As a refresher, Sharon Block (D) and Richard Griffin (D) –President Obama’s now infamous “recess” appointments – were re-nominated earlier this year to fulfill complete terms.  Members of the Senate, however, indicated a refusal to act on these two nominations without a full slate of members – a sentiment echoed by organized labor.  Additionally, Republicans there had expressed reservations about confirming appointments which still were being challenged as unconstitutional.  Indeed, Republicans in the Senate and elsewhere actually called upon members Block and Griffin to resign. 

To try and appease the objecting Republicans, organized labor, and others, the President then nominated three additional Board members on April 9:  Mark Gaston Pearce (D), the current Chairman whose term expires August 27, 2013; Harry Johnson (R); and Phillip Miscimarra (R).  While not adopting my suggestion that “neutrals” be nominated, at least the Senate had a full 5-member Board complement before it for confirmation – including disputed members Block and Griffin.  

However, Congressional response to having all 5 nominations to consider wasn’t to convene a confirmation hearing.  Instead, the House passed the “Preventing Greater Uncertainty in Labor-Management Relations” bill on April 15.  This legislation, as proposed, would strip the NLRB of the ability to make any substantive decisions either until the United States Supreme Court agrees to hear – and actually decides – the Noel Canning issue, where the decision of the D.C. Circuit holding as unconstitutional the recess appointments of Block and Griffin has been challenged by the Board, or until the Senate confirms a new quorum with two new, undisputed members in addition to Pearce.  

Now, it is very doubtful that this bill will make it through the Democratically-controlled Senate, and even if it did, the President has vowed to veto it. That doesn’t do anything to make this issue any less thorny in the present, however.  As things stand now, the current unwillingness of the Senate to act on the nominees leaves the status quo in place.  In fact, there are indications that the Senate has no intention of acting on the President’s nominees pending Supreme Court resolution of the recess appointment issues raised in Noel Canning, indicating that congressional gridlock has now officially moved beyond Washington and spread to the operation of an agency which is extremely important to the way employers do business. 

Assuming nothing changes, when member Pearce’s term expires at the end of August, the Board will have just two members left.  With only two members, the Board will not have a quorum, and with no likelihood of another confirmed member joining members Block and Griffin anytime soon, the Board may be effectively shutdown by the end of the summer.  Just like the 254^th pick of the NFL draft then, it seems that the Board may be headed closer to irrelevance.  That would, unfortunately, make the notion of the Board “jumping the shark” seem like quite a fond memory by comparison.

In a recently issued published opinion in the case of Balas v. Huntington Ingalls Industries, Inc., the Fourth Circuit of Appeals – which covers West Virginia – held that only those allegations contained within a plaintiff’s EEOC charge are within the jurisdiction of the federal courts under Title VII.  

In Balas, the plaintiff filed a complaint in federal district court alleging hostile work environment, sex discrimination, failure to promote, and retaliatory discharge under Title VII.  In support of her sexual harassment claims, Balas alleged – among other things – that her supervisor frequently commented to her about how much he liked her attire and appearance, regularly discussed his sex life with her, solicited sex from her, regularly made “cat calls” to her despite her rejection of his advances, and hugged her against her will on one occasion.  

Meanwhile, in support of her discrimination claim, Balas alleged that her supervisor discriminatorily enforced the employer dress code by sending her home to change on one occasion when she wore a pair of ripped jeans to work, whereas males who dressed similarly were not asked to change.  Finally, Balas alleged that she was denied promotions and ultimately discharged on February 17, 2010, because she had complained to her employer about sex discrimination and her hostile work environment. 

Prior to filing suit, however, Balas pursued her claim with the EEOC.  When she did, Balas completed an intake questionnaire for the EEOC, and also submitted two letters detailing the specific ways in which she was subjected to sexual harassment and discrimination.  She also outlined the promotional opportunities she felt she did not receive.  Nonetheless, the charge the EEOC ultimately filed on behalf of Balas did not contain many of the incidents of sexual harassment she included in either of her letters or intake questionnaire, and it made no mention of her failure to promote claim, either.  Rather, the only specific occurrences included in her charge prepared by the EEOC were the jeans incident, the unwanted hug, and her termination.  

