The NLRB "quickie" or "ambush" election rule went into effect on April 14. Its effects are already being seen. The median time interval from the filing of an election petition to the holding of the election has been reduced to 23 days. Specifically, in the case of directed-election cases (as opposed to stipulated elections), the elections took place 23 days after the filing of the petition in two cases; 28 days in one case; and 30 days in one case, for a median interval of 26 days. In contrast, under the former election rules, the median time had generally been considered as approximately 38 days.

In essence, the effect of the new rules, at least for the first month, has been to reduce the time period from the filing of the petition to the election from a little over five weeks to a little over three weeks.

Statistics show that unions win a significantly higher percentage of union elections held quickly than those held in a longer period of time in which employees can evaluate the pros and cons of unionization. Unions are very familiar with the strategy, and one wonders whether the effects of the new quickie election rules will encourage more unions to engage in organizing campaigns and the filing of election petitions with the NLRB.

NLRB statistics indicate an increase in election petitions in the first month. In the first 30 days of the effective date of the new rules, the NLRB received 280 representation petitions, up 17% from the number filed during the same period a year ago.

Many employers may not realize that the Occupational Safety and Health Administration (OSHA) regulates in some ways the use of toilet facilities at work. There are at least three important issues, the number of toilets, access to toilets, and now, the even more controversial issue of transgender bathroom access.

There are OSHA general industry requirements for the provision of toilet facilities at 29 CFR 1910.141(c). These requirements state that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with Table J-1 [printed below] of this section. The number of facilities to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished."

Number of Employees Minimum Number of Water Closets

  • 1 to 15 1
  • 16 to 35 2
  • 36 to 55 3
  • 56 to 80 4
  • 81 to 110 5
  • 111 to 150 6
  • Over 150 Provide one additional toilet for each 40 employees

OSHA also weighs in on the controversial issue of access to the toilet facilities. In its most recent pronouncement on the subject, OSHA states that it ". . . has consistently interpreted this standard to require employers to allow employees prompt access to sanitary facilities. Further, employers may not impose unreasonable restrictions on employee use of toilet facilities." In the event employees are not provided reasonable access to the toilet facilities, OSHA can argue that those toilets have not been made "available" to employees, although OSHA cases challenging such denial of access are rare.

This newsletter has previously pointed out how the federal government is moving very rapidly on transgender issues [see February, 2015 newsletter]. The latest OSHA guidance on transgender employees and toilet access is entitled "Best Practices - A Guide to Restroom Access for Transgender Workers." It states that authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their "gender identity." "Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out. . . ." It goes on to state: "For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms."

The "best practices" advocated by OSHA also provide additional options, which employees may choose, but are not required, to use. These include:

  • Single-occupancy gender-neutral (unisex) facilities; and
  • Use of multi-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

OSHA also advises under the model practices that employers not require employees to provide any medical or legal documentation regarding their gender in order to access the restroom that corresponds to their gender identity.

While the OSHA requirements for the provision of toilet facilities have been in place for some time, and are enforceable, the new transgender "best practices" are of doubtful enforceability as far as OSHA is concerned. However, the EEOC has taken the position that denying a transgender employees access to a restroom consistent with their gender identity constitutes sex discrimination under Title VII.

In June, a reasonable accommodation issue arose in the religious context in EEOC v. Abercrombie & Fitch Stores, Inc., 2015 WL 2464053 (June 1, 2015). The Court addressed the interesting question whether the prohibition of refusing to hire an applicant in order to avoid accommodating a religious practice applies only where an applicant has informed the employer of his need for accommodation. In this case, the complainant, a practicing Muslim, wore a headscarf for a religious reason when she was interviewed for a job. She was rejected because her scarf violated the dress code for employees. The evidence suggests that the decision makers knew that complainant was a Muslim and she wore the headscarf for religious reason, but she was never asked why she wore the headscarf and she did not volunteer that information.

A lower court held that applicants or employees must initially inform the employer areas of religious practices that conflict with a work requirement and their need for a reasonable accommodation for them. The Supreme Court indicates that the complainant need not always inform the employer of a need for an accommodation, as long as the complainant can show that his need for an accommodation was a motivating factor in the employer's decision. Thus, according to the majority opinion, an employer who acts with a motive of avoiding accommodation may violate Title VII even if it has no more than an unsubstantiated suspicion that accommodation would be needed. The opinion leaves somewhat fuzzy the question of whether the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice. In the facts of the Abercrombie & Fitch case, however, the employer knew or at least suspected that the scarf was worn for religious reasons.

In another important point, the Court states that ". . . Title VII does not demand mere neutrality with regard to religious practices - that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge of any individual. . . because of such individual's' 'religious observance and practice'".

Editor’s Note: The Abercrombie & Fitch case is quite significant in that the general thinking about religious accommodation in the past was that an employee had to give notice to trigger an employer's obligation to address an accommodation. Here, the opinion suggests that if the employer suspects the employee needs an accommodation for religious reasons, the employer may need to follow up and ask questions about the potential need for an accommodation based on religious needs that is likely or may be needed. The rationale of the case may also have implications for disability issues under the ADA, where again normally the employee has to indicate that he or she has a disability that needs an accommodation. In the ADA situation, however, there are greater privacy interests associated with the employees' privacy as to their disabilities, and so it is not clear that the Abercrombie & Fitch rationale will apply to ADA cases. The rationale in the Abercrombie & Fitch case can also give more attention to issues involving dress codes, grooming policies, and other subjects such as work scheduling. Of course, the employer retains the right to deny an accommodation that would impose an "undue hardship" on the employer.

In a case in which Wimberly & Lawson filed an amicus brief on behalf of the National Chicken Council, the U.S. Supreme Court has granted certiorari and will rule on a case involving the propriety of broad class/collective actions in wage/hour cases where broad back pay remedies are sought. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146. On Monday, June 8, the U.S. Supreme Court agreed to take up Tyson Foods Inc.'s challenge to a judgment for almost $6 million in back pay allegedly due workers at an Iowa meat processing facility. The Court will likely address the propriety of the class or collective action method of proving such damages, at least where statistical techniques are used in the process.

Workers at the Tyson pork processing facility in Iowa filed suit in 2007, claiming they were entitled to overtime pay and damages because they were not compensated for time they spent donning and doffing protective equipment and walking to work stations. Tyson argued that it not only paid workers additional minutes that fairly compensated them for these activities, but also that the method the trial court approved improperly included workers who, according to their own lawyers' calculations, were not entitled to any back pay in the class that was awarded money damages. The National Chicken Counsel (NCC) through Wimberly & Lawson filed a brief in support of Tyson, arguing that resolving the issue of back pay for donning and doffing was of the utmost importance to the industry, where dozens of such claims have resulted in tens of millions of dollars of damages awards.

Wimberly & Lawson argues that using a few dozen dubious statistical samples to determine liability and back pay damages for a class of thousands of employees tramples individual class members’ rights, as well as the employer’s right to assert defenses that may vary as to the circumstances of individual employees. The brief contends that such methods violate due process, the wage/hour laws themselves, and the Rules Enabling Act, a federal law which states that procedural rules cannot be used to change substantive rights. Such erosion of defenses is of great concern as employers could be exposed to legalized extortion by the unprincipled assertion of class and collective claims, and asked the Court to determine whether class and collective actions are being misused to secure the award of damages to individuals who are entitled to no relief.

Wimberly, Lawson, Steckel, Schneider & Stine

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