Employers – Are You Prepared for New NLRB Election Rules?

On April 14th, the new National Labor Relations Board (“NLRB”) election rules came into effect, creating a potential headache for employers. Perhaps most critically, the timeline between the initial petition for union election and the election itself may be as short as 13 days, giving employers limited notice of potential union organization and activity. These accelerated elections are derisively (but maybe not unjustly) referred to as “ambush” or “quickie” elections.

Under these new rules, unions file with the NLRB electronically, simultaneously providing notice to the employer, who must then post a notice of the election with all the attendant details. Seven days later, a pre-election hearing is held, covering only issues concerning the election. Before thCalendar September 2014is hearing, the employer is now required to submit a list of prospective voters and other relevant information such as personal e-mail addresses and telephone numbers of employees. These rules allow for union elections within 13 to 22 days after filing of the notice by the union, signaling a significant departure from the old rules which incorporated an automatic 25-day waiting period following the direction of election and allowed employers 42 days to conduct informational campaigns. The accelerated timeline and additional notice requirements placed on employers give unions additional advantages in both timing and information when it comes to initial union election.

The best strategy for employers under these rules is to adopt a policy of year-round campaigning and strategizing to counter the threat of ambush elections. Proactive measures to foster a healthy workplace culture, promote strong employee relations and educate workers on how unions can affect the workplace are crucial in the new regulatory environment. For more information on how these rules can affect you as an employer, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com

This article is intended as a summary of federal or state law or regulation and does not constitute legal advice.

ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others.

Direct threat analysis under the ADA begins with the language of the law itself – “The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”[1] This language speaks to provisions that allow employers to impose certain qualification standards as to disabled employees as a defense to a charge of discrimination. EEOC regulations broadened this classification to include risk to oneself as well, and provided guidance that included a four-factor test to employers as to how to conduct direct threat assessment in decision-making:

 “The determination that an individual poses a ‘‘direct threat’’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” [2]

At issue in a recent case before the Tenth Circuit Court of Appeals, EEOC v. Beverage Distributors Co[3]., is whether this “direct threat” must be proven by the defendant employer by a preponderance Dangerous Accident During Workof the evidence, or whether the employer merely had to have held a reasonable belief about the risk posed. Jury instructions in that case suggested that, to establish a direct-threat defense, the employer would have had to prove that the employee’s disability posed the risk of harm it claimed. The Tenth Circuit ruled that these instructions were reversible error, suggesting that the employer merely had to reasonably believe the disability would pose a significant risk of substantial harm.

The important takeaway in this case is that the key inquiry in direct threat analysis is whether the employer’s belief about the direct threat imposed by an employee’s disability is reasonable, not whether the threat actually exists and can be proven. This should provide a sigh of relief for employers, as it keeps the bar for a direct threat defense to ADA claims low, provided an employer conducted a reasonable assessment of the employee/applicant’s disability before making the decision.

For help with policies conducting assessments of disabilities or review of workplace policies for compliance with federal, state and local antidiscrimination laws, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

B. KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] 42 U.S.C. §12111 (3)

[2] 29 C.F.R. § 1630.2(r)

[3] EEOC v. Beverage Distributors Co., LLC, No. 14-1012 (10th Cir. 2015)

Vetting Employees via Social Media – Walking the Digital Tightrope

As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern.

From the outset, employers should be wary of discovering information about candidates through their social media profiles that might form the basis for employment discrimination in the hiring process. This information can ultimately have legal repercussions with regard to antidiscrimination laws at the local, state and federal levels. For instance, an applicant in Neiman v. Grange Mutual Casualty Co.[1] overcame a potential employer’s motion to dismiss in an age discrimination suit by noting that his college graduation year was visible on his LinkedIn profile. The court in that case agreed that the knowledge of the applicant’s date of college graduation was enough to put the employer on notice of the applicant’s age. The potential for such liability should prompt employers to review just how they use social media in the hiring process.

Even with the potential for liabilitVector Concept Of Human Resources Management.y, however, social media still has benefits for employers in the hiring and vetting process. As noted at the outset, Comedy Central could have vetted the public comments of Trevor Noah via social media such as Twitter to determine how his public demeanor might affect his tenure as the host of The Daily Show. Public social media contributions by applicants can give employers a sense of an applicant’s maturity, demeanor and overall personality to determine whether that candidate is a good fit with company culture. This information can also help a company determine whether a candidate will serve as a competent public representative in the digital realm.