The district court determined that it lacked jurisdiction to consider any allegations that were not included in the formal EEOC charge, and dismissed a majority of Balas’ Title VII claims because of the lack of sufficient evidence to support them.  When Balas appealed, the Fourth Circuit agreed that dismissal was proper, and rejected Balas’ argument that the district court erred by considering only her EEOC charge and not the intake questionnaire or her letters. 

Under Title VII, an employee must first exhaust his or her administrative remedies by filing a charge with the EEOC before filing a discrimination or retaliation complaint in federal court.  Sometimes employees suing under state law must proceed first before a state human rights agency, too.  In issuing its decision in Balas, the Fourth Circuit Court observed that the administrative process is intended to put the employer on notice of the allegations against it, and said that it is “not at liberty to read into administrative charges allegations they do not contain.”  Given that Balas’ employer was never apprised of the contents of her intake questionnaire or letters, neither could be read as part of her formal discrimination charge without contravening the purposes of Title VII. 

The Balas decision is an understated victory for employers, particularly in West Virginia and the other states covered by the Fourth Circuit.  If employers were forced to defend new allegations in a Title VII lawsuit, it could give employees the opportunity to test certain claims in an administrative forum – where they are obligated to proceed first – and then proceed on different grounds in Court if the agency doesn’t give them the result desired.  It also could defeat any incentive employers have to rectify the issues presented at an earlier stage before having to defend potentially new claims in Court.  The Fourth Circuit decision in Balas thankfully cuts off these avenues at the pass and ensures that employers defending discrimination and related lawsuits under Title VII aren’t subjected to litigation by ambush.

I uttered these words to one of my sons just the other day as I passed through the living room and continued on to the bedroom.  As I closed the door behind me, I thought perhaps I’ve become a little too desensitized by living with three very active boys.  “Boys will be boys” is simply a convenient justification that makes my world run more smoothly.  Not to downplay the potential suffocation of one’s offspring, but the idea got me thinking about the little things we become accustomed to in the workplace because they’ve gone on so long.  Have you ever heard someone say, “Well, that’s the way we’ve always done it?”  In the employment setting, that complacency can be a dangerous thing.

Readers of this website have heard from the Employment Essentials Team ad nauseum about the dangers of horseplay and shop talk.  I was in a workplace just the other day, seated in a waiting area, when I heard from the open-windowed reception office behind me, “feel better now that you’ve drained the main . . .” well, you get the picture.   I’ve never heard this spoken outside of a movie and certainly never in the public area of a business.  Did this employee mean anything by his vulgarity?  Of course not.  Would he have said it if a female co-worker had been present?  Gosh, I hope not. 

But, alas, this is the problem.  Getting along with your co-workers in a friendly, we’re-like-a-big-dysfunctional-family kind of way is great, but you can’t lose sight of the fact that you are in a place of business.  Harassment law says that you must look at the particular circumstances of the workplace to determine if a harassment claim is legally viable.  Noogies, wedgies, and vulgarity may not be unusual in some work environments, but that doesn’t mean an employer should become desensitized to this behavior.  An important client overhearing the potty talk I heard might just walk, and that’s not good for business.  If this type of behavior gets out of hand on the shop floor (and it has a tendency to do just that) then the potential lawsuit you could face is likewise not good for business.  Training keeps your employees sensitized to proper behavior, and that is good business.

Another type of training that gets overlooked is training for new managers.  Giving introductory training to new employees is often called “onboarding,” and a similar formalized process should be used when new managers are hired.  From my view, you need to remember that these folks are potentially your witnesses in a lawsuit.  They are also individuals whose knowledge may be imputed to you – the employer – in an employment claim.  Your expectations for them should be and often are very different than for rank-and-file employees.  They have to know and enforce your workplace rules.  They may have to fill out forms on performance.  They have to lead.  These are among the many reasons why they must be trained. 

