United States: US Employment Litigation Round-Up for June 2015: A Review of Key Cases and New Laws Affecting Employers

Keywords: employer handbook policies, disability, wage and hour dispute, disparate-treatment

A Review of Key Cases and New Laws Affecting Employers

National Labor Relations Board Continues to Scrutinize Employer Handbook Policies

Decisions: In a pair of recent decisions, the National Labor Relations Board (NLRB) provided additional guidance concerning employer handbook policies. In Boch Imports, Inc., a split panel of the NLRB ruled that a car dealer violated the National Labor Relations Act (NLRA) by maintaining overly broad dress code, social media and confidentiality policies. The panel found NLRA violations based on the employer's 2010 policies, even though the employer had replaced all but the dress policy in 2013, with assistance from an NLRB regional office. Relying on NLRB precedent, the panel explained that an effective repudiation must be timely, unambiguous, specific in nature to the coercive conduct, adequately published to the employees involved and provide assurances to employees that in the future the employer will not interfere with the exercise of their rights under the NLRA. Additionally, there must be no proscribed conduct on the employer's part after the repudiation. The panel determined that Boch Imports did not meet these criteria because the offending dress code policy remained in the new handbook and the employer did not make assurances to employees that, in the future, it would not interfere with employees' NLRA rights.

In the second decision, Macy's, Inc., an NLRB Administrative Law Judge (ALJ) found that: (i) Macy's maintained unlawful confidentiality policies because those policies could reasonably be construed as interfering with employees' rights to discuss their terms and conditions of employment with fellow employees, as well as their ability to notify a union of other employees who might be interested in participating in the union movement; (ii) Macy's violated the NLRA by requiring employees to notify company representatives prior to participating in a governmental investigation; and (iii) the savings clause in Macy's employee handbook was insufficient to cure any unlawful polices because it was written in a generic manner, rather than using language that was specific in nature to the coercive conduct and that expressly referenced the unlawful rules.

Impact: These decisions serve as an important reminder to employers to regularly review their employee policies—particularly those related to the use of confidential information and employees' participation in governmental investigations—to ensure that they comply with the most recent pronouncements from the NLRB and other relevant government agencies, including the Equal Employment Opportunity Commission. Further, to the extent employers revise their policies after an unfair labor charge has been initiated with the NLRB, they should work with counsel and the NLRB to ensure that those revisions constitute an effective repudiation that will relieve them of liability.

California Court of Appeal Holds that Boss-Induced Stress Is Not a "Disability"

Decision: In Higgins-Williams v. Sutter Medical Foundation, a California Court of Appeal ruled that the plaintiff's alleged disability—an inability to work under a particular supervisor because of anxiety and stress related to the supervisor's oversight of her job performance—was not a disability recognized under the California Fair Employment and Housing Act (FEHA). The plaintiff was granted a stress-related leave of absence due to alleged stress from dealing with her supervisor and the human resources department. When plaintiff returned to work, she received a negative performance evaluation from her supervisor and had several other altercations with her supervisor. Plaintiff was granted another leave of absence, despite having exhausted her statutory leave rights. After several months, her employer advised plaintiff that it would terminate her employment unless she provided information as to when she could return to work and whether additional leave, as an accommodation, would effectuate her return to work. Plaintiff did not supply the information and the employer terminated her employment. Plaintiff sued, alleging disability discrimination claims. The trial court granted the employer's motion for summary judgment on all claims.

The Court of Appeal affirmed, holding that plaintiff failed to satisfy the first prong of a disability-related claim: that she suffered from a FEHA-recognized mental disability. According to the court, plaintiff's inability to work under a particular supervisor did not constitute a disability under FEHA. The court also held that the employer had a legitimate reason for terminating plaintiff's employment and that the employee could not adequately show that the reason was pretextual.

Impact: This decision rejects employee disability discrimination claims when the sole basis for the discrimination claim is the stress of working for a particular supervisor. However, employers should proceed with extreme caution on any claim for mental disability to ensure that there is a clear record regarding the employee's claimed disability prior to terminating any employee for supervisor-related stress, and should engage in a documented interactive process with the employee.

California Court of Appeal Holds Forum/Choice-of-Law Clause Unenforceable in Wage-and-Hour Dispute

Decision: In Verdugo v. Alliantgroup, L.P., a trial court granted a motion to stay based on a clause in the plaintiff's employment agreement that designated Harris County, Texas, as the forum for disputes arising out of the employment and Texas law as governing all disputes. A California Court of Appeal reversed.

All of the employee's wage-and-hour claims were brought under the California Labor Code. Because the underlying claims were based on statutory rights that cannot be waived, the employer had the burden to show that enforcement of the forum selection clause would not be unreasonable or unfair. The employer did not demonstrate that forcing the employee to litigate her claims in Texas under Texas law would not diminish the employee's California statutory rights. 

Impact: Employers cannot assume that forum/choice-of-law clauses in their agreements with California employees will be enforceable. Because of the variances among the wage-and-hour laws of each state, employers are unlikely to meet the burden of establishing that an employee would not be prejudiced by enforcement of a forum/choice-of-law clause that takes an employee's dispute out of the jurisdiction where he/she works.

US Supreme Court Holds Employer's Actual Knowledge Not Required for Disparate-Treatment Claim Under Title VII

Decision: In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., the US Supreme Court held that an applicant raising a disparate-treatment claim under Title VII need not show that the employer had actual knowledge of the applicant's need for accommodation of a religious practice. Rather, the applicant need show only that the need for a religious accommodation was a motivating factor in the employer's decision. Mayer Brown's complete summary of the decision is available online.

Impact: The decision sets forth an unequivocal prohibition against making adverse employment decisions based on even the unconfirmed belief that an applicant's religious practice requires an accommodation.

Originally published on June 30, 2015

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.