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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Chair of Employment, Benefits & Labor Relations Practice Group
Attorney
Wausau Office
.
Found 171 Results.

Federal Judge Dismisses Lawsuit Regarding Tattoos

Posted on November 6, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by a federal judge in Chicago has upheld the right of the City of Chicago to require police officers to cover visible tattoos while on duty.  The Chicago Police Department implemented a Department policy that banned the display of tattoos while on duty.  The City said this policy was necessary to insure professionalism within the Police Department and to maintain public trust and respect which could negatively be impacted by the display of tattoos.  Three police officers brought suit against the City challenging the Department policy arguing the policy negatively impacted the freedom of speech of the officers. The Court dismissed the lawsuit and found that the public display of tattoos could cause the public to question whether allegiance is to the Department or to the organizations that were represented by the tattoos.  The Court also held that professionalism was more important than the individual’s personal expression.  The Court found that the individual tattoos were a form of personal expression rather than a form of speech relating to matters of public policy or concern. While this seems like a small case, it does have an impact upon the right of local governments to restrict personal expression in the form of tattoos or other activities like clothing or hair style.  The local government must show that the restriction is reasonable and related to the operations of the municipality to overcome a legal challenge.  This case shows that individuals do not have an unfettered right to personal expression while working for a local government. 

I Hate my Boss - Disability?

Posted on June 9, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by an appellate court in California held that the inability of an employee to work with a particular supervisor because of anxiety and stress caused by oversight from the supervisor was not a disability under California Disability Discrimination Law.  As a result, the company did not discriminate against an employee who was terminated for a number of performance reasons even though her physician diagnosed the employee as having “adjustment disorder with anxiety.”  In this case, the employee alleged she suffered from a disability that was the result of her inability to work under particular supervisors because of the anxiety and stress created by the standard oversight of her job performance by these supervisors.  The California Appellate Court found that this did not qualify as a disability even though her physician identified her condition as an adjustment disorder. The employer did give the employee several months off to address her anxiety, but then terminated her employment when she was unable to produce medical information that showed she was disabled and unable to work in her current employment setting.  The California Court found that the employee did not suffer from a commonly recognized medical disability and therefore did not meet the first requirement to prove a disability discrimination case – that she suffered from a disability that impacted her ability to work. This is a good decision for employers because employees often claim their supervisor is mistreating them or being too aggressive in their supervision of the employee’s performance as compared to the supervision of other employees.  An employee making a claim like this must have very clear documented medical information; however, employers may want to consider granting some time off as a way to show good-faith consideration of the problems experienced by the employee.

Court of Appeals Gives Protection to Employee “Like” of Negative Comments

Posted on November 10, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the Second Circuit Court of Appeals has upheld the decision by the National Labor Relations Board that action taken by two employees on a Facebook page should be considered protected speech and therefore the employees should not have been terminated from employment.  In this decision involving the Triple Play Sports Bar and Grille, the NLRB sought reinstatement of two employees who clicked “Like” on a post on Facebook that was critical of the bar owners and also posted a comment in favor of an ex-employee’s Facebook comment about the owners.  The NLRB ruled that the action taken by these employees should be considered protected speech and therefore they should not have been terminated from employment because of their actions.  The Court of Appeals upheld the NLRB decision but decided not to publish its decision which sends a message that the decision is very much limited to the actual facts of the case. It is important, however, for employers to realize that many types of different activities of employees could be construed as protected speech if it relates to workplace conditions or is a commentary about the actions of any employer.  It is hard to imagine that the act of “Liking” a post on Facebook rises to a level of protected speech but that is the ruling from the Court of Appeals.  Employers must be very careful when making decisions about the employment of an individual employee who has made comments about the company or its business operations.

