals with disabilities, except when such accommodations would cause an undue hardship. The attorney claimed that the firm was aware of her disability and that it had denied her requests for accommodation, including at least two requests to transfer to other office locations. The attorney claimed that the firm's failure to accommodate her ultimately led to her discharge.

The attorney's claims are interesting because, according to press reports, she had been to the Philadelphia office previously and as noted, specifically requested the transfer! In addition, the firm argued that it did in fact provide the attorney accommodations (including the ability to work from home for a period of time). Nonetheless, the court concluded that the case would survive the firm's motion to dismiss because the attorney had made the minimum showing necessary to proceed.

Certainly this does not mean that the attorney will succeed on her claim, and more interesting facts will probably come to light. While trying to keep the bad jokes to a minimum, this case will be interesting to watch for a number of reasons:

  • What happens when an employee's own request triggers the need for an accommodation?
  • If the firm told her to take the stairs, would that be a form of reasonable accommodation?
  • If she could not work in the office away from windows, how could she work in another office under similar circumstances?
  • Will the courts in the Third Circuit rule that telecommuting is a reasonable accommodation?
  • Is telecommuting a reasonable accommodation for an attorney?
  • Is an attorney who cannot ride an elevator or work in an office away from a window able to perform the essential functions of her job?

As requests for accommodation become more common, and employers are diving deeper into the interactive process, additional guidance from the courts on specific types of accommodation requests will prove helpful. The real question here is how far will employers need to go to be in compliance? Stay tuned.

You're fired! Want to continue to work for us as an Independent Contractor?

This post was contributed by Jennifer E. Will, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

If you do, you'll need to sign a release and waive all of your employment law claims first. Oh, and if you don't, you'll still be bound by your noncompete. Huh?

The facts are more complicated than that, but after Allstate Insurance decided to reorganize and shift all of its agents to an independent contractor model, it became a target of the EEOC. In its attempts to avoid litigation, Allstate decided to terminate all of its agents who were classified as employees. At the same time, the Company offered those employees a series of choices, which included a $5000 conversion bonus for those who wished to become independent contractors and a year of severance pay, for those who didn't. In either event, a release of all discrimination claims was required.

After a few of those terminated employees filed charges, the EEOC filed a civil action of its own, seeking to invalidate the release itself, on the ground that it constituted retaliation. The EEOC took issue with Allstate only permitting employees to continue their careers if they waived all discrimination claims. What's wrong with that?

Nothing, said the District Court (twice). Nothing, said the Court of Appeals (after a remand). Turning to well-established law, the Court rejected the EEOC's claims that offering to convert an employee to independent contractor status was "illegal" and that the conversion bonus was insufficient consideration for a release.

How's this for a quote? "[W]e are not persuaded by the [EEOC's] efforts to arbitrarily limit the forms of consideration exchangeable for a release of claims by a terminated employee." In sum, it is the employer, and not the EEOC, that gets to decide what post-termination benefits to offer an employee in exchange for a release. The act of refusing to sign a release is NOT protected activity and, therefore, cannot give rise to a claim of retaliation.

While this is certainly a piece of good news for employers, we continue to offer caution to employers in the area of severance agreements, as caselaw and statutes (such as the Older Workers Benefits Protection Act) continue to refine what it takes to achieve an enforceable release. Please contact any member of the McNees Labor & Employment Law Practice Group for assistance.

Philadelphia Mayor Signs Paid Sick Leave Ordinance

With the signature of Mayor Michael Nutter on February 12, 2015, Philadelphia became the 17th city in the United States to mandate paid sick leave for employees. The law goes into effect in 90 days (May 13, 2015) and applies to businesses with 10 or more employees. Covered employers will be required to give workers at least one (1) hour of paid sick leave for every 40 hours worked.

The law defines an "employee" as one who works within the geographic boundaries of the City of Philadelphia for at least 40 hours each year. There are a number of exceptions to the definition including independent contractors, seasonal/temporary workers, interns, and workers covered by a collective bargaining agreement.