Without this training, verbal abuse from managers is something which employers and employees alike tend to become desensitized about.  In fact, employers often just attribute this to a manager’s “management style”.  I’ve been horrified at many a kids’ baseball game by the treatment of players by certain coaches.  Isn’t that behavior just as repugnant on the ball field as it is in the workplace?  It is in my view.

My last thought on desensitivity at work came about when I read our piece on the DC Circuit’s decision on the National Association of Manufacturers’ challenge to the NLRB posting rule.  If you haven’t read that, you should check it out HERE.  Front and center in that dispute was a notice about unions and employee rights that the NLRB tried to require employers to post.  Of course, employers have a whole array of items they are required to post at work – typically on a bulletin board or the like where employees can read them.  Sometimes, these posters become important in the defense of lawsuits.  Almost always, they have a purpose of conveying a message – just like regular advertisements.  I have a friend who uses a billboard to advertise his services.  I drove past it almost every day for at least a year – until recently, that is, when I drove by and didn’t see the advertisement any longer.  When I asked my friend why he’d moved his signage, he explained that he was afraid that he’d become part of the landscape.  In other words, folks were desensitized to seeing the sign in its spot, and it was no longer serving its purpose to draw in business. 

This might be an interesting concept for an employer to apply to the required postings board.  People walk past the board and no longer see what’s there because it has become part of the landscape.  I can’t help but think of the hay I could make in a case where the posted rights become an issue if I could say to a jury: “We want our employees to know their rights.  This is important enough to us that we move the posters around on the board occasionally so they catch our employees’ attention and are more likely to be read, rather than allowing them to become part of the workplace landscape.”

Don’t become desensitized to your landscape at work.  We’re all one trip over an extension cord away from a lawsuit.  In my view, being aware of your surroundings is just as important at work as it is when you’re a parent.  What do you think?

About 3 months after the Circuit’s landmark ruling in Noel Canning that President Obama’s recess appointments to the Board were unconstitutional, thus leaving the Board without a working quorum to make decisions and take other actions – discussed previously on this blog HERE – the Court has now invalidated the Board’s well-publicized requirement that employers post a notice advising employees of their rights to form a union. 

The Employment Essentials team has discussed the Board’s posting Rule in this forum a number of times before.  As a refresher, the posting requirement – an 11 X 17 notice – informs employees of their right to form a union, bargain collectively, discuss working conditions, strike, or not engage in any of those activities.  The notice also stated very plainly that certain employer actions – spying on peaceful union activities and prohibiting employees from wearing union t-shirts in the workplace, to name two examples – were “illegal.”  According to the Rule issued by the Board, the failure to post this notice would have been an Unfair Labor Practice under the National Labor Relations Act.  The Board issued this Rule based on its own premise that employees simply were not aware of their rights under the Act. 

Once the Board’s Rule was finalized, the National Association of Manufacturers, among others, challenged its legality in Federal District Court in Washington D.C.  The Judge there felt the Board had the authority to issue the Rule but not charge an employer with an unfair labor practice for not posting the notice required by the Rule.  The Association took up an appeal to the D.C. Circuit challenging the first part of her ruling, and the Board did the same on the latter part.  

Then things got really interesting.  One month later, a District Court in South Carolina held that the Board lacked authority to issue the Rule, which was the complete opposite of what the Judge in Washington D.C. had held.  While the case in South Carolina was also appealed – and currently remains pending in the Fourth Circuit – the D.C. Circuit Court stayed implementation of the Rule and posting requirement, and the Board itself also agreed not to implement the requirement even outside of the District of Columbia unless the South Carolina Judge’s decision was overturned. 

Back in our nation’s capital, after first determining that the Board did have a valid quorum still in place under Noel Canning when it filed the notice posting Rule with the Federal Register, the D.C. Circuit then essentially determined that Section 8(c) of the Act gives employers certain free speech rights to speak about unionization as long as it is non-coercive – and not speak if they choose not to – and, therefore, does not permit the Board to consider an employer’s failure to post the notice under the Rule an Unfair Labor Practice.  In so concluding, the D.C. Circuit rejected the argument that the notice was really Board speech, not that of the employer.  In doing that, the Court likened the notice and its contents to handing out leaflets prepared by others and referenced the free speech protection such leaflets contain. 

