Topics included in this issue:
PROTECTED, CONCERTED ACTIVITY:
A TRAP FOR THE UNWARY EMPLOYER
By Louis C. Rabaut
You are a nonunion employer and you are having a bad day.
- At a morning meeting to announce a new vacation policy, an employee stood up and said she had a petition, signed by over 50% of the employees, opposing the change in the policy.
- You called an employee into your office to discuss a serious customer complaint that could lead to discipline or even termination. The employee informed you that he would like another employee to sit in on the meeting as a witness.
- The employees in the shipping department walked off the job today because a popular supervisor was terminated following an incident involving missing inventory.
Before you take action on any of these events, is there a law you should consider that may have an impact on your decisions? Try the National Labor Relations Act ("NLRA"). Contrary to popular misconception, the NLRA applies to all employers—union and nonunion alike—and gives all employees certain rights. In particular, Section 7 of the NLRA gives employees the right to engage in "concerted activities" not only for purposes of collective bargaining but also for "other mutual aid or protection."
To be covered by the NLRA, the activity must be concerted. Typically, this means activities that involve two or more employees working together, but a single employee who speaks for others may also be protected. In addition to being concerted, the activity must be for the "mutual aid or protection" of employees. Typically, this means that the activity must relate to wages, hours, or other terms and conditions of employment.
Following are some examples of "protected, concerted activities" under the NLRA:
- An employee who speaks to coworkers about the employer’s sick leave policy. Philips Petroleum Co., 339 NLRB 111 (2003).
- Employees who walk off the job to protest unpleasant working conditions, such as extreme heat or cold. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).
- An employee who questions the fairness of a change in a break time policy during an employee meeting about the change. NLRB v. Caval Tool Division, 262 F.3d 184 (2d Cir. 2001).
The National Labor Relations Board has also held that employees have the right under Section 7 to ask for a coworker to be present during an investigatory interview that may result in disciplinary action (the so-called Weingarten right). Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000). This is not an automatic right, however. The employee must make the request and the employer is not obligated to inform the employee of his or her right to coworker assistance.
Not all employees have the right to engage in concerted activity. Supervisors and managers, for example, do not have these rights because they are not covered by Section 7 of the NLRA. And employees who walk off the job in protest of the firing of a favorite supervisor are not protected because the issue does not involve wages, hours or other terms and conditions of employment. Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012 (7th Cir. 1998). On the other hand, walking off the job to protest the inadequacies of a supervisor’s abilities that do relate to working conditions (e.g., failure to remedy harassment) is protected. Trompler, Inc., v NLRB, 338 F.3d 747 (7th Cir. 2003).
Nonunion employers are well-advised to keep the concept of "protected, concerted" activity in mind before issuing discipline. The law does not require the employer to give in to the employees’ demands; it merely prohibits taking disciplinary action because an employee engaged in protected, concerted activity.
KEEP STATE-SPECIFIC LAWS IN MIND
By Robert J. Chovanec
The Vice President of Human Resources for one of our international clients recently said, "We do business in Europe, the U.S., and California." Although this statement was made tongue-in-cheek, it underscores a very important point: If you have employees in more than one state, remember to keep up-to-date on state-specific employment laws. This is particularly true if you have employees in California.
California is renowned for unusual wage-hour rules. Not only does California have a much higher minimum wage than the federal rate, but also it has special rules for overtime pay, "white-collar exempt" status, employee breaks, vacation pay, and other wage-hour topics. California penalties for violation of wage-hour laws are much more severe than the federal penalties. As a result, California is also renowned as the leading "wage-hour class action lawsuit" state, with hundreds of such suits pending in the courts.
One recent case involving an employee profit-sharing bonus plan warrants special mention. In that case, the California Court of Appeals held that including "workers’ compensation" and certain other expenses in computing profits under the bonus program violated the no-deduction provisions of California’s wage-hour law. Since many bonus, gain-sharing and profit-sharing programs take such expenses into consideration, the risk of violating the law is real, especially if you have numerous "nonexempt" employees in California participating in such a program.
Although California has by far the most "employment law mousetraps," there are similar issues in other states—especially western states. For example, Arizona has a "treble damages" penalty for failure to pay wages, vacation pay, severance pay, etc., when due. Washington, on the other hand, has special laws giving employees the right to use certain forms of paid time off for family and medical leaves.
If you have employees in states other than Michigan and have questions about how the laws vary from state to state, contact one of our employment lawyers. They can help you identify key state law issues for each state in which you operate.
BEWARE: E-MAILS CAN CAUSE BIG PROBLEMS
IN EMPLOYMENT LITIGATION
By Paul T. Sorensen
E-mail has become the most common form of communication within most organizations. It is a fast and easy way to convey important substantive information or to engage in collegial dialogue. But for these very same reasons, e-mails can cause major problems in employment lawsuits.
Because people compose e-mail messages from the isolation of their own offices, they often tend to be less tactful or sensitive than they might otherwise be in face-to-face conversations. Similarly, the speed of e-mailing often produces less thoughtful writing than a more formal letter or memorandum. As a result, e-mails can contain statements that later prove to be very incriminating when they are introduced into evidence in lawsuits claiming discrimination, retaliation or some other illegal employment action. Plaintiffs’ lawyers know this, and they are increasingly seeking e-mail information during the discovery process.
