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EMPLOYERS PROVIDING PARENTAL LEAVE MUST NOT DISCRIMINATE AGAINST FATHERS

More and more employers utilize some form of parental leave to allow bonding with a new child.  Some say the moves help in hiring and retention of top talent.  Regarding such leave, however, the purpose of the parental leave is for child bonding, and the discrimination laws require the same rights to be extended to fathers as are extended to mothers as a lawsuit against the cosmetics firm Estee Lauder recently revealed.  Estee Lauder paid a $1.1 million settlement in this lawsuit accusing it of providing new fathers with less paid time off for child bonding than it provided to new mothers doing the same jobs.  The company also denied new fathers the same return-to-work benefits it provided to new mothers to ease their transition, including modified work schedules.  As part of the settlement, the employer amended its paid parental leave policy so that all new parents will be able to take up to 20 weeks of paid leave to bond with a newborn and six weeks of flexible work arrangements after they return to work following the birth of a child.  The leave for child bonding is separate from any short-term disability leave that may be afforded to mothers only for pregnancy-related medical conditions, child birth, and child birth related medical conditions.

UNION OBSTACLES IN WITHDRAWING FROM DUES CHECK-OFF OBLIGATIONS

A recent NLRB ruling demonstrates how unions often place obstacles on the ability of employees to withdraw from their union dues check-off obligations.  Teamsters Local 385 (Walt Disney Parks), 366 NLRB No. 90 (6/20/18).  In this case, the Teamsters Local was found to have deliberately failed to respond to employees of Walt Disney and United Parcel Service who inquired about resigning from the union and canceling their payroll deductions of union dues.  While unions may require employees to put their resignation requests in writing, in this case an administrative law judge said the union had "made it virtually impossible" for employees to revoke their dues authorizations in a timely manner.  All requests to withdraw from the union or paying union dues had to be directed to a single officer of the union, and this union officer was usually away on travel from his office.  His practice was to not answer telephone or email requests to revoke dues authorizations because they were supposed to be in writing.  Further, the check-off authorization cards provided only a limited "escape" period to withdraw from the union which was determined from the date of the original authorization.  Employees who tried to determine when they could revoke their dues check-offs were often ignored by the union, causing them to miss their "window periods" to withdraw from paying union dues.  The NLRB found the union practices were illegal and ordered the union to advise employees that it will not fail to respond to such inquiries.

UNION GAINS SOUTHERN FOOTHOLD

When Boeing technicians voted 104-65 for representation by the machinist union in Charleston on May 31, 2018, it had some significance.  First, this was an unusual victory for unions in South Carolina.  Second, the victory directly raised the controversial issue of "micro-units" in union representation elections. 

Boeing has a major facility in Charleston, South Carolina, and just a year ago union representation was rejected by 74% of the workers in a union recognition election.  The machinist union continued organizing at the facility and was able to get the NLRB to conduct an election in a "micro-unit" of technicians, rather than the entire group of production workers at the facility.  Employers have long attempted to avoid allowing a union to "carve up" a facility into small voting units in which the unions can win an election, contending that votes should only be held in larger collective bargaining groups.  The NLRB ruled during the Obama-Era that such "micro-units" were generally allowed.  But in December 2017, a new NLRB majority overruled that doctrine and reverted to the traditional bargaining units of larger groups. 

Boeing has asked the NLRB to review the bargaining unit issue and contended that the group was "artificially gerrymandered" to gain support for union representation.  South Carolina has the national’s lowest private sector percentage of union members at 1.7%. 

OSHA TO REDUCE ELECTRONIC REPORTING REQUIREMENTS

OSHA issued a notice on July 28, 2018 that it is planning to withdraw the requirement that work sites with 250 or more employees submit certain types of injury and illness documents.  Under a rule issued during the Obama Administration, OSHA had planned to require the submission of Form 300, annual summary of every work-related injury or illness requiring more than first-aid treatment, and Form 301, the details of each case, to OSHA electronically.  OSHA planned to use this data to target inspections and to publicly "shame" high-hazard employers.  The third portion of the previous rule remains in effect, however, Form 300-A, listing the number of injuries and illnesses and calculation of the number of cases per every 100 full-time employees.  This latter form was supposed to be submitted for 2017 to OSHA by July 1 of this year.   Some business groups are complaining about the fact that a portion of the prior rule restricting drug testing and safety incentive programs was not also removed.  These provisions allow OSHA to cite employers alleged to have discouraged workers from reporting safety or health concerns to supervisors.

RECENT DEVELOPMENTS SHOW INCREASING SENSITIVITY OF HARASSMENT ISSUES

Recent news developments show the increasing sensitivity of harassment issues including inappropriate language.  During July, the founder and chairman of Papa John's was forced out over comments made during a May conference call in which he allegedly used the slur "n - - - - -," explaining that other chains used the word but his chain did not, referring to the use of rappers.  He immediately apologized and said he had not used the word as a epithet, but agreed to step down as chairman.  Company officials issued a statement condemning "insensitive language, no matter what the context."

