Posts filed under ‘HR’

Why your email policy probably isn’t legal?

Your email policy probably isn’t legal; It may have been perfectly appropriate last week but there is a good chance it is a hopelessly outdated relic of labor law today.

Is this just a pathetic attempt to get your attention as my blog competes with your overloaded Inbox? Kind of but it also reflects the fact that late last week the NLRB fundamentally changed the legal rights of employees to use email on company time, At the very least you should grab your email\electronic communications policy and see if a call to your HR attorney may be in order. If you don’t have a policy then get to work creating one.

Our story begins with a company in California that provides interpreting services for the hard of hearing, The employees spend most of the day at their desks and are given a company email account. The employees decided to unionize but argued that their right to vote for representation was illegally inhibited by a company email policy that I bet reads a lot like yours it explained that:

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

 

  1. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.

. . . .

  1. Sending uninvited email of a personal nature.

As recently as 2007 the NLRB and a federal court in the District of Columbia reviewed a similar policy and upheld a straightforward rule: Employers can limit the use of employer owned equipment to work related activities. Email service is an investment in company property and as such is subject to a company’s rules prohibiting its use for non-work related activities,( In Re the Guard Publ’g Co., 351 NLRB 1110 (2007))

In last week’s  decision the NLRB overturned this earlier ruling and created a new legal framework for analyzing what  limits can be placed on the use of company email by employees. Now there is “a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”Purple Commc’ns, Inc. & Commc’ns Workers of Am., Afl-Cio, 361 NLRB No. 126 (Dec. 11, 2014)

What does this mean?

First, as I have explained in previous blogs an employee has a right to engage in concerted activity to discuss workplace conditions with their fellow employees irrespective of whether or not they belong to a union. This ruling could impact your credit union.  For instance employees exchanging emails critical of a new marketing initiative that they think is bad for the credit union might be legally protected.

Second the fact that you might allow your employees to bring their tablets and iPhones to work doesn’t alter your obligation to allow the use of email. A dissenting opinion to the Board’s decision argued that employees have more than enough ways of communicating with work- mates irrespective of their access to a company’s email system. To the NLRB majority this doesn’t matter.

Third, the decision doesn’t mean you can’t regulate email use. It just applies to email use during non- work time such as a lunch hour. The majority made clear that you can still monitor email. And remember most communication is not concerted activity. For example, employees still don’t have the right to sexually harass each other over the internet Furthermore companies that can prove that their workplace has unique attributes that require it to adopt more restrictive email policies will be allowed to impose restrictions. But this is going to be an extremely difficult argument to make.

Fourth, this is not the last word on this case. The NLRB’s In Re the Guard Publ’g Co decision on this issue ended up in court and I would bet you that this decision ends up before the courts in the not so distant future.

Now for a personal observation: The NLRB is pushing for employee email protections precisely when we have a real life example of just how detrimental email can be to a company’s reputation  courtesy of hackers who have published embarrassing emails from executives at Sony. For example one Email from an executive had the audacity to question the talent of Angelina Jolie! Now in “LA LA land this is big news since  you don’t want stars to pass on making your studio’s next movie.  The point is there are some conversations businesses should be allowed to keep in-house or comments that simply shouldn’t be made by an employee in the first place. Now some of those comments might be legally protected.

Here is a link to the decision and an earlier blog I did on this case.

http://www.nlrb.gov/cases-decisions/board-decisions

http://newyorksstateofmind.wordpress.com/2014/05/05/can-you-email-your-buddies-on-company-time/

 

December 16, 2014 at 9:07 am Leave a comment

When Employees Go Too Far

One of my favorite HR issues that I discuss in this blog is the extent to which employers can reprimand employees for comments they make about the workplace on their own Facebook or other social media accounts.  The basic point to keep in mind is that whether you are a unionized or non-unionized workplace, employees have a right to engage in concerted activity in which they come together to discuss issues of concern about their workplace.  They also have the right, of course, to discuss the pros and cons of unionizing.

The National Labor Relations Board (NLRB) has been extremely aggressive in applying concerted activity protections to the social media comments of employees.  The result is that you should move with extra caution, including consulting with your HR attorney, before disciplining an employee for derogatory social media comments about his workplace.

So I was pleasantly surprised on Friday to learn that the NLRB recently issued a decision upholding the right of employers to terminate two employees for insubordination based solely on a Facebook conversation. The case involved two employees who worked at a not-for-profit in the San Francisco area that provided after-school services for kids.  During the incriminating conversation, they asked each other if they were going to be rehired for another school year.  Both got their jobs back, but one of them was going to be demoted.  One of the employees explained how he would organize “crazy events and not seek permission.”  He also stated that he would play loud music, get artists to place graffiti on the walls, and let his not-for-profit employer “figure it out.”  Not to be outdone, the other disgruntled employee stated that when the organization started losing control of kids in their care, she wasn’t going to help.