With such significant risks and equally significant rewards, how can an employer vet an applicant through social media in a safe and effective manner?

First, an employer should create a formal policy concerning social media vetting and abide by it. The policy should cover what sites will be investigated in the hiring process, as well as the types of information that will be viewed and documented. Not all social media sites are equal, and employers should determine what types of social media best provide the targeted look at the applicant the employer needs, eschewing others. The policy should also require that all applicants are informed that their social media accounts will be vetted and to what extent.

Second, an employer should impose a firewall between the person conducting the social media search and the hiring decision-maker so that only non-discriminatory vetting information enters the hiring decision process. If this is not practical, an employer could hire a third party to conduct a search (this, however, triggers provisions of the Fair Credit Reporting Act and certain obligations of disclosure on the part of the employer).

Finally, counsel should review social media vetting policies in a regular fashion for compliance with EEOC regulations and evolving legal precedent. Social media is still expanding boundaries and blurring lines between work and life, and such rapid technological and regulatory evolution demands continuous and sophisticated monitoring.

The attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC, can help you craft well-drafted polices for social media investigations in applicant vetting, providing you with both a powerful decision-making tool as well as peace of mind in using it.

Brittany Blackburn KochB. Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012)

EEOC Consent Decrees are its Most Powerful Enforcement Mechanisms

The vast majority of settlements between an employer and the Equal Employment Opportunity Commission (“EEOC”) take the form of a court-approved consent decree. This document is a public record designed to highlight and account for certain wrongs in a way that sidesteps an admission of guilt in favor of the implementation of remedial measures to prevent further unlawful practices. A consent decree includes certain action and reporting mandates that employers must follow, providing the EEOC with the most powerful enforcement tool in its arsenal.

Consent decrees function as a heightened form of scrutiny of an employer’s actions fSerious judge about to bang gavel on sounding block in the courtor a set duration of time. The value of the consent decree to the EEOC is that, rather than re-litigate a claim against an employer, the EEOC may simply move for contempt of court for failure to comply with an injunctive provision of a decree, as the decree is both a contract and a court order. This effectively keeps the company on the road to compliance with a minimum of effort from the EEOC. The consent decree may contain provisions for dispute resolution or mediation in the event of noncompliance.

Where employers are concerned, however, a consent decree is the bad bet when compared with a standard settlement. A consent decree gives the EEOC far more control in enforcement as against a company than other settlement agreements, and district courts have broad powers to enforce these decrees due to the “continuing jurisdiction” language present. Continuing jurisdiction provisions allow for continuous supervision of the settlement by the district court for the duration of the decree. Courts have generally upheld this expansive power, giving significant deference to the agency in question to define the terms of the agreement. As the Second Circuit Court of Appeals held in SEC v. Citigroup, the role of court in reviewing a consent decree is to “assess (1) the basic legality of the decree; (2) whether the terms of the decree, including its enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind.”[1] This deference gives the EEOC significant leeway in setting the terms of the consent decree, with the continuing jurisdiction of the court providing the muscle in strictly enforcing it.

Employers should seek to mitigate the effects of this particularly strong enforcement mechanism at the negotiation stage, opting for a standard settlement without injunctive relief or continuing jurisdiction whenever possible. Once continuing jurisdiction of the decree is locked in, the EEOC has gained a powerful tool, with a far stronger, more efficient and vastly quicker means for enforcing compliance. An employer must then jump through EEOC hoops on command for the duration of the consent decree, a position no employer wants to find itself in.

If you are negotiating an agreement with the EEOC or would like more information about consent decrees and their effect on your business, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] U.S.S.E.C. v. Citigroup Global Markets, Inc., 752 F.3d 285, 294-95 (2d Cir. 2014)

Pregnancy Discrimination Claims after Young v. UPS

It was a difficult delivery, but the Supreme Court in Young v. UPS[1] gave birth to a new test in determining whether an employer has violated the Pregnancy Discrimination Act (“PDA”)[2].

The PDA set out two clauses – the first expanded Title VII of the Civil Rights Act of 1964 to expressly include pregnancy and related conditions as an unlawful form of discrimination. This clause came about in answer to the Supreme Court case of General Electric v. Gilbert, which excluded pregnancy as a form of sex discrimination. The second clause became the central issue of Young, providing that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.”[3] Federal courts have struggled to determine the meaning of this clause, wrestling with the appropriate groups for comparison with pregnant women for purposes of the statute.