Federal Court Says Working From Home is Not Automatic Accommodation

Posted on April 15, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the Sixth Circuit Court of Appeals held that the Equal Employment Opportunity Commission failed in its claim that Ford Motor Company violated the Americans With Disabilities Act by failing to accommodate an employee with irritable bowel syndrome when the employee requested to work from home on four days of the work week.  The Court of Appeals held that Ford Motor Company did not violate the Americans With Disabilities Act when it refused to allow an employee to work from home on a regular and routine basis. The employee suffered from irritable bowel syndrome and found it difficult to come to work and interact with people in the workplace. Ford Motor Company did not honor the employee’s request to work from home four out of five days of the week arguing the job of Resale Buyer required on-site attendance as part of essential functions of the job. The employee tried to show working from home would be acceptable because other employees were allowed to work at home but on a less frequent basis. The Court of Appeals ruled en banc (meaning all Justices participated) that it was not a reasonable accommodation to allow the employee to work at home as requested. The majority of the Justices said the Court should not give blind deference to the employer’s judgment on what is a reasonable accommodation but will grant summary judgment when the employer’s judgment regarding essential job duties is “job-related, uniformly enforced and consistent with business necessity.”  This is a victory for employers because the Court acknowledges judgment made by a company as to what is a reasonable accommodation is something that must be given consideration by the Court if it is reasonable and consistent with business necessity. Employers must take care to make reasonable accommodation decisions on a case-by-case basis and provide rationale for the business reason for its decision.

ADA Protections in the Application Process

Posted on January 11, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent lawsuit filed by the Equal Employment Opportunity Commission is a reminder that employers have a duty to accommodate an applicant for employment if the applicant identifies the need for accommodations during the application/interview process.  The EEOC recently sued McDonalds Corporation for its alleged refusal to interview a deaf job applicant.  The applicant indicated that he needed a sign language interpreter for his job interview and the company allegedly decided not to interview the candidate because of that request.  The EEOC is now pursuing a claim of disability discrimination against McDonalds Corporation. This case is a good reminder that employers do have an obligation to make accommodations to applicants for employment who may suffer from a disability.  The request for an accommodation must be reasonable and must be designed to ensure that the applicant will have an equal opportunity to participate in the application process and be considered for a job.  The employer has the right to consider whether an accommodation that would be required for the employee to perform the work would constitute an undue hardship to the company, but that analysis only occurs after the applicant has been interviewed and has been given a reasonable accommodation to participate in the application process. It is often best practice for an employer to allow for the requested accommodation so the applicant is given appropriate consideration like all other applicants.  A decision may be made in the final applicant review process that the type of accommodation needed by the applicant would be an undue hardship to the company but the initial opportunity to interview for the position should be granted.  Employers may also assess whether the applicant is able to perform the essential functions of the position being applied for but again, that analysis should occur after completion of the interview process.

Strength Exam May Cause Discrimination Complaint

Posted on October 20, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent news article reported that a trucking company has settled an age and sex discrimination charge filed by the Equal Employment Opportunity Commission over a strength exam that it used when hiring drivers for its business.  The EEOC claimed that the strength test mandated by the company for truck driver applicants supported a claim for age and sex discrimination because employees over 40 and women were unable to pass the test.  EEOC also alleged that the exam created a standard of strength requirements that were more than what was needed for the truck driver position.   This is another example of the aggressive activities of the EEOC to pursue claims of discrimination against local businesses.  The trucking company agreed that it would no longer use the strength exams as a condition of employment and reiterated its commitment to anti-discrimination policies going forward.  Businesses have to recognize that any test used as part of the hiring process must be work related and validated to show that it was properly measuring the skills that were needed for the position being filled.  Business necessity is a critical component of a determination that a test used to screen applicants is appropriate for use by the company.

