Employee Bad Attitudes Protected By NLRB

The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision (Staffing Network Holdings, LLC vs. National Labor Relations Board, 15-1354 & 15-1582, 7th Circuit, March 2016) holding an Employer, Staffing Network Holdings, in violation of the National Labor Relations Act by twice threatening Non-Union Employees with discharge for engaging in alleged protected and concerted activity and for actually discharging Employee Griselda Barrera for protected and concerted activity.

In this Case, a Supervisor by the name of Andy Vega told two (2) of the Employees who were working on the Production Line that they had to work faster. One (1) of the Employees (Juan Gutierrez) advised Vega that he would not work faster for his hourly pay of $8.25 an hour and was then told by Vega to go home if he was unable to keep up with the work and because of his attitude. When Gutierrez was sent home by Vega, the other Employees on the line briefly stopped working to confront Vega about his decision. Vega, obviously put in a difficult situation, advised the Employees that they should return to work immediately or he would also send them home. Griselda Barrera refused and asked if she was being threatened and said she could send a letter to the Department of Human Rights about her mistreatment. Vega told another Supervisor to send Barrera home and she refused, insisting that she had done nothing wrong and continued to attempt to get the other Employees worked up because of the injustice. Barrera later left and when she (Barrera) inquired as to her returning the next day, was told she had to talk with Vega about what happened and that she should not return to work.

Barrera filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that she had been unlawfully discharged for exercising her “Section 7 Rights”. Staffing Network, through Vega, argued that Barrera was not sent home because she was complaining about the alleged injustice, but because she had become abusive and insubordinate and had caused him embarrassment in front of the other Employees. These arguments were rejected by both the Administrative Law Judge and the NLRB and were supported by the Seventh Circuit Court of Appeals, which stated as follows:

It is well settled that a brief on-the-job-work-stoppage is a form of economic pressure entitled to protection under the National Labor Relations Act (Molon Motor & Coil Corp. v. N.L.R.B., 965 F.2d 523, 525 (7th Cir. 1992)). Staffing Network terminated Barrera because of her concerted and protected activity in protesting Vega’s treatment of Juan Gutierrez in relation to the terms and conditions of his employment and to that of the other pickers. Therefore, substantial evidence exists to support the NLRB’s finding that the Company violated the Act when it discharged Barrera for engaging in protected and concerted activity.

Obviously, Supervisor Vega was thrust into a situation that escalated very quickly and, in all probability, he may have been totally unprepared to deal with this highly volatile situation. He reacted emotionally rather than taking a step back to consult with other Management Personnel on how best to deal with a difficult situation. It is strongly suggested by the author that while insubordinate conduct and a refusal to work may be grounds for immediate termination, the “facts or circumstances of the situation” must be considered and Supervisors and Management Personnel advised that when confronted by a hostile situation, it might be best to take a step back and consult with other members of Management as how best to proceed. There is no need to “terminate someone on the spot”, it can always be done the next day when cooler heads prevail.

Questions? Contact Walter at (312) 629-9300 or waliszka@wesselssherman.com

EEOC Still Very Active

The Equal Employment Opportunity Commission ended its Fiscal Year 2015 on a relatively high note. There were a total of 89,385 Charges filed during Fiscal Year 2015. Those Charges reflect the following breakdown:

• Retaliation Charges: 39,757 (44.5% of all Charges filed)
• Race: 31,027 (35.7%)
• Disability: 26,968 (30.2%)
• Sex: 26,396 (29.5%)
• Age: 20,144 (22.5%)
• National Origin: 9,438 (10.6%)
• Religion: 3,502 (3.9%)
• Color: 2,833 (3.2%)
• Equal Pay Act: 973 (1.1%)
• Genetic Information Non-Discrimination Act: 257 (.3%)

It should be noted that if one were to add up the actual percentages, this would reflect more than 100% because some Charges are predicated on multiple basis filings.

Also, during Fiscal Year 2015, the Equal Employment Opportunity Commission resolved a total of 92,000 Charges of Discrimination and secured in excess of $527,000,000 for victims of discrimination (356.6 million for victims of discrimination in Private Sector and State and Local Government workplaces; 65.3 million through litigation and 105.7 million for Federal Employees and Applicants). 