In another development, a Native American attorney sued the Department of Energy because her colleagues talked about the Washington Redskins at work and displayed team paraphernalia.  In a July decision, a federal district court found the claimant was not subjected to illegal harassment suggesting that not all workplace behavior that some may find offensive is outlawed under current U.S. harassment laws.  The term was used not as a slur but in the support of the football team.  Tallbear v. Perry, No. 17-0025 (D.D.C. 7/24/18). 

While many employers are responding with tough "zero-tolerance" policies, the Equal Employment Opportunity Commission (EEOC) is now issuing warnings concerning the overbroad use of even that term.  The EEOC chairperson states that while it is nice to have a policy of zero-tolerance for any form of unwelcome behavior in the workforce, the zero-tolerance concept should not be used as a "one-size-fits-all" approach to the discipline or other remedial response to the harassment.  Zero-tolerance such as a termination in every case would possibly lead to under-reporting of harassment, since many workers reporting harassment want it stopped but do not want their co-worker to be fired. 

Even anti-bias training has become a very sensitive issue.  A recent public relations controversy at Starbucks has opened up a great deal of discussion on anti-bias training.  At Starbucks, a manager in Philadelphia apparently called the police when two African-American men refused to leave the coffee shop after they were denied use of the restroom because they didn’t purchase anything.  Video of the event went viral and Starbucks subsequently announced that it would shut down its more than 8,000 company-owned stores on May 29 to conduct anti-bias training.  Ironically, some African-American employees of Starbucks reported being uncomfortable during the training sessions.

Many other employers are considering sensitivity training and diversity initiatives for their employees.  An incident at American Airlines resulted in the NAACP issuing a travel advisory recommending African-Americans not use the airline, resulting in American Airlines emphasizing employee training including diversity analysis and anti-racism training.  Some of the training is designed to raise employees’ awareness of their views regarding race, gender and physical capability. 

Many experts suggest that becoming more aware of bias does not necessarily make persons less biased.  Further, many get very defensive if they consider the training as accusing them of bias.  Much of the bias may actually be unconscious bias.  Others suggest that while employees cannot see their own bias, they can see others being biased. 

The simple answer is to say that good diversity training may help, and poor diversity training will not help and could even hurt.  Some believe that good bias training focuses on respect for individuals, and the culture of individuals, rather than singling out groups that might be more prone to bias.  Some believe that such respect fosters better cooperation among employees and improves business as well.

In any event, just about everybody agrees that conducting a single training session does not solve the problem.  Training must not push awareness of bias to the point of neglecting the skills necessary to avoid its application.  Most believe that setting the example and developing a good company culture is crucial. 

ICE ENFORCEMENT ACTIVITY HAS DOUBLED AND MORE INCREASES PLANNED

During Fiscal Year 2018, which began last October 1, U.S. Immigration and Customs Enforcement (ICE) has doubled its enforcement activities.  It has opened some 3,510 workplace investigations, between October 1 and May 4, up from 1,716 during all of the previous fiscal year.  That number is expected to reach around 5,500 by the end of the current fiscal year, more than triple the previous year.  The most audits conducted during the Obama Administration in a single year was 3,127.  Further, ICE officials would like to open as many as 15,000 audits a year, depending on funding and other factors.  As part of the increased audits, the Agency will also focus on criminal cases against employers as well as arresting and deporting employees who are in the country illegally.

ICE audits generally begin with a Notice of Inspection subpoena which allows the company three days to turn over its I-9 forms, along with a list of other documents such as payroll information, tax statements and other corporate documents.  ICE reviews the I-9 forms and returns to the employer a "Notice of Suspect Documents" that list employees whose proof of work authorization is questionable.  In the past, ICE instructed employers to terminate those workers if they could not prove work authorization, but now there is an increased emphasis on also arresting illegal workers. 

ICE also has increased the fines that are assessed after January 27, 2017.  ICE calculates fines by dividing the number of violations by the total number of employees to reach a violation percentage.  The penalties range from $220.00 to $2,191.00 per violation, depending on whether it is a first, second or third offense.  An example of a company with 100 employees with 10 I-9 violations and 20 improper employment violations would have a 10% violation percentage for the I-9 violations and a 20% violation percentage for the hiring violations, which could result in a fine anywhere from something over $40,000.00 to over $50,000.00 for a first offense, depending on the calculation methodology.  Employers almost always end up paying something as a result of ICE audits and how ICE conducts the computation is very controversial, and will likely end up before the administrative hearing officers. 

Wise employers will conduct immigration compliance audits by an immigration compliance attorney and correct errors that can reduce the potential fines and keep employers out of serious legal difficulties.  The fact that all or almost all employees are U.S. citizens and/or the employer uses E-Verify does not solve the problem.  None of these things affect substantive or technical errors on the I-9 forms, nor does it protect identity fraud in terms of E-Verify.  Making sure the company HR personnel are familiar with the I-9 particulars is helpful, as is having an immigration compliance policy. 


Wimberly, Lawson, Steckel, Schneider & Stine

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