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CHANGES IN WORK-AT-HOME EMPLOYER POLICIES

There has been a business trend for a number of years for employers to increasingly allow employees to work at home.  Indeed, cases have even been brought by plaintiffs contending that home work must be allowed as a reasonable accommodation for an employee with a disability.  Now, for the first time, this trend has reversed with fewer employers adding home worker policies and more returning such home workers to a place of business. 

Some of the national companies that have discontinued their home worker policies including IBM, Aetna, Bank of America and Best Buy, among others.  According to the Society for Human Resource Management, a majority of U.S. employers still let employees telecommute sometimes.  But the portion of U.S. workers who performed all or some of their work at home fell to 22% last year, from 24% in 2015, reversing the trend that has continued for many years. 

Surprisingly, the reason for the decline in home work is not primarily based on productivity.  While there is some disagreement, many studies show that home workers are as or more productive than those at the place of business.  The decline in home work seems to be based more on the fact that managers want their employees present and the advantages that face-to-face work conversations might have.  Some managers feel that conference calls do not yield the benefits of face-to-face meetings. 

One discovered negative of such change in policies is that former home workers seem to be having a difficult time readjusting to physical presence at the work site.  Returning workers must get used to the lack of privacy and long commutes, and have a tendency upon their immediate return to have more difficulties in managing their time.

The transition itself may create some issues.  IBM, one of the long-standing promoters of homework, offered thousands of such home workers a choice to follow their jobs back to an office or apply for a new role.

NLRB TO REVIEW QUICKIE ELECTION RULES

On December 12, 2017, the NLRB stated that it is publishing a Request for Information in the Federal Register, asking for public input regarding the Board’s 2014 Election Rule (the quickie or ambush election rule).  The Board will seek information from interested parties regarding three questions:

1.   Should the 2014 Election Rule be retained without change:

2.   Should the 2014 Election Rule be retained with modifications?  If so, what should be modified?

3.   Should the 2014 Election Rule be rescinded?  If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations?  If the Board should make changes to the prior Representation Election Regulations, what should be changed?

Public responses to these questions are solicited from December 13, 2017 to February 12, 2018, for a period of sixty (60) days.  The NLRB is really moving rapidly on Obama-era rules and regulations.  Speculation is that the NLRB with the Republican majority will try to revise administratively the 2014 Election Rule even absent a change in the rule itself.  The quickie election rules reduced the amount of time from union petition to the date of election from approximately thirty-eight (38) days to approximately twenty-three (23) days, and changed many election and voting procedures.  Quicker elections are generally considered to give the union a better chance of winning.

NEW NLRB GENERAL COUNSEL MAKES IMMEDIATE CHANGES IN POLICY

The most important person in many federal agencies is not the head of the agency, but the agency’s General Counsel.  For example, it is the General Counsel of the NLRB and the EEOC that decide what cases to prosecute, and what theories to use.  Admittedly, agency tribunals themselves determine the outcome of cases, but the cases never get to the agency for determination without a prior decision made by the General Counsel. 

No further proof of this is necessary other than to witness the confirmation on November 8, 2017 of Peter Robb as General Counsel of the NLRB.  Robb is a former management-side labor attorney from Vermont.  After being appointed, on December 1, 2017 he issued a "Mandatory Submissions to Advice Memorandum" (18-02), requiring certain issues to be submitted to Washington for review involving "significant legal issues."  These include cases decided over the last eight years that overruled precedent and involved one or more dissents, cases involving issues that the Board has not decided, and any other cases that the Region believes will be of importance to the General Counsel.  The list of examples in the Memo include issues such as concerted activity for mutual aid and protection (only one employee, obscene or vulgar language, etc.); common employer handbook rules found unlawful ("disrespectful conduct," employer trademarks and logo, no camera/recording rules, confidentiality rules, broad rules allegedly "chilling" union or concerted activities); Purple Communications (right to use employer's email system); Quietflex (finding work stoppages protected in controversial circumstances); off-duty employee access to property; conflicts with other statutory requirements (racist comments by picketers, finding social media postings protected even though they could violate EEO principles); Weingarten (expanding range of permissible conduct by union representatives in the workplace, particularly in the drug-testing context); disparate treatment of represented employees during contract negotiations (requiring raises to be instituted during initial contract bargaining); joint employer (indirect or potential control over another's employees); successorship; unilateral changes consistent with past practice (whether the employer has to bargain over such changes after contract expiration); Total Security (bargaining over imposing discretionary discipline during negotiations for initial CBA); duty to provide witness statements to union; dues check-off (whether it survives expiration of the CBA); and remedies for violations.