Dangerous e-mail habits tend to fall into one of the following categories:
Sarcasm. Sarcasm in written form is frequently very difficult to detect. Because we so often engage in spontaneous e-mail conversations, sarcastic comments can flow rather easily. If those comments pertain to a coworker, it may be nearly impossible to explain them away later.
Off-Color Humor. What is humorous to one person can be offensive to another. But many employees who would refrain from telling certain jokes to a person’s face for fear of offending or embarrassing him or her feel free to tell the same jokes in an e-mail because they don’t have to see the person’s reaction. The same is true if a person receives a picture e-mailed from someone outside the organization and forwards it to coworkers.
Criticism. It is easy to engage in e-mail character assassination. We often express criticism more harshly in e-mails, making it appear in retrospect that we were not treating a coworker fairly. Because e-mails have no tone of voice, facial expression or body language, they are interpreted very literally. Likewise, casual statements questioning a colleague’s character or management’s motives can create presumptions that will never be overcome.
These dangers are very real. They can turn a winning lawsuit into a losing one. We are seeing an increasing number of cases where courts have allowed e-mails to be introduced as evidence of a pattern or practice of harassment, or to call into question the employer’s true motives for taking some employment action. This is true even where the plaintiff never complained of the e-mail at the time it was sent or received.
While you can’t stop using e-mail altogether, you can and should train your employees and managers not to use it carelessly. From a litigation standpoint, once something has been committed to writing, it carries far more weight than anyone’s oral testimony. Like all of us, jurors are more likely to believe what someone said in writing, even if the author later tries to explain that the writing is wrong or its meaning has been distorted. It is particularly dangerous to forward text or pictures received from others outside the business because that material will necessarily be attributed to the forwarding employee even if he or she did not create it. Suggestive jokes or photographs, for example, might not accurately reflect the views of the employee, but if that employee forwards them to coworkers, he or she will find it very hard to avoid responsibility to an offended recipient.
When dealing with personnel-related matters, managers should behave the old-fashioned way and have direct conversations rather than communicating by e-mail. While it is certainly a good idea to provide a subordinate with a written summary of important discussions and to document performance deficiencies, communications between managers regarding personnel decisions are better handled in person or through formal written communications instead of e-mail.
MICHIGAN COURT OF APPEALS REAFFIRMS
SHORTENING OF STATUTE OF LIMITATIONS
By Edward J. Bardelli
Three recent cases from the Michigan Court of Appeals have reaffirmed that an employer may shorten the time period for bringing an employment-related lawsuit. An employer may do so in an employment agreement, or even in the employment application.
In Hofer v Daimler Chrysler Corp., No. 239870 (Mich Ct App December 9, 2003) (unpublished), the plaintiff brought employment discrimination claims under both state and federal law within sixteen months after his claim arose. The statutes that the plaintiff relied on allowed a lawsuit to be filed within three years. Chrysler’s employment application, however, clearly stated that any employment-related action had to be brought within six months. The Court of Appeals upheld the six months’ limitation period in Chrysler’s employment application and dismissed the plaintiff’s lawsuit, because it was filed too late.
Similarly, in Wells v ABC Warehouse, No. 242746 (Mich Ct App January 27, 2004), ABC Warehouse’s employment application also shortened the time to file a lawsuit to six months. Again, the Court of Appeals upheld this shorter time period, despite the fact that under Michigan’s discrimination laws, the plaintiff had three years to file her harassment and discrimination claims. The plaintiff’s complaint was dismissed because it was not timely filed.
Finally, in Singh v Davenport University, No. 244826 (Mich Ct App January 20, 2004), the Court of Appeals upheld an arbitration agreement between the parties, along with a requirement that the employee file for arbitration within 90 days of termination. Since the plaintiffs sought to bring their claims 90 days after they were terminated, the court dismissed their lawsuit.
These recent cases demonstrate that shortening the time to bring a lawsuit obviously protects the employer if the employee fails to file his or her lawsuit in time. But, there is also a more subtle reason for an employer to shorten the limitations period. Most of the employment discrimination laws allow an employee three years to file a lawsuit. If an employee waits close to three years to do so, it is much more difficult for an employer to defend itself. Memories fade, records get lost or destroyed, and employees or other key witnesses have either left or are difficult to find. By shortening the limitations period and requiring an aggrieved employee to file a lawsuit within, for example, six months, an employer ensures that it will have a much better chance of defending itself against the employee’s allegations.
Of course, in order for a shortened limitations period to work, it must be valid. Courts examine three factors to answer this question: (1) did the employee have sufficient opportunity to investigate and file an action, (2) the time is not so short as to be a practical abrogation of the employee’s rights, and (3) the action is not barred prior to the loss or damage. Generally speaking, a six-month period has been the safest time period to satisfy this test.
In addition, the document an employee signs--whether it is an employment application or agreement--must clearly state in plain language any shortened time period. An employer may also wish to put this language in bold print or all capital letters. Although this does not appear necessary to enforce a shorter time period, it provides the court with greater comfort when enforcing such a provision. An employer should also put the following language, or something similar, just above the employee’s signature: "Employee acknowledges that he or she has read, understood, and agreed to the conditions of employment." These factors make it very difficult for an employee to later argue that he did not understand that he agreed to shorten the limitations period.
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Human Resources Alert is published by Warner Norcross & Judd to inform clients and friends of new developments. It is not intended as legal advice. If you need additional information on the topics in this issue, please contact your Warner Norcross attorney or any member of the Firm's Human Resources Law Group.