Friday, September 30, 2016

Overtime Simmer

And, the EEOC gets helpful, and the NLRB is slammed….


Last week I wrote about the 2 lawsuits filed to either delay or amend the new overtime rules implemented by the DOL and scheduled to go into effect on December 1 of this year, as well as several bills in Congress to attempt to accomplish similar objectives.

On September 28, the House passed H.R. 6094, the Regulatory Relief for Small Businesses, Schools, and Nonprofits Act. The vote was 246 – 177. If enacted the bill would delay the effective date of the new rules until June 1, 2017. It still must go through the Senate; and it seems unlikely it will make it to a vote before December 1. Senator Lamar Alexander also introduced yet another bill to phase in the new salary threshold over 5 years.

President Obama has said he will veto any attempt to delay or amend the new rules. While still a difficult task, the lawsuits filed probably have a better chance to stop the implementation before the effective date.

Regardless, employers should continue to prepare to comply by December 1, 2016.

On a more helpful note….

The EEOC has developed The Small Business Resource Center (SBRC) which is a user-friendly source for information on federal employment anti-discrimination laws. This website is designed for small business to help them comply with the laws enforced by the EEOC. The guides, videos and fact sheets available are said to be in plain language and offer guidance in making employment decisions and other tips. For many small businesses without the budget to have either an HR function in-house or ability to afford frequent consultation with employment counsel, this resource should be quite helpful.

Lastly, kudos to Judge Patricia Millett for her opinion in the case of Consolidated Communications, Inc. v. National Labor Relations Board. Her comments are of interest not so much in relation to this specific case, but in terms of the NLRB’s penchant for allowing discriminatory and obscene behavior both on and off the picket line. Behavior that would otherwise be illegal in any other workplace setting. I don’t know that any other officer of the court has addressed the subject so completely and so eloquently in the past. Although, in the future, many more should.

For your reading pleasure, I have included her comments here. (This is very long, but very important, even more so considering the EEOC’s recent comments about how workplace civility should be embraced to help combat harassment. I ask again, when will the EEOC have this conversation with the NLRB?)

"I write separately, though, to convey my substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.

While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment. Full stop.

Yet time and again the Board’s decisions have given short shrift to gender-targeted behavior, the message of which is calculated to be sexually derogatory and demeaning. According to Board precedent, such conduct was supposedly not extreme enough to constitute a "threat." For example, in Calliope Designs, 297 NLRB 510 (1989), the Board ruled that a striker calling a non-striker a "whore" and a "prostitute," and adding that she was "having sex with [the employer’s] president," was not "serious misconduct" and thus was not sanctionable, id. at 521. That same striker repeatedly called a second female employee "a ‘whore’ and told [her] she could earn more money by selling her daughter, another nonstriker, at the flea market." Id. Completely protected, the Board decision said.

Similarly, in Gloversville Embossing Corp., 297 NLRB 182 (1989), the Board’s ruling deemed it acceptable for a striker to yell at female non-strikers to come see "a real man" and then to "pull[] down his pants and expose[] himself," id. at 193–194. And in Robbins Company, 233 NLRB 549 (1977), the Board’s order required the reinstatement of a striker who "made crude and obscene remarks and suggestions regarding sex, including an invitation to ‘make some extra money at his apartment that night’" to a female employee, id. at 557. See also Nickell Moulding, 317 NLRB 826, 828 (1995), enforcement denied, NMC Finishing v. NLRB, 101 F.3d 528, 532 (8th Cir. 1996) (reinstating striker who targeted a non-striker by carrying on the picket line a homemade sign reading "Who is Rhonda F [with an X through F] Sucking Today?").

The Board’s rulings have been equally unmoved by racially derogatory and demeaning epithets and behavior. See, e.g., Airo Die Casting, Inc., 347 NLRB 810, 811–812 (2006) (protecting a striker who raised both middle fingers and shouted "fuck you nigger" at an African-American security guard); Cooper Tire & Rubber Co. and United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, 363 NLRB No. 194 (2016) (requiring reinstatement of picketer who called out: "Did you bring enough KFC for everybody?" and "Hey, anybody smell that? I smell fried chicken and watermelon," in reference to African-American replacement workers).