A few of the main provisions of the law are:

  • All covered employees must accrue one hour of sick time for every 40 hours worked in Philadelphia. Employers can cap the amount of accrued sick time at 40 hours per calendar year;
  • Employees may begin to use accrued sick time on the 90th calendar day after beginning employment;
  • Sick time is to be carried over to the following calendar year unless the employer guarantees at least 40 hours of sick time at the beginning of each calendar year;
  • Employers who already have sick/vacation/PTO leave policies are not required to provide additional sick time under the Ordinance – as long as the employer meets the minimum requirements of the law;
  • "Sick time" can be used for the employee's own medical issue, in order to care for a family member with a medical issue, or for absences due to domestic abuse, sexual assault, or stalking;
  • Employers must give written notice to employees who are entitled to sick time or post a sign in a place where all employee will be able to see it; and
  • The City or a harmed employee may bring a civil action in court against an employer for violation of the Ordinance (after exhausting administrative remedies).

While President Obama has called on Congress to pass federal paid sick-leave legislation, there is no indication that mandatory paid sick leave will become the law of the land any time soon.

If your company has operations in Philadelphia, you should consider reviewing your sick-leave policies in the next 90 days to ensure your policies comply with the new city ordinance.

Workers' Compensation Update: "Economic Circumstances" and "Fellow Employee"

This post was contributed by Paul D. Clouser, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Lancaster, Pennsylvania.

One tool available to employers to limit workers' compensation benefit payments is the so called "fellow employee" limitation. In general, absent a full recovery from a work-related injury, an employer is obligated to pay partial disability benefits equal to 2/3 the difference between the pre-injury average weekly wage and the current earnings of the employee, who is often working with restrictions. In situations where that employee has an elevated average weekly wage due to significant past overtime, the partial disability rate can seem "artificially" high. Section 306(b)(1) of the Act contains a seldom used provision limiting the payment of partial disability benefits in these circumstance. It states:

[I]n no instance shall an employee receiving compensation under this section receive more in compensation and wages combined, than the current wages of a fellow employee in employment similar to that in which the employee was engaged at the time of injury.

Pennsylvania WC Act, Section 306(b)(1).

Likewise if an employer can prove that an employee's shortfall in wages is the result of economic circumstances affecting all employees and unrelated to that employee's work related physical impairment, a defense to the payment of partial disability benefits is also available.

On February 4, 2015, the Commonwealth Court addressed and affirmed these principles in the case of Janice Donahay v. WCAB. Ms. Donahay was a team leader and residential services assistant for Skills of Central PA, which operates group homes for mentally challenged adults. In February 2011, Donahay sustained a ruptured biceps tendon while assisting a large resident. The resident had difficulty walking due to a leg problem and had been leaning heavily on Donahay while ambulating.

Donahay had surgery and was off work and received workers' compensation total disability benefits for 5 months. She returned to her job with restrictions in August 2011, earning significantly less than her average weekly wage. Prior to the injury, she had been working 80-85 hours per week, as the group home was short-staffed. As such, her "average weekly wage" was unusually high.

Upon her return and with the resumption of normal staffing levels, Donahay was working only 45 hours per week. Additionally, due to funding cuts, the employer was limiting the amount of available overtime to all employees to help control costs.

The employer successfully argued that despite her restrictions and reduced hours, benefits should be suspended, with no ongoing payment of partial disability. After all, there was no medical limitation on the number of hours Donahay could work and her other restrictions did not prevent her from carrying out all aspects of her regular job. Donahay was not required to perform patient transfers, as clients in the group home were independent and required little direct care. Additionally, team leaders do more paperwork than direct care and Donahay had the flexibility to direct other employees to perform the tasks she could not perform.

Accordingly, the WC Judge found that despite some residual physical impairment, Donahay was able to perform all aspects of her pre-injury job. Furthermore, the extraordinary overtime she had worked prior to her injury was only temporary, pending the hiring of additional staff. As such, Donahay's alleged loss of earnings was not due to her residual impairment, but rather to the employer's new limitation on overtime which was applicable to all employees. Accordingly, any loss of earnings was due entirely to "economic circumstances" and unrelated to her physical limitations. To allow Donahay to continue collecting ongoing partial disability benefits, in addition to her regular wages, would place her in a better position than her fellow employees, who were performing similar duties. The Commonwealth Court found it unnecessary however, to formally address the "fellow employee" argument, as the WC Judge had adequate grounds under the "economic circumstances" argument, to suspend compensation benefits.

The legal analysis involving payment of partial disability benefits is somewhat technical and fact specific, so the best option is to consult legal counsel, if you feel an employee is being unfairly overcompensated for his or her work injury, Denise Elliott and Paul Clouser, in McNees Wallace & Nurick's Lancaster office, specialize in the handling of workers' compensation matters.