Electronic Signatures Expedite Union Election Petition

Posted on September 9, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent pronouncement by General Counsel of the National Labor Relations Board has indicated that electronic signatures will be accepted on a union election petition filed with the NLRB.  This clarification allows the union election process to be expedited to be even quicker than originally thought under the new “quickie election” rules promulgated by the National Labor Relations Board.  Under those rules, an election petition is to be processed within a very short time frame and any legal challenge to who is eligible to be included in a vote for union representation will ultimately be litigated after the election vote has been taken.  The quickie election process eliminates much of the opportunity for an employer to express its opinion about the wisdom of having a union at the company facilities. Under this new clarification, a union can file an election petition with documentation showing that various signatures on the petition have been approved or authenticated by electronic means.  The primary focus here is for an employee to send an e-mail to the union organizer indicating various information about the individual and indicating the signature validity on an election petition filed by the union.  Employees will not be required to actually sign an election petition but rather may respond to an e-mail from the union organizer indicating agreement to sign the petition. This initiative by the NLRB to accept electronic signatures is another step toward expediting a union election proceeding for the benefit of the union organizers.  Employers must recognize their limited opportunity to question a union election petition or to advocate against union representation at their facility.  Employers must do everything to be prepared to respond quickly to the union organizing effort at their company. 

Shoreland Zoning Limited

Posted on August 11, 2015, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

As many of you may know, on July 12, 2015, Governor Walker signed the Budget Bill (Act 55) into law.  While there were many notable changes that have received a great deal of attention, one particular change has passed unnoticed.  Prior to the passage of the Budget Bill, municipalities had the ability to regulate shorelands more aggressively by setting higher zoning standards than those imposed by the State.  However, in the heat of finalizing a budget, a provision was slipped into the Budget Bill that amends NR 115 by prohibiting municipalities from imposing a more restrictive shoreland zoning standard than the State standard.  With the Budget Bill now signed into law, this requirement has become final and municipalities need to be mindful when establishing shoreland zoning standards.  Because a municipality is prohibited from promulgating a shoreland zoning standard that is either more or less restrictive than the State’s standard, municipalities need to adopt standards identical to the state without any variances.  For more information or guidance in complying with Act 55, feel free to contact any of the attorneys within the Local Government Focus Team of Ruder Ware.

Employers Get Break For Now

Posted on November 19, 2015, Authored by Dean R. Dietrich, Filed under Employment

In a surprise announcement, the Solicitor of Labor, Patricia Smith, has indicated the final rule on overtime eligibility being considered by the Department of Labor will likely not be declared final and implemented until late 2016.  During a panel discussion at the American Bar Association’s Labor and Employment Law Conference, Solicitor Smith indicated there were a huge number of comments about the proposed rule that would raise the salary limit for those who are eligible to be exempt from overtime pay from $23,660 per year to $50,400 per year.  The Solicitor of Labor indicated the rule likely will not be implemented until very late in 2016 after the Department has had a chance to digest all of the comments and make final corrections to the proposed rule. Many are surprised this proposed rule would not be implemented until after the election.  It is possible this delay is because of the unpopularity of the rule and the desire by the Department of Labor to determine whether such a rule will actually be enforced or if political opposition will cause further delay in the imposition and enforcement of the rule.  For now, employers can breathe easier but should not ignore the potential impact of this rule change.  There is still a strong potential many employees who are currently exempt from overtime pay will become nonexempt and eligible for overtime pay because their salary does not place them in the exempt category. Ruder Ware will continue to monitor this and keep you advised about any changes in the implementation timeline. 

Presidential Veto = Quickie Election Rules

Posted on April 1, 2015, Authored by Dean R. Dietrich, Filed under Employment

President Obama has vetoed the legislation passed by Congress that would prevent the implementation of the quickie election rules authored by the National Labor Relations Board. These new rules expedite the union representation election process and eliminate the right of an employer to engage in an effective campaign to convince employees that a union is not necessary at their worksite. We have blogged on different occasions about this election rule that becomes effective April 14, 2015. See these blogs: Are Quickie Elections Coming in 2014? (December 16, 2013) Happy New Year? (December 31, 2013) 25 Days or Less (February 18, 2014) Vote Now and be Excluded Later (February 20, 2014) Turn Over the Voter List - You Have No Choice (February 21, 2014) “Quickie Election” has First Hearing (March 10, 2014) “Quickie Election” Rule Under Attack (April 1, 2014)  Congress passed legislation to block the implementation of these new rules that address the procedures for filing a petition for union representation and the processing of that petition. Legal challenges have been brought in Texas and Washington D.C. and it is not clear whether those legal challenges will result in a temporary judicial order blocking the implementation of these new rules. If that does not occur, employers must be very careful because unions can file a petition to seek to represent employees of the company and the petition will be processed very quickly with little opportunity for an employer to engage in an anti-union campaign with its employees. Many employers have developed a campaign that they would roll-out if needed to ensure employees know the company does not want to have its employees represented by a union. We will have to wait to see if the litigation causes the rules to be suspended or whether they will become effective on April 14. Stay tuned.