Nothing in the Board’s decisions has offered any plausible justification, and I can conceive of none, for concluding that the rights of workers—all workers—are protected by turning picket lines into free zones for sexually or racially abusive and demeaning conduct. Instead, the Board’s rulings dismiss such abhorrent behavior as "unpleasantries" that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity. Gloversville, 297 NLRB at 194 ("[N]onstriking employees and replacement workers must be prepared to contend with some unpleasantries in a strike situation. * * * [The striker’s] conduct, while censurable, is within the bounds of permissible picket line misconduct[.]"); see also Airo Die Casting, Inc., 347 NLRB at 812 ("[The striker’s] conduct on the picket line, the use of obscene language and gestures and a racial slur, standing alone without any threats or violence, did not rise to the level where he forfeited the protection of the Act."); Polynesian Hospitality Tours, 297 NLRB 228, 252 (1989) ("While one can sympathize with [the female manager] because of the rudeness and vulgarity demonstrated toward her, * * * [none of the activity] ever reached the level that it would * * * even come close to removing an employee from the protection of the Act * * * [since no misconduct] went beyond the use of epithets, vulgar words, profanity, vulgar gestures, and the like.").

There is no question that Emily Post rules do not apply to a strike. "[S]ome types of impulsive behavior must have been within the contemplation of Congress when it provided for the right to strike." Allied Indus. Workers, AFL-CIO Local Union No. 289, 476 F.2d 868, 879 (D.C. Cir. 1973). Accordingly, when looking at the "rough and tumble of an economic strike," NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), the Board can quite appropriately make allowance for "a trivial rough incident," Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293 (1941), and can certainly leave room for the "normal outgrowths of the intense feelings developed on picket lines," NLRB v. Wichita Television Corp., 277 F.2d 579, 585 (10th Cir. 1960). See also Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 272–273 (1974) (noting that federal labor policies "favor[] uninhibited, robust, and wide-open debate in labor disputes," and that "freewheeling use of the written and spoken word * * * has been expressly fostered by Congress and approved by the [Board]"); id. at 283 ("Federal law gives a union license to use intemperate, abusive, or insulting language without fear of restraint or penalty if it believes such rhetoric to be an effective means to make its point.").

So giving strikers a pass on zealous expressions of frustration and discontent makes sense. Heated words and insults? Understandable. Rowdy and raucous behavior? Sure, within lawful bounds. But conduct of a sexually or racially demeaning and degrading nature is categorically different. Calling a female co-worker a "whore" or exposing one’s genitals to her is not even remotely a "normal outgrowth[]" of strike-related emotions. In what possible way does propositioning her for sex advance any legitimate strike-related message? And how on earth can calling an African-American worker "nigger" be a tolerated mode of communicating worker grievances?

Such language and behavior have nothing to do with attempted persuasion about the striker’s cause. Nor do they convey any message about workplace injustices suffered, wrongs inflicted, employer mistreatment, managerial indifference, the causes of employee frustration and anger, or anything at all of relevance about working conditions or worker complaints. Indeed, such behavior is flatly forbidden in every other corner of the workplace because it is dangerously wrong and breathes new life into economically suffocating and dehumanizing discrimination that we have labored for generations to eliminate. Brushing that same behavior off when it occurs during a strike simply legitimates the entirely illegitimate, and it signals that, when push comes to shove, discriminatory and degrading stereotypes can still be a legitimate weapon in economic disputes.

Tellingly (and thankfully), it seems to be an isolated few who undertake such abusive behavior. The overwhelming majority of those involved in strikes are able to effectively communicate their grievances and viewpoints without resort to racial- or gender-based attacks. That just proves that there is no legitimate communicative or organizational role for such misconduct.

