August 2000
Vol. 13, Issue 1
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By James D.
Kurek, Esq. 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 |
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.
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.
Employment Law Practice Group 12th Annual Seminar
Of course, don't forget our 12th Annual Employment Law Seminar, which again will be held in Fairlawn, Ohio at the Hilton on State Route 18, the morning of October 11, 2000. This free seminar will feature presentations from four of our attorneys. The topics are expected to include Protecting Your Confidential Information and Trade Secrets, Recent FMLA Developments, Workplace Threats and Violence, and Avoiding and Defending Discrimination Claims. So, save the date now. You can sign up on-line at http://www.bdblaw.com/new/registration.html or by phone: 330.258.6473 or fax: 330.252.5473.
At BDB we are always improving our processes so that we operate efficiently
and effectively. Please let us know how you like our new broadcast format.
E-mail: bdb@bdblaw.com Phone: 330.258.6473
Fax: 330.252.5473.
Thank you.
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