Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others. If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.
This Month’s Topics:
- Employers Must Always Conduct Fair Investigations When Addressing #MeToo Claims
- NLRB Again Allows Employers to Cut Off Dues when CBAs End
- Department of Labor finalizes Overtime Calculation Rule
- Employment Agencies Recognize Arbitration of Employment Disputes
- Tip of The Month
Employers Must Always Conduct Fair Investigations When Addressing #MeToo Claims
The rise of the #MeToo movement over the last two years has led to radical changes to how society and employers handle claims of sexual harassment and assault in the workplace. At the same time, employers need to be aware that #MeToo has triggered some backlash from men who claim they have been falsely targeted and ignored during their employer’s investigation. Much of the criticism and suits have stemmed from allegations that employers are categorically refusing to investigate or find credible exculpatory evidence which tends to refute a woman’s claim of sexual harassment or assault. For example, a recent complaint against Hofstra University brought by its former tennis coach, who was fired because of a student-athlete sexual harassment complaint, was allowed to proceed to trial because Hofstra failed to follow its own investigative procedures. See Menaker v. Hofstra University, Civ. No. 18-3089 (2nd Cir. 2019). Specifically, Hofstra failed to interview any of the students that the tennis coach contended would confirm that the sexual harassment complaint was lodged by the student-athlete because she was frustrated that he would not upgrade her athletic scholarship. Had Hofstra conducted a more thorough investigation, consistent with its harassment policy, it is likely that the tennis coach’s suit would have been dismissed on dispositive motion. This case and other similar cases highlight an important take-away: employers need to always conduct fair and unprejudiced sexual assault and harassment investigations, which focus on the facts and not preconceived notions concerning the gender of the victim and the accused.
NLRB Again Allows Employers to Cut Off Dues when CBAs End
In 1962, the National Labor Relations Board (“NLRB”) held that a dues checkoff provision, requiring employers to deduct union dues from employee paychecks and submit those funds to the union, did not need to be maintained as part of the “status quo” after a collective bargaining agreement expired. Bethlehem Steel, 136 NLRB No. 1500 (1962). This decision provided employers with significant leverage during contract negotiations, as employers were able to eliminate a union revenue stream by exercising its right to cease deducting and giving dues to the union. Over 50 years later, in 2015, the NLRB’s decision in Lincoln Lutheran of Racine overruled Bethlehem Steel, thus eliminating an employer’s associated leverage. The NLRB determined that the dues checkoff provision in a collective bargaining agreement was part of the “status quo,” and must be maintained after the contract expired. Lincoln Lutheran of Racine, 362 NLRB 1655 (2015). On December 16, 2019, the current NLRB overruled Lincoln Lutheran of Racine. It held that the dues checkoff provision does not survive the expiration of the collective bargaining agreement, and the employer may cease deducting dues from employee paychecks once the contract expires. Accordingly, the employer is again free upon contract expiration to use dues checkoff termination as an “economic weapon” in bargaining without interference from the NLRB. Valley Hospital Medical Center, 368 NLRB No. 139 (Dec. 16, 2019).
department of labor finalizes oVERTIME calculation RULE
On December 16, 2019, the Department of Labor published a new rule regarding what forms of payment employers are required to include in the “time and one-half” wage calculation required by the Fair Labor Standards Act. The purpose of the rule is to provide certainty and clarity to employers as to what is and is not to be included in the overtime wage calculation. Some employees have argued that their overtime compensation should be increased because certain employer‑offered bonuses or perks should be included as part of the compensation calculation. The rule states that items including but not limited to the cost of parking, wellness programs, fitness classes, employee discounts on retail goods and services, payments for unused paid leave, cost of office coffee and snacks, and discretionary bonuses should not be included in calculating overtime wages. The Department stated that its goal in implementing the rule was to enable employers to provide additional benefits to their employees without unknown overtime consequences and the risk of litigation. The effective date of the rule was January 15, 2020. The rule is codified in 29 CFR 548 and 29 CFR 778.
Employment Agencies Recognize Arbitration of Employment Disputes
From July 1997 to December 2019, the EEOC treated employer-required clauses in employment contracts that mandated arbitration for discrimination claims as unenforceable and illegal. The “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment” stated that such clauses, when existing as a condition of employment, infringed on the individual civil rights of employees and the public interest in eliminating workplace discrimination. Last month, the EEOC retracted that policy, noting that since it was issued the United States Supreme Court has ruled that arbitration agreements such as those described in the policy are enforceable under the Federal Arbitration Act for employment disputes, including protected status discrimination. Shortly after the EEOC took this action, the NLRB reversed a 2014 Board decision on enforcement of arbitration decisions. In 2014, the NLRB abandoned decades-old precedent, referred to as the “Spielberg/Olin” standard, which provided for deference to arbitrator rulings so long as the proceedings were fair, the parties had agreed to be bound by the outcome, the arbitrator considered the unfair labor practice and the decision was not clearly inconsistent with the NLRA. The Obama-era Board had implemented a standard making it easier to overturn an arbitrator’s decision, but this short-lived standard has now been dropped in favor of the Spielberg/Olin standard. The NLRB’s United Parcel Service, Inc. ruling and the EEOC’s recent policy change signal broader acceptance of employer-required arbitration of workplace disputes, including discrimination claims and ULPs, as long as proceedings are fair and consistent with the applicable statutes. 369 NLRB 1 (2019).
TIP OF THE MONTH:
“OK, Boomer” Not Ok
Comments from co-workers and managers are often the source of age-discrimination claims against employers. One recent example of the importance to train and remind employees to avoid contemptuous comments about other employees is the viral meme-phrase “OK, Boomer,” which younger employees have taken to for the purpose of criticizing or ridiculing older workers from the Baby Boomer generation. Comments like these could lead to an age discrimination or hostile work environment claim, so employers are encouraged to prohibit such comments between co-workers and ensure supervisors are not making such comments toward workers they oversee.
SAVE THE DATE!
26th ANNUAL EMPLOYMENT AND LABOR LAW SEMINAR
WEDNESDAY, MARCH 4, 2020
GREAT LAKES BALLROOM, HOLIDAY INN DOWNTOWN, DULUTH
We are planning another interesting and informative day for seminar attendees in March. Contact Jean Welle at jaw@hanftlaw.com or 218.722.4766 with questions.
Schedule and registration materials will be mailed in February.
Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota. Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty. Richard Burns is now of Counsel.
The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.
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Copyright 2020 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218.722.4766; Fax 218.529.2401.