It should also be noted that the Equal Employment Opportunity Commission is pursuing, very aggressively, discrimination against an individual because of his/her sexual orientation and pursuing this on the basis that this type of discrimination is predicated on sex. The EEOC has also been aggressively pursuing, through litigation, the protection of transgender individuals in the workplace, both in the job protection venue and in the day-to-day interaction in the workplace (i.e. use of facilities). Fiscal Year 2016 will see a big push in this arena. 

So there is no confusion on anyone’s part, from Fiscal 1997 through Fiscal 2015 the EEOC handled a total number of 1,637,396 Charges or, on a Fiscal Year average, a little over 86,000 Charges per year. Obviously, every Employer, be that a Private Employer, State or Local Government Employer, or Federal Government Employer, should take notice that the Equal Employment Opportunity Commission is a very aggressive Agency in protecting the rights of individuals under the auspices of Title VII and other Laws.

Questions? Contact Attorney Walter J. Liszka at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Transgender Workplace

When I did my presentation at the Wessels Sherman 15th Annual Labor and Employment Law Power Seminar on May 1, 2015 (Winds Of Changing Seasons – When Harry Became Sally), I had no idea that this topic would have such a major impact on business operations and that the impact would continue to grow into 2016. For any Employer to “stay ahead of the curve” regarding Transgender Issues, those Employers must start adopting more inclusive policies and procedures in their operations. To date, nineteen (19) States and the District of Columbia have adopted specific Laws prohibiting discrimination in Employment and/or Public Accommodations based on both Gender Identity and Sexual Orientation. The Federal Government, acting under the auspices of President Obama in the issuance of Executive Orders, are specifically requiring Federal Contractors and Subcontractors to prohibit any and all discrimination against Employees based on Gender Identity or Sexual Orientation. The Equal Employment Opportunity Commission has taken a very aggressive posture commencing a number of lawsuits against Employers, under the auspices of Title VII on the basis of Sex Discrimination, when an Employer has disciplined and/or fired a Transgender Employee. Congress is again considering specific legislation adding “Gender Identity and Sexual Orientation” as specific grounds of discrimination to Title VII.

Every Employer must begin to become proactive and start thinking of ways to create a work environment that provides safety to its Employee Complement and is free of discrimination when dealing with Gender Identity and Sexual Orientation. Simply stated, Employees who may be in the process of transition without informing their Employers or, in the alternative, when an Employee presents himself/herself in a newly Identified Gender without advance notice, it is important that Employers have established non-discrimination and accommodations for Transgender individuals.

Here are some suggestions for Employers going forward:

1. Draft Employment Policy Sections which specifically address Transgender Employees. Simply stated, Employees who are not transitioning may be unaware of what transitioning entails and what, in fact, constitutes discrimination. For example, it may be considered as harassment if a Transitioning or Transgender Employee is referred to by a wrong pronoun (Harry, who is transitioning to Sally, is consistently called “He” by other Employees).
2. Be aware that the provisions of the Family Medical and Leave Act do, in fact, cover Employees who are taking Medical Leave for transition-related purposes, either for themselves or a family member. As in every other case, do not ask a Transitioning Employee for a Medical Record to prove that the Employee is, in fact, transitioning. 
3. Outline any and all Medical Benefits that are available for Transitioning Employees and their spouses. Even after an individual has completed the transition process, that Employee’s marital and parental status does not change and that Employee’s “spouse and dependents” are still covered by insurance. 
4. In any hiring situation, be aware of asking an individual for information about previous names in a non-judgmental way. Also be aware of Employees’ job responsibilities and assignments. If you specifically place a Transitioning Employee in a position with little to no client interaction, it can be perceived as evidence of discriminatory intent if other similarly situated individuals have customer or client contact.

Every Employer must be aware that situations dealing with Gender Identity/Sexual Orientation may arise and understand that prior preparation, training and information may be the best cure for these sometimes difficult morale or legal related issues.