Weingarten Rights Do Not Apply to Non-Union Employees

As union-organized private-sector employers are well aware, in 1975, the United States Supreme Court held that under the National Labor Relations Act, a union employee is entitled to have union representation at an investigatory interview if the employee reasonably believes the interview may result in disciplinary action.[1]  Such rights are known as “Weingarten rights.”

In its decision, the Supreme Court did not address whether Weingarten rights extended to non-union employees.  In 1982, however, the National Labor Relations Board (the “Board”) held that Weingarten rights do apply to non-union employees facing investigatory interviews that could result in discipline.

Since 1982, the Board’s position on this issue has repeatedly changed based on whether the Board was a Democratic or Republican-majority controlled Board. The Board’s most recent ruling on this issue came in 2004, during the Bush Administration, when it held that Weingarten rights do not apply to non-union employees. It was widely anticipated that the Board’s 2004 ruling would be reversed yet again during the Obama Administration, but it was not. Accordingly, employers can continue to confidently deny non-union employee requests for a representative to be present during investigatory interviews. Moreover, given that President Trump is almost certain to appoint two Republicans to fill the vacancies on the Board, and reappoint the current acting chairman, a Republican, it is likely that the 2004 decision will remain the law of the land for at least the next several years.

[1]     The case is NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

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EEOC Publishes Proposed Guidance on Unlawful Employee Harassment

The Equal Employment Opportunity Commission (“EEOC”) recently published proposed enforcement guidance regarding unlawful harassment in the workplace.  The proposed guidance, if adopted, would substantially update the EEOC’s current guidance, which only addresses sexual harassment (and which went into effect in 1990). To that end, the proposed guidance makes clear that, under Title VII, employee harassment based on an employee’s race and/or color, national origin, religion, sex (including stereotyping, pregnancy, childbirth or related medical conditions, gender identity, and sexual orientation), age, disability, and genetic information is unlawful.

The EEOC’s proposed guidance also describes the circumstances under which an employer – through the actions of a supervisor – may be liable for unlawful employee harassment under Title VII.  To establish an employer’s liability, the aggrieved employee must prove that:

  • The alleged harassment the employee suffered was based on his/her membership in a protected class (i.e., age, disability, race and/or color, etc.); and
  • The employee’s supervisor caused the employee to suffer an explicit change to the terms and conditions of his/her employment linked to the harassment (i.e., the employee was terminated, demoted, denied a promotion, prevented from using vacation time, etc.); or
  • The employee’s supervisor subjected the employee to conduct that was sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive hostile work environment.[1]

According to the EEOC’s proposed guidance, under Title VII, if “harassment by a supervisor creates a hostile work environment that has not resulted” in an explicit change to the terms or conditions of the employee’s employment, the employer may defend by arguing that (i) it exercised reasonable care to prevent and promptly correct any harassment, and (ii) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to take other steps to avoid harm from the harassment.  The foregoing defense, however, does not apply to harassment claims brought under Massachusetts law – G.L. c. 151B – because employers in Massachusetts are strictly liable for harassment committed by supervisors.

It is crucial that employers take the following steps to defend against employees filing claims of harassment:

  • Maintain an anti-harassment policy that prohibits harassment and affords employees the ability to file internal complaints with Human Resources and/or members of management;
  • Train employees on the employer’s anti-harassment policy to ensure they understand their rights and responsibilities under such policies;
  • Promptly respond to any complaints received and ensure supervisors respond to situations of inappropriate conduct regardless of whether a formal complaint is filed.

If you have any questions about the proposed EEOC guidance, Massachusetts law on harassment, or would like assistance drafting and/or implementing an anti-harassment policy, please contact any member of the Labor and Employment Group.

[1]   Here, the employee must prove the harassment to which her/she was subjected was subjectively and objectively severe or pervasive.

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The Moral of the Story: Playing Doctor is not a Human Resources’ Function

When an employee presents with an illness or injury and seeks leave or an accommodation, there is an unfortunate temptation for the manager or human resources professional to assume the guise of a medical practitioner and diagnose the legitimacy of that condition. A recent decision by the Massachusetts Appeals Court confirms the folly of giving in to the temptation to “play doctor.”

In Massasoit Industrial Corporation v. Massachusetts Commission Against Discrimination decided in late March, the custodial plaintiff-employee was hospitalized with pneumonia. Shortly after his discharge from the hospital, he was readmitted with chest pains and diagnosed as having had a heart attack. Two months later, he attempted to return to work with a doctor’s note clearing him to return without any restrictions. The employer then informed the employee that he had been fired because he was a “no show/no call.” A Hearing Officer of the Massachusetts Commission Against Discrimination determined that this firing was pretextual and that the employer knew of his conditions. Under Massachusetts “pretext-only” legal standard, because the employer lied about the reason, it lost.