Attractive Pregnant EngineerIn Young, the Supreme Court set out a new rule that walked the line between the arguments of the parties. UPS argued that its rule is pregnancy-neutral, as it does not single out pregnant employees since other disabilities aren’t accommodated, either. Young argued that women should receive accommodations that any other worker under a disability or temporary disability receives. The Court rejected both approaches, deciding instead that a plaintiff can make a prima facie case of discrimination by showing that “she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’”[4] The employer must then articulate a legitimate, non-discriminatory basis for failing to accommodate the pregnant worker. The plaintiff, however, can then show that the policy reasons put forth by the employer do not justify the significant burden on pregnant woman to the point where it would appear that “reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”[5]

Where this decision truly affects employers, however, is where the court explicitly takes apart recently-released EEOC guidance on the issue. The EEOC released guidance in July of 2014 that adopted a broad reading of the protection in the PDA along the lines of Young’s argument to the court. The court explicitly rejected that interpretation, suggesting that it granted pregnant women “most favored nation” status. The reading of the statue in Young falls short of EEOC guidance, providing a bit of ease to employers who do not have to accommodate pregnant woman in the same way as any other employer under a disability. Employers must instead have a policy rationale that substantially justifies the burden on pregnant workers from non-accommodation, but employers should be on the safe side and accommodate pregnancy where possible.

If you have questions about the Supreme Court’s decision in Young v. UPS and how it may affect your workforce, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] Young v. United Parcel Service, Inc., 575 U.S. ___(2015)

[2] Pregnancy Discrimination Act, Pub..L. No. 95-555 (1978)

[3] 42 USC 2000e (k)

[4] Young at 20

[5] Id. at 22

Sexual Harassment Mistakes Employers Make

Sexual harassment claims can quickly become a nightmare for employers, but so many aspects of the nightmare are caused in part by the employer’s own actions. The employer has opportunities to mitigate the damage in two key areas – the sexual harassment policy itself before the alleged harassment incident and the investigation that takes place afterword. This post will look at mistakes made in these two particular areas that can hurt employers and lead to potentially costly damages.

Mistakes in Sexual Harassment Policies

Sexual harassment policies themselves can create multiple headaches in enforcement. A sexual harassment policy that requires an accuser to report solely up through the chain of command, for instance, is highly problematic. While this reporting system works in theory, it doesn’t account for conflicts that occur when the alleged harasser is in the chain of command itself. A well-crafted sexual harassment policy should create an alternate reporting channel, providing opportunities for an employee to make a report in a system free from bias. This reporting shouldn’t rely solely on written statements from the accused or witnesses, either, as an accuser may be too intimidated to

Sexual harassment plans that don’t ban intimate relationships between those in direct reporting relationship run the risk that these relationships turn sour and create harassment issues in the workplace. At the very least, create a policy whereby supervisors and subordinates must report a relationship to management at higher levels as soon as practicable. This makes management at least aware of the relationship and can help the employer discern favoritism or harassment.

In addition to crafting sexual harassment policies, employers must train their employees on them. The best sexual harassment policy ever written is only as good as the understanding of the employees governed by it. The policy should be clear and easy to understand, and employees should be thoroughly instructed in impermissible conduct and how to report it. Supervisors should be trained on a regular basis, and they should be required to report sexually harassing conduct or claims to HR as soon as they are aware of them to allow the investigation process to begin immediately.

Mistakes in Sexual Harassment Investigations

The first way in which employers fail in sexual harassment claims is to not take a claim seriously or investigate it thoroughly. Every single claim that comes to the attention of the employer should be treated with the gSexual Harassment In The Officeravity and attention of all other claims. The identity and character of the claimant and the accused are irrelevant; it does not matter if the accuser is known for making wild accusations about others or if the accused is known for being an upstanding, friendly person. Conduct an investigation in a good faith without any subjectivity. Not only should an ubiased investigation take place for every claim, but the investigation should begin immediately. The investigation should also be thorough, reviewing all records, evaluating all evidence and interviewing all witnesses with relevant information. All aspects of the investigation should also be kept confidential as well.

Employers also fail to take the time to make the accused aware that retaliation against an accuser is unacceptable in any way. Retaliation by an employer is a violation of every anti-discrimination law at the federal level, accounting for 42.8% of all EEOC charges in FY 2014.[1] Employers should also take the time to assure the accuser that the claim is taken seriously. The accuser and the accused should be promptly separated and remain so for at least the duration of the investigation (as long as the accuser is not given an effective demotion that might appear to be retaliatory).

