Wyatt Employment Law Report

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NLRB establishes new policy governing employee handbooks and workplace policies

By Mitzi Wyrick

In Boeing Co., 365 NLRB No. 154, the National Labor Relations Board (“NLRB”) overturned the standard established in Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004) for weighing the legality of employee handbook rules and workplace policies.  In Lutheran Heritage Village-Livonia, the NLRB created confusion for employers when it ruled that employers violated the National Labor Relations Act (“NLRA”) by maintaining workplace rules that did not explicitly prohibit protected activities, were not adopted in response to such activities and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of Section 7 rights under the NLRA.

Under Lutheran Heritage, employers were found to have violated the NLRA for having seemingly innocuous policies prohibiting “loud, abusive or foul language,” rules subjecting employees to discipline for an “inability or unwillingness to work harmoniously with other employees,” and rules prohibiting “negative energy or attitudes.”  Confusingly, under Lutheran Heritage, some rules Continue reading

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Employee Handbook Review: 6 Topics Employers Should Consider

By R. Joseph Stennis, Jr.

An out-of-date employee handbook that fails to recognize ever-evolving laws and regulations is more harmful than helpful to an employer.  It is important to ensure that your company’s handbook stays current and ‘with the times.’  The following are six employment law topics that should be taken into consideration during your handbook review and revision process:

1. LGBT Protections. Laws, courts, and administrative agencies (State and Federal) continue to expand protections for lesbian, gay, bisexual, and transgender employees.  From the EEOC’s perspective, Title VII of the Civil Rights Act forbids any employment discrimination that is Continue reading

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FLMA Claim Dismissed Based On Employee’s Violation of Employer’s “Call-in” Policy

By Michael D. Hornback

The U.S. Court of Appeals for the Sixth Circuit has dismissed a former employee’s Family Medical Leave Act (“FMLA”) interference claim because the employee failed to utilize her former employer’s call-in procedure related to absences. 

In Ritenour v. State of Tennessee Department of Human Services, 497 Fed. Appx. 521 (6th Cir. 2012), the plaintiff was initially hired as a interim employee, but later became a full-time Clerk with the Tennessee Department of Human Services (“TDHS”).  A few months after becoming a full-time employee, the plaintiff determined that she needed to take a leave of absence from her position to care for her son who suffered from a multitude of physical and mental health issues, including a bipolar disorder, suicide attempts, and behavior problems.  Thereafter, the plaintiff and her superiors had several conversations with regard to her request for leave; however, no leave was actually granted by TDHS.  Despite the plaintiff being absent from her employment for several weeks, the plaintiff and TDHS ultimately agreed that she would return to work on September 8, 2008.  Plaintiff was provided a copy of the employee handbook which detailed the necessary steps to take in order to request a leave of absence, including the requirement that such leave request be put in writing.  Plaintiff alleged that she put her request in writing; however, her superiors did not receive it.

The Plaintiff did not report to work from September 22 through 25, 2008 and she was ultimately terminated for job abandonment, which was defined as being absent from duty for more that three consecutive business days without giving notice to management and without securing permission to be on leave.  Additionally, the TDHS employee handbook required employees to personally notify their superior(s) by telephone if they were going to be late for or absent from work.  The plaintiff did not utilize this “call-in” procedure for her absences in September, 2008.

The plaintiff subsequently filed suit against TDHS, alleging interference with her right to take intermittent FMLA leave and retaliation under the FMLA.  The U.S. District Court for the Middle District of Tennessee granted summary judgment in favor of TDHS, finding that, even assuming the plaintiff was entitled to take FMLA leave, there was no dispute that she failed to contact her supervisor related to her absences in September, 2008.

The Sixth Circuit affirmed the dismissal of plaintiff’s claims, finding that it was undisputed that plaintiff failed to follow TDHS’ “call-in” procedure and the enforcement of the job abandonment policy was not related to plaintiff’s request for FMLA leave because the policy applied to employees who are absent from work without approval for any reason. 