On appeal, the Court affirmed the hearing officer’s decision. Noteworthy, however, was the discussion of the employer’s argument that the employee was not entitled to the protections of the disability discrimination laws in the first place. The employer claimed that the employee was not disabled in the eyes of the law. The employee asserted that he was because his condition substantially limited his major life activity of working. The employer countered that this assertion was wrong because (a) the employee’s condition didn’t preclude him from working in a broad category of jobs and (b) it was a temporary condition for which he apparently had fully recovered.

The Court disagreed for two primary reasons, both instructive lessons for employers. The first relates to the breadth with which the Court will find protections for individuals with medical conditions. Speaking to the issue of how broad the limitation on working must be and/or how long the condition must last, the Court stated

The primary object of attention in cases brought under the Americans with Disabilities Act should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.

Second, even if the Court were to agree that the employee’s condition did not constitute a disability, it was clear that the employer perceived that the employee was a health risk and regarded him as being substantially limited. This type of “regarded as” disability discrimination was as wrong as discrimination because the employee was, in fact, disabled.

The Moral of the Story? When an employee presents with some medical (or psychological) condition, the employer’s first response should be “how can we help?” not “Oh, really?”

And definitely, a careful analysis of the underlying reasons for any termination must be done before “you’re fired” comes into the picture.

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Termination for Cause Provisions: Every Word Matters

Particularly with respect to executive employees, it is not unusual for an employment agreement to be used.  Those agreements tend to have detailed provisions regarding when the executive may be terminated and what happens if the termination is with or without cause.  A recent case decided by the Massachusetts Supreme Judicial Court addressed such provisions with a seemingly surprising outcome.  That decision underscores the carefulness with which such provisions should be drafted and followed.

In the case of Balles v. Babcock Power, Inc., the plaintiff executive and defendant employer had entered into two related agreements containing such provisions.  Six years into his employment, the plaintiff executive began an intimate affair with an undergraduate intern who he supervised, subsequently giving her two raises and a promotion, taking business trips together on the company dime, exchanging thousands of sexually explicit text messages and more than 100 photographs and falsifying travel reimbursements to conceal the affair.

Upon discovery two years later, the company investigated and summarily fired the executive for cause.

A “for cause” termination had significant consequences for the executive.  These included depriving him of any severance pay and obligating him to resell his stock in the company for fractions of cents on the dollar.

The agreements explicitly defined what constituted “cause” and a detailed protocol that must be followed where “cause” was the basis for termination.  Specifically, fraud or gross insubordination were types of “cause” that could result in immediate termination.  The Court rejected the company’s attempt to fit the executive’s conduct into either of those categories.

With respect to “fraud,” the Court applied the classic legal definition that required detrimental reliance by the employer and resulting damage.  The Court found that there had been no reliance on the executive’s false travel reimbursements and no financial harm.  With respect to “gross insubordination,” the Court found that this phrase meant more than just breaking rules.  Instead, “gross insubordination” would be found only if there was willful disregard of a direct order or disrespect directed at the executive’s supervisor.  The Court found neither was the case here.

The agreements also defined “cause” to include the executive’s breach or failure or refusal to perform and discharge his duties, responsibilities or obligations to the company.  The executive conceded that he had, in fact, failed to fulfill his obligations to the company by engaging in the affair with his subordinate and then attempting to conceal it.  That, however, was not the end of the story.

Unlike the fraud and insubordination provisions that permitted immediate termination, the agreement provided that in the event of a breach, the company was obligated to give a very specific written notice to the executive detailing that breach and giving him 30 days to correct.  Only if he failed to correct within that time frame could he then be terminated for cause.

Here, the company jumped the gun, terminating the executive without either providing the written notice to him or giving him an opportunity to cure.  In fact, the company’s board of directors  refused to meet with the executive despite his repeated requests and went so far as to tell his attorney not to bother with providing information regarding the allegations of misconduct.  In so doing, the company converted the termination into one without cause much to its detriment and the executive’s benefit.

The moral of the story?  Employers should be very careful in drafting employment agreements, particularly in detailing what will be required to constitute “cause” for termination.  And once drafted and signed, employers should carefully review those termination provisions and follow them to the letter.

Sloppy draftsmanship on the one hand, or sloppy execution on the other, can leave the employer in a very uncomfortable position at the end of the day.

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Join Us for Our Annual Labor, Employee and Employee Benefits Seminar!

Our annual Labor, Employment and Employee Benefits Seminar is being held on April 12th at the Doubletree Hotel in Westborough. Last year, over 200 HR professionals and business owners attended the seminar. In addition to the program, we kick off the morning with a networking breakfast. There is no cost to attend; however, registration is required. Click on link below for details.

