Monthly Archives: April 2012

April 24, 2012

Good Documentation Dooms FMLA Claim

by Mark Wiletsky

A recent case issued by the Tenth Circuit (which covers Colorado) provides a good reminder about the importance of good documentation, and following your employment policies.  In Peterson v. Exide Technologies, the Tenth Circuit affirmed summary judgment in favor of Exide Technologies, dismissing Peterson's Family and Medical Leave Act (FMLA) and wrongful discharge claims as a matter of law.  Peterson was involved in a forklift accident, in which he was injured.  After the accident, he was placed on FMLA leave for 10 days.  After investigating the accident, the employer determined that Peterson had violated its safety policies.  Therefore, Exide terminated Peterson four days after the accident, while Peterson was on FMLA leave.

Peterson then sued, claiming his discharge violated his rights under the FMLA, and gave rise to a common law claim for wrongful discharge in violation of public policy.  The district court and the Tenth Circuit disagreed.  Peterson had a history of documented safety violations, and he had no evidence that the stated reason for his discharge–yet another safety violation–was a mere cover-up (or pretext) for an unlawful motive.  Importantly, the court rejected Peterson's argument that Exide had failed to follow its own progressive discipline policy.  The court noted that Exide's progressive discipline policy was discretionary rather than mandatory, and it did not prevent Exide from considering past disciplinary actions, even if they were dated.

Peterson also claimed the incident giving rise to his termination was minor, and that he was not at fault for the accident.  Again, however, the court rejected his arguments, reasoning that Exide could legitimately rely on the final accident given Peterson's record of unsafe work performance.  Thus, even though Peterson was terminated while on FMLA leave, his claims were dismissed.  There are several important lessons from this case, including:

1.     Document performance and behavior issues as they occur.

2.     Review your employment policies to ensure they do not create mandatory language with respect to progressive discipline, or any other language that might limit your right to terminate an employee.

3.     It is possible to discharge employees while on FMLA leave, but be cautious when doing so.  Such a decision has a heightened possibility of leading to litigation.  Even if, as in this case, you can successfully defend the case, consider whether there is another approach that might allow you to avoid litigation altogether.

April 17, 2012

NLRB Notice-Posting Requirement Indefinitely Postponed

Brian M. Mumaugh and Bradford J. Williams have been following the recent developments regarding the rule by the National Labor Relations Board, which required most employers to post a statement of rights under the National Labor Relations Act.  Today the D.C. Circuit granted an emergency motion for relief, which had the effect of enjoining enforcement of the rule.  More information about the D.C. Circuit's ruling and its effect on employers is available by visiting the Colorado Employment Law Blog or clicking here

April 16, 2012

Court Strikes Down NLRB Notice-Posting Requirement, Leaves Employers Hanging

By Brian M. Mumaugh and Bradford J. Williams

    The U.S. District Court for the District of South Carolina just became the second federal district court to weigh in on the legality of a National Labor Relations Board (NLRB) rule requiring most private employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). In his April 13, 2012, decision, Judge David C. Norton held that the notice-posting rule exceeded the NLRB’s authority in violation of administrative law. The decision leaves employers hanging regarding their obligations in advance of the April 30, 2012, notice-posting deadline.

    In August 2011, the NLRB issued a final administrative rule requiring all private employers covered by the Act to post 11-by-17 inch posters “in conspicuous places” advising employees of their rights under the NLRA. These rights include the right to form, join, or assist unions; to negotiate with employers through unions; to bargain collectively through representatives of employees’ own choosing; and to strike and picket. The rule was stridently opposed by business groups which felt that it violated employers’ First Amendment rights, and mandated the posting of an excessively pro-union message. The final rule required employers who customarily communicate with employees regarding personnel matters using an intranet or internet site to post the notice prominently on that site.

    To ensure compliance, the rule provided that failure to post the required notice would be deemed an unfair labor practice (ULP) under Section 8(a)(1) of the Act. The Board could automatically toll (or stay) the six-month statute of limitations for all ULP actions—not just those arising out of a failure to post—where employers failed to post the notice. In addition, the knowing and willful refusal to post the notice could be used “as evidence of unlawful motive” in ULP cases in which motivation was at issue.