It is also worth noting that the Sixth Circuit relied upon its previous decision in Allen v. Butler Cnty. Comm’rs, 331 Fed. Appx. 389 (6th Cir. 2009), in which it found that an employer could terminate an employee on FMLA leave for violating the more stringent requirements of a concurrently run paid sick leave policy, which included a “call-in” requirement.  The Allen court noted that because the “call-in” procedures established the obligations of employees on any type of leave, whether pursuant to FMLA or not, the employer therein was not liable for interfering with the employee’s right to take FMLA leave.


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NLRB Issues First Social Media Decision and Invalidates “Courtesy” Policy

By George J. Miller

On September 28, 2012, the National Labor Relations Board issued its first decision in one of the social media cases which have garnered so much attention in the last year and a half.  The case is Karl Knauz Motors, Inc., d/b/a Knauz BMW, 358 NLRB No. 164.  This was the case of a BMW salesman named Becker who was fired after posting photos and a critical message on his Facebook page about the dealership’s choice of inexpensive food (hot dogs, small bags of chips, cookies, and bottled water) for a sales event promoting a new car model to customers.  At a meeting before the event, Becker and other sales people expressed their disappointment about the choice of food and their concern that it would send the wrong message to their clients and negatively affect their commissions.  At the sales event, Becker took photos of the food.

During the same week as the sales event, an underage driver drove a vehicle off the lot of a dealership across the street and into a pond in front of the BMW dealership.  The BMW employees gathered to watch the commotion, and Becker took photos.  He posted these photos on his Facebook page along with the comment, “Oops.”  At the same time, he posted the photos of the sales event, with critical comments.  Before he posted the photos about the sales event, he told his co-workers what he planned to do. 

The dealership fired Becker, and he then filed an unfair labor practice charge at the NLRB.  The Acting General Counsel of the NLRB decided to issue a complaint against the dealership on the basis of evidence that (a) Becker was fired at least in part because of his posting about the sales event, and (b) this posting was protected by the law because it addressed terms of employment–the possible effect of the food choice on commissions–and Becker was voicing the sentiments of other salespeople and was continuing the course of activity that began at the group meeting before the sales event. 

At the trial, the dealership defended by arguing that the one and only reason it fired Becker was because of his Facebook posting about the car accident, a serious matter, not the posting about the sales event.  The judge agreed with the dealership on this point, and so did the NLRB on review.  They concluded that the posting about the accident was not protected, concerted activity, but rather that it was, “posted as a lark, without any discussion with any other employee [of the dealership] and had no connection to any of the employees’ terms and conditions of employment.”  In ruling that the dealership’s only motive in terminating Becker was the Facebook posting about the accident, the NLRB did not have to decide whether the posting about the sales event was protected activity.

However, the judge and the NLRB also found that the dealership’s “Courtesy” policy in its employee handbook violated the law because it would tend to chill employees in the exercise of their rights under the law.  The Courtesy policy said:

“(b) Courtesy: Courtesy is the responsibility of every employee.    Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

A two member majority of the three NLRB members who presided over the case agreed with the judge and held that this policy violated the law because employees could reasonably understand its broad prohibition against “disrespectful” language and “language which injures the image or reputation of the Dealership” to prohibit employees from objecting to their working conditions–whether to co-workers, supervisors, managers, or third parties–and seeking to improve them.  Under the National Labor Relations Act, employees have the collective right to object to their working conditions.

In dissent, NLRB Member Hayes argued that the majority’s decision goes too far, because it, “invalidates any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so.”  Member Hayes argued that the majority read the words “disrespectful” and “language which injures the image or reputation of the Dealership” in isolation and did not give the whole policy a reasonable reading, contrary to precedent.  He opined that, “employees and employers alike have a right to expect a civil workplace, promoted through policies like the one that my colleagues find unlawful.”  Read in this context, he believed the policy complies with the law.

In view of this new decision and the recent efforts of the Acting General Counsel to attack the policies of non-union employers, it would be wise for all non-union employers to review their policies for compliance with the National Labor Relations Act and amend or rescind them as necessary.