The National Labor Relations Board 2014 Year in Review

McNees Attorneys Bruce D. Bagley and Adam L. Santucci recently released their annual White Paper entitled "The National Labor Relations Board 2014 Year in Review."

If the National Labor Relations Board seemed to be on the ropes in 2013, it certainly came out swinging in 2014. Last year, we reported that the Board faced a number of serious legal battles. Although the Board certainly got knocked down in 2014 by a blockbuster United States Supreme Court decision, it bounced right back and issued a number of important decisions that will undoubtedly have significant long-term implications for employers. And unfortunately, it was employers who "took it on the chin," because the Board's pro-union agenda was at the fore of most of its major actions.

Check out the comprehensive and informative White Paper by clicking here!

The White Paper can be downloaded as a PDF by clicking on this link.

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A Game-Changing Misstep for Walmart?

This post was contributed by Jennifer J. Walsh, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Scranton, Pennsylvania.

A federal district court recently sanctioned Walmart for "spoliation of evidence" in an employment litigation case. Although Walmart has asked the Court to reconsider its decision or allow it to appeal the decision to the appellate court, there's an important lesson to be learned regardless of the outcome: Mind Your Rs & Ds. In other words, pay attention to your company’s retention and destruction of, well, everything employment-related, particularly if there is reason to suspect that litigation is a possibility. When an employer knows or has reason to know that litigation is possible, it has a duty to preserve all relevant evidence. If the company doesn't do that, and relevant evidence is destroyed, the Court has the discretion to punish, or sanction, the employer.

In Abdulahi v. Wal-Mart Stores East, L.P., Ibrahim Abdulahi's termination for poor performance came on the heels of his filing two discrimination complaints with the Equal Employment Opportunity Commission ("EEOC"). Mr. Abdulahi, assistant manager of Store 1181, was of Ethiopian national origin. He had a storied 15 year work history with his employer, consisting of disciplinary-type "coachings" alongside consistent "solid performer" evaluation ratings.

In the EEOC complaints, Abdulahi claimed that two of his superiors at Store 1181 were "belittling" him and treating him "different than other assistant managers," which treatment allegedly included negative comments and jibes about his ethnicity and accent. Two months after Abdulahi filed the EEOC charges, he was terminated for allegedly failing to lock the Garden Center entrance overnight. Walmart claimed that video surveillance confirmed that the gates were not locked.

So, what's the problem, you ask? Well, that video footage – the only objective evidence in support of Walmart's claim that Abdulahi was terminated for legitimate reasons - was not preserved, and was written over as a matter of the company's routine video storage and re-use practices. From Abdulahi's perspective, that video footage was the only way to establish that the gates were locked, and that Walmart's stated reason for firing him was a pretext for retaliation.

The Court agreed with Abdulahi, and sanctioned Walmart for failing to preserve the video footage. Walmart was on notice that litigation was reasonably foreseeable, since Abdulahi had already filed two charges of discrimination with the EEOC. Walmart's punishment for failing to preserve the video recordings is a stringent one: when this case goes to trial, Abdulahi will be entitled to a potentially game-changing jury instruction. The Court will tell the jury that Walmart's destruction of the video footage creates a presumption that Walmart's stated reason for firing Abdulahi (the unlocked Garden Center gates) was essentially a smoke screen, and that the real reason Walmart fired him was to retaliate against him for filing EEOC charges and complaining of discriminatory treatment. Game-changer, indeed.

If your company has a policy or practice of automatically destroying documents, materials, or information within a certain time frame, remember to halt that process until you preserve all information relating to an issue or person if litigation is reasonably foreseeable. This "preservation" requirement applies to electronically stored information too, so be sure to check your email systems for auto-delete parameters. Promptly taking the necessary steps to preserve information when litigation is reasonably foreseeable is most certainly the recommended route to avoid game-changing sanctions for spoliation of evidence.

New NLRB Determination Makes It Easier For Unions To Organize Faculty At Universities And Colleges

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

In still another break with long-standing precedent, the National Labor Relations Board (NLRB) has once again eased the way for union organizing – this time for unions seeking to organize faculty at private sector universities and colleges. In Pacific Lutheran University, 361 NLRB No. 157 (December 2014), the Board adopted a new standard for determining when faculty may be considered to be "managerial employees," which in turn critically impacts whether they may be subject to unionization.