Discrimination Claim Over Hiring Process Settled

Posted on August 31, 2015, Authored by Dean R. Dietrich, Filed under Employment

Target Corporation has agreed to pay $2.8 million to settle charges filed by the Equal Employment Opportunity Commission (EEOC) alleging that the hiring process used for certain professional positions disproportionately screened out applicants based on race and gender.  Target Corporation paid this settlement without admitting liability based upon a claim by the EEOC that it potentially discriminated against applicants because of the testing processes that were used by Target to screen out candidates.  Target suggests that EEOC did not find any disparities in the actual hiring done by the Company but agreed to discontinue the use of the assessment tests that previously were used to screen out applicants. A settlement of this large size points out the difficulties that an employer has in fighting against an EEOC claim, especially when the claim argues that the potential for discrimination exists.  Employers must be careful how they use any type of assessment process including test reviews conducted by psychologists because of a potential claim that applicants are being subject to a medical test before being given an offer of employment.  Employers try very hard to develop safe and successful procedures to determine the best candidate for an available position but now must be careful that they are not prejudging applicants or inappropriately screening out applicants through the testing process.  This means that companies must get tests that are properly verified and shown to be neutral and do not create inappropriate screening of candidates based upon protected categories or characteristics.  Avoiding a $2.8 million settlement is a good business practice.

Warning: Independent Contractors May Be Employees

Posted on July 22, 2015, Authored by Dean R. Dietrich, Filed under Employment

The Administrator of the US Department of Labor has issued guidance on determining whether an individual is an independent contractor or an employee of a company.  This Interpretive Guidance goes a long way to declaring that the Department of Labor will be aggressively reviewing determinations of independent contractor status by a company and will likely find that many independent contractors are really employees of the company.  Any company that uses independent contractors as part of their production workforce must be careful because of the aggressive stance being taken by the Department of Labor. The new Administrator of the Department of Labor (David Weil) is an outspoken critic of independent contractor agreements and has published a 15-page interpretation guidance document describing the criteria that will be looked at by the Department of Labor when considering whether an individual is an independent contractor to the company or an employee of the company.  The Department of Labor will rely upon the “economic realities test” and look to see whether the individual is dependent upon the company for income instead of being dependent upon the individual’s business as the primary source of income.  The Department of Labor will look at the following factors when analyzing whether an individual is a true independent contractor: The work performed is or is not an integral part of the employer’s business; The worker’s managerial skills affect the opportunity for profit or loss by the individual; The worker is hired on a permanent basis or an indefinite basis; The worker’s investment to engage in work is relatively minor as compared to the employer’s investment in providing work for the individual; The worker exercises business skills, judgment and initiative in the performance of work; and The worker has meaningful control over various aspects of the work performed. The Interpretive Guidance went into great detail about these six factors and suggests the employer must be aggressive in showing the individual is not reliant or dependent upon the company for satisfying the various elements of these factors.  Companies must be wary of the position of the Department of Labor when looking to determine whether or not a particular person is an employee of the company rather than an independent contractor performing work for the company.

