Employment Law Update - Legal-mail no. 2018-7
Posted on Jul. 18, 2018

This is Legal-mail No. 2018-7 prepared for interested HR professionals trying to deal with the complex American employment laws. 

CONTENTS:

-  JONES WALDO ATTORNEY MARK TOLMAN NAMED THE UTAH STATE BAR’S 2018 LABOR & EMPLOYMENT LAWYER OF THE YEAR.

-  JONES WALDO ATTORNEY MIKE O’BRIEN AGAIN RECOGNIZED AS ONE OF NATION’S TOP 100 MOST POWERFUL EMPLOYMENT ATTORNEYS.

-  FOUR-YEAR DELAY IN REPORTING HARASSMENT DOES NOT DEFEAT PLAINTIFF’S CLAIM IN THIRD CIRCUIT COURT OF APPEALS CASE.

-  UTAH COMPANY PAYS $832,500 TO SETTLE EEOC DISABILITY DISCRIMINATION ALLEGATIONS.

-   A RETURN TO CIVILITY AT WORK? NLRB GENERAL COUNSEL MEMORANDUM OUTLINES MORE EMPLOYER-FRIENDLY STANCE ON CIVILITY RULES.                 

JONES WALDO ATTORNEY MARK TOLMAN NAMED THE UTAH STATE BAR’S 2018 LABOR & EMPLOYMENT LAWYER OF THE YEAR.  We are proud to announce that our colleague Mark Tolman, a co-author of these updates, was recently selected as the Utah State Bar’s 2018 Labor and Employment Lawyer of the Year. Mark’s selection for this award was based on factors including his prominence and recognition in the employment law field, contributions to the legal community and education of the public, and his efforts to mentor other lawyers and promote high ethical standards.

 

JONES WALDO ATTORNEY MIKE O’BRIEN AGAIN RECOGNIZED AS ONE OF NATION’S TOP 100 MOST POWERFUL EMPLOYMENT ATTORNEYS. Not to be outdone, our colleague Mike O’Brien, long-time author of these updates, has once again been named one of the nation’s Top 100 Most Powerful Employment Attorneys by Human Resource Executive magazine and Lawdragon. Mike received this well-deserved honor after an exhaustive selection and vetting process. He is the only attorney in Utah recognized on this list.

 

FOUR-YEAR DELAY IN REPORTING HARASSMENT DOES NOT DEFEAT PLAINTIFF’S CLAIM IN THIRD CIRCUIT COURT OF APPEALS CASE. An opinion issued last week by the Third Circuit Court of Appeals suggests the #MeToo movement is making its way into judicial opinions. In Minarsky v. Susquehanna County, a former employee claimed that she had endured four years of frequent sexual harassment by her supervisor, but never reported the harassment because she feared retaliation and losing her job—an especially frightening prospect because she had a young child undergoing treatment for cancer and needed her job to cover medical bills.

 

A district court magistrate granted summary judgment for the employer, which argued the Faragher-Ellerth defense that it had taken reasonable care to prevent and correct harassment, but Minarsky had unreasonably failed to report the harassment. On appeal, the Third Circuit disagreed with the magistrate’s decision. Even though the County had a written anti-harassment policy and proof that Minarsky received it, there was evidence the County’s anti-harassment mechanisms were not effective. Minarsky’s supervisor had allegedly made advances toward other female employees and had twice been verbally reprimanded, but essentially laughed off the reprimand. The misconduct did not stop. Even after these complaints, the employer assigned Minarsky and her supervisor to work alone together in an isolated area at least part of the time. The court concluded that a jury could decide the County’s anti-harassment efforts were not reasonable underFaragher-Ellerth.

 

The court also determined that Minarsky’s failure to report the harassment for four years was not per se unreasonable, in light of the special circumstances she alleged. The court pointed to several factors, including her fear of losing her job and not being able to pay for her child’s cancer treatment. The supervisor had allegedly made that worse by telling her that she couldn’t trust certain higher-ups and they would eliminate her job. Further, Minarsky knew that at least one other woman had reported her supervisor to no avail. Based on this and other evidence, the court said that a jury might view Minarsky’s failure to report as reasonable. The case was sent back to the trial court. 