First, the NLRB agreed that this colorful discussion was concerted activity.   But it also agreed with an earlier ruling that the conduct of the employees was so egregious that they lost the protections of federal law.  The decisive factor was that the insubordinate behavior went beyond hyperbole.  Instead, the Facebook post could reasonably be interpreted as two employees planning acts of insubordination that put the employer’s business at risk.  The not-for-profit center was not required to wait and see if the employees followed through on their plans before taking steps to terminate them.

While the decision is a welcome relief for any employer who wants to use common sense in the workplace, it also underscores just how narrow an employer’s flexibility is when it comes to disciplining employees based on their social media conduct.  The outcome of this case would have been different had the NLRB determined that the employees were just joking.  We may also have seen a different outcome had the employer not been responsible for children.  Still, this decision is a good one to put in your file.

Here is some additional information about the case from Bond, Schoeneck and King’s labor and employment blog, which alerted me to the decision.  In addition, here are some of the previous blogs I’ve done on this subject:

http://newyorksstateofmind.wordpress.com/2011/10/25/when-bad-mouthing-the-boss-is-legally-protected/

http://newyorksstateofmind.wordpress.com/2012/08/09/could-asking-an-employee-to-be-discreet-violate-the-labor-law/

Stronger Than Expected Jobs Report

On Friday, the U.S. Labor Department reported that 322,000 people were hired in November.  In addition, there is some evidence indicating that the economy may be experiencing modest wage growth.  Even if you are not an economist  or an economist want-to-be like your faithful blogger, the jobs report is particularly important to credit unions in the coming months.  The stronger the jobs report, the more likely it is that the Federal Reserve will start raising short term interest rates no later than the middle of next year.  Whether or not this is a good idea is an idea to ponder in a future blog.

December 8, 2014 at 8:47 am Leave a comment

What Should You Do About Ebola?

My friend Chris Pajak, who handles the HR consulting for the Association, has had the good fortune to work across from my office for the last several years, but the honor has not been all his.  From listening to Chris respond to a wide variety of HR questions ranging from the thought-provoking to the down-right bizarre, I have been able to keep my finger on the pulse of trending HR issues.

Recently, he got a question about what steps an employer could take to monitor the health of an employee who had just  returned from a trip to Africa?  It’s a darn good question.  Yesterday, the Bond, Schoeneck and King law firm released an excellent Q and A on employment issues related to Ebola.  Rather than give my own two cents on an extremely fluid and complicated area, I am going to suggest you take a few minutes to read their post this morning.

However, I can’t resist just one editorial comment.  When it comes to Ebola, let’s use some common sense.  Don’t get caught up in the idiotic media frenzy.  You have a hell of lot better chance of dying from the Flu than from Ebola.  On that happy note, drink and be merry. . .

October 29, 2014 at 7:26 am Leave a comment

4 Cases This Term That Will Impact Your Credit Union Operations

Well, it’s opening day for legal junkies.  The first Monday in October the Supreme Court starts hearing cases it will decide over the 2014-2015 term that ends in June.  With the caveat that there may be cases added in the coming weeks and months, here is a look at the cases on the Court’s docket that will have an impact on your operations.

Perez v. Mortgage Bankers Association, No. 13-1041, 134 S. Ct. 2820 (2014).

This case is important to credit unions for two reasons.  First, if you employ mortgage originators, then you have been caught in a whirlwind of conflicting administrative rulings in recent years regarding whether your mortgage originators are entitled to overtime pay under the Fair Labor Standards Act.  Under the FLSA, so-called non-exempt employees are entitled to overtime when they work more than 40 hours a week.  However, there are several exceptions to this requirement.  In 2006, the Department of Labor issued an opinion letter stating that mortgage loan originators were exempt from the overtime requirement.  In 2010, the DOL issued an “administrative interpretation” reversing that 2006 opinion letter and mandating that employers pay overtime to loan originators.

In this case, the Court will decide at what point an agency’s administrative interpretation has effective become a Rule that can only be changed through the regulatory process by issuing a new rule replete with a comment period.  As a result, the Court’s decision in this case will provide further guidance to those of you who employ mortgage originators.

For those of you who don’t employ mortgage originators, the case will provide important guidance about how legally binding those NCUA guidance letters are on your credit unions.

EEOC v. Abercrombie and Fitch Stores, 731 F. 3d 1106 (10th Circuit 2013).