NLRB Rebuffed Again

Posted on August 27, 2015, Authored by Dean R. Dietrich, Filed under Employment

The NLRB has again been rebuffed by the federal Court of Appeals in its pursuit of charges against employers for terminating employees due to the exercise of their protected speech rights.  In a recent decision from the Eighth Circuit Court of Appeals, the Court of Appeals found (albeit in a split decision) that the NLRB failed to prove that a company violated the protected speech rights of an employee who made a “cut throat” gesture to another employee. In this decision, the Eighth Circuit Court of Appeals said that the NLRB failed to prove the employee’s involvement in strike activity was the ultimate motivating factor in the decision of the company to discharge the employee.  Rather, the Court of Appeals held that the conduct of the employee, making a “cut throat” gesture to another employee, was a violation of the “zero tolerance” workplace violence policy and therefore the company was justified in terminating the individual.  The Court of Appeals held that the Board failed to show that the conduct of the company was discriminatory animus towards the protected activity of the employee (being involved in a picket during a strike) and that such protected conduct was not the substantial motivating factor in the decision to terminate the employee. This is another decision for the employer and shows the continued effort by the NLRB to impose requirements upon an employer in any situation where the employer is dealing with discipline against a union-sympathetic employee.  Employers must be very careful to document their decisions and rationale for terminating an employee who is involved in union-related activities in order to avoid an unfair labor practice charge from the NLRB.

Quickie Election Rules Increase Union Activity

Posted on June 5, 2015, Authored by Dean R. Dietrich, Filed under Employment

The NLRB “quickie election” rules have been in effect for the past six weeks.  As predicted, the implementation of these new rules has resulted in a significant increase in union election petitions.  Under these new rules, the procedure to move from the filing of a petition to an actual election amongst employees takes approximately three weeks and employers are severely hampered in their ability to present information and speak against the union organizing campaign.  For the 4-week period March 13 to April 13, there were 212 union election petitions filed with the National Labor Relations Board.  In the period April 14 to May 14, there were 280 petitions filed – showing a 32% increase in union election petitions.  This shows a significant advantage perceived by unions because of the shortening of the union election process.  Under the “quickie election” process, an employer must file a position statement within days of receiving a union election petition from the NLRB.  Any challenges to the employees eligible to vote in the election will be delayed until after the election is held to determine whether or not the challenged positions really have an effect on the results of the election.  A recent court challenge to these election rules in Texas was unsuccessful in halting the continued implementation of these procedures.  A legal challenge is still pending in federal court in Washington D.C. Employers have very little opportunity to respond to an election petition and should consider developing a model election campaign in order to be prepared if a petition is filed under these new election procedures.

Accommodating Religious Practices – Use Your “Best Guess”

Posted on June 3, 2015, Authored by Dean R. Dietrich, Filed under Employment

The United States Supreme Court, in the recent Abercrombie & Fitch decision, has said employers must use their best guess to determine whether or not an employee (or applicant) wants or needs an accommodation for a legitimate religious belief.  In this decision, the Supreme Court held that the clothing company violated the religious discrimination law when it refused to employ an individual who attended an interview wearing a hijab.  The Court held that the applicant did not have to request some type of accommodation to allow her to wear the religious clothing during work but rather the employer had to guess whether the applicant was going to make that request and could not discriminate because of the potential of a need to accommodate her religious belief.  What is disappointing about this case is the conclusion that the employer must make an assumption an accommodation is necessary instead of requiring the employee/applicant to make a request known.  The Court held that there was no duty to communicate a request for an accommodation in this case under the religious discrimination law.  There still may be a duty to communicate a request for an accommodation under other laws such as the Americans with Disabilities Act.  Here the employer must assume there is a need for an accommodation and may not make an employment decision based upon the potential that an employee will ask for an accommodation.  This case may not be so troublesome because the religious garb worn by the applicant was obvious.  Other cases may be far more difficult. For example, if an employee is not able to work certain hours because of a religious belief that was unknown at the time of application for employment, that could cause an employer to hire an employee who is unable to work the regular hours required of a position. Employers must be very careful about the hiring process.  The Supreme Court has said that employers may have a duty to assume an accommodation is necessary for an applicant’s religious beliefs.