Finally, the employer should follow up with the accuser, especially if the accused remains employed with the employer. The employer should monitor the relationship between accuser and accused closely, with assurances to the accuser that the conduct will not be permitted (especially if the investigation was ultimately inconclusive or resulted in only minor penalties for the accused).

Worried about sexual harassment in the workplace? The attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC can help review your sexual harassment policies and train your supervisors on best practices for both preventing and handling sexual harassment claims.

Cindy EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.


[1] Equal Employment Opportunity Commission, Charge Statistics FY 1997 through FY 2014 http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (Last accessed March 27, 2015)

Is it Time to Review Your Employee Handbooks?

On March 18th, National Labor Relations Board (“NLRB”) General Counsel Richard F. Griffin, Jr., issued a report[1] (“the Report”) concerning employer rules and employee handbooks in light of recent employer rule cases. Most of the violations found in these cases occurred under the first prong of the two-prong the test in Lutheran Heritage Village-Livonia,[2] which looks to whether an employer rule explicitly restricts protected activity under Section 7 of the National Labor Relations Act (“NLRA”). The Report used these cases as a guide to provide clear examples of both illegal rules and their legal counterparts, giving employers a valuable tool in evaluating employee handbooks and workplace rules.Employee Handbook Manual Rules Regulations Code of Worker Conduc

The Report singled out specific categories of impermissible employer rules: confidentiality rules; employee conduct rules (towards the company, towards other employees and towards customers); rules that govern employee interaction with third parties; restrictions on employee usage of logos and other intellectual property; rules restricting photography and recording; rules concerning leaving work; and conflict of interest rules. For instance, a rule banning discussion of customer or employee information outside of work or a ban on non-work discussion of confidential information that could affect the employer’s image, reputation or interests are both invalid, according to the NLRB. These rules are overbroad and conceivably have a chilling effect on protected employee communications. Lawful versions of these rules narrowly restrict unauthorized disclosure of business secrets.

The important difference between unlawful and lawful versions of employee handbook rules is that the lawful versions narrowly classify impermissible behavior in such a way as to exclude employee discussion of other employees or working conditions from the scope of the rules. Some of the differences between the two questions may seem inconsequential, but the primary focus of the analysis is how employees would view the rules as applied to their protected activities. For comparison, here are select illegal employee handbook rules and their lawful counterparts from the Report:

Category Unlawful Rule Lawful Counterpart
Confidentiality “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).” “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
Employee Conduct Towards Employer “[B]e respectful to the company, other employees, customers, partners, and competitors.” “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
Employee Conduct Towards Fellow Employees Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.” “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
Employee Interaction with Third Parties Employees are not “authorized to speak to any representatives of the print and/or electronic media about company matters” unless designated to do so by HR, and must refer all media inquiries to the company media hotline. “The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.”
Restrictions on Use of Company Logos, Copyrights and Trademarks Do “not use any Company logos, trademarks, graphics, or advertising materials” in social media. “Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”
Restrictions on Photography and Recording “No employee shall use any recording device including but not limited to, audio, video, or digital for the purpose of recording any [Employer] employee or [Employer] operation.. ..” Rules limited in scope for permissible purposes, such as to protect patient privacy or to protect a proprietary interest.
Rules Restricting Leaving Work “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited. “Entering or leaving Company property without permission may result in discharge.”
Conflict-of-Interest Rules Employees may not engage in “any action” that is “not in the best interest of [the Employer].” Do not “give, offer or promise, directly or indirectly, anything of value to any representative of an Outside Business,” where “Outside Business” is defined as “any person, firm, corporation, or government agency that sells or provides a service to, purchases from, or competes with [the Employer].” Examples of violations include “holding an ownership or financial interest in an Outside Business” and “accepting gifts, money, or services from an Outside Business.”

With these employee handbook provisions in mind, it is likely that many employee handbooks currently contain impermissible rules and restrictions. Employers should begin the process of reviewing employee handbooks using the NLRB General Counsel Report as a guide. If you need to review your employee handbook or workplace rules for compliance with NLRB guidelines, the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC can help keep you on the right side of the law.

Cindy EffingerCynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mmlk.com or (502) 327-5400.

[1] NLRB General Counsel Memorandum 15-04 (Mar. 18, 2015)

[2] Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)