NLRB Adopts Presumption That Worker’s Can Use Employer’s Email To Communicate About Workplace Issues During Non-work Time

The National Labor Relations Board held in a 3-2 decision that employees with access to an employer’s email system in the course of their work are, in most cases, permitted to use their employer’s email system during non-work time to communicate with other employees about any and all workplace issues. Purple Communications, Inc. 361 NLRB No. 126 (December 11, 2014). In Purple Communications, the Board overruled prior precedent and held that employers can justify a blanket ban on non-work time use of the employer’s email system only by demonstrating that “special circumstances make the ban necessary to maintain production and discipline.” The Board noted, however, that “it would be the rare case where special circumstances justify a total ban on non-work email use by employees.” The Board’s decision permits employers to apply uniform and consistently enforced controls over its email system “to the extent such controls are necessary to maintain production and discipline.”

Supreme Court Ruled Time Spent By Workers Undergoing Security Screenings Is Not Compensable

The United States Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (December 9, 2014), that an employer was not required to pay warehouse workers for wait time and for time spent undergoing anti-theft security screenings. The Court ruled that these activities were not principal activities that the employees were hired to perform, nor were they “integral and dispensable” to those activities, and, therefore, they were not compensable under the Fair Labor Standards Act (FLSA).

Integrity Staffing required its warehouse workers, at the end of each shift, to undergo security screenings that included removal of personal articles and passing through a metal detector. The Supreme Court held that the security screening were not “integral and dispensable” to the warehouse workers’ duties of selecting and packaging products for shipment. The Court noted that activities that are “preliminary” or “postliminary” to an employee’s principal activities are not compensable unless the activities are an “integral and indispensable part of the principal activities.” The Supreme Court held that an activity is “integral and dispensable” if the activity is an “intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” The Court noted that Integrity Staffing could have eliminated the screenings without impairing the warehouse workers’ ability to complete their work. In addressing the fact that the screenings were a required activity, the Court stated that the “integral and dispensable” test is “tied to the productive work that the employee is employed to perform” and not related to whether the employer required the activity.  Finally, even though the warehouse workers spent up to twenty-five minutes waiting to go through security, the Court rejected the warehouse workers’ argument that they should be compensated for wait time because the employer could have reduced that time to a de minimis amount. The Court held that the fact that the employer could have reduced the wait time “does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”



EEOC Issues Controversial Enforcement Guidance on Pregnancy Discrimination

For the first time since 1983, the Equal Employment Opportunity Commission (EEOC) updated its position on pregnancy discrimination by issuing its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) on July 14, 2014. The Guidance was issued after three of the five Commissioners recommended it. The dissenting Commissioners issued statements challenging the Guidance as not being in line with existing law, legal precedent, and prior EEOC guidance. The Guidance was also published by the EEOC without first requesting or allowing public review and commentary. Moreover, the EEOC’s Guidance was issued shortly after the Supreme Court granted certiorari to hear Young v. United Parcel Service, No. 12-1226 (July 1, 2014), an important case that is expected to clarify an employer’s obligation to accommodate a pregnant worker. Specifically, the issue presented in Young is whether, and in what circumstances, an employer that provides work accommodations to non-pregnant employees with work limitations must provide comparable work accommodations to pregnant employees who are “similar in their ability or inability to work.” In light of the controversial timing and publication of the Guidance prior to the Supreme Court’s ruling in Young, many of the standards set forth in the Guidance could ultimately become moot.

The following are the most controversial provisions of the new Guidance. The EEOC’s Guidance prohibits discrimination on the basis of past, current, and intended pregnancy, even though the Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII, prohibits discrimination based on pregnancy, childbirth, or related medical conditions. The Guidance requires employers to provide reasonable accommodations to pregnant employees or those with pregnancy-related conditions, even though pregnancy does not automatically qualify as a disability under the Americans with Disabilities Act, as amended (ADA). The Guidance obligates an employer to treat a pregnant employee who is temporarily unable to perform the functions of her job the same as it treats other employees who are similarly unable to perform their jobs, including those with disabilities. The Guidance requires pregnant women with work restrictions to be given light duty if the employer offers light duty to any of its employees under any circumstances, regardless of whether the employer’s light-duty program is limited to employees recovering from on-the-job injuries, which is the very issue to be decided by the Supreme Court in Young. The Guidance also prohibits employers from discriminating against employees based on medical conditions related to pregnancy or childbirth, including lactation, breastfeeding, and abortion. Finally, the Guidance sets forth the EEOC’s position on parental leave and states that parental leave must be provided to men and women on equal terms.