No Petition Required for Recertification

Posted on August 27, 2015, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Employment Relations Commission (WERC) has announced that employers will not be required to file a recertification election petition if they are seeking recertification in the fall.  A recent Circuit Court decision from Milwaukee County (which is under appeal) held that unions currently representing local government employees were not required to file a recertification petition in order to have the recertification election process implemented by the WERC.  In other words, all unions currently representing employees are automatically placed into the recertification election process without the necessity of filing a petition.  The public sector union will still have to pay the filing fee which must be received by the WERC before Tuesday, September 15, 2015, in order for the election proceeding to be processed.  The annual certification election process will occur between November 4 and November 24, 2015 for all unions involved in school district recertification elections.  The WERC is asking unions to voluntarily complete the annual certification election petition or the substitute information sheet in order for a proper process to be followed to determine who is eligible to vote in the recertification election.  Employers will be required to provide background information including the information allowing the WERC to communicate with those employees deemed eligible to vote in the election. It will be interesting to see how this process works if there is no petition filed with the WERC.  This may result in confusion and a question whether the collective bargaining representative is actually representing the bargaining unit under these new procedures.

The Quickie Elections Survive all Court Challenges

Posted on August 5, 2015, Authored by Dean R. Dietrich, Filed under Employment

The quickie election rule adopted by the National Labor Relations Board has survived the first stages of legal challenge as a Washington D.C. Federal District Court has found that the election rules do not violate protected rights of employers.  Because of this, employers will continue to see increases in union election petitions filed by local unions seeking to represent all or part of the employees of a company.  The industries that have been impacted the most thus far are health care and life sciences companies; construction, engineering, and landscape businesses; and transportation and courier services.  Under the new election rules, elections take place far more quickly.  Employers will have much less time to communicate about their position opposing any union representing the employees in their business.  Most union representation elections will be held between 10 and 21 days after a petition is filed.  The employer has far less opportunity to challenge whether or not certain individuals are considered eligible to vote or should be excluded from the bargaining unit.  Employers are also required to provide an electronic list of the employee's name, home address, telephone number, e-mail address, work location, shift and job position in a very quick fashion  so the union can communicate with the individuals who are considered eligible to vote in the union election. If these rules are going to continue to exist, what steps should an employer take to address the consequences of the quickie election process?  Employers should review their employee list to determine which employees are supervisors under the NLRB test in order to be able to successfully argue that these individuals should be exempt from the union election proceeding.  These individuals should be trained regarding the rules relating to communicating with an employee over the election process.  Employers should also develop appropriate campaign materials and be prepared in the event an election petition is filed.  Most importantly, companies should be very sensitive to the issues that cause employees to consider forming a union and address those directly in personnel policies and human resource management techniques to avoid disgruntled employees.  This is the best way to avoid the consequences of these expedited election procedures.

New Day for Union Representation Elections

Posted on April 14, 2015, Authored by Dean R. Dietrich, Filed under Employment

Today is the day that the new “quickie election” regulations take effect. As of writing this blog, we have not heard of any legal challenge that has successfully stopped the new regulations from being implemented. Under the new regulations, a union representation election petition will be placed on a fast track for processing by the National Labor Relations Board. Employers will be required to respond immediately to any election petition filed by a union and will be given little opportunity to challenge which employees would be considered eligible to vote in the election.  General counsel for the National Labor Relations Board issued a Guidance Memorandum about the new election rules last week. This Guidance can be found at www.nlrb.gov/what-we-do/conduct-elections. Every employer that is subject to a potential union organizing campaign should be aware of these new regulations and recognize the potential for a very quick process leading to a union election vote. Employers may not be able to provide legal challenges to who would be eligible to vote in a union election and have to wait until after the election is conducted before determining whether certain employees are supervisors or managers that are not eligible to vote for union representation.

Disabling Condition? Protected Conduct?

