Co-Editors, Scott A. Witty, firstname.lastname@example.org and Richard R. Burns, email@example.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:
- COMMUNICATING WITH EMPLOYEES REGARDING COVID-19 ISSUES
- Recent National Labor Relations Board Counsel Opinion inconsistent with prior advice memorandum
- “SEVERE AND PERVASIVE” STANDARD REMAINS IN 8TH CIRCUIT
- EMPLOYEE GRIEVANCES MAY NOT MEED ADVERSE ACTION STANDARD UNDER TITLE VII
- Tip Of The Month
COMMUNICATING WITH EMPLOYEES REGARDING COVID-19 ISSUES
All employees are currently navigating the unprecedented challenges associated with the COVID‑19 pandemic. Getting and communicating accurate and current information is one of the chief challenges that employers face. As all employers are undoubtably aware, the health and safety guidance is rapidly changing. It is therefore necessary for employers to closely monitor all federal and state guidance to ensure that management is making decisions using the most current information. At the same time, employers should make a concerted effort to relay information to employees who are themselves worried about the rapidly evolving situation. Providing employees with updates about how management is addressing COVID‑19 related concerns will go a long way towards alleviating employee concerns. While it is important to communicate with employees about the specific measures that are being implemented, employers need to still be cognizant that certain information should only be shared on a need to know basis. For example, if an employer becomes aware of an employee who has tested positive for COVID-19, the employer should not disclose his/her identity because it unnecessarily exposes the infected employee’s personal health information. Instead, the employer should generalize the notice to employees so that the specific employee’s name or other identifying information is protected as much as possible. Doing so allows the employer to both provide employees with needed information while still addressing privacy concerns. Essentially, employers need to carefully assess what and how information is provided to employees.
Temporary business closure and government-mandated paid leave are now becoming a reality or potential reality for most, if not all, private employers. Companies are advised to carefully monitor developments as they continue to change daily, and sometimes hourly.
Recent National Labor Relations Board Counsel Opinion inconsistent with prior advice memorandum
A recently released July 2018 Advice Memorandum of the Office of General Counsel, National Labor Relations Board (NLRB) is confusing when compared with a 2012 Memorandum relating to the Wal‑Mart Social Media Policy. The prior Memorandum found permissible two statements that the new General Counsel Memorandum now finds in violation of the National Labor Relations Act.
In the recent Advice Memorandum entitled Comprehensive Health Care and Management Service, LLC, the General Counsel correctly stated that we basically have three categories of workplace rules to be reviewed: (1) rules considered lawful without further scrutiny because they do not interfere with workers’ rights or are justified by a strong enough business reason to outweigh any tendency to interfere with such rights; (2) rules that require individualized scrutiny to determine the extent of potential interference with protected rights; and (3) rules that the Board always considered unlawful because they prohibit or interfere with workers’ rights and have no overriding business justification. The General Counsel then determined that two policies fell within the second category and under further review were unlawful as affecting discussions involving the terms and conditions of employment. The first rule started out with a statement about being “honest and accurate” when posting information or news, and if you make a mistake “correct it quickly.” Requiring complete accuracy is a burden that could keep employees from speaking up in the first place about terms and conditions of employment. The second rule included the statement, “Do not post internal reports, policies, procedures or other internal business-related confidential communications.” Here, the General Counsel determined that an employer needs to keep certain information confidential, but this language was overbroad. In isolation, this is not Earth-shattering news, but the alarming aspect is that prior General Counsel had explicitly approved these very provisions in a 2012 Advice Memorandum so the language was widely adopted by employers at the time.
It appears clear that when analyzing social media policy rules that involve some arguable interference with employee’s rights to discuss terms and conditions of employment, employers are wise to seek the advice of counsel. As shown by this Memorandum, the social media rules are always going to be subject to change, particularly with a change in administration.
“SEVERE AND PERVASIVE” STANDARD REMAINS IN 8TH CIRCUIT
Jennifer Paskert, a former employee at Auto Smart used-car dealership, alleged the management at Auto Smart created and maintained a hostile work environment. Paskert was hired as a sales associate at Auto Smart but alleged she was prevented from completing her training. She asserted that she would be sent back inside to answer telephones whenever she would be shadowing her manager, Brent Burns, or the male sales associate. The court found that Burns’s treatment of women was “demeaning, sexually suggestive, and improper.” It was alleged that Burns stated he “never should have hired a woman,” wondered if he could make Paskert cry, bragged about his purported sexual conquests, and stated that he “could have” Paskert. In addition, Burns attempted to rub Paskert’s shoulders and give her a hug. After four months, Auto Smart’s owner wanted to discharge Paskert because she had not sold any cars. Burns suggested that she be retained, but with a different job and less pay. Three days after accepting the new pay scale and job title, Burns terminated Paskert for insubordination and for “refus[ing] to discuss what was bothering her” on a certain day. In addition, Burns criticized Paskert’s sales record and use of profanity at work. Several months after her discharge, Paskert filed a complaint with the Iowa Civil Rights Commission (“ICRC”) alleging a hostile work environment. In November 2016, the ICRC issued a right-to-sue letter and Paskert filed suit before the federal district court, which granted defendants’ motion for summary judgment. The U.S. Court of Appeals for the Eighth Circuit affirmed, concluding that Burns’ alleged behavior was not so severe or pervasive to alter the terms and conditions of Paskert’s employment. The Court stated that “Paskert only allege[d] one instance of unwelcome physical contact, one or two statements where Burns stated he could ‘have Paskert,’ and several statements about how he never should have hired a female and wanted to make Paskert cry.” While regarding this behavior as demeaning and improper, the Court maintained that Burns’ behavior did not meet the severe or pervasive requirement as applied by the 8th Circuit. Accordingly, the standard applicable to hostile work environment cases continues to be employer friendly, though employers should strive to avoid and discourage inappropriate behaviors in the workplace. Paskert v. Kemna-Asa Auto Plaza, Inc., No. 18-3623, 2020 WL 727740 (8th Cir. Feb. 13, 2020).
EMPLOYEE GRIEVANCES MAY NOT MEET ADVERSE ACTION STANDARD UNDER TITLE VII
The U.S. District Court for Minnesota recently dismissed a claim brought by an employee claiming discrimination under Title VII and the Minnesota Human Rights Act. The employee asserted various race and national origin grievances against her employer, including: 1) she was placed on a performance plan and some feedback she received was embarrassing; 2) she was required to attend numerous meetings with the HR Department; 3) she received a written warning related to her use of sick time; and 4) she was suspended with pay regarding alleged misuse of sick time. The Court reviewed the grievances and determined the employee had not experienced an adverse employment action. The employee remained employed, had received yearly raises, her job title had not changed, and her work schedule had not changed. As such, there was no adverse action and the claim of discrimination was dismissed. Truong v. UTC Aerospace, No. 18-CV-00941 (D. Minn. 2020).
TIP OF THE MONTH:
Employers should remember that all state and federal nondiscrimination laws apply to the COVID-19 pandemic and it is therefore essential that employers follow their existing policies and procedures when it comes to gathering and seeking health and disability information from existing or prospective employees. Further, if there are reductions in force resulting from the COVID-19 pandemic, employers must avoid adverse employment action that disproportionately affects employees in protected classes.
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.