Test Your Knowledge: Employee Handbook True/False Quiz; US Supreme Court Decision On Pregnancy Discrimination, NLRB New Quickie Election Rules, and DC Wage Theft Law By: Lawrence P. Postol, Vice President For Legislative AffairsLpostol@seyfarth.comEmployee HandbooksAlthough employers are not required by law to have employee handbooks, if an employer chooses to go down such a path, legal compliance and being current with latest trends is a must. A non-compliant employee handbook can be used in claims of discrimination, union grievances, and other employee-employer disputes. Test your knowledge of latest legal trends in employee handbooks. True or False?1. Employers should consider including a pregnancy accommodation policy in its handbook?True. As noted below, the U.S. Supreme Court has held that pregnant workers may be entitled to accommodations. In addition, states and municipalities are passing pregnancy accommodation laws that require accommodation of pregnant workers, and in most cases provide greater rights and protections. Thus, employers need to review their employee handbooks for this issue.2. Non-union employers do not need to worry about the National Labor Relations Board guidance on Handbooks?False. The National Labor Relations Act applies to all employers union and non-union. The NLRB has been very active in challenging policies and handbooks of non-union employers, especially in the areas of Social Media, Employer Confidential Information and Rules of Conduct. All employers should be reviewing their handbooks in light of this guidance.3. There should be a carve out for the employment at will policy in any handbook that references the employers ability to change at any time any of the employers policies in the handbook?True. It is best practice to include in any handbook a reference to an employers right to revise, modify or eliminate any policy at any time except for the policy of at-will employment. An employer does not want to concede that a mere policy or handbook change can result in any changes to the at-will employment relationship that governs in most workplaces. It is important to maintain the at-will employment policy and relationship to prevent wrongful termination claims and breach of contract claims.4. We reviewed and revised our employee handbook in 2014 so we do not need to review again in 2015?False. 2015 is shaping up to be a busy year in terms of employment law changes. The Department of Labor issued a final rule on same sex spouses and the Family Medical Leave Act. Numerous states have paid sick leave laws taking effect in 2015. Pregnancy accommodation laws are continuing to be proposed and enacted. There are many other issues on the horizon and employers need to be paying attention to these developments.U.S. Supreme Court Issues Its Decision On Pregnancy Accommodation Discrimination On March 25, in a 6-3 decision handed down in Young v. United Parcel Service, Inc., No. 12-1226, the U.S. Supreme Court overturned a Fourth Circuit decision that affirmed a grant of summary judgment to UPS in a Pregnancy Discrimination Act lawsuit brought against it by Young, a female delivery driver. The Supreme Court remanded the case to the Fourth Circuit to determine whether Young created a genuine issue of material fact as to whether UPS reasons for having treated Young less favorably than it treated other non-pregnant employees were pretextual.First, a brief summary of the facts: When Young became pregnant, her doctor advised her that she could not lift more than 20 pounds, but UPS required drivers like Young to be able to lift up to 70 pounds. UPS told Young that she could not work while under a lifting restriction. Young then filed a federal lawsuit claiming that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. In response to UPSs motion for summary judgment, Young pointed to UPS policies that accommodated workers who were injured on the job, had lost Department of Transportation certifications, or had disabilities covered by the Americans with Disabilities Act. In vacating the judgment of the Fourth Circuit and remanding the case, the Supreme Court held as follows: A pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas burden-shifting framework, meaning that she must first establish a prima facie case of pregnancy discrimination, which requires her to show that she belongs to the protected class, she sought an accommodation, the employer did not accommodate her, and the employer did accommodate others who were similar in their ability or inability to work. If the plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for denying the plaintiff the accommodation, and the reasons cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer articulates a legitimate, nondiscriminatory reason, then the burden shifts back to the plaintiff to show that the employers reason is a pretext for unlawful discrimination. A plaintiff can show pretext by providing evidence that the employers policies impose a significant burden on pregnant workers and the employers legitimate, nondiscriminatory reasons are not sufficiently strong to justify the burden. A plaintiff may do so by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers. Applying the above to the facts of this case, the Supreme Court held that Young had created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation could not reasonably be distinguished from hers, and the Fourth Circuit did not consider why, when UPS accommodated so many (those with on-the-job injuries, who had lost DOT certifications, and those with disabilities under the ADA), it could not accommodate pregnant women as well. The Court therefore remanded the case to the Fourth Circuit to determine whether Young had also created a genuine issue of material fact as to whether UPSs reasons for treating her less favorably than other non-pregnant employees was a pretext for discrimination.The Supreme Court rejected Youngs contention that as long as an employer provides one or two workers with an accommodation, then it must provide similar accommodations to pregnant workers with comparable physical limitations, irrespective of the nature of their jobs, the employers need to keep them working, or any other criteria.While the decision was split, the Supreme Court unanimously rejected the EEOCs position. The Commission issued updated pregnancy discrimination guidance on a partisan basis in July 2014 in a bald attempt to jump over a pending Young decision. The Supreme Court recognized as much, and disregarded the EEOCs guidance because of its timing, inconsistency with past positions, and the lack of a thorough consideration of the issue. In fact, the