    In late 2011, the NLRB’s final administrative rule was challenged in lawsuits filed in the U.S. District Court for the District of Columbia, and the U.S. District Court for the District of South Carolina. Due in part to this pending litigation, the rule’s effective date was postponed to January 31, 2012, and then to April 30, 2012.

    On March 2, 2012, Judge Amy Jackson of the U.S. District Court for the District of Columbia issued a ruling in the first of the two lawsuits, National Association of Manufacturers v. NLRB, No.11-1629 (ABJ) (D.D.C. Mar. 2, 2012). Judge Jackson broadly upheld the NLRB’s right to issue the notice-posting rule, but struck down automatic sanctions for failure to post the required notice. She held that failure to post might constitute an ULP, and might toll the statute of limitations, but found that the Board would have to make specific findings in each ULP case to impose such sanctions. Judge Jackson’s decision is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit, and the appellate court has not yet ruled on a motion that would enjoin the rule’s enforcement pending the court’s decision.

    Last Friday, Judge Norton stepped into this fray by issuing a diametrically opposed decision in the second of the two lawsuits, Chamber of Commerce v. NLRB, No. 11-cv-2516 (DCN) (D.S.C. Apr. 13, 2012). Judge Norton found that the Board had exceeded its authority under Section 6 of the Act by issuing the notice-posting rule. Noting that Section 6 gives the Board the power to make “such rules and regulations as may be necessary to carry out the provisions of the [NLRA],” the judge found that the notice-posting rule was not “necessary” to any of the Act’s provisions. On the contrary, the NLRA empowers the Board to prevent and resolve ULP charges and to conduct representative elections. Judge Norton noted that these duties are inherently “reactive,” and found that nothing in the Act requires employers to “proactively” post notices of employee rights. As Judge Norton concluded: “Neither Section 6 nor any other section of the NLRA even mentions the issue of notice posting.” 

    Judge Norton further rejected the argument that the Board had acted appropriately by filling a statutory “gap” in the NLRA. He observed that Congress had inserted at least eight explicit notice requirements into federal labor statutes since 1934, while the NLRA had “remained silent.” He concluded that Congress “clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires,” but found that there is “not a single trace of statutory text that indicates Congress intended for the Board to proactively regulate employers in this manner.”

    Interestingly, Judge Norton did not discredit the Board’s factual finding that there is an increased need for employees to learn of their NLRA rights, and he did not dispute Judge Jackson’s conclusion that the Board had articulated a rational connection between this finding, and the Board’s decision to promulgate the notice-posting rule. Nonetheless, he implicitly found that any such connection was irrelevant in light of the plain language and structure of the Act, which he said compelled his conclusion that the Board lacked the authority to promulgate the rule.

    Judge Norton’s decision is extremely favorable for employers, but is it unfortunately only likely controlling in the District of South Carolina. Conversely, Judge Jackson’s decision is broadly disappointing for employers, but is only likely controlling in the District of Columbia. Courts in other jurisdictions—including in the Tenth Circuit—have yet to weigh in on the issue. If Judge Norton’s decision is eventually appealed (as is likely), and the U.S. Court of Appeals for the Fourth Circuit reaches a different decision than the U.S. Court of Appeals for the District of Columbia, the notice-posting issue could end up before the U.S. Supreme Court.

    A spokesman for the NLRB announced last Friday that the Board was studying Judge Norton’s decision, and would be deciding on an appropriate course of action. As it has done before, the Board might postpone enforcement of the rule pending further court action. Alternatively, the Board might take the position that the rule is only unenforceable in the District of South Carolina, but is enforceable elsewhere. The U.S. District Court for the District of South Carolina, or the U.S. Court of Appeals for the District of Columbia Circuit (or even the U.S. Court of Appeals for the Fourth Circuit, if Judge Norton’s ruling is appealed), could separately enjoin enforcement of the rule given the current split in legal opinion.

    In the wake of Judge Norton’s decision, employers are advised to monitor further developments in both the District of South Carolina case, and in the District of Columbia case. Employers may also want to monitor the NLRB’s website. As the April 30th notice-posting deadline approaches, employers may wish to consult with legal counsel about the potential costs of posting an arguably pro-union poster, and the likelihood that the notice-posting rule may eventually be invalidated in their jurisdiction.

