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August 2000
Vol. 13, Issue 1
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By James
D. Kurek, Esq.
BDB is pleased to present Employment Law
Brief in this new format. A number of
you also receive other BDB newsletters, The
Advisor and Build on This, so you
are familiar with BDB's new e-mail and fax
publication formats. Many clients have requested
these changes, and we are happy to accommodate
their requests. This method of distribution
enables us to provide more current information
by eliminating the lengthy distribution process
associated with regular mail. Please let us
know your thoughts on our new publication
formats.
James
D. Kurek is the Chair of the Employment
Law Practice Group and can be reached
at 330.258.6443 or by e-mail at
jkurek@bdblaw.com
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NLRB
Rules That Non-Unionized Employees Have Right to
Have Co-Worker Present During Pre-Disciplinary Investigatory
Interview
The National Labor Relations Board has
ruled that a non-unionized employee has the right
to have a co-worker present during an investigatory
interview which the employee reasonably believes
might result in disciplinary action. The split decision,
in Epilepsy Foundation of Northeast Ohio,
331 NLRB No. 92, which was rendered on July 10,
2000, reversed Board precedent. This has been termed
the Board's most significant decision in the Clinton
era.
Arnis Borgs was an employment specialist
and Ashraful Hasan a transition specialist for the
Epilepsy Foundation of Northeast Ohio. They jointly
worked on a research project concerning a school-to-work
transition for teenagers with epilepsy. In 1996,
they jointly sent a memo to their supervisor, stating
that his supervision was no longer required, and
the Foundation's Executive Director received a copy.
Both the supervisor and the Director were displeased
with the memo. When Borgs and Hasan learned of that
displeasure, they jointly penned another memo, explaining
in more detail the reasons for the prior memo. That
second memo prompted the Director to order Borgs
to meet with her and the supervisor. Borgs, who
felt intimidated, asked to meet with the Director
alone or, alternatively, to bring Hasan to a meeting
with the Director and the supervisor. When the Director
refused the request, Borgs refused to attend the
meeting and was fired.
The Board's General Counsel filed
unfair labor practice charges against the Epilepsy
Foundation, and the matter was tried to an Administrative
Law Judge. The ALJ found that Borgs was discharged
solely for refusing to attend the meeting with his
supervisor and the Director. However, the ALJ concluded
that, because the NLRB had ruled in E. I. DuPont
& Co., 289 NLRB 627 (1988), employees in non-unionized
workplaces do not have the right to have a co-worker
present in investigatory interviews which could
lead to disciplinary action, Borgs' firing did not
violate Section 8(a)(1) of the NLRA.
The General Counsel appealed to the
Board. The Board majority declared its agreement
with the ALJ's finding that Borgs had been discharged
for refusing to attend the meeting. It also said
that the ALJ had accurately applied relevant Board
precedent. It then stated that, after careful consideration,
it found that precedent to be inconsistent with
the rationale articulated in the Supreme Court's
decision in NLRB v. Weingarten, 420 U.S.
251 (1975), and with the purposes of the Act. Consequently,
it overruled that precedent and found that the Respondent's
termination of Borgs for his attempts to have a
co-worker present at the meeting was unlawful.
"[T]he right to the presence of a
representative is grounded," the Board explained,
"in the rationale that the Act generally affords
employees the opportunity to act together to address
the issue of an employer's practice of imposing
unjust punishment on employees." That rationale
was derived from the Section 7 protection afforded
to concerted activity for the purpose of mutual
aid or protection.
The Board further found that Hasan's
role in the creation of the two memos also constituted
protected activity, and that his firing, some six
weeks after Borgs' firing, also violated Section
8(a)(1) of the Act. "[W]e find, contrary to the
judge, that the General Counsel has shown that Hasan's
protected activity was a motivating factor in the
Respondent's decision to reprimand and thereafter
terminate him, and that the Respondent has failed
to show that it would have taken this action against
Hasan even in the absence of his protected activity,"
the Board stated. As a consequence, the terminated
employees would be entitled to reinstatement and
back pay.
The attorney representing the Epilepsy
Foundation has promised to appeal the decision to
the United States Court of Appeals for the Sixth
Circuit. So, stay tuned.