Supreme Court noted that the government had previously argued that a theory similar to the one set forth in Young was simply incorrect. The Court determined that it could not rely significantly on the EEOCs determination contained in its guidance.Regardless of the decision, both employers and employees will have difficulty making sense of the Courts new standard, which as Justice Scalia points out is splendidly unconnected to the text of Title VII. Without a doubt, given the broad expansion of covered disabilities under the ADAAA, many more pregnancy-related impairments now likely rise to the level of an ADA-covered disability (e.g., anemia, pregnancy-related sciatica, pre-eclampsia, gestational diabetes), something the majority alluded to in its opinion. In these instances, a pregnant employee would be afforded the same right to reasonable accommodation under the ADA as any other individual with a disability, regardless of whether the impairment was related to pregnancy.While litigation will provide greater clarity in the coming years, employers should strongly consider adopting practices that consider accommodation of women with normal pregnancies, determine whether the individual can perform the essential functions of the job, and consider requests for accommodations accordingly. Finally, regardless of these federal law developments, for those employers in states and municipalities that have passed pregnancy accommodation laws, they need to adopt policies and practices consistent with those laws in terms of providing accommodations to pregnant workers. The laws differ, some requiring a showing similar to the ADA for purposes of providing accommodations and others provide accommodations to pregnant workers, regardless of whether the pregnancy is normal or has complicationsNLRB Expedited Election Rules Go Into EffectThe expedited election rules newly adopted by the National Labor Relations Board (Board or NLRB) will take effect on April 14, 2015 and will significantly shift the playing field and make it far easier for unions to organize employees. The General Counsel recently issued a Guidance Memorandum on Representation Case Procedure changes Effective April 14, 2015 (Memorandum GC 15-06, April 6, 2015), the key points of which are summarized below.The New RulesThe newly approved rules include the following changes to existing representation case procedures: Shorter Time for Pre-Election Hearings. Pre-election hearings will normally be set to open eight days from the date of service of the notice of hearing. Employer Must Post a Notice of Petition for Election. An employer will be required to post this notice within 2 business days after service of the Notice of Hearing, and may have to distribute this notice electronically as well. This requirement is in addition to the requirement to post a Notice of Election at least 3 full working days prior to the day of the election and perhaps distribute electronically this notice as well. Employer Must Prepare and File a Position Statement to Identify Disputed Issues. An employer will ordinarily be required to prepare and file a comprehensive statement of position, by noon on the business day preceding the date of the hearing. In that position statement, the employer must identify any issues regarding the composition of the proposed bargaining unit, day, time and place of the election, and other election-related matters. Any issues omitted by the employer from its statement are waived by the employer and may not be raised later. Employer Must File a Preliminary List of Voters as Part of the Required Position Statement. The employer must also provide a preliminary list of voters with names, work locations, shifts and job classifications in the proposed unit, but without contact information, to the petitioning union (and any other parties) and to the regional director. If the employer contends that the proposed unit is inappropriate, the employer shall separately list the names, work locations, shifts and job classifications of all individuals, if any, that it contends must be added to or excluded from the proposed unit to make it an appropriate unit. More Discretionary Authority to Regional Directors and Less Pre-Election Resolution of Disputes Concerning Unit Placement, Exclusions, and Eligibility. The regional director will decide the issues to be litigated in each case. The hearing officer may solicit offers of proof on any or all issues. If the regional director determines that the evidence described in the offer of proof is insufficient to sustain the proponents position, the evidence shall not be received. No Right to File a Post-Hearing Brief. The regional director will have the authority to determine whether parties may file post-hearing briefs. New Excelsior List Requirements. Under the old rule, the union received an Excelsior list of eligible voters via the Board from the employer prior to the election containing the employees full names and residence addresses but not their email addresses and telephone numbers. Under the new rules, an employer must file a preliminary list of voters as well as an Excelsior list. The latter list must be sent directly to all parties, and must contain the employees available personal (non-business) email addresses and available telephone numbers (home and cell), work locations, shifts and job classifications. The rules also require that the list be produced in electronic form unless the employer lacks the capacity to do so. Earlier Submission of Excelsior List. The Excelsior list will generally be required to be given to the petitioning union (and the other parties, if any) within two business days after the approval of an election agreement or the issuance of a Direction of Election rather than the seven calendar days previously allowed. Earlier Elections. Current language that requires an election normally be conducted between the 25th and 30th days after the direction of the election will be eliminated, and replaced by language requiring that elections be set for the earliest date practicable, thereby permitting elections to be held as early as only a few days after the Regional Directors decision (assuming non-employer parties waive their right to have the Excelsior list at least 10 days before the date of the election). No Right to NLRB Review of Post-Election Disputes. A partys right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes will be eliminated. NLRB review of post-election disputes will become discretionary. Electronic Filing of Petitions and Other Documents Permitted. Petitions and other documents will be permitted to be filed electronically rather than by hand or regular mail.