Because the Court ultimately determined that this justification and the other two means of enforcing the Board’s posting requirement in the Rule were also invalid, the Court did not decide whether the Board had the authority to issue the Rule under Section 6 of the Act, which gives the Board the authority to issue rules to carry out the Act’s provisions. 

Most employers probably have been aware of this posting requirement.  After all, many spoke out against it.  Also, this issue has been on the radar for quite a while because the regulatory process took some time and the Rule was set to take effect on the scheduled date right up until the stay was issued.  While the war may not be finished because the Board could very well appeal the D.C. Circuit’s decision to the U.S. Supreme Court while they wait to see what the Fourth Circuit decides, this ruling remains an extremely significant victory for employers – and another setback to the Board in carrying out what has been generally regarded as more of an activist agenda under the Obama administration.

Post-amendment, an employer remains liable for three times the unpaid amount to an employee who is not timely paid.   Timing of payments to employees who are laid off or resign is unchanged; payment must be made no later than the next regular payday.   Click here to see the history and status of the bill on the West Virginia Legislature’s website.  

The good intention behind the amendment was to provide employers with some relief from the draconian 72-hour rule.  Unfortunately, the result in action is not as kind.  Suppose the employee is discharged on the Wednesday before a Friday payroll.  Under the next regular payday or four business days, whichever comes first, rule, the employer now has two days to provide that last paycheck.  As a result, the best practice is still to try to have the final paycheck ready for a discharge meeting.

There is no legal way to remove just Medicare eligible spouses of active employees from an employer group plan or to have Medicare pay as the primary insurer for those individuals.  The Medicare Secondary Payer statute (MSP) 42 U.S.C. §1395y was specifically enacted in 2003 to ensure that Medicare benefits are secondary to employer plans when dealing with non-retirees.  In the context of Medicare, a primary plan is defined as “a group health plan or large group health plan, a workers’ compensation law or plan, an automobile or liability insurance policy or plan (including a self-insured plan), or no-fault insurance.”  The MSP does not allow Medicare payment for services for which it can reasonably be expected that payment will be made under a group health plan.  Medicare’s designation as the secondary insurer is upheld even if state law or the group health plan states that its benefits are secondary to Medicare.  The statute does exclude group health plans of small employers.  Small employers are defined by the statute as having less than twenty (20) employees for each working day in each of twenty or more calendar weeks in the current calendar year or the proceeding calendar year.   As you’ve probably guessed, the purpose of the MSP was to reduce federal health care costs by shifting the burden of primary coverage from Medicare to private insurance carriers. 

The MSP has an anti-discrimination clause to protect actively working Medicare eligible individuals from receiving less coverage than their non-eligible coworkers.  The clause states that “a group health plan may not take into account that an individual or spouse who is covered under the plan by virtue of the individual’s current employment status with an employer is entitled to [Medicare] benefits.”  42 U.S.C. §1395y (2013).  Therefore, employers are not allowed to offer Medicare-eligible employees reduced coverage while offering comprehensive coverage to other employees.  Additionally, the MSP does not allow an employer group plan to take into account that an employee’s age entitles him to Medicare benefits.  This prevents group plans from “carving out” expenses covered by Medicare, effectually making the plan’s coverage primary to Medicare. 

However, if those employees who are eligible for Medicare choose to opt out of the employer group health plan, then Medicare will become the primary insurer.  Employers that have employees who choose to opt out of the group health plan need to be very careful not to provide opt out incentives for Medicare eligible employees.  The MSP statute can impose a $5,000 penalty per individual against any employer found to offer financial incentives for Medicare eligible individuals to opt out of their group health plan.  Employers cannot reduce the costs of group health plans by singling out Medicare eligible individuals (active employees or spouses of same) for less comprehensive benefits due to Medicare eligibility.  What this means is that employers will need to look elsewhere for solutions to rising health care costs. 