The seminal case in this controversial area of federal labor law is NLRB v. Yeshiva University, 444 U.S. 672 (1980), where the United States Supreme Court found that the faculty at Yeshiva were managerial employees and therefore excluded from coverage under the National Labor Relations Act (NLRA or Act). The Court found that the Yeshiva faculty "formulate and effectuate management policies by expressing and making operative the decisions of their employer." They had effective power to control or implement employer policies, such as deciding what courses would be offered, when they would be scheduled, to whom they would be taught, and determining teaching methods, grading policies, matriculation standards, which students would be admitted, retained, and graduated, etc.

In the years since 1980, the Board has struggled (at least according to some of the reviewing Courts of Appeal) with applying the Yeshiva standard. But more often than not the Board applied Yeshiva to determine that faculty, particularly tenured faculty, were closely aligned with the management of their respective institution, resulting in their being excluded from coverage under the Act.

In Pacific Lutheran, however, the Board has chosen to refine or interpret the Yeshiva standard in a manner making it harder to assert or conclude that faculty are managerial. Perhaps unfortunately for those who would have preferred the prior status quo, the facts in Pacific Lutheran easily lent themselves to those Board Members who were looking to expand coverage of the Act to cover previously-excluded faculty. The union had petitioned for a representation election in a unit of all contingent (non-tenure eligible) faculty teaching a minimum of three credits during an academic term, of which there were about 176 in the petitioned-for unit. The University asserted that approximately 40 of the 176 were managerial and therefore excluded from voting in any election that might be scheduled. The NLRB Regional Director concluded otherwise, including the 40 as eligible voters when he directed that an election take place. The University appealed to the Board, where at least 20 organizations filed various amicus briefs.

Unlike the faculty in Yeshiva, the contingent faculty at issue did not appear to exercise the same level of managerial control or implementation. The Board in Pacific Lutheran first laid out a focus upon five areas of policy making to examine whether faculty actually exercise control or make effective recommendations regarding university policies. The five areas to be examined are academic programs, enrollment management, finances, academic policy, and personnel policies/decisions, with an emphasis on the first three being "primary" areas and the latter two being "secondary." Then within each of those policy areas, the Board will seek to determine whether the faculty actually exercise control or make effective recommendations in those areas. If they do, then the Board will find the faculty to be managerial and exclude them from coverage under the NLRA. And the Board emphasized that, to be excluded, the faculty must have "actual--rather than mere paper—authority" and in order for recommendations to be considered effective, they "must almost always be followed by the administration."

Turning to the facts in Pacific Lutheran, the Board found that the faculty at issue were not managerial. According to the Board, the faculty had only limited participation in the three primary and two secondary areas of policy making noted above, noting particularly that they were typically employed on only one-year contacts which inherently limited their ability to control or make effective recommendations regarding university policy. The faculty at issue also had only limited participation in decisions affecting academic programs, were not permitted to serve on faculty standing committees, did not vote on enrollment management policies, had little or no involvement in decisions involving finances, and had limited involvement in both academic policy and personnel matters. In short, it appears that the Board may have seized upon a set of facts which in any event would have fallen short of the Yeshiva standard, in order to erect new barriers for colleges and universities to overcome in future cases where the facts might have been more conducive to finding managerial status under Yeshiva.

This case or future cases utilizing the Pacific Lutheran rationale will likely receive further review and analysis by the federal Courts of Appeal and possibly the Supreme Court. Private sector universities and colleges that wish to see their faculty remain non-unionized should however take heed. Most authorities predict that this case will spur union organizing of faculty, and therefore institutions should be evaluating their vulnerability and taking proactive steps now to lessen the likelihood of having to deal with a unionized faculty.

Is An Injury Sustained by an Employee While Participating in a Workplace Wellness Program Compensable Under the Workers' Compensation Act?

This post was contributed by attorney Denise E. Elliott with assistance from attorneys John U. Baker and Kelley E. Kaufman. All are members of the McNees Wallace & Nurick Labor & Employment Practice Group. Denise practices in our Lancaster, Pennsylvania office, John practices in our State College, Pennsylvania office, and Kelley practices in our Harrisburg, Pennsylvania office.

With the new year upon us, chances are that your employees are making those age old resolutions to lose weight, get fit, and exercise more. And, if you sponsor or offer an employee wellness program, your employees might be looking to use the program to help them stick to their resolutions. But what happens if an employee exerts himself too much, pushes herself a little too far and hurts him or herself in the process? Are you, the employer, on the hook for such injury? Is the employee covered by workers' compensation? Maybe.