Under Title 7, if you have 15 or more employees, you must agree to reasonable accommodations for employees’ religious beliefs, providing that doing so does not pose an undue hardship on your business.  This means, for example, that a teller at your credit union with a sincerely held religious belief is entitled to wear a head scarf even if doing so mandates an exception to your dress code.  However, does Title 7 apply where an applicant or employee never informs an employer that she needs a religious accommodation?  This is the question that the Court will grapple with in this case.  It deals with a Muslim applicant for a sales position who was denied employment because the head scarf she wished to wear for religious reasons conflicted with “the look” that the company wishes to project for its sales people.  What makes the case interesting is that the applicant never told the employer that she had to wear the scarf for religious reasons.  Your HR people are going to want to pay particular attention to this case since best practice currently dictates that employers not ask about the religious beliefs of applicants during an interview.

Jesinoski v. Countrywide Home Loans, 13-604.

We all know that the Truth in Lending Act grants homeowners a three-day right of rescission on mortgage transactions.  Where such a notice is not provided, a borrower has three years “after the date of consummation of the transaction” to bring a lawsuit cancelling the mortgage.  This case deals with a narrow but important question:  does a borrower exercise his right to rescind the transaction by notifying the creditor in writing within three years of the consummation of the transaction or must he file a lawsuit within three years of the transaction?  This may not seem like a big deal, but the Circuit courts have been all over the map on this one.

Young v. United Parcel Service, 12-1226.

Federal law prohibits discrimination against employees because they are pregnant.  But, are you discriminating against a pregnant employee by refusing to provide her an accommodation?  In this case, the Court will determine if UPS acted properly when it refused to accommodate a pregnant driver’s request that she not be made to lift heavier packages.  This case isn’t as clear cut as it sounds.  Whereas federal law requires companies to provide reasonable accommodations to disabled persons, the company argues that since pregnant women are not considered disabled, it is not allowed to provide accommodations for pregnancy that would result in pregnant women being treated differently than their non-pregnant peers.

I will, of course, be keeping an eye on this and other cases in the coming months.  In the meantime, for those of you who want additional information about the upcoming Court term, a great source of information is the SCOTUS blog.

October 6, 2014 at 8:49 am Leave a comment

Are CFPB’s Performance Reviews “Acceptable?”

Yesterday, the CFPB, which prides itself on being a statistics-driven, cutting edge agency of the 21st Century, announced a new rating system for its employees which deemphasizes statistics.  For several months now, the CFPB has been dogged by increasingly strident accusations that its managers engaged in discriminatory practices.  These accusations were bolstered by an internal report highlighted in yesterday’s CU Times showing statistical disparities based on race in the performance review process.  For example, 20.3 percent of white employees received the highest rating (a 5 on a 1-5 scale), while only 10.5% of African-American employees received this rating.  The CFPB is responding to this “proof” of racial disparity by implementing a pass-fail system of employee evaluations, doing away with those troublesome numbers.  Instead, employees will retroactively be classified as either solid performers or unacceptable ones. 

CFPB’s retreat speaks volumes about statistics and their limits.  Disparity impact analysis, where regulators and litigators argue that a facially neutral lending policy can be proven to discriminate against individuals based on statistical analysis, is predicated on the assumption that statistics don’t lie.  Advocates of this approach argue that at some point statistical disparities demonstrate that even facially neutral policies reflect discriminatory undertones and/or practices. 

On the other end of the spectrum, on which I would place myself, are those who take a jaundiced view of disparate impact analysis.  Statistics only tell a fraction of the story.  For instance, the CFPB’s statistical chart can’t tell you about how often an employee had to be pushed to get his work done.  Similarly, statistics alone can’t capture the full extent of negotiations that went on between a mortgage originator and a consumer who happened to be African-American.  Nevertheless, the explosion of data makes it more, not less, likely that statistics will be used to judge the effectiveness of anti-discrimination laws.  This is why I find the CFPB’s response so telling.  Rather than defend its evaluations, it implicitly assumes that its managers must be racially biased.  Remember, these are the same people who will ultimately be reviewing lending trends and using increased HMDA data to spot discrimination.   

The pre-eminence of disparate analysis is going to have real life consequences.  For instance, the reality is that as lenders heighten their underwriting standards to make sure that they can document why a borrower can repay a mortgage loan or decide to only make so-called qualified mortgages, these decisions will have a disproportionately negative impact on minority groups that, in the aggregate, have less income. 

What will be the response of legislators and regulators?  Will they look at these statistics and realize that they reflect deep-seated, complex problems that simply can’t be assumed to only reflect racial animus?  Or will they do what the CFPB has done and simply water down evaluation standards so that the difficult issues raised can be “solved” instead of addressed.   

