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LABOR & CONSTRUCTION LAW UPDATES


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AUGUST 2020


Inside This Issue

1.    NLRB Issues Series of Decisions Regarding Mandatory Arbitration Clauses, Confidentiality Rules and Standards of Conduct

2.    NLRB Issues Long-Awaited Decision on Abusive Union Behavior


3.    How Does Recent Case of Bostock v. Clayton County Regarding LGBTQ Affect Illinois Employers?


​4.    Federal Court Strikes Down Some DOL Rulemaking Under FFCRA



NLRB Issues Series of Decisions Regarding Mandatory Arbitration Clauses,

Confidentiality Rules and Standards of Conduct

Generally the National Labor Relations Board (Board) rules that mandatory arbitration provisions are acceptable so long as employees understand from the rules that they are free to exercise their rights to file unfair labor practices with the Board, and in some cases, with other federal agencies.  However, maintaining indemnity provisions that impose financial or legal risks on employees engaging in protected activities is unlawful. 


In the same series of cases the Board found confidentiality rules that include:


“business opportunities, intellectual property, data storage and custom design solutions, customer lists, . . .business strategies, business methods, security methods, …formulae, applications, inventions, software, and other specific examples of obviously proprietary business information.  Similarly, the list of confidential information described in the Employee Handbook and the Updated Handbook includes information about marketing plans, costs, earnings, documents, notes, files, lists and medical files,…computer files or similar materials.” 


None of the examples listed in the above quote would lead employees to reasonably think that matters relating to their employment terms were encompassed within the definition of confidential and proprietary information. 


The NLRB also found that rules establishing employees’ standard of conduct as lawful, such as a rule that fosters “harmonious interactions and relationships” in the workplace and that the employees adhere to basic standards of civility. Keep in mind though employers cannot implement a rule which prevents employees on non-working time to discuss among themselves and with the public information about their terms and conditions of employment for the purpose of mutual aid and protection.



NLRB Issues Long-Awaited Decision on Abusive Union Behavior

The Board strayed from its mission in a series of decisions in 2015 and 2016 regarding employer discipline for employees who use abusive language and conduct.


Recent scenarios presented to the Board include employers discharging employees who had (1) unleashed a barrage of profane ad hominem attacks against the owner of an employer during a meeting in which the employee also raised concerted complaints about compensation, (2) posted on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation, or (3) shouted racial slurs while picketing.  In deciding these cases, the Board has assumed that the abusive conduct and the Section 7 activity are analytically inseparable.[1]  

The law changed with a July 21, 2020 decision in General Motors LLC, when  the Board modified the standard for determining whether employees have been lawfully disciplined or discharged after making abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (Act). 


With this decision, cases involving offensive or abusive conduct in the course of otherwise-protected activity will now be decided under the familiar Wright Line standard, which has been used by the Board with court approval in mixed-motive cases. Under Wright Line, the General Counsel (prosecutor) of the Board must first prove that the employee’s protected activity was a motivating factor in the discipline. If that burden is met, the employer must then prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.


The standard announced in General Motors LLC replaces a variety of setting-specific standards—one for encounters with management, another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line. While these tests were based on the view that employees should be permitted some leeway for impulsive behavior when engaging in activities protected under the Act, they often resulted in reinstatement of employees discharged for deeply offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with antidiscrimination laws. 


“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”


Employers should adopt policy which prohibits profanity-laced tirades, obscene, racist and sexually harassing speech and similar conduct.


This decision applies equally to union signatory employers as well as open shop employers.


Footnote [1] Section 7 gives employees the right to engage in concerted activity or refrain from same.



How Does Recent Case of Bostock v. Clayton County Regarding LGBTQ Affect Illinois Employers?


On June 15, 2020, the U.S. Supreme Court issued a decision holding that Title VII of the Civil Rights Act of 1964 protects LGBTQ individuals from employment discrimination.

The Court reviewed consolidation of three cases alleging unlawful terminations based on sexual orientation and gender identity.  The Court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  This decision is a big victory for LGBTQ persons and may also be short lived should the Republicans take over both houses of Congress. Then Bostock is sure to be overruled by legislation.


The Bostock decision may also be a victory for heterosexual cisgender women who work traditionally in male dominated fields such as women security guards, electrical technicians, correction officers and railroad engineers.  Women in such jobs are often labeled as “gay” or “dykes.” Look for  women working in these fields of work and similar fields to file sex discrimination claims using the Bostock decision to file sex discrimination claims with the EEOC.Employers are reminded that the Illinois Human Rights Act already prohibits discrimination as to sexual orientation or gender identity.  All employers are required to comply with the federal and the state law.



Federal Court Strikes Down Some DOL Rulemaking Under FFCRA


The Family’s First Coronavirus Relief Act (“FFCRA”) requires employers, with less than 500 employees, to provide paid leave to employees who cannot work due to several Covid reasons.


Last week a federal district judge in the Southern District of New York struck down several Department of Labor (“DOL”) regulations which include:


  • DOL regulations provide paid leave only if work is available for the employees.  The federal district court struck down the work availability requirement.  Does this mean employers might be obligated to pay furloughed workers. . .only time will tell.


  • FFCRA excludes health care providers from the group of employees eligible for leave.  The DOL regulations include almost anyone working in the healthcare industry such as office staff.  The district court struck the DOL’s expansive definition of “healthcare providers,” however, the judge did not inform us which employees are healthcare providers.


  • The DOL regulations allow eligible employees to take FFCRA leave intermittently if the employer agrees.  The district court struck down the portion of the regulation which required employer approval.


  • Employers are permitted to require employees to provide documentation for the reason for the leave, length of the leave and the quarantine order which may be applicable.  The federal district court stated employers may require documentation, but that is limited to prior notice of the impending leave.


The decision is likely to be appealed, but it is also possible that the DOL will issue new regulations in response to the decision.  Employers can only wait and see what comes down in the future.



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