Ohio law prohibits employment discrimination based on a person’s race, color, religion, sex, military status, national origin, disability, age or ancestry.  On appeal, Inskeep argued that although the Act does not explicitly prohibit sexual orientation discrimination, discrimination based on sexual orientation is discrimination because of sex.  Inskeep had little to support his position other than a definition of sex from dictionary.com stating that sex is “the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct.”  Notably, Inskeep did not argue that he was discriminated against based on his gender. 

In declining to extend the Act to cover sexual orientation discrimination, the Court drew an important distinction between same-sex harassment and sexual orientation harassment.  Cases of same-sex harassment are actionable only if the employee alleges he or she was discriminated against because of sex.  In a case of same-sex harassment, the sexual orientation of the harasser is not the relevant factor; rather, the Court must determine whether the harassment occurred because of the victim’s sex, i.e., gender. 

Despite concluding that sexual orientation discrimination is not actionable under the Ohio Civil Rights Act, the Court left the door open for future changes in the law that may prohibit such discrimination.  Specifically, the Court noted that the Ohio Legislature or Ohio Supreme Court could address the issue and decide differently. 

Although Ohio state law does not yet prohibit sexual orientation discrimination, it is possible that such protection will be granted in the foreseeable future.  About a dozen cities in Ohio prohibit sexual orientation discrimination, and state employees are protected as well.  Nationwide, several states and many cities protect against sexual orientation discrimination.  Thus, employers should consult counsel to help them determine whether their companies are susceptible to claims for sexual orientation discrimination wherever they operate.

Faced with a motion to dismiss discrimination claims and a retaliatory discharge claim brought under the PHRA by the former employee of an Indiana corporation that maintains its principal place of business in Pennsylvania, the district court in Blackman focused on the fact that the plaintiff was an Illinois resident who worked in the defendant’s Illinois office.  Ultimately, the court concluded that the PHRA does not afford protection to individuals who neither reside nor work in Pennsylvania.  Interestingly, as the court observed, even if the plaintiff had alleged that she attended quarterly meetings in Pennsylvania, that she interacted daily with the company’s Pennsylvania employees, and that the adverse decisions regarding her employment were made in Pennsylvania, such allegations would not have saved her PHRA claims.    

Although the PHRA claims in Blackman were dismissed, it should be noted that the plaintiff proceeded with her Title VII claims; moreover, the district court in Blackman did not opine about whether the plaintiff could have brought a viable claim under the Illinois anti-discrimination statute.  Rather, the Blackman opinion simply reinforces that the PHRA is limited in its application, even with regard to Pennsylvania employers that have at least four employees within the Commonwealth.  More specifically, the Blackman opinion reinforces that the PHRA does not cover nonresident employees who work outside of Pennsylvania. 

As companies expand their workforces, particularly within the energy industry, the Blackman opinion provides guidance regarding the reach of Pennsylvania’s anti-discrimination statute.  To that end, the Blackman opinion is certainly noteworthy.  However, as alluded to above, even in instances when the PHRA is not applicable because the employee at issue neither resides nor works in Pennsylvania, such an employee (depending upon, among other things, the number of individuals employed by his or her employer) may have a claim against his or her employer under the federal anti-discrimination statute (i.e., Title VII) or the anti-discrimination statute of the state in which he or she actually works.  To that end, Pennsylvania employers that have employees who are not afforded the protections of the PHRA must still be mindful of any potential for a discrimination claim based upon an adverse employment action.     

To start with, you have to identify your bad attitude employees, and that’s usually not the difficult part.  They roll their eyes at your comments, test the boundaries of your rules, and walk all over their co-workers.  Of course, telling someone they have a bad attitude is not going to solve anything, but how do you document something as subjective as a bad attitude?