Ultimately, the answer to this question turns on whether the employee was in the course and scope of his/her employment when the injury was sustained. An employee is found to be in the course and scope of his/her employment when one of two situations is present: (1) where the employee is injured while actually engaged in the furtherance of the employer's business or affairs, regardless of where the injury is sustained; or (2) where the employee sustains an injury caused by the condition of the employer's premises, provided that the employee was required by the nature of his/her employment to be on the premises at the time of the injury. WCAB (Slaugenhaupt) v. U.S. Steel Corp., 376 A.2d 271 (Pa. Cmwlth. 1977); see also Scher v. WCAB (City of Philadephia), 740 A2d 741 (Pa. Cmwlth 1999). Cases analyzing the compensability of injuries sustained while the employee was engaged in physical fitness and/or wellness activities generally do so under the first of the two foregoing situations.

Although no Court in Pennsylvania has specifically addressed whether an injury sustained while participating in a wellness program is compensable under the Workers' Compensation Act, decisions addressing physical fitness injuries are instructive.

In Hemmler v. WCAB (Clarks Summit State Hospital), 569 A.2d 395 (Pa. Cmwlth. 1990), the Court found that an employee, who was injured while playing basketball on his lunch hour, was entitled to workers' compensation benefits. In so holding, the Court found that the employer encouraged its employees to engage in activities to better their health, relieve stress, and to have a better mental attitude in the performance of their work. The employer encouraged such activities through the use of postings on a bulletin board and by granting its employees access to company facilities, including the gymnasium, for physical activity. Based on these facts, the Court found that the Claimant was furthering the business interests of his employer when he was injured.

In Stanner v. WCAB (Westinghouse Electric Co.), 604 A.2d 1167 (Pa. Cmwlth. 1992), an employee who sustained a heart attack after working out at the employer's fitness center was found to be furthering the interests of his employer and was entitled to benefits under the Act. The key factors for the Court in Stanner were that: (a) the employer encouraged employees to use the fitness center, (b) flexible work hours were available to enable employees to use the facility, (c) the employer distributed brochures to employees advising that physical fitness benefits both the employee and the employer, and (d) the employer's benefits manager testified that employee participation in the fitness program reduced overall health care costs. The Court held that the "employer encouraged its employees' participation in the fitness program which benefited both Employer and the employees."

In SEPTA v. WCAB (McDowell), 730 A.2d 562 (Pa. Cmwlth. 1999), the Claimant injured his knee while running in a park, during non-working hours. Claimant testified that he ran several times a week in order to meet SEPTA's physical fitness requirements for transit police officers. The Court found that SEPTA had physical fitness guidelines for its officers, which were meant to benefit the officers, SEPTA, and the riding public. SEPTA encouraged its officers to meet the requirements by providing reimbursement for gym memberships, cash awards for the achievement of fitness goals, and by awarding bonus days to officers that met the requirements. SEPTA's fitness requirements were mandatory and failure to meet the requirements could result in disciplinary action. The Claimant testified that he ran only to meet SEPTA's requirements. Based on the foregoing factors, the Court found that the Claimant was engaged in the furtherance of SEPTA's business and thus, was entitled to workers' compensation benefits for his knee injury.

Finally, in McNany v. Travelers Ins. Co., 2008 WL 410254 (WCAB 2008), a Claimant who was injured while taking a walk during a work break was entitled to workers' compensation benefits. In McNany, the Claimant testified that his employer encouraged him to take walks outside of the building as a tool for stress management. Accordingly, the Claimant walked at least ten minutes per day. The Workers' Compensation Appeal Board found that because the employer encouraged the physical activity, which caused Claimant's injury, the Claimant was furthering the interests of the employer at the time he was injured. It was of no matter to the Board that Claimant's participation was voluntary or that the injury occurred off the employer's premises.

The Courts have consistently held that the phrase "actually engaged in the furtherance of the business or affairs of the employer" is to be liberally construed. Keeping in mind such liberal construction and applying the rationale of the above-four cases, an injury sustained by an employee engaged in an activity connected to an employer sponsored wellness program, likely would be compensable under the Workers' Compensation Act. Where fitness testing and achievement metrics are used to incentivize and reward employees who participate in the program, any time spent by the employee striving to achieve such metrics or goals likely would be deemed to further the interests of the employer. This especially will be true when the activity occurs on the employer's premises, during the work day, or during an employer sponsored or suggested activity. The bottom line is that employers clearly benefit from workforce wellness programs.