 

The Third Circuit has routinely ruled that an employee did not act reasonably by failing to report harassment over a long period of time. But it said this case was different because of Minarsky’s testimony explaining why she failed to report her supervisor’s conduct. Significantly, the court also cited (albeit in a footnote) the lessons of the #MeToo movement and statistics showing that sexual harassment victims frequently fail to report, for a variety of reasons. Ultimately, the court said that the passage of time is just one factor in the analysis of whether an employee acted reasonably.

 

One final note—several circuits (including the Tenth Circuit, which has jurisdiction over Utah) have held that a generalized fear of retaliation isn’t enough to explain a long delay in reporting harassment. The Third Circuit distinguished Minarsky’s case by pointing to specific evidence that might persuade a jury her subjective fear was objectively reasonable. It’s far too soon to know whether other circuit courts will take the same approach, but it’s a good reminder for employers to step up their anti-harassment efforts, to follow-up to ensure that past corrective measures have been effective, and not to assume that silence means all is well. 

 

UTAH COMPANY PAYS $832,500 TO SETTLE EEOC DISABILITY DISCRIMINATION ALLEGATIONS. The EEOC recently announced that a Salt-Lake City-based grocery chain has agreed to pay $832,500 to resolve allegations that it failed to provide reasonable accommodations including additional leave, reassignment, and work with restrictions. The EEOC said its investigation also revealed a practice of disciplining or firing employees because they needed reasonable accommodations. The employer denied violating the ADA, but acknowledged a need to improve. In addition to the monetary payment, the employer agreed to change its policies and procedures and conduct trainings of its human resources team, store managers and assistant managers, and employees. Key takeaways here are not to forget the ADA interactive process and an individualized assessment of whether a reasonable accommodation (such as additional leave or reassignment to a vacant position) is required. It’s important to document the interactive process and all efforts to accommodate the employee. Finally, when disciplinary action is necessary, the employer must be able to show that it was based on legitimate, job-related reasons and not disability.

 

A RETURN TO CIVILITY AT WORK? NLRB GENERAL COUNSEL MEMORANDUM OUTLINES MORE EMPLOYER-FRIENDLY STANCE ON CIVILITY RULES. Just as employers began to grow accustomed to the idea that civility rules were out of favor with the National Labor Relations Board, a more employer-friendly stance has been adopted. A recent NLRB General Counsel Guidance Memorandum details the Board’s new approach to evaluating employer rules, which was first announced in its decision in The Boeing Company. The memorandum explains that civility rules are in a category of employer rules that the Board considers lawful to maintain because they either “do not prohibit or interfere with NLRA rights” or their “potential impact on protected rights is outweighed by the justifications associated with the rule.”  The memorandum notes that, when reasonably interpreted, these types of rules do not restrict or interfere with NLRA rights, saying: “The vast majority of conduct covered by such a rule, including name-calling, gossip, and rudeness, do not implicate Section 7 at all.” In a further breath of fresh air for employers, the memorandum recognizes a few common-sense propositions: First, that employees can exercise their NLRA rights without violating “basic standards of harmony and civility;” second, that this type of rule advances important employer interests such as maintaining a harassment-free workplace, preventing violence, and avoiding unnecessary conflict or a toxic work environment. Other common types of rules the NLRB now considers to fall in the same category are no photography/recording rules and rules against insubordination, disruptive behavior, defamation/misrepresentation, and others. Employers may want to revisit their conduct rules in their employee handbooks to take advantage of this change. One important caveat—don’t forget that even a lawful rule may beapplied in a way that violates the NLRA by restricting protected rights or disciplining an employee for the lawful exercise of NLRA rights.

 

 

Written by: Employment Attorneys-

Michael Patrick O'Brien (mobrien@joneswaldo.com)

Mark D. Tolman (mtolman@joneswaldo.com)

Jesse M. Oakeson (joakeson@joneswaldo.com)

Marci B. Rechtenbach (mrechtenbach@joneswaldo.com)

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