A recent case illustrates important principles concerning whether an employer has equally applied its attendance policies, as well as its other work rules.  Watkins v. EFP, LLC, 125 FEP Cases 1756 (N.D. Ala. 2014).  The African-American plaintiff first contended that the employer treated him differently than a similarly-situated white employee when he was suspended for attendance.  The facts did reveal that the white employee had accumulated more points and he had not been suspended.  However, the court examined other facts which revealed that employees must be present at work to receive discipline.  That is, past practice indicated that employees must receive the next step of attendance discipline upon returning to work, even if having accrued sufficient points to receive a higher level of discipline.  For example, if an employee previously received a verbal warning, and then was absent for three days, upon his return to work he would receive a higher level of points, but would only receive a written warning, the next level of discipline, and not a suspension.  Thus, the court found that there was no evidence that the employer did not follow its attendance policy, progressive discipline, or established past practice when suspending the plaintiff after his third attendance occurrence.

The plaintiff next contended that his discharge was discriminatory when he was terminated for ignoring the rule pertaining to stacking bundles.  The plaintiff produced testimony from two other employees that saw two or three white employees violating the bundle-stacking rule who were not terminated or disciplined in any way for the violation.  Thus, he contended his termination was discriminatory.

The court discussed the general principle of what constitutes a valid prima facie case, that the discriminatorily discharged claimant must generally point to a similarly-situated non-minority comparator who received more favorable treatment.  This principle generally means that the compared employees must have been involved in or accused of the same or similar conduct, yet be disciplined in different ways.  While this concept states the general principle, the court noted that management or supervision must witness or be aware of other employees' violations of the same rule in order for discriminatory disparate treatment to have occurred.  Under the facts of the case, the court found that whether management saw the other employees violate the rule was a question of fact for the fact finder, not the court on a motion for summary judgment.

The court also noted that different decision makers may have administered discipline so that the different treatment is not dispositive of whether illegal employment discrimination has occurred.  That is, different managers could have different management styles that could possibly account for the disparate treatment.  Different managers may also consider different or other mitigating factors.  Again, such details may be more appropriate for a jury than for a judge in a summary judgment motion.

Editor's Note:  This case illustrates the myriad of facts and arguments that may be presented in a disparate treatment case seeking to prove that an employer has discriminated in the application of its employment policies.  The case is also interesting in describing the application of an employer's point system for attendance, under circumstances where the employer had to decide how to handle an employee who accrues additional attendance points before returning to work and can physically receive his disciplinary action.  In this case, the employer was fortunate that it was able to establish its consistent past practice in requiring employees to be present at work to receive discipline.  The situation might have been clearer had the employer written its approach into its attendance policies.

Jim Wimberly attended a presentation by the General Counsel of the National Labor Relations Board, Richard Griffin, in San Diego, California, on November 11, 2015.  Griffin presented up-to-date election statistics on petitions filed for elections with the NLRB for the first six months under the new quickie election rules, running from mid-April to mid-October.  These statistics indicate how effective the "quickie rules" are in reducing the amount of time management has to deal with a union petition prior to an election.  The stated those results will be as follows:

In our March newsletter, we discussed a provision in the U.S. Citizenship and Immigration Services Handbook for Employers, Guidance for Completing Form I-9, which deals with a situation where an employee informs the employer that his or her identity is different from that previously used to complete Form I-9.  The Guidance states that: "In that circumstance, you should complete a new Form I-9.  Write their original hire day in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation.  In cases where employee has worked for you using a false identity but is currently work-authorized, the I-9 rules do not require termination of employment. . . ."  This provision was cited in a technical assistance letter issued on January 8, 2015, by the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which explained an employer’s responsibilities in this situation.  It indicates that there is no violation when an employer consistently accepts documents that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were "not real."

While many employers have consistently terminated employees who falsify their names and/or Social Security numbers, on the basis that they have violated a company policy against falsification of information, the provisions cited above have caused some employers to pause.  Of concern is whether such an employer has consistently followed a policy of terminating all employees who are determined to have provided false information, particularly since it appears common for employees to present documents that are falsified in some manner.