    For more information or advice on compliance, please contact Brian M. Mumaugh or Bradford J. Williams of Holland & Hart’s Labor & Employment Practice Group.

April 13, 2012

NLRB: Employee Rights Notice Required by April 30, 2012 — But South Carolina Court Rules That Agency Exceeded Authority

By Scott E. Randolph

On April 30, 2012, most employers will be required to post the new employee rights notice issued by the National Labor Relations Board (“NLRB”) notifying employees of their rights under the National Labor Relations Act (“NLRA”).  The NLRB has links on its website to a frequently asked questions page, which is available here.  The full text of the rule requiring the new notice is available here.  The employee rights notice is available in a variety of formats by clicking on the links here.

The employee rights notice must be posted in a conspicuous place in the workplace as well as on-line if employee policies or notices are available there.  According to the NLRB, the notice must be posted in languages other than English if at least 20% of the workforce are not proficient in English.  Although the posting requirement has been delayed, a recent district court decision affirmed the rights of the NLRB to issue the rule as my colleague Bradford Williams discussed in an article last month.

Update:  On April 13, 2012, Judge David C. Norton of the United States District Court in Charleston, S.C. ruled that the NLRB lacked authority to issue the rule.  A copy of the Court's decision is available here.  The Chamber of Commerce sued the NLRB seeking a ruling that the agency had acted outside of its authority by requiring employers to post the notice.  The district court agreed and entered summary judgment in favor of the Chamber of Commerce.  This decision is likely to once again delay implementation of the new rule as the NLRB assesses its legal position following the ruling.  We will keep updating as we know more. 

April 10, 2012

Maryland Protects Employees’ Social Media

By Mark Wiletsky

According to various blogs, including a post by the ACLU, Maryland has become the first state to ban employers from requiring employees or applicants to provide access to their otherwise protected social media accounts.  I have not yet seen the text of the bill that Maryland passed, but the new law is not entirely surprising in light of the furor that recently erupted–which gained national media attention–based on reports of a few employers demanding access to applicants' or employees' Facebook and other social media accounts. Whether Maryland's law protecting employees' social media accounts is the first of many state laws, or even a new federal law, remains to be seen.  Regardless, this is yet another indication to employers to be cautious about social media.  Employees' use of and access to social media–both inside and away from the workplace–raises novel issues that courts and legislatures will have to address.  Until more definitive guidance is provided, be aware that your practices may need to modified and reviewed regularly to address this evolving area of the law. 

April 6, 2012

Defense of Discrimination Claims Will Continue to Rise

By Steven M. Gutierrez


Employers continue to face increases in the number of discrimination charges and lawsuits. The EEOC continues to make enforcement in this area a high agency priority. The costs to employers are significant, given the use of wide-ranging subpoenas and discovery requests by the EEOC. Steven Gutierrez discussed the important issue yesterday in a post that is available by visiting

April 3, 2012

Facebook Amendment Preventing Employer Access Dead For Now

By Scott E. Randolph

For now, at least, Congress has failed to approve an amendment that would have prevented employers from demanding that job applicants hand over their Facebook and other social media passwords as part of the hiring process.  Last week the House of Representatives voted down an amendment by Rep. Perlmutter that would have prevented the practice.  The amendment was rejected by a vote of 184 to 236.  Although the amendment was rejected, this is not the last we expect to see of the effort to foreclose employers from demanding access to social media.  For its part, Facebook has decried the practice, contending that demanding access to an applicant's username and password violates its terms of service. 

My colleague in Colorado Mark Wiletsky has been discussing this issue in his recent posts on the Colorado Employment Law Blog, which is available here.  Mark's posts are available here and here

Beyond the obvious privacy issues of demanding access to Facebook passwords or insisting that an applicant "friend" an employer, employers should be cautious even when viewing publicly available social media profiles.  Many job applicants and employees post information that could expose a well-intentioned employer to suits for discrimination or retaliation simply because the decision-maker had reviewed social media sites and learned that an employee or applicant is a member of a protected class or has a particular medical condition.  For this reason, we recommend that employers review social media policies now to ensure that the simple act of viewing a job applicant's social media site does not result in possible legal liability. 

April 2, 2012

EEOC Issