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Law Offices of Stanley E. Niew, P.C.

LABOR & CONSTRUCTION LAW UPDATES


These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented.  Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.

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AUGUST 2018



Inside This Issue


1.    Guidance as to Employee Handbooks Issued by NLRB General Counsel


2.    Can an Employee be Terminated for Taking Both FMLA Leave and Unexcused Absences?


3.    Under the Illinois Human Rights Act and the ADA, Disability Coverage is Different


4.    Discrimination Claims Under the Illinois Human Rights Act (“IHRA”)



Guidance as to Employee Handbooks Issued by NLRB General Counsel


Finally, on June 6, 2018, the General Counsel of the National Labor Relations Board issued a memorandum providing guidance on how employer rules should be interpreted following the Board’s December 2017 holding in Boeing.


Under the new guidance standard, there will be three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are unlawful to maintain.


Category 1: Rules That  Are Generally Lawful To Maintain


​​The types of rules in this category are generally lawful.  Some Category 1 lawful rules are:


          A.       Civility Rules


          The Board has placed this type of rule in Category 1. The following examples are lawful:

          - “Behavior that is rude, condescending or otherwise socially unacceptable” is prohibited.

          - Employees may not make “negative or disparaging comments about the . . . professional capabilities of an employee”

          - “Disparaging . . . the company’s . . . employees” is prohibited.

          - Rude, discourteous or unbusiness like behavior is forbidden.


          B.       No-Photography Rules and No-Recording Rules


          Some lawful rules:

          - “[U]se of [camera-enabled devices] to capture images or video is prohibited.”

          - Employees may not “record conversations, phone calls, images or company meetings with any recording device” without prior approval.


          C.       Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations


          Some examples of lawful rules are:

          - “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the [Employer’s] goals and objectives”

             is prohibited.

          - “Insubordination to a manager or lack of . . . cooperation with fellow employees or guests” is prohibited.


          D.       Disruptive Behavior Rules


          Some examples of such rules that are lawful include:
          - “Boisterous and other disruptive conduct.”
          - Creating a disturbance on Company premises or creating discord with clients or fellow employees.


          E.       Rules Protecting Confidential, Proprietary, and Customer Information or Documents

          Certain types of confidentiality rules also belong in Category 1 and are lawful, such as:

          - “[I]nformation concerning customers . . . shall not be disclosed, directly or indirectly” or “used in any way.”

          - Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information 

            regarding business partners, vendor, or customers.
          - No unauthorized disclosure of business secrets or other confidential information.

          F.       Rules against Defamation or Misrepresentation

          Examples of such lawful rules are:

          - “[M]isrepresenting the company’s products or services or its employees” is prohibited.
          - Do not email messages that are defamatory.

          G.      Rules against Using Employer Logos or Intellectual Property

          Examples of such lawful rules are:
          - Employees are forbidden from using the Company’s logos for any reason.
          - “Do not use any Company logo, trademark, or graphic [without] prior written approval.”

          H.       Rules Requiring Authorization to Speak for Company

          Rules requiring authorization to speak for the company or requiring that only certain persons speak for the company fall into Category 1. 

          Examples of such rules are:

          - The company will respond to media requests for the company’s position only through the designated spokespersons.

          - Employees are not authorized to comment for the Employer.


          I.        Rules Banning Disloyalty, Nepotism, or Self-Enrichment


          Examples of lawful rules are:

          - Employees may not engage in conduct that is “disloyal . . . competitive, or damaging to the company” such as “illegal acts in restraint of

            trade” or “employment with another employer.”

          - Employees are banned from activities or investments . . . that compete with the Company, interferes with one’s judgment concerning the

            Company’s best interests, or exploits one’s position with the Company for personal gain.



Category 2: Rules Warranting Individualized Scrutiny

Often, the legality of such rules will depend on context. In interpreting the context of rules, the Board has noted that general or conclusory prohibitions do not have to be perfect, and do not have to anticipate and catalogue every instance in which activity covered by the rule might be protected by Section 7.


Some possible examples of Category 2 rules are:


          -  Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a

             union
          -  Confidentiality rules broadly encompassing “employer business” or “employee information” 
          -  Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees)
          -  Rules regulating use of the employer’s name
          -  Rules generally restricting speaking to the media or third parties
          -  Rules banning off-duty conduct that might harm the employer
          -  Rules against making false or inaccurate statements



Category 3: Rules That Are Unlawful To Maintain

Rules in this category are generally unlawful because they would prohibit or limit NLRA-protected conduct such as strikes.