And by the way, the Board is supposed to protect the rights of all employees covered by the Act. See Rights We Protect, National Labor Relations Board, (last visited Aug. 17, 2016) ("The National Labor Relations Board protects the rights of most private-sector employees to join together, with or without a union, to improve their wages and working conditions."). Holding that such toxic behavior is a routine part of strikes signals to women and minorities both in the union and out that they are still not truly equals in the workplace or union hall. For when the most important labor/management battles arise and when the economic livelihood of the employer and the employees is on the line, the Board’s decisions say that racial and misogynistic epithets, degrading behavior, and race- and gender-based vilification are once again fair game.

We have cautioned the Board before against assuming that "the use of abusive language, vulgar expletives, and racial epithets" between employees "is part and parcel of the vigorous exchange that often accompanies labor relations." Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 24 (D.C. Cir. 2001) (internal quotation marks omitted). It is both "preposterous" and insulting to ensconce into labor law the assumption that "employees are incapable of organizing a union or exercising their other statutory rights under the National Labor Relations Act without resort to abusive or threatening language" targeted at a person’s gender or race. Id. at 26; see also id. (expressing concern about a Board decision indicating that "it is perfectly acceptable to use the most offensive and derogatory racial or sexual epithets, so long as those using such language are engaged in union organizing or efforts to vindicate protected labor activity").

In this case, the Board also reasoned that crotch-grabbing must be condoned because it was not a threat to the female employee that Williamson targeted. Maybe not in this instance given the absence of record evidence documenting an adverse effect on Walters. But the problem is that the Board’s decisions seem in too many cases to answer that question from the perpetrator’s perspective, oblivious to the dark history such words and actions have had in the workplace (and elsewhere). See, e.g., Airo Die Casting, Inc., 347 NLRB at 812 (finding testimony from management officials about the reaction of a security guard targeted with a racial slur—"visibly shaken and offended"—to be "somewhat exaggerated" because "anyone examining the actual [video] recording of [the striker’s] activity would be hard pressed to see any threatening or aggressive conduct"); Polynesian Hospitality Tours, 297 NLRB at 252 ("[W]hile * * * one must concede that employees’ conduct was somewhat rude and vulgar, it seems scarcely surprising * * * that some of them became angry at [the manager], referred to her as a ‘bitch,’ and that some of them yelled that she should be fired[.] * * * [T]he actions of the employees in this case [are] valid protests of a supervisor’s illegal actions against them."); Cooper Tire & Rubber Co., 363 NLRB No. 194 (finding that, "even though [the picketer’s] statements were offensive and racist, and certainly may have been disrespectful to the dignity and feelings of African-American replacement workers, there is no evidence to establish that the statements contained overt or implied threats, that they coerced or intimidated employees in the exercise of their rights protected under the Act, or that they raised a reasonable likelihood of an imminent physical confrontation").

Nor do the Board’s decisions grapple with the enduring effects in the workplace of such noxious language and behavior. The assumption that such gender- and race-based attacks can be contained to the picket line blinks reality. It will often be quite hard for a woman or minority who has been on the receiving end of a spew of gender or racial epithets—who has seen the darkest thoughts of a co-worker revealed in a deliberately humiliating tirade—to feel truly equal or safe working alongside that employee again. Racism and sexism in the workplace is a poison, the effects of which can continue long after the specific action ends. Cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) ("‘One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional psychological stability of minority group workers[.]’") (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)); Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) ("A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing their careers.").

Accordingly, if the Board’s decisions insist on letting the camel’s nose of racial and gender discrimination into the work environment, the Board should also think long and hard about measuring the "threats" associated with such sexually or racially degrading behavior from the perspective of a reasonable person in the target’s position, and how nigh impossible it is to cabin racism’s and sexism’s pernicious effects. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (Under Title VII, "the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’") (quoting Harris, 510 U.S. at 23).

To be sure, employees’ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But Board decisions’ repeated forbearance of sexually and racially degrading conduct in service of that admirable goal goes too far. After all, the Board is a component of the same United States Government that has fought for decades to root discrimination out of the workplace. Subjecting co-workers and others to abusive treatment that is targeted to their gender, race, or ethnicity is not and should not be a natural byproduct of contentious labor disputes, and it certainly should not be accepted by an arm of the federal government. It is 2016, and "boys will be boys" should be just as forbidden on the picket line as it is on the assembly line."