Naomi Smith named to The Best Lawyers in America© 2014

Naomi Smith was selected by her peers for inclusion in The Best Lawyers in America© 2014 for Employment law. Best Lawyers® is based on an exhaustive peer-review survey in which almost 50,000 leading attorneys cast nearly five million votes on the legal abilities of other lawyers in their practice areas.

U.S. Supreme Court Rules on Vicarious Liability for Supervisory Harassment under Title VII

In Vance V. Ball State University (June 24, 2013), the Supreme Court held that an employer can be held vicariously liable for supervisory harassment under Title VII only if the supervisor is empowered by the employer to take tangible employment action against the victim. This ruling clarifies the supervisor vicarious liability standard previously established in prior Supreme Court decisions (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth).

The Supreme Court ruled in Vance v. Ball State University that there is a distinction between supervisors and coworkers, based on the supervisor’s ability to make tangible employment decisions. The Supreme Court rejected the ambiguous and murky definition of the term “supervisor” found in the EEOC’s Enforcement Guidance, and held that the “ability to direct another employee’s tasks is simply insufficient” to warrant vicarious liability on the part of the employer. The Supreme Court’s decision in Vance, thus limits supervisor vicarious liability for harassment under Title VII to those supervisors who have the power to take tangible employment actions—such as the power to hire, fire, demote, transfer, and discipline.

As a result of the Vance ruling, employers should evaluate which of their employees can potentially create vicarious liability for the employer based on the employee’s potential supervisory roles and responsibility. Employers should ensure that their “supervisors” are clearly identified as such to all employees; that supervisors’ job descriptions are clear, concise, and accurate; and that supervisors are well-trained with respect to employment law, company policies prohibiting harassment and discrimination, and their supervisory obligations and responsibilities.

U.S. Supreme Court Rules That a Title VII Plaintiff Must Prove “But For” Causation in a Retaliation Claim

In University of Texas Southwestern Medical Center v. Nassar (June 24, 2013), the Supreme Court ruled that in a Title VII retaliation case, a plaintiff must prove that an employer would not have taken an adverse employment action “but for” an improper motive as opposed to proving the lesser causation standard or the “mixed motive” standard, which requires a plaintiff to show that retaliation was one of the employer’s motives, even if the employer had other, lawful motives that contributed to the employer’s adverse employment decision. Based on this recent decision, Title VII retaliation claims will be much more difficult for a plaintiff to prove.

U.S. Supreme Court Rules Federal Law Defining Marriage as Between a Man and A Woman is Unconstitutional

The Supreme Court issued its decision in United States v. Windsor (June 26, 2013) holding that the federal Defense of Marriage Act of 1996 (DOMA) is unconstitutional under the Equal Protection Clause. Pursuant to DOMA, a same-sex partner is excluded from the definition of “spouse” under federal law, even if same-sex spouses were recognized under state law. DOMA further provided that states did not have to recognize a same-sex marriage legally recognized by another state. The Supreme Court’s recent ruling will impact employee benefits plans, including how the plans define the term “spouse,” which will now be dictated by applicable state law.

Final Phase of Georgia’s E-Verify Law Becomes Effective July 1, 2013 for Small Employers

All private Georgia employers with more than ten employees must use E-Verify, an internet-based system administered by the federal government, which allows employers to determine the legal eligibility of their employees to work in the United States, as of the effective date of Georgia’s E-Verify Law.

Smith Moore Opens Atlanta Office

Smith Moore Attorneys LLC announces the opening of its offices in Atlanta on August 1, 2012. Smith Moore is an employment law boutique firm that provides its clients with legal advice and counsel related to the employer-employee relationship. For more information, please explore our web site and contact us.

Controversy Over Effective Date of Georgia’s New Restrictive Covenants Act Is Resolved

The 11th Circuit recently ruled that the Georgia General Assembly’s first attempt at the passage of the new pro-employer Restrictive Covenants Act (RCA) on November 3, 2010 (H.B. 173) was unconstitutional and void. The court found that the reenactment of the statute by the General Assembly (H.B. 30), which was signed by the governor on May 11, 2011, is constitutional and applies to all agreements entered into on or after May 11, 2011. The 11th Circuit also found that restrictive covenants signed before May 11, 2011, including agreements signed between November 3, 2010, and May 11, 2011, are governed by Georgia’s rigid pre-existing common law. Becham v. Synthes USA, No. 11-14495, 2012 WL 1994604 (11th Cir. June 4, 2012). Employers that revised their employee non-compete agreements prior to May 11, 2011, and employers that have not yet revised their employee restrictive covenants to take advantage of Georgia’s RCA, should consider doing so as soon as possible.