An employee's entitlement to workers' compensation benefits may be more tenuous if the injury is sustained off the employer's premises during an activity not directly related to the wellness program or not directly suggested by the employer. The risk of liability also may be somewhat reduced where the wellness program is managed by a third party vendor, all communications regarding the program come from such vendor, and the employer knows little to nothing about the participants in or activities of the program.

Despite the potential for liability, wellness programs can and do provide significant value to the workforce. Wellness programs benefit employers by promoting a healthier and more productive workforce and by helping to reduce health care costs. Employees also receive a benefit. Those who may not otherwise engage in physical or wellness activities, are induced to participate in wellness programs through employer offered incentives, health care premium bonuses, and suggested activities and, as a result, are healthier for it. For many employers, the benefits of promoting workforce wellness far outweigh the potential liability. If your company is implementing a workplace wellness program, or continuing an existing program, consider consulting counsel to develop wellness initiatives that promote the goals of the program while minimizing the risk of legal exposure.

NLRB Re-Issues "Quickie Election" Rule In Continuous Effort to Boost Union Organizing

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania. 

The National Labor Relations Board (NLRB) is at it again. Unions are already winning close to 70% of NLRB-conducted elections. NLRB elections are already conducted quite promptly, with the median processing time being about 38 days from date of petition filing to date of election. Nevertheless the three Democrat Members of the NLRB have apparently concluded that organized labor needs additional governmental assistance in unionizing the unorganized workforce.

Over the vehement dissent of the two Republican Members, the Board Majority, on December 15, 2014, issued its Final Rule amending election procedures in what most observers are calling the "Quickie Election" Rule. Thankfully the Rule does not actually go into effect until April 14, 2015, as it is 733 pages in length and will therefore require substantial time just to wade through. But the implications of the Rule are starkly clear – effective April 14, elections will be held approximately 10 to 21 days after a union election petition has been filed – with profound consequences for non-union employers.

First, if this all sounds familiar, it should. The Board first issued an almost identical Rule in 2011, but it was invalidated by a federal court because the Board lacked a proper quorum when it had voted to adopt the Rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp 2d 18 (D.D.C. 2012).

Undeterred by this setback, the Board proposed virtually the same Rule in February 2014, and has now adopted it, despite an overwhelmingly negative reception by employers and trade associations. The new Rule is every bit as pro-union as the original 2011 Rule, and in some ways is even more stringent in addressing what the Majority determined to be shortcomings and inequities existing under current procedures.

What are some of the major changes promulgated under the new Final Rule? They will be addressed below, but collectively, they will operate to dramatically shorten the period of time from the date the election petition is filed to the date the election is conducted. That time period is particularly critical for employers, because it is often the only time the employer will get to express its views on unionization. An organizing effort may have been ongoing for weeks or months without the employer's knowledge, with the employer only learning about it when it is served with the election petition. A dramatically shortened time period prior to the date of the election necessarily deprives employers of the time needed to fairly present both sides of the representation question to employees.

Among the changes in the Final Rule are the following:

  1. The employer, upon receipt of the petition will have just two business days in which to post a "Notice of Petition for Election" and distribute it electronically to employees. The Notice references various employer conduct which, if committed, would constitute unfair labor practices. Failure to comply with this posting requirement, inadvertent or otherwise, will constitute grounds to set aside the results of the election if the employer wins.
  2. The employer will have seven days from date of service of petition to file with NLRB and serve on the union a "Statement of Position" regarding any issues it plans on raising at the pre-election hearing, and failure to raise an issue in the Statement will preclude the employer from litigating the issue at the pre-election hearing.
  3. Pre-election hearings will be held precisely eight days after the petition is served, but unlike present procedures, there will be no litigation of individual employee eligibility to vote or inclusion in the bargaining unit, with such issues being deferred to the post-election challenge procedure. This provision is particularly onerous to employers, as it is likely to prevent the employer from litigating the supervisory status of individuals, thereby making it more difficult for the employer to know which individuals it can rely on as company representatives during the election campaign.
  4. Under current procedures, post-hearing briefs can be filed seven days after the hearing. Under the Final Rule, such briefs will no longer be entertained, resulting in less time for the Board's Regional Director to consider the issues and less time until the issuance of a Decision and Direction of Election.
  5. Employers will now be required to provide to the Board and to the union expanded personal information about employees, to include not only names and home addresses (per present procedures) but now also home telephone number, personal cell phone number and e-mail address if known by the employer, work location, shift, and job classification. All of this of course is to enhance the union's ability to contact employees for pre-election campaigning purposes.

