On March 18, 2015, the NLRB General Counsel (GC), Richard Griffin, issued a report attempting to reduce some of the mass confusion over the NLRB's policies concerning employer handbooks and other company policies. The GC acknowledges most employers do not draft their policies with the object of restricting conduct protected by the labor law, but states that the law does not allow even well-intentioned rules that would inhibit employees from engaging in protected activities. The main principle is that the maintenance of a work rule may violate the law if a rule has a chilling effect on employees' protected activity. The most obvious way a rule would violate the Act is by explicitly restricting protected concerted activity. However, even if a rule does not explicitly prohibit protected activities, it will still be found unlawful if: (1) employees would reasonably construe the rule's language to prohibit protected activity; (2) the rule was promulgated in response to union or other protected activities; or (3) the rule was actually applied to restrict the exercise of protected rights. The GC states the vast majority of violations are found under the first prong, and the NLRB has issued a number of decisions interpreting whether "employees would reasonably construe" employer rules to prohibit protected activity.

The GC report is divided into two parts. The report compares common employer rules the NLRB has found unlawful with rules it found lawful and explains the reasoning. It covers confidentiality rules, professionalism rules, anti-harassment rules, trademark rules, photography/recording rules, and media contact rules. The second part discusses handbook rules from a recently settled unfair labor practice charge against Wendy's. This part of the report sets forth Wendy's rules that the NLRB initially found unlawful with an explanation, along with Wendy's modified rules.

In discussing unlawful confidentiality rules, the GC memorandum finds a rule "prohibiting employees from disclosing details about the employer" to be unlawful, but a rule stating "no unauthorized disclosure of business secrets or other confidential information" will be lawful. Addressing rules regarding employee conduct with the company and supervisors, the GC memorandum finds a rule saying "be respectful of others and the company" to be unlawful, while a rule stating "each employee is expected to work in a cooperative manner with management/supervision, co-workers, customers and vendors" to be lawful. In discussing rules regarding conduct towards fellow employees, the GC finds a rule saying "do not send unwanted, offensive, or inappropriate emails" to be unlawful, but a rule prohibiting "threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors" to be lawful. Addressing rules regarding employee interaction with third parties, the GC finds a rule stating "employees are not authorized to speak to any representative of the media about company matters unless designated to do so by HR" to be unlawful, but goes on to give several examples of lawful rules regarding employee communications with the media. Addressing rules restricting use of company logos, copyrights and trademarks, the GC finds a rule providing "do not use any company logos, trademarks, graphics, or advertising materials in social media" to be unlawful, but again gives examples of lawful rules protecting employer logos, copyrights, and trademarks.

The GC then addresses rules restricting photography and recording devices. The GC states that a rule prohibiting "use or possession of personal electronic equipment on employer property" is unlawful, apparently because employees should have the right to use personal equipment to engage in a protected activity while on breaks or other non-work time. A single example is given of a lawful rule regulating pictures and recording equipment with the rationale that in context the employees would read the rule to ban news cameras, not their own cameras.

Regarding employer rules restricting employees from leaving work, the GC finds a rule "walking off the job is prohibited" to be unlawful, because it reasonably could be read to include protected strikes and walkouts. On the other hand, the GC finds a rule to be lawful "entering or leaving company property without permission may result in discharge." Regarding employer conflict of interest rules, the GC finds a rule that ”employees may not engage in any action that is not in the best interest of the employer" to be unlawful, but finds other stated rules to be lawful because they include context and examples that indicated that the rules were not meant to encompass protected concerted activity.

In the second part of the report, involving the Wendy's handbook, a number of common employer rules or policies are found to be unlawful. Extremely helpful, however, are a number of lawful handbook rules negotiated pursuant to the Wendy's settlement agreement, governing handbook disclosure, social media, conflict of interests, confidential information, employee conduct, no distribution/no solicitation, and telephone/cell phones/camera phones/recording devices.

Wimberly & Lawson Comments

The NLRB's position on employer handbooks and other personnel policies is very frustrating, and they are going to be very difficult for the average human resource executive, or even the average labor lawyer, to interpret and apply. Further, it is likely that a more employer-friendly NLRB in the future will rescind some of these technical and demanding NLRB case precedents. In the meantime, employers are left in a dilemma of whether to commit significant resources to try to bring their rules in compliance with the revolving NLRB doctrine, or whether to run some risks in this regard. Reasonable people can reach different conclusions as to the best strategy. However, should a union organizing campaign commence with a potential for an NLRB election, it is recommended that employers immediately seek competent labor law counsel to determine whether any of their policies are unlawful and objectionable, in order to minimize liability to the company resulting from illegal policies being in effect during the critical period before an NLRB election.

Employers may be required to provide light duty to pregnant workers because of the U.S. Supreme Court decision in Young v. United Parcel Service, Inc., No. 12-1226. In the course of her duties as a driver, the plaintiff regularly lifted and moved packages weighing over 20 pounds and up to 70 pounds. She became pregnant and her healthcare providers recommended that she should not lift more than 20 pounds. When she sought to return to work, the UPS occupational health manager explained how UPS's then-applicable policy did not allow her to provide plaintiff with a "light duty" assignment.