Blanket
Prohibition of Discussion Concerning Wages
Constitutes Unfair Labor Practice
Many employers have rules that prohibit
their employees from discussing wages. Indeed, the
Epilepsy Foundation of Northeast Ohio in the case
discussed above apparently had such a rule because
it had reprimanded Borgs months before his firing
for having discussions about salary information
with other employees. While the NLRB and some federal
courts of appeals had addressed the lawfulness of
such rules, the Sixth Circuit had not, at least
not until July 6, 2000. In N.L.R.B. v. Main Street
Terrace Care Center, the Court unanimously upheld
the NLRB's determination that a non-unionized nursing
home's unwritten rule that prohibited employees
from discussing wages amongst themselves constituted
an unfair labor practice. The Court said that the
rule "undoubtedly tends to interfere with the employees'
right to engage in protected concerted activity,"
and that "whether written or oral," the rule "has
a tendency to discourage such protected discussions."
The employer's proscription of any
discussion of wages in Main Street Terrace
was all-inclusive. A limited proscription may have
survived the NLRB's challenge. A restriction or
limitation of employees' discussion of wages must
be tied to a substantial and legitimate business
interest. Thus, for example, an employer may prohibit
discussions of wages during work times and in work
places because such discussion may adversely affect
productivity or safety. An employer also may preclude
its employees from having access to or distributing
wage information which the employer has compiled
for its own internal use.
Employees in Ohio May Actually Be Entitled
to More Than 12 Weeks Of FMLA Leave
The Family and Medical Leave Act ("FMLA") provides
that an eligible employee may receive a total of
12 workweeks of leave during a 12-month period for
such events as the birth of a child, and the care
of a spouse, child or parent who has a serious health
condition. However, the FMLA does not state how
the employer or the employee is to know that the
period of this type of leave is running. To fill
in that gap, the United States Department of Labor
("DOL") promulgated regulations that impose upon
the employer the obligation to designate leave,
whether paid or unpaid, as FMLA-qualifying. The
employer is also obligated to notify the employee
that the leave has been given this designation.
Specifically, the regulations provide
that unless there are extenuating circumstances,
the employer must notify the employee within two
business days that leave is designated as "FMLA-qualifying"
and will be counted as FMLA leave. The regulations
further state that the employer must designate leave
as FMLA leave before it starts, except under limited
circumstances. Thus, the DOL regulations allow an
employee who never receives notice that his leave
is being counted as FMLA leave, or who receives
untimely notice, to receive more than the statutory
12 weeks of leave.
A year ago, the United States Court
of Appeals for the Eleventh Circuit in McGregor
v. Autozone, Inc., 180 F.3d 1305 (11th Cir.
1999), ruled that those regulations were invalid
and unenforceable because the statute provides for
only 12 weeks of leave and does not suggest that
the 12-week entitlement may be extended. In May
of this year, the United States Court of Appeals
for the Sixth Circuit in Plant v. Morton Int'l,
Inc., 212 F.3d 929 (6th Cir. 2000), disagreed.
It held that the regulations are binding and that
the employer's failure to timely designate leave
as FMLA leave entitled the employee to more than
12 weeks of leave. Then, on July 11th, in Ragsdale
v. Wolverine Worldwide, Inc., 2000 U.S. App.
LEXIS 15874 (8th Cir. 2000), the Eighth Circuit
declared that it agreed with the Eleventh Circuit.
So, at present there is a split among the federal
courts of appeals.
The Sixth Circuit has jurisdiction
over cases originating in several states, including
Ohio. Consequently, Ohio employers will be bound
by the Sixth Circuit's decision in Plant,
and must comply with the DOL regulations if they
wish to minimize the FMLA leave time their employees
use.
Morton International had asked the
full Sixth Circuit to rehear the case. A decision
on Morton's petition is still pending. Again, stay
tuned.
For questions or more information
on these or other Employment Law issues, contact
James D. Kurek,
Employment Law Practice Group Chair, at 330.258.6443
or by e-mail at jkurek@bdblaw.com
Members of BDB's Employment Law Practice Group
have been speaking out lately. In February, Jim
Kurek, Vince
Tersigni, John
McKenzie and Ashley
Stouffer joined in a day-long presentation
entitled "Employment and Labor Law in Ohio." Jim
spoke on sexual harassment while Vince tackled the
employment-at-will doctrine and the creation of
employee manuals and policies. John addressed the
FMLA, and Ashley handled the Americans with Disabilities
Act.