While the Board did not dictate any time frame for the conduct of an election during the first round of proposed rulemaking, NLRB regional personnel have indicated that the expedited election process could result in elections taking place between 13 and 25 days after the filing of a petition as contrasted with the current 38 to 45 day time frame. We believe most NLRB elections under these new election rules will take place within just a few weeks after the representation petition has been filed.Potential ChallengesLegal challenges to the new NLRB election rules are pending in federal district courts in the District of Columbia and Texas. Such challenges seek a declaration that the rule is contrary to the National Labor Relations Act and the First and Fifth Amendments to the Constitution, but there is no indication that any court will enjoin the rule prior to April 14.Consequences for EmployersThe new rules shorten the time from petition to election to three weeks or less, creating, in the words of dissenting Board members Philip Miscimarra and Harry Johnson, a "vote now, understand later" scheme and "advocat[ing] a cure that is not rationally related to the disease."There can be no doubt that these new rules will significantly benefit unions and their organizers. Indeed, the shorter the election process (13-25 days vs. 38-45 days), the less time that an employer and employees will have to express or formulate their views about the pros and cons of unionization and to communicate facts regarding union representation. For this reason, employers may wish to prepare certain draft communications in advance in the event a petition is ever filed.

The limited time to communicate with employees, however, is just one burden employers will face in opposing a union petition. With the representation hearing normally opening within eight days from the service of the notice of hearing by the regional director, and a detailed position statement setting forth all of the employers positions as to the unit due no later than noon on the business day preceding the date of the hearing, an employer also will face difficulties in determining what position to take as to the appropriateness of a proposed unit as well as over which employee classifications should be included. An employer that has not determined, in advance, what bargaining unit(s) it would consider appropriate at each of its locations and which employees should be included and excluded from those units likely will miss issues and arguments that can or should be raised at hearing.An employer may also find that the persons best capable of relaying its message, front-line supervisors, are in limbo as to whether they are or are not excluded from the unit as statutory supervisors. Such a situation could force an employer to operate during a campaign based on its best guess as to certain individuals supervisory status, a risky proposition. For example, without the benefit of a stipulation or a finding on supervisory status, an employer that has purported supervisors assist in communicating the employers position in an election campaign runs the risk of election objections and unfair labor practice charges that will invalidate the election if the NLRB ultimately finds that the individuals are not statutory supervisors. Likewise, an employer that fails to instruct employees, who are later found to be statutory supervisors, on the rules regarding lawful campaign communications and on the need to avoid attending union meetings runs the risk of election objections and unfair labor practice charges that will invalidate the election results.One particularly frustrating aspect of the new rules is that while the time period between a petition to an election has undoubtedly been shortened, the overall time frame for processing election cases to conclusion may not be significantly impacted. The elimination of many of the pre-election procedures particularly the opportunity to present evidence with respect to voter eligibility or inclusion may ultimately result in more post-election litigation and adjudication. In light of the proposed rules, an employer is best advised as always to maintain positive employee relations to minimize the risk of a union organizing petition being filed. Moreover, rather than wait until after a petition is filed, an employer may wish to prepare, well in advance, its position as to appropriate bargaining units and draft communications to employees on unionization.In light of the proposed rules, an employer is best advised as always to maintain positive employee relations to minimize the risk of a union organizing petition being filed. Moreover, rather than wait until after a petition is filed, an employer may wish to prepare, well in advance, its position as to appropriate bargaining units and draft communications to employees on unionization. DC Wage Theft Prevention Amendment Act of 2014All employers in the District must comply with the posting and notice requirements under the DC Wage Theft Prevention Amendment Act of 2014 (the Act or WTPAA), which became effective on February 26, 2015. The WTPAA requires DC employers provide written notice to all employees -- exempt and non-exempt -- containing specific information about the employees terms and conditions of employment. Although DC employers have until May 27, 2015, to issue the requisite notices to current employees, employers should provide the notice to new hires now. Staffing agencies have an additional and different notice that must also be provided to employees.For the posting requirement, the poster published by the Mayors office is in the form of a notice. This poster/notice should be posted alongside other Federal and DC employment law posters. A copy of the poster/notice is attached. The Office of Wage-Hour (OWH) will conduct a comprehensive public education campaign for employers and employees in the coming weeks that includes webinars, conference calls, and information sessions. 2015 by Lawrence PostolMr. Postol is the Vice President for Legislative Affairs on the NOVA SHRM Board, and a partner in the Washington, D.C. office of Seyfarth Shaw LLP. If you have any questions about the information in this article, you may e-mail Mr. Postol at Lpostol@seyfarth.com or call him at 202-828-5385.Disclaimer: This newsletter does not provide legal or other professional services. This newsletter is made available by the lawyer publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this newsletter you understand that there is no attorney-client relationship between you and the newsletter publisher. The newsletter should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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