August 28, 2014 at 8:43 am 1 comment

What Rights Does Your Pregnant Employee Have?

The way my father explained it to me, people have been getting pregnant for quite some time.  In addition, since 1978, federal law has banned discrimination in the workplace on the basis of pregnancy.  So you may find it odd that pregnancy is a hot topic in legal circles these days.  However, recent developments have brought the issue of pregnancy discrimination to the forefront of HR law.

First, the Supreme Court has decided to review a case next term, Young v. United Parcel Service, in which it will clarify what accommodations, if any, must be provided to a pregnant employee.  Not coincidentally, the EEOC recently released an updated guidance on this issue for the first time in more than two decades.

The issues involved are not as clear cut as you might think.  First, let’s start with the basics.  We all should know that you can’t discriminate against someone just because she is pregnant.  The Pregnancy Discrimination Act provides that pregnant women “shall be treated the same for all employment purposes. . .as other persons.”  It seems simple enough, but the case the Supreme Court is going to hear involved a driver whose job required her to lift up to 70 lbs.  The company’s policy excused drivers from this requirement if they were disabled or if they lost their license, but not if they were pregnant.  The company argued that it was required to treat her equally with all other employees and it would not be doing that if it excused her from the weight restrictions just because she was pregnant.

When I first read this decision I wondered why she couldn’t be treated as disabled under the ADA.  But the Fourth Circuit, which heard the case being decided by the Supreme Court, ruled that the ADA doesn’t apply to pregnant women.  As a result, the Fourth Circuit ruled that the company acted legally despite the fact that her request to lift lighter packages could have been easily accommodated.

Undoubtedly with an eye toward weighing in on the Supreme Court’s decision, the EEOC’s recently updated pregnancy guidance argues that there may be circumstances in which pregnant women are protected under the ADA.  As I like to say, this is one of those cases that are going to be worth keeping an eye on.  With my usual caveat that I am not an HR attorney but I like to play one occasionally writing this blog, this is one area where it seems a bit of common sense goes an awfully long way.  UPS has provided us a great case to consider, but had it not been so stubborn in adhering to its policy, an employee could easily have been accommodated and millions of dollars in legal fees could have been avoided.

July 22, 2014 at 8:31 am Leave a comment

New York Goes to Pot

Governor Cuomo made it official yesterday: he held a bill signing ceremony to mark approval of legislation (A.6357-e) making New York the latest state in the nation legalizing the medical use of marijuana. Its use will be ramped up over the next 18 months as the state promulgates the necessary regulations.

Despite what I have seen in the blogosphere, it is not time to stack up on the munchies. Unlike states such as Washington and Colorado, which have legalized marijuana possession, and other states, such as California, that have legalized the “medical” use of marijuana, the legislation is drafted in a way that medical use of marijuana will be limited to people with designated illnesses and only available in forms prescribed by doctors.

The use of medical marijuana in New York will be highly regulated.  According to the Governor’s memo, the law allows for five registered organizations that can each operate up to four dispensaries statewide. Registrations for organizations will be issued over the next 18 months unless DOH or the Superintendent of State Police certifies that the new program could not be implemented in accordance with public health and safety interests. Because it is so regulated, chances are your credit union won’t be asked to open up a business account for these organizations, and if it is the organizations are so highly regulated that much of your due diligence will be easily obtainable. This means that, at least in the short term, legalization of the drug won’t present financial institutions with the legal question of how to comply with federal laws banning the possession and sale of marijuana and bank secrecy act requirements mandating that credit unions and banks monitor their accounts for potentially illegal activity with state law declaring marijuana use to be legal.

This is not to say that your credit union won’t be impacted by this law.  Under the legislation a certified caregiver or patient can’t be subject to any civil or disciplinary action by a business or licensing board solely because of their lawful use of marijuana. In addition, eligible users are classified as disabled under New York’s human rights law.   At the very least, we now know that there are going to be employees legally entitled to be taking marijuana. So, if you have a policy of categorically prohibiting employee drug use, this is going to have to be modified.

Conversely, it doesn’t mean that an employee can come into work today and get stoned at lunch time. The state is going to have a registry of patients. The key is not to make changes tomorrow. If you heard the Governor speak yesterday, then you heard a person who is dead serious about making sure that this legislation truly is for medical purposes and not a backdoor means of legalizing pot smoking.  The regulatory process will be a serious one and given the number of issues that need to be addressed, I’m sure the concerns of employers will be taken into account. In the meantime, it appears that New York financial institutions have avoided the legal quagmire that comes from a more unregulated approach.

 

 

 

 

July 8, 2014 at 9:07 am Leave a comment

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Authored By:

Henry Meier, Esq., Associate General Counsel, New York Credit Union Association

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