Kurek |
Tersigni |
McKenzie |
Stouffer |
 Jan
Hensel, of our Columbus, Ohio office, discussed
the favorable decision she obtained from the Franklin
County Court of Appeals in Stephenson v. Yellow
Freight in a presentation to the Columbus Bar
Association in February. She gave two presentations
in March regarding the interaction between the ADA,
the FMLA and workers' compensation. The first was
to the Northern Ohio Self-Insured Association, and
the second to the Western District of the Ohio Self-Insured
Association. Then, in June, Jan spoke to the Builders
Exchange of Central Ohio about "Avoiding the Pitfalls
of Hiring, Firing, and Employee Discipline."
In March, John spoke at the University of Akron
Law School. His topic was "The Americans with Disabilities
Act: Litigation Issues - An Employer's Perspective."
Vince conducted a workshop on "Employment Law Issues
in the Workplace" on May 9th, for the Sales and
Marketing Executives Association of Akron.
 In
June, Dave Kovach, who is also a member of
the Firm's Workers' Compensation Practice Group,
served as the moderator and spoke on minimizing
temporary total compensation, as well as investigating
and defending claims of psychological damages. Later
that month, Vince spoke to the Cuyahoga Falls, Ohio
Chamber of Commerce on "Effective Personnel Practices
to Prevent Unfair Competition."
Vince, Dave, and John will join forces on September
14th, with Kathleen Powers Stafford, Ph.D., a clinical
and forensic psychologist, and Mark V. White, an
experienced management consultant, for a day-long
presentation, entitled "Supervising 101." Vince
will again address the employment-at-will doctrine,
before touching upon Title VII, the Age Discrimination
in Employment Act, retaliation claims, the NLRA,
WARN and COBRA. John will cover harassment of all
forms, including racial and sexual, and will discuss
workplace violence, drug and substance abuse, and
absenteeism. Dave will help employers understand
and address employee injuries, disabilities and
leave requests.
Vince also will be speaking at Kent State University's
Roundtable Series for Human Resource Professionals
in October, November, and December. On October 25th,
Vince will discuss the FMLA and the ADA. His topic
on November 15th will be "How to Respond to an OCRC
Charge." He will close the year on December 13th
with "Compliance with Sexual Harassment Laws and
Responses to Sexual Harassment Complaints."
If you are interested in having a speaker from BDB
make a presentation to your organization, please
contact: Cheryl Warren, Director of Client Relations
and Marketing 800.686.2825 ext. 546 or cwarren@bdblaw.com
Vince
Tersigni Elected Trustee of Akron, Ohio Bar
Vince Tersigni
has been elected to serve a three-year term on the
Akron, Ohio Bar Association Board of Trustees. The
board is responsible for running the bar association,
which plays a significant role in Akron's legal
community and has 1,500 members.
This election follows years of service
to the bar association. Vince has been an active
member of many bar committees and will chair the
Labor & Employment Law Committee again this year.
He also serves as labor counsel for the bar association.
As a board member, Vince hopes to encourage greater
participation in the bar by all Akron lawyers. He
believes that the Akron Bar Association can be a
means of increasing the civility and professionalism
with which area lawyers conduct litigation.
Vince is a lifelong resident of Akron
and is active in a number of other community organizations.
A recent graduate of Leadership Akron, he has served
on the boards of many local non-profit organizations,
including Mobile Meals, Family Services and Rockynol
Retirement Community. Wearing a somewhat different
hat, he is also a Chief in the Indian Princesses
program.
Vince's practice is focused on representing
both public and private employers in labor and employment
litigation, employment discrimination, non-competition
litigation, wage-hour issues, unemployment compensation,
civil rights, and NLRB and OSHA matters. He advises
employers regarding compliance with state and federal
employment laws, preventing employment-related disputes,
and implementing effective personnel policies. As
the listing of speeches above attests, Vince frequently
gives lectures on these topics.
Vince and his wife, Melissa, have
three children, who keep him just as busy at home!
Vince
Tersigni is a member of the BDB Employment Law
Practice Group and can be reached at vtersigni@bdblaw.com
or 330.258.6552.
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