Posted on August 10, 2015, Authored by Dean R. Dietrich, Filed under Employment

Two recent court decisions have opened the door for continued scrutiny on whether or not an individual is protected under the Americans With Disabilities Act.  In a Nebraska Federal Court case, the District Court held that an employee was not protected because of her severe obesity but this case is on appeal to the 8th Circuit Court of Appeals.  In an Oregon Supreme Court case, the Court decided that an individual suffering from psychological conditions was not protected when the individual threatened to kill co-workers on numerous occasions and with “chilling detail.” In the Nebraska decision, the District Court granted summary judgment and found there was no evidence that the individual was perceived as disabled when an offer of employment was rescinded because of the belief that the individual could develop health risks in the future.  This case is on appeal to the 8th Circuit Court of Appeals and will present another opportunity to address whether or not severe disability constitutes a disabling condition that is protected under the Americans With Disabilities Act.  Prior Federal Court decisions have held that obesity is not a disability, however, those decisions came before the 2008 amendments to the Americans With Disabilities Act that made it much easier for a person to claim being disabled and therefore  protected by the Act.  This decision will open the door to a clear ruling on whether obesity is considered a disability that “substantially limits major life activities” and requires the employer to make accommodations either in the hiring process or during employment. In the Oregon Supreme Court case, an employee suffered from a psychological condition but engaged in serious threats of violence or harm to co-workers.  The Oregon Supreme Court held the employee was not able to perform an essential function of his job and therefore was not a qualified individual under the ADA.  The essential function of the job was the ability to function in a cooperative work environment.  The Supreme Court also held that mere expressions of frustration or inappropriate jokes would not rise to the level of an inability to perform essentials of the job but this case showed that a person who engaged in serious conduct threatening other employees would not be considered a protected employee under the Americans With Disabilities Act. These cases show the difficulty in determining whether or not someone is disabled or protected from disability discrimination.  Employers must be careful to avoid a perception that they believe someone is disabled or suffering from a condition that negatively impacts their ability to perform the duties of their position.

Court of Appeals Applies “Common Sense” to NLRB Decisions

Posted on July 29, 2015, Authored by Dean R. Dietrich, Filed under Employment

Two recent decisions by the DC Circuit Court of Appeals (DC Circuit) have overturned National Labor Relations Board (NLRB) decisions and applied “common sense” in reviewing decisions from the Board.  In both the decisions, the DC Circuit overturned a decision by the NLRB that found an employer to have committed unfair labor practices by the manner in which the employer prohibited conduct of employees deemed to be an exercise of Section 7 rights. In the first decision, the DC Circuit overturned a Board decision and held that AT&T Connecticut did not commit an unfair labor practice when it barred its employees from wearing white shirts with black letters that said “Inmate Number” on the front and “Prisoner of AT&T” on the back when these employees interacted with members of the public and customers.  The DC Circuit held that AT&T Connecticut did not commit an unfair labor practice when it banned employees from wearing these t-shirts when performing work for the company that involved interaction with customers and then disciplining those employees that refused to take off the shirts when performing work.  The NLRB felt that the messages on the shirts were protected speech but the DC Circuit found that the company had the right to exercise some control over the attire worn by these employees when interacting with members of the public and being in customer homes for repair work.  The DC Circuit felt that the messages on the t-shirts were inappropriate and the company had the right to prohibit “unprofessional clothing to be worn by employees” in those instances when interacting with customers. In a second decision, the DC Circuit Court of Appeals overturned a Board decision by holding that a casino resort did not commit an unfair labor practice by asking police to issue citations to union demonstrators at a union protest that included blocking the walkway in front of the casino.  The DC Circuit held that the casino’s communication with the police was considered protected speech and did not interfere with the protected speech of the union protesters.  The case has a long history of litigation between the Casino and the Culinary Workers and Bartenders Unions but in the end, the DC Circuit held that the actions taken by the Casino to ask for law enforcement to make arrests did not constitute an unfair labor practice or an improper restriction on the protected speech rights of the union members involved in the protest. These two decisions show that employers are often required to proceed to court in order to overturn decisions made by the NLRB.  Employers must be very careful because the NLRB has made a number of decisions that extend the union free speech rights of individuals.  Employers want to avoid a finding of a violation of union free speech rights in order to avoid a negative reputation.