In addition, newly appointment General Counsel Robb has rescinded seven earlier General Counsel reports and memoranda (including those concerning employers' rules and their chilling effect on union and other concerted activities).  Several initiatives set out in prior Memoranda are no longer in effect, including arguing that the employer's misclassification of employees as independent contractors, in and of itself, violates the Act.   An NLRB administrative law judge has issued a ruling supporting the former General Counsel’s theory that misclassification of employees alone violates the NLRA.  This case involved drivers who move shipping containers between port facilities and transportation hubs around Los Angeles.  Intermodal Bridge Transp., 21- CA-157647 (11/28/17).

As this newsletter was going to press, the three-member temporary Republican majority (Chairman Miscimarra’s term expires on December 15, 2017) was issuing several extremely important decisions overruling certain Obama-era precedents that themselves overturned established NLRB precedents, including the joint-employer rules, the "micro-unit" issues, certain handbook policy issues, and others. 

NEW APPROACHES NECESSARY IN AVOIDING HARASSMENT CLAIMS

There is an epidemic of harassment and harassment claims across the country.  The standard fare for dealing with such claims in the past has been to: (1) have a good policy statement that is well publicized; (2) provide training; and (3) investigate and take appropriate remedial action when complaints arise.  While these are still the basics of dealing with harassment cases, most recognize that today they are not enough.

Workforce statistics indicate that about half of all females are victims of some type of harassment in their work.  Less than 10% actually report the harassment.  However, with the issue being in the newspapers and on the radio so much now, undoubtedly women and other protected groups will feel increasingly emboldened to come out and report their harassment and demand action. 

Congress itself is quickly passing laws to require its members and staff to undergo sexual harassment training.  At least three states have already taken that approach, including California, Connecticut and Maine.  These states require information to be posted in the workplace that details the complaint process and requires annual sexual harassment training.  However, the states have not seen any decline in sexual harassment as a result of the new laws.  California officials report that their training, which has been mandated since 2005, is not working. 

A term keeps coming up in analyzing what can be done to improve the situation, and it is the term "corporate culture."  In considering this issue, this writer is reminded of the ethics policies most companies implemented years ago, with the intent to implement a culture of ethics compliance.  Perhaps some of the same principles can be applied to harassment.  As a starter, the top management must not only buy-in, but also set the example.  Everyone needs to know that harassment prevention is a company priority.  This also means that employers must be more serious about their remedial actions where there is harassment, so that workers have a reason to fear consequences of engaging in harassment.  Further, during investigations, employers should focus more on whether the "harassment" tends to make employees uncomfortable, regardless of whether or not it meets the definition of illegality under the law. 

Improvements can also be made in options for reporting harassment.  It should definitely not be required to report harassment to their immediate supervisor, who may a harasser or friendly with the harasser.  An increasingly used device includes having an outside entity provide a hotline that can pass on the incidents to be investigated.

This writer is not yet willing to support abandoning the importance of training.  He remembers his own training a number of years ago conducted by the American Management Association, when he was told "never touch" a student.  That simple rule is a good one to apply today, particularly where some believe so much in the concept of "hugging," which many like, but some don’t like.  There are also much greater reasons today to conduct harassment training for regular rank-and-file employees, and not confine such training to management and supervision.  After all, a majority of the harassment liability comes from co-workers, and not necessarily management.  Further, training of the workers themselves may cause potentially offending supervisors to avoid harassing conduct, knowing the importance and sensitivity of the issue. 

On the other hand, in conducting training, employers must be careful in not equating harassment with physical touch.  Inappropriate jokes, statements or even comments on appearance may also constitute sexually harassing conduct.  Therefore, training must focus on lesser forms of harassment as well as the most serious.  It is not that important that the persons trained understand the legal definition of harassment, as a little uncertainty may make them more cautious in what they do.  Further, supervisors and even rank-and-file employees need to know what to say if they witness inappropriate statements in a group.  It may be enough to say that such comments are inappropriate and cannot be allowed and make it clear to the offending employee that they will talk about it privately later.  Training as to what bystanders should say when they witness inappropriate statements or conduct is a new part of training being emphasized today.  Some training goes beyond the simple "no's" and emphasizes what good conduct should include.  It is further important that training be frequent, and that the workforce and/or management should be reminded about the issues during meetings for other purposes.  Companies can no longer talk about harassment during orientation training and think they have accomplished their purposes.

An issue that seems to be forgotten today is proportional remedial action.  Zero tolerance does not mean that every harasser should be fired.  The action should be proportional to the offense.  Some studies indicate that victims do not usually want to see the harasser fired, only the misconduct to cease.  Many believe that if every harasser gets fired, many victims will not come forward because they really do not want to have the harasser fired.


Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

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