Step one is focusing on behaviors.  Document specific examples (date, circumstances, those present) of the behavior and how it impacted your business.  Look at your policies to see if the behavior is in violation of expected workplace demeanor.  Eye-rolling and under-the-breath comments may be insubordination.  Mistreatment of co-workers may violate rules on acting professionally in the workplace.  Document a few examples to address with the employee.

Most employers invest a lot of time and money into their employees, so discharge is not the first route most folks want to take.  It’s not a good starting place most of the time anyway, because employees should feel that they are treated fairly.  All of this means you need to give your bad attitude employee a chance to make things right.  Some people are just sour, and those are the ones who won’t be able to make the changes and who may need to be let go.  Others might have reasons for the attitude – reasons that can be fixed.  That makes step two talking to your employee.

Now, sitting down with an employee to discuss his or her bad attitude is not an easy conversation, so stay calm and professional throughout the exchange.  Have another person (supervisor or HR) in the meeting.  Present the factual behaviors, their impact on the job, how they violate company policy, and ask what the employee needs from you to help fix the situation.  Then, listen.  Perhaps they’re overwhelmed by their workload.  Maybe they haven’t been given clear direction by their supervisor.  There are many causes – external and internal to the workplace – which could impact employee attitude.  It may be something you need to address with another employee.  The only way you’ll find out is by listening.

The next step is to work with the employee to develop a plan for addressing and correcting the behaviors.  Document a plan of action with consequences for failing to meet goals.  Have the employee sign off both on the specific examples you provided in the meeting, as well as the performance plan.  Encourage the employee by citing to examples of the things he or she does well, and offer to provide support if they need additional help.  Then, follow-up in the time-frame you’ve selected to see if progress has been made.

If the employee hasn’t improved significantly, it’s time to consider discharge.  While you can’t stop an employee from bringing a wrongful discharge claim, the documentation you’ve generated giving the employee a chance to fix the problem goes a long way toward defending these claims.

Throughout all of this, make sure you’re following your workplace policies, complying with any employment contracts or collective bargaining agreements, and treating employees consistently.  Do not discharge a bad attitude employee for behavior you let other employees get away with because others do it with a smile.  Consistency and fairness are concepts we learned from the playground, and they live on not just in the workplace, but in the courtroom.

What are your views on handling employees with bad attitudes?  We’d love to hear them.

First, challenge your stars.  Given them the tougher projects that will require them to use their initiative, as well as their innovation skills.  You should give them room to make mistakes and take risks because that is where they can excel and bring more to your company.

Second, reward your stars.  Money isn’t the only reward a star employee wants or needs.  Face time over lunch with an important member of your company or more input into the decision on which project he or she will tackle next can also reward and motivate your stars.  Remember, however, that many star employees have quirks that you do not want to reward.  For instance, instead of focusing only on your star’s contribution to a successful project, recognize him or her as a member of the team.

Third, ensure their growth.  Spend time with your stars, providing them with feedback on their performance, informing them of job expectations, and developing their future.  Your stars need to know their long-term potential with your company.  And, they want to be a part of planning that future.  Grow their leadership skills so that you’ll know if a move to management is appropriate for them.  Just because an employee is a star does not mean he or she has the skills to manage people.  Encourage leadership in the community as one source of experience.  Allow your star to mentor one of your good performers, giving that person a chance to become a star, too.

Finally, hold your stars accountable.  While a star knows (and in some cases overestimates) their worth, don’t find yourself in an untenable situation.  Always keep an eye out for good recruits for your business.  The star who thinks he’s irreplaceable may become unmanageable.  While high productivity and revenue generation are great attributes in an employee, you also want your stars to play well with others.  Attitude is important and should not be overlooked in the evaluation process simply because someone has good numbers.  Doing that might alienate a future star in your pool of good performers.

All of this is not to suggest that you should play favorites with your employees.  Morale is key to a healthy organization, and fairness is vital to morale.  But remember, it is often said that 20% of your employees will consume 80% of your time – and not in a good way.  Make sure you invest some of what’s left in your stars, and you’ll brighten your company’s future.