Link:  http://campaign.r20.constantcontact.com/render?m=1102441261654&ca=9ff63446-28c0-4512-b780-770718c89344


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Is a “Love Contract” Right for Your Office Lovebirds?

Is love in the air at your office? Unfortunately, such romances can become nightmares for employers, as workplace romances can lead to accusations of unfair treatment, sexual harassment, retaliation, and even workplace violence.

For these reasons, employers may wish to institute a clear policy regarding office romances. In general, the policy can take one of two approaches.  First, the employer can outright ban all romantic relationships between employees.  Such bans (commonly referred to as non-fraternization policies) are becoming uncommon as employers realize that the bans do not actually stop romances, but instead make them secretive – which can be a landmine for sexual harassment/discrimination claims for the employer if the relationship ends.

Alternatively, instead of banning relationships, employers can establish workplace guidelines for romantically-involved coworkers. In order to limit liability in the event that a romantic relationship between employees ends, such policies should:

  • reiterate the employer’s sexual harassment policy and reporting options;
  • require employees in a relationship disclose the existence of the relationship to Human Resources;
  • require employees in a relationship to execute a “love contract.”  Yes, a love contract. No, we’re not talking about a pre-nup. In the employment arena, a love contract (also called a “Consensual Romance in the Workplace Agreement”) is an agreement that the employees in a relationship sign in which they agree: (a) the relationship is consensual; (b) to inform HR immediately if the relationship becomes nonconsensual or ends; (c) to recuse themselves from any decision-making processes that could affect the other’s pay, promotional opportunities, performance reviews (even after the relationship ends); (d) not engage in public displays of affection at work; and (e) to treat each other professionally – and not retaliate against the other – if/when the relationship ends; and
  •  outline the additional guidelines (both in the policy and in the love contract) that will apply if the romantic relationship is between a supervisor and a subordinate. In such situations, most employers require the supervisor to change departments/roles so that they no longer (and never will) manage the subordinate.

Regardless of the approach – a non-fraternization policy or a love contract – all employers are well-advised to ensure that any policy regarding workplace relationships is written in gender neutral terms and is enforced uniformly.

Please feel free to reach out to us if you have any questions or need any assistance drafting a policy or “love contract” to fit the needs of your organization.



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EEOC Releases 2016 Enforcement & Litigation Statistics

As many employers are aware, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency tasked with enforcing certain federal laws prohibiting employment discrimination on the basis of race, color, religion, sex, national origin, disability, and/or genetic information.  The EEOC performs two primary functions: administrative enforcement and private litigation.  As part of its administrative enforcement function, the EEOC “receives, investigates, and resolves charges of employment discrimination filed.”  If, however, a charge is not resolved at the administrative enforcement stage, the EEOC may file a lawsuit against the employer.

At the end of each fiscal year, the EEOC releases data detailing what it has accomplished during the past year relative to its administrative and litigation functions.  Recently, the EEOC disclosed that in fiscal year 2016, a total of 91,503 charges of workplace discrimination were filed.  For the second year in a row, the total amount of EEOC charges filed increased from the previous year.  The five most prevalent charges filed alleged retaliation (42,018, or 45.9%) and discrimination based on race (32,309 or 35.3%), disability (28,073 or 30.7%), sex (26,934, or 29.4%), and age (20,857 or 22.8%).[1]

Notwithstanding the uptick in EEOC filings, the EEOC was able to reduce the amount of charges currently pending at the organization by 3.8% to 73,508.  This reduction is, in part, attributable to the fact that the EEOC was able to resolve 97,443 previously pending charges, which resulted in a total recovery of $482 million for aggrieved individuals.

Moreover, for the first time in 2016, the EEOC disclosed data in its year end summary relating to sex discrimination charges filed by LGBT individuals.  Specifically, the EEOC disclosed that it resolved 1,650 LGBT-related sex discrimination charges in 2016, and, in the process, recovered $4.4 million dollars for the aggrieved individuals.  For a frame of reference, between fiscal year 2013 and fiscal year 2016, almost 4,000 charges of sex discrimination were filed with the EEOC by LGBT individuals, resulting in a total recovery of $10.8 million.

In addition to its administrative function, in 2016, EEOC lawyers resolved 139 lawsuits, and filed an additional 86 lawsuits involving allegations of discrimination.  The EEOC currently has 168 active litigation cases.  It remains to be seen whether the EEOC will maintain its current pace of filing lawsuits against employers in fiscal year 2017.

[1]       The remaining claims filed were for national origin, religion and color discrimination, followed by claims for violations of the Equal Pay Act and the Genetic Information Non-Discrimination Act.

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