A new case creates additional employer concerns when it terminates or refuses to hire an employee who has previously used a false name or Social Security Number, but now presents documents that reasonably appear to be genuine and relate to the individual.  Guerrero v. California Department of Corrections and Rehabilitation, 127 FEP Cases 1478 (N.D. Cal. September 28, 2015).  In this case, the employer disqualified job applicants who admitted to having used Social Security Numbers other than the one used on the application.  A federal judge in California found that disqualification for such reasons had a statistically significant disparate impact on Latinos, putting the burden of proof on the defendant employer to prove that its use of the question was a business necessity.  The court applied the new EEOC Enforcement Guidance on the Consideration of Arrests and Criminal Conviction Records, and applied the EEOC factors (recency, relevancy and severity) in determining that the employer violated Title VII by failing to apply such guidelines in the case of a previous falsified Social  Security number.

Editor’s Note: Thus, in light of the developments in the Technical Assistance Letter issued January 8, 2015 by the OSC, the recent Guerrero case, and the possibility that the employer could be accused of inconsistently applying its work rules prohibiting falsification of company records, many employers may choose to think twice before immediately terminating employees coming forward with new names or Social Security numbers.

A couple of recent cases from the National Labor Relations Board (NLRB) create additional issues for employers when unionized employees refuse to take drug tests, and/or demand some type of representation prior to taking such tests.  Some 40 years ago the U.S. Supreme Court ruled in a case involving a unionized employer that, when an employee is questioned by the employer during an investigatory interview about a matter the employee reasonably believes could lead to discipline, such employee has the right to request and be provided union representation during such interview.  NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).  The theory behind such a ruling was that a union employee has the right to the assistance of a union representative during such a disciplinary interview, and that such rights grow out of Section 7 of the National Labor Relations Act.  At one point, the NLRB even extended such rights to a non-union employee requesting assistance of a co-worker during such a disciplinary interview, but, at the moment, the most recent NLRB precedent indicates that Weingarten rights do not apply to the non-union setting.  IBM Corp., 341 NLRB 1288 (2004).

The right to representation during disciplinary interviews has been expanded to apply to drug testing.  In late 2014, the NLRB reaffirmed  that an employer violated the Labor Act by requiring an employee to submit to a drug and alcohol test, notwithstanding his request for representation, and by discharging him for his refusal to take the test without representation.  Ralphs Grocery Co., 361 NLRB No. 9 (2014).  The employer's argument was rejected that the refusal to take the test was grounds for discipline because it constituted both insubordination and an automatic positive test result.  Since the employee's refusal to submit to the test without the benefit of representation is an exercise of his Weingarten rights, his refusal could not lawfully be used against him.  The employer failed to prove that it would have disciplined the employee on the basis of his observed behavior for conduct before or during the meeting, as the employer relied solely on his refusal to submit to a test without the assistance of a representative.

A year later, the NLRB went a step further finding that Weingarten rights extend to allowing an employee to insist on having a union steward present during the drug or alcohol test itself.  Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (2015).  The concept is that such a union presence would assist the employee in making sure proper screening protocols are followed.  The case also discusses the principle that under some circumstances an employer must delay a test if necessary for a worker to obtain union representation.

In the future, employees in unionized facilities may have union representatives checking for whether appropriate drug testing procedures are followed, such as those promulgated by the United States Department of Transportation (DOT) in the transportation industry.  The DOT suggests that the following flaws can invalidate a urinalysis:  Specimen cups not pre-wrapped; specimen cups not unwrapped in worker's presence; worker not instructed to wash hands before urinating; specimen transferred from collection cup to retention cup out of worker's view; worker not asked to sign label on retention cup; specimen left unsecured; chain of custody (i.e., transmittal papers) not given to worker; and, independent medical review officer fails to call or meet with worker to go over test results.

A further concern is that Weingarten rights will be extended by the current NLRB to the non-union sector, so that even an employee at a non-union employer may request assistance of a co-worker during a disciplinary interview.  It is likely that the current NLRB is looking for an appropriate case to address this issue, as the Board has been increasingly protective of employee and union rights.  During the time period the Weingarten rights extended to the non-union sector, the cases only allowed representation by a co-worker, not by a non-employee, such as an attorney.

As to where union representation is required at a disciplinary interview because it is requested by the employee, the NLRB has held that even if a union representative is unavailable, the employer must give the employee time to obtain representation or, if it does not wish to give the employee this right, proceed on the basis of information it could obtain through other means.  Thus, if an employee requests union representation before participating in a disciplinary investigation, the employer has three options: (1) grant the employee’s request; (2) give the employee the option of proceeding without representation; or (3) discontinue the interview and make a disciplinary decision based on the information it already has available.

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