National Clothesline
National Clothesline
A few words about a few issues
This month’s article will be a hodgepodge of developments in labor, employment, and safety and health law.
None of the particular developments warrant an entire article, but you should know about them nonetheless.
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A federal appeals court has held that the National Labor Relations Board (NLRB) cannot require employers to post a notice advising employees of their right to unionize, among other things.
The NLRB had issued a rule requiring employers to do so, which would have included most drycleaners.
The court found that section 8(c) of the National Labor Relations Act, which guarantees employers the right to speak to their employees about unionization, was violated by the notice requirement.
The court also found that the NLRB, which now has recess appointees in large number, could not act until those members were confirmed by the Senate.
It is likely that the Supreme Court will weigh in on this part of the decision sometime next year.
OSHA’s priorities
The sequester of federal funds has affected the Occupational Safety and Health Administration.
OSHA, however, announced that it would transfer funds from an employer assistance program to its enforcement program.
In other words, it is more important for OSHA to issue citations than assist employers to create safer workplaces.
I have always contended that OSHA is more interested in compliance with its regulations than safety itself. This decision supports that contention.
There was an interesting Americans with Disabilities Act (ADA) decision by another federal appeals court. Under the ADA, unwarranted medical inquiries of employees are not permitted.
In a case involving Coca-Cola, the court found that a fitness for duty examination, recommended by an independent psychologist, was job-related and consistent with business necessity. Therefore, the employee could be compelled to submit to the examination.
Remember, the ADA covers psychiatric conditions, and many employers get in trouble by labeling employees as crazy, nuts, or mentally ill.
Costly comments
It is never a good idea to make statements in the workplace that perpetuate stereotypes. Even remarks made jokingly can get an employer into hot water.
In a recent case, an employee of African descent was able to avoid having his otherwise weak case of national origin discrimination dismissed by alleging that a manager had once said that “Africans are lazy.”
In another case, a college professor of Palestinian and Lebanese descent was fired for “joking” about a student’s religion, namely Judaism.
Some of the comments were not particularly bad, such as a reference to how good Jewish deli food was, but in the context of other comments, even the deli remark looked anti-Semitic.
The professor was fired, sued the college for discrimination, and lost because it was clear that her inappropriate comments, not her race or national origin, were the reason for her termination.
Another example of foot-in-mouth disease was illustrated last week by a federal trial court. One of the managers said that the company was seeking “young rising stars” to replace older workers.
That was enough to get past a motion for summary judgment and force the company to go to trial. The court said that the comment was strong circumstantial evidence.
Unfortunately, the cases I read each week are filled with anecdotes such as these. The Civil Rights Act has been around nearly 50 years, yet employers still do not get the message that stupidity, even when it is not tinged by racism, can create legal nightmares.
In closing, I believe that employers must do better in training supervisors. An untrained supervisor is like a natural gas leak waiting to cause an explosion.
Shame on you if a supervisor has not been told to avoid statements based on race, sex, ethnicity, and so forth.
I recommend that companies pay for a couple of attorney hours to train supervisors, then mimic the training session to train supervisors in the future themselves. Don’t let a stray word end up costing you hundreds of thousands of dollars, which in many cases can jeopardize your ability to stay in business.
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Frank Kollman is a partner in the law firm of Kollman & Saucier
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