          A.       Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions

          The Board has placed this type of rule in Category 3. The following are examples of some confidentiality rules that would be unlawful:

          -  Employees are prohibited from disclosing “salaries, contents of employment contracts . . . .”
          -  Employees shall not disclose “any information pertaining to the wages, commissions, performance, or identity of employees of the
             Employer.”

          In addition, rules that expressly prohibit discussion of working conditions or other terms of employment should be considered Category 3 rules.

          B.       Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer

          A core aspect of protected concerted activity under the NLRA is that employees may desire to have “outside organizations,” specifically unions.



Conclusion

While the guidance is very helpful, there are gaps even though the guidance is nearly 40 pages long.  Employers can never ban strikes, sit-ins, making derogatory remarks during strike or contacting customers or media.

These are complex concepts and a new rule should not be adopted without review with labor and employment counsel.



Can an Employee be Terminated for Taking Both FMLA Leave and Unexcused Absences?


The answer is generally “yes”, but the facts need to be carefully analyzed before making a rash termination.  Let us suppose an employee is certified for FMLA leave for cancer and asthma, but the employee incurs a total of 13 intermittent absences in a twelve month period.  Some of the absences relate to the employee’s cancer and asthma, but more absences are for various other reasons such as foot pain, stress fracture, sore throat, dizziness, common cold, stomach cramps and upset GI system and diarrhea.


The employer has a policy that an employee is subject to termination when an employee accrues 7 absences in a rolling twelve-month period.   The question becomes can the employee be lawfully terminated for the non-FMLA absences, even though others are FMLA related?


In the case of Bertig v. Julia Ribaudo Healthcare, the court answered the employee could be lawfully terminated.  Under the employee’s own admissions in a deposition most of employee’s absences during the one year rolling period were unrelated to both asthma and her cancer.  Employee admitted employee missed ten days of work which is three more than allowed under the policy. 


The decision was made easy since the employer documented each absence with details relating to the reason for the absence.  The employer also engaged in an interactive process to sit down with the employee to determine how the employer can help the employee meet the employer’s expectation. 


Document, document, and engage in conversations with your employees before pulling the termination trigger.


Under the Illinois Human Rights Act and the ADA, Disability Coverage is Different


​A person with a disability under the Americans with Disabilities Act (“ADA”) is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities.  A qualified individual with a disability is a person who can perform the essential functions of the job with or without reasonable accommodation.


The Illinois Human Rights Act (“IHRA”) defines “disability” to mean a determinable physical or mental characteristic of a person. . .the history of such a characteristic, or the perception of such characteristic. . .which may result from disease. . .unrelated to the person’s ability to perform the duties of a particular job or position.  The IHRA itself makes no mention of essential job functions.


In order to establish a prima facie case of disability discrimination under the IHRA, the claimant must show that:  claimant is disabled within the definition of the Act and claimant’s disability is unrelated to claimant’s ability to perform the functions of the job.


It is a complaining party’s burden to prove that claimant is disabled within the meaning of the IHRA.  When a complaining party fails to establish that claimant is disabled within the meaning of the IHRA, any alleged discrimination against claimant is irrelevant because claimant is not entitled to protection under the Act.



Discrimination Claims Under the Illinois Human Rights Act (“IHRA”)


As a reminder the IHRA was amended in 2007 which gave claimants a right to file an action in a state circuit court.  While there are few decisions interpreting the provision, the question becomes “is the right to sue in circuit court waived if an employee engaged in the charge of discrimination process with the Department of Human Rights?” 


In a recent case a claimant filed a charge of discrimination with the Department of Human Rights (“Department”) and, after investigation, the Department found there was no substantial evidence and entered an order dismissing the charge.   The procedural history also includes an election by complainant to have the dismissal order reviewed by the Human Rights Commission (Commission).  The Commission vacated the dismissal and sent the case back to the Department for further investigation.  The Department issued a second notice of dismissal and, again, complainant sought review before the Commission and, again, the Commission sent it back down to the Department, which issued for a third time a notice of dismissal. 


Not surprisingly, complainant sued the employer in the state circuit court asserting the same discrimination as before the Department and the Commission.  The circuit court dismissed the complaint and an appeal followed.  The appellate court found the statutory language allowed the right to file a civil suit in the circuit court for any dismissal order, even a third one.


What is clear is that the 2007 amendment  which gave claimants a right to sue in a state circuit court changes the principles of administrative law.  The principles of administrative law include a presumption that agency decisions are factually correct unless the record shows it is against the manifest weight of the evidence  and avoids the effect of substantial deference by state courts to an agency interpretation.  


In conclusion, civil actions are permissible under the Illinois Human Rights Act without regard to past established law.



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