The above are only some of the changes, with others including eliminating the right to seek pre-election review of a Regional Director's Decision by the Board, eliminating the current 25 day waiting period to conduct elections after the issuance of a Decision and Direction of Election, and expediting of any post-election objections. The bottom line, of course, is that effective April 14, 2015, it will be easier than ever before for unions to unionize the presently unorganized.

What should employers be doing now to prepare for implementation of the Final Rule? Some suggestions below:

  1. Unless you believe you are virtually invulnerable to a union organizing effort, you should not remain idle. If and when an election petition is filed, there may be too little time to do too much.
  2. Consider conducting union avoidance training for managers and supervisors now, before the Final Rule becomes effective.
  3. Honestly consider whether your organization is susceptible to a union organizing effort. If it is, perhaps you should be analyzing potential bargaining unit issues, reviewing company policies (such as solicitation and use of electronic resources), determine who is likely to be considered supervisory and who is not, compose a company response team which can promptly address union organizing efforts, etc.

These are but a few of the proactive steps that all non-union entities should be considering in light of the Board's adoption of its Quickie Election Rule. If you have questions, concerns, or would like further assistance, please contact the undersigned or your usual McNees attorney contact.

The Obama NLRB Strikes Another Blow on Behalf of Organized Labor: Employees May Use Company E-Mail Systems to Unionize and Engage in Other "Protected Concerted Activities"

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Most employers have policies or work rules limiting employee use of Company e-mail systems to "business purposes." Many employers have policies or work rules specifically prohibiting employees from using Company e-mail to solicit for outside organizations (such as soliciting fellow employees to join a union). In Purple Communications, Inc., 361 NLRB No. 126, issued on December 11, 2014, the National Labor Relations Board (NLRB) decided that employees must presumptively be permitted to use their employer's e-mail system, during non-working time, to communicate with each other about workplace issues, including but not limited to union organizing efforts.

In reaching this determination, the three Democrats on the Board, over the vigorous dissent of the two Republican members, reversed the 2007 NLRB Decision in Register Guard, which had held that employees have no statutory right to use their employer's e-mail system for engaging in union or other activities protected by Section 7 of the NLRA.

The Purple Communications majority premised its decision on what it deemed "the importance of e-mail as a means of workplace communication," noting that "e-mail remains the most pervasive form of communication in the world." According to the majority, "the workplace is 'uniquely appropriate' and 'the natural gathering place' for such communications, and the use of e-mail as a common form of workplace communication has expanded dramatically in recent years." The majority concluded that, if employees are already provided access to their employers' e-mail systems, then they must also be permitted to use these systems, during non-working time, for union organizing purposes and for any other protected communications about terms and conditions of employment.

It is significant to note that the Board's Decision applies to employees, not non-employees, and does not present outside union organizers with the right to use the employer's e-mail system. It does not require employers to now provide e-mail access to employees who do not already have such access. Nor does the decision reach any employer communication system other than e-mail. And while the decision announces a "presumption" that employees have the right to use the e-mail system for protected communications on non-work time, it also states that employers can at least try to assert "special circumstances" that would allow a ban on such use of e-mail if necessary to maintain production or discipline. (Editor's note: good luck trying to establish sufficient "special circumstances" that would satisfy the present Board!).

Notwithstanding Purple Communications, it is still permissible for employers to prohibit employee use of employer e-mail systems for non-work-related activities during working time, including communications regarding union or other Section 7 activities. But that would be the case only if the employer consistently enforces such rule against employee use of e-mail during working time for other non-work-related communications as well (which most employers do not). Put another way, if an employer does not monitor and prohibit content of non-work-related e-mail sent or received during working time, it similarly cannot lawfully prohibit the use of e-mail during working time for union-related or other Section 7 protected communications.

This NLRB case raises significant issues for virtually all employers, unionized and non-unionized. No doubt there will be appeals from the Board's Decision to the federal appellate courts, but for the immediate future at least, Purple Communications is the law of the land. If you have questions or concerns about how this Decision may impact your policies or work force, particularly your policies regarding e-mail and other electronic resources, "Bring Your Own Device," solicitation, social media, handbooks, etc., please feel free to contact the undersigned or your usual attorney contact at McNees Wallace & Nurick.