The collective bargaining agreement specifies that UPS may make alternative assignments available to four categories of workers. UPS provides temporary alternative work assignments, if available, to employees who are unable to perform their regular jobs because of injuries sustained on the job. UPS designs these "work hardening" assignments to help those injured on the job rebuild their muscles so that they will no longer have weight restrictions and therefore can resume their normal job responsibilities as soon as possible. Second, the Americans with Disabilities Act (ADA) requires UPS to provide reasonable accommodations for an employee who has a cognizable impairment. Third, UPS will provide an "inside" job to drivers who lose their Department of Transportation (DOT) certification because of a failed medical examination, revoked or suspended driver's license, or involvement in a motor vehicle accident. Fourth, a provision specifically deals with maternity issues where required by applicable law in light of legislation in some states requiring employers to provide light duty work to pregnant employees. Otherwise light duty work assignments were not available to any employees who are unable to perform their normal work assignment due to lifting restrictions or other physical conditions that did not fall within one of the four categories of accommodations.

The plaintiff filed an EEOC charge alleging that UPS's denial of the requested light duty work accommodation constituted sex discrimination. She later sued under Title VII, as amended by the Pregnancy Discrimination Act (PDA). The PDA contains an express provision defining sex discrimination to include discrimination "because of . . . pregnancy" and clarifies that "women affected by pregnancy . . . shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work."

The federal district court ruled in favor of UPS on the basis that the undisputed evidence revealed that plaintiff had not shown direct evidence of discrimination; failed to establish a prima facie case of disparate treatment because she could not identify a similarly situated comparator who received more favorable treatment; she could not show that UPS's non-discriminatory application of a neutral policy was a mere pretext for discrimination. The Fourth Circuit Board of Appeals unanimously agreed, explaining that each of the federal court circuits that have considered the issue had held that an employer does not violate the PDA by denying a pregnant employee an accommodation or benefit pursuant to a pregnancy-blind policy like UPS's.

When the case reached the U.S. Supreme Court, it took an interesting twist in that the Department of Justice filed an amicus brief on behalf of the plaintiff. The significance of this is that DOJ had recently successfully defended a virtually identical policy utilized by the U.S. Postal Service, calling the plaintiff's position in that case "frivolous." During the oral argument before the Supreme Court, the DOJ attorney was asked why it was attacking a policy it had defended in the U.S. Postal Service case, and which the U.S. Postal Service was still currently using. He based the DOJ's change in position on the EEOC guidance that was issued during 2014.

The Supreme Court issued its ruling on March 25, 2015, setting forth a new standard different from the positions taken by both the plaintiff and the defendant. The Court first rejects the plaintiff's approach that once the employer provides one or two workers with an accommodation for some type impairment, regardless of the justification, then it must provide similar accommodations to all pregnant workers, irrespective of the nature of their jobs, the employer's need to keep them working, their ages, or any other criteria. The Court calls this approach giving pregnant workers a "most-favored-nation" status, which the Court expressly rejects. It states that this was not what Congress intended, and that the law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementations sometimes harm those members, as long as the employer has legitimate, nondiscriminatory, nonpretextual reasons for doing so.

However, the Court goes on to reject the defendant's position that the pregnancy discrimination amendments were only intended to add pregnancy to the definition of sex discrimination prohibited by Title VII. The Court states that Congress intended to do more than that.

The Court adopts a standard instead that a plaintiff alleging that the denial of accommodation constitutes disparate treatment under the pregnancy law may make out a prima facie showing, as in the McDonnell Douglas precedent, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." The employer may then seek to justify its refusal to accommodate the plaintiff by relying on "legitimate, nondiscriminatory" reasons for denying her accommodation. If the employer offers an apparent legitimate, nondiscriminatory reason, the plaintiff may in turn show that the employer's proffered reasons are in fact pretextual. The Court believes that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer's policies imposes a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather – when considered along with the burden imposed – gives rise to an inference of intentional discrimination.

The Court elaborates by stating that the plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. The Court states that this approach, though limited to the Pregnancy Discrimination Act context, is consistent with its longstanding rule that a plaintiff can use circumstantial proof to rebut an employer's apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently from those outside the protected class.

Three Justices dissent, with Justice Scalia indicating that the Court is trying to craft a policy-driven compromise between the possible readings of the law, like a Congressional conference committee reconciling House and Senate versions of a bill. He argues that this is a topsy-turvy view of the world because a woman can establish disparate treatment by showing that the effects of her employer's policy fall more harshly on pregnant women than on others and are inadequately justified.

Wimberly & Lawson Comments

There are two critically important features of the majority ruling. The Court notes that statutory changes made after this case arose may limit the future significance of its interpretation, as in 2008 Congress expanded the definition of "disability" under the ADA to make clear that "physical or mental impairments that substantially limit" an individual's ability to lift, stand or bend are ADA-covered disabilities. As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job.

This point, together with the Supreme Court's liberal interpretation of when a "material issue of fact" (jury issue) is created in a pregnancy discrimination case, strongly suggests that most employers will want to adopt a pregnancy accommodation policy very similar if not identical to its disability accommodation policy. Otherwise, a plaintiff may argue that a single or small group of persons were accommodated in some manner, and that the employer discriminated by not making similar accommodations for a pregnant female.

Another interesting point from the majority ruling is its total rejection of the various positions set forth by the EEOC in its guidelines or interpretations. The EEOC current guidelines are so recent, and so inconsistent with its prior guidelines, without sufficient explanation, that the Supreme Court concludes it cannot rely significantly on the EEOC's determination.

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