Rate this article:
Average rating:
Total votes: 0
It's unlawful for a company to totally ban distribution of nonwork-related materials on company premises.
A federal court recently held that an insurance company violated federal labor law when it fired an employee who had distributed flyers to coworkers after work hours. A number of employees were upset at the way their employer had chosen some of their coworkers to be laid off. One night, the plaintiff was observed on a security camera entering the building with a large box; the next morning, more than 1,300 flyers criticizing the company were found on desks and bulletin boards. When questioned, the employee first stated she had been working on her files the night in question but later admitted to distributing the flyers. The company fired her for lying, and argued that it had a company-wide policy against distributing nonwork-related materials at any time.
The court first held that the company violated the law by questioning the employee about the flyers because, under the National Labor Relations Act, employees are "protected" when they make complaints about their wages, hours and working conditions, so long as their activities are "concerted" (engaged in by more than one employee). Next, the court found that the company's no-distribution policy was overbroad, because it prohibited distribution during all working hours, including employees' nonworking time, and because the company even intended to prohibit distribution in nonwork areas. While a company might have a legitimate reason for such a rule, here the company had no good reason for having a broad no-distribution policy.
This case shows that even employers who have no union employees are covered by the National Labor Relations Act. Companies should make sure they understand the law and the rights of their workers to engage in protected concerted activities.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, United Services Auto. Ass'n v. NLRB, 387 F.3d 908 (D.C. Cir., 2004)].
Firing an employee after her pregnancy announcement could indicate discrimination.
A receptionist who says she was fired after announcing she was pregnant can go forward with her lawsuit against her former company, the court recently ruled. After being hired, the plaintiff was on probation, which would expire after six months if her work was satisfactory. She was not eligible for health benefits until her probation ended. About a week before her probation was supposed to end, the plaintiff told her supervisors and coworkers she was pregnant. That same day, the supervisors told the plaintiff that her probation was being extended by two weeks because of customer complaints about her work. Ten days later, she was fired, supposedly due to a complaint by a customer on the previous Friday. When the plaintiff told her boss she had been absent on that day, he told her the complaint was from Thursday.
The plaintiff sued for pregnancy discrimination, and the court allowed her case to proceed. It found that the timing between the plaintiff's pregnancy announcement and the extension of her probation was suspicious, and that there was a chance the company was lying or exaggerating about customer complaints to avoid paying health insurance for the pregnant worker. Therefore, the plaintiff can let a jury decide if she was really fired because of problems with her work or instead was fired because she was pregnant.
Although companies do not need to keep problem employees just because they become pregnant, it is illegal to take the pregnancy into account when deciding to fire someone.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, Hill v. Dale Electronics Corp., 2004 WL 2937832 (S.D.N.Y. Dec. 19, 2004)].
Health and safety violations cost employers millions of dollars in fines.
The Occupational Safety and Health Administration (OSHA) oversees the health and safety of all workers by creating and enforcing rules and regulations for all businesses to follow. OSHA inspects companies for compliance with the law for many reasons: after a worker is hurt on the job, after complaints about unsafe conditions, or sometimes at random. Therefore, every employer needs to be aware of what safety rules and regulations apply to the workplace and ensure they are followed.
The penalty for violating an OSHA standard can be very significant. Overall, OSHA issued more than 100,000 citations for violations and fined companies more than $120 million in 2004. In December 2004, OSHA issued a list of the most-often-violated health and safety rules for both general industry and construction. The number-one violation was the failure to have a written hazard communication program in place to inform workers about the dangers of chemicals they work with. Companies also failed to have proper guards on machines to protect workers from injury (ranks two and four in the OSHA list), and failed to provide adequate training on new chemical hazards (ranks three). The fifth most common violation was the failure to have a program to ensure that machinery being serviced is properly turned off, disconnected from its power source, and marked so that it cannot accidentally be turned on while a worker is fixing or maintaining it (known as lockout/tagout).
Companies that use machinery, chemicals or other dangerous equipment should have a safety manager make sure all regulations are being followed. If your company is too small or does not engage in many dangerous activities, an experienced attorney can help make sure that your business complies with the law.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
Ordering removal of facial piercings at work does not constitute religious discrimination.
A Costco employee could be ordered to remove her facial piercings at work without violating her professed religion, a federal court recently ruled. The company had a dress code that prohibited facial piercings or jewelry other than earrings. The employee contended that as a member of the Church of Body Modification, she was required to display her eyebrow piercings at all times. Costco offered to let her cover the piercings with a bandage while at work, but she refused, stating that the only accommodation that would work would be an easing of the policy as applied to her.
The court explained that companies had the right to control the way employees dressed through a reasonable dress code in order to promote a professional company image. In this case, it would have been an undue hardship to force Costco to accommodate the employee by allowing her to wear her eyebrow ring, because doing so would damage the company's ability to promote a certain public image. Therefore, it was OK for the company to fire the employee when she skipped work instead of taking out her piercings.
This case demonstrates that a carefully crafted dress code can limit the way employees dress, wear their hair or wear jewelry in order to help the employer promote a professional workforce to the public.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see, Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004)].
It's correct to count all county employees in a building for FMLA eligibility purposes.
A county employee who worked in the auditor's office took Family and Medical Leave Act (FMLA) leave because of depression. At the end of her leave, she was unable to return to work full-time and requested a part-time schedule. Her employer could not give her a part-time schedule and fired her instead. A lower court dismissed her claim, because the auditor's office where she worked only had 12 employees, and the FMLA only applies when there are at least 50 employees at a work site.
An appeals court reversed the case and allowed the worker to go forward with her FMLA claim. Since the auditor's office was located in a county administration building, the court found that it was appropriate to count all the county employees who worked there toward the 50-person limit, not only the ones who worked in the auditor's office. There was no state law saying the auditor's office was independent from the rest of the county government, and thus it was OK to include all of the other government workers when counting how many worked with the plaintiff.
This case explains one of the most basic requirements of the FMLA –- that there be at least 50 employees in a 75-mile radius for the law to apply.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Fain v. Wayne County Auditor's Office, 388 F.3d 257 (7th Cir. 2004).