Thursday, September 22, 2016

Overtime Overheat

The challenges ahead….

Soon after the DOL announced that it would draft proposed new rules for the overtime requirements under the Fair Labor Standards Act (FLSA), we began to hear from various sources how detrimental the new salary threshold may be. Even members of Congress (both dems and reps) reacted negatively. It’s pretty telling when our elected representatives themselves say they will have difficulty with the new threshold.

Then we had the expected submission of legislation to counter those new rules. This is just one of the at least three bills since presented. See also H.R. 5813 and S. 233 / H.R. 465. These bills would defer the implementation date, phase in the increase in the salary threshold, or allow private employers to offer comp time in lieu of overtime, something that is not legal at the present time.

Now we have two lawsuits filed. One by 21 states, and the other by the US Chamber of Commerce and over 50 business groups, including the National Association of Manufacturers, the National Retail Federation, National Automobile Dealers Association, and the National Federation of Independent Business.

The suit filed by the states charges the Obama administration with overstepping its authority in rewriting the rules, and claims the change will place an undue burden on state budgets (see the complaints of members of Congress above!).

It also points out that the DOL’s focus on the salary threshold ignores the importance that the FLSA places on an employee’s duties stating that the emphasis on salary defies the statutory text. In addition, the automatic increase factor is in violation of federal law that requires that such regulations go through both notice and comment periods before implementation. Their argument is that each increase is considered a new rule and should go through the same process. In fact, the DOL’s position in 2004 (the last time the rules were updated) was that indexing is prohibited without specific Congressional authorization – more ammunition that the new rules are an overreach of authority.

The argument is further made that enforcing such a rule on the states (as employers themselves) infringes on state sovereignty.

As has been argued by business since day one, the states have said that the new threshold will substantially increase their employment costs and force them to cut services or lay off employees.

Many of the same arguments were made in the lawsuit filed by the business groups. In addition, it stated that the costs of compliance will force many smaller employers and non-profits (especially those that operate on fixed budgets) to cut critical programming, staffing, and services to the public. The ability to effectively and flexibly manage their workforces after losing the exemption for frontline executives, administrators and professionals will be lost and millions of employees across the country will have to be reclassified from salaried to hourly workers, resulting in restrictions on their work hours that will deny them flexibility and opportunities for advancement.

I previously described the legislation presented by the Protecting Workplace Advancement and Opportunity Act as veto bait. That’s likely still true, along with the tough road the filed lawsuits have ahead. However, all this points to the widespread discontent with the new regulations, the way they were formulated and the ignorance of the actual effects they will have on real-life businesses, and real-life employees.

Thursday, September 15, 2016

Workplace Microcultures

The subtext you might be missing


We know how important it is to recognize and monitor the culture within our workplaces. We know it can have either a positive or negative effect on our success. I’ve written before about the difficulty in accepting and changing our culture here and here. As the saying goes "culture eats strategy". You can plan all you want, set out your mission, vision and values, but if your workplace culture does not support your strategic plan, it may as well sit on the shelf.

You should also understand that while you, as senior management and HR pros, may set the tone and lay the groundwork for your desired culture, that’s not where it really lives. It lives with your employees, the people who actually do the work. And with any group of people, or multiple groups of people, there will be differences in how things are done. There may be subtexts, or "microcultures" you need to be aware of.

Different departments will have different cultures – influenced by different people. Culture generally refers to a system of shared beliefs, values and norms that shape behavior. You may see evidence of this when you look at the productivity or success between different departments in your company. Much of that can be explained by the microculture that lives within those groups.

And it’s the deepest level of supervision and management that plays a large part in creating these microcultures – the front line supervisor. They are the ones with the most interaction and influence over the most employees. If they don’t know, or support your desired culture, or are working at cross-purposes, that will define your culture.

As I’ve written before, you need to converse with, and listen to your employees, not just your managers, in order to get any real idea of what the culture within your organization is. But you also need to dig into how your front line supervisors and managers are relating to their employees to know what the microcultures are and how to change those, if necessary – or encourage them when appropriate.

How are employees communicated with, how often and how transparent is the communication? Are decision-making processes explained?

Do negative cliques exist; are they allowed or encouraged to exist by neglectful (or possibly even sympathetic supervisors)? These folks will put a negative spin on most company initiatives—but never openly. When a new employee joins the group, they make the effort to induct the newbie into their narrative. Always remember that your employees will be trained in the ways of your company, but who is doing the training?

Do you supervisors play favorites? Do you have employees who always seem to get the plum assignments regardless of merit? Are there folks who never seem to have to play by the rules when everyone else does? 

Who are your supervisors hiring, or recommending for hire? Are they lobbying for their friends regardless of experience and fit? Do they bypass the normal recruiting process for their choice, leaving you with more of the same?

Do you have a leader (at any level) who could win the bad behavior award every month? That bad behavior filters down to others. Pretty soon, it’s simply a part of the culture, defended with the simple phrase "it's just how things are done around here."

Is scapegoating the order of the day to deal with mistakes? Is accepting responsibility for one’s performance non-existent?

On the flip side:

Do you have a department that always seems to get it done, with the least amount of strife and stress? Are they working together, supporting one another and succeeding?

Are these the folks who seem to need the least amount of intervention? 

Are those supervisors known for clearly communicating performance expectations and recognizing staff when good work is done? Do employees know where they stand?

Do the employees within these groups understand and live your mission, vision and values? Do they actually know what your mission, vision and values are?

It’s pretty obvious which microculture you want to encourage. But you have to recognize all the subtexts that exist within your organization in order to shape your overall desired culture.

Thursday, September 8, 2016

When You Have Your Own “Colin Kaepernick”

What to do, what to do….

San Francisco 49’ers player Colin Kaepernick’s decision not to stand for the National Anthem has stirred up a lot of emotion on both sides of the issue. There are those who are vilifying him, and those who are praising him. Much of this debate centers on his right to expression of free speech. Let’s look at this from an employment/HR standpoint (what, you expected something different?).

Yes, we all have a right to our opinions and in many cases; we have the right to express those opinions – publicly. However, a point that I think is being missed in this mess is that this right does not extend to a private workplace. Nope, sorry. It doesn’t. When a person is working for a private company, the First Amendment simply doesn’t apply.

The First Amendment limits only the government’s ability to suppress your speech. Courts have extended this prohibition (in most cases) to all federal, state, and local government officials but have consistently emphasized that the First Amendment’s constraints do not apply to private-sector employers. There have also been several court cases where even public sector employees were found to have been disciplined appropriately and legally for statements they made that were found to be disruptive damaging to the employment relationship or the reputation of the employer.

The 49’ers (or the NFL) could punish Kaepernick if his conduct violated an organizational policy or expectation, and/or caused disruption or put the organization in a negative light. Now, the NFL has already come out and said that players are encouraged to stand during the National Anthem, but are not required. The 49’ers have essentially said the same thing, albeit in a slightly different way: "we recognize the right of an individual to choose to participate, or not, in our celebration of the national anthem." Although, I think their reasoning is a bit flawed, seeming that they think his right extends to the workplace.

If you work for a private employer, or if you are a private employer, you need to know that employees are free to say and do whatever they want. However, they are not free from the potential consequences of that behavior if the employer finds it warranted. 

What should the 49’ers have done? Again, no lack of opinion there. Personally, even though their statement was factually incorrect, I think the probable intent behind the statement was more considered. Taking a "wait and see" approach on such a hot-button issue may be the better route at this point. Simply said, just because you can do something does not mean you should. 

This may very well die down on its own. Or, if the reaction to his protest – by fans (who buy the tickets), sponsors and advertisers - becomes too disruptive to the team or the whole of the NFL, they may change their mind and decide to exert a bit more control.  In other words, it might be a good idea to let the market decide!

Want more info on this topic? Check out these links:

Njlawblog – This interestingly enough, has a slight NFL tie-in. – great article by employment law attorney Jon Hyman – dealing primarily with employees, free speech and social media, but still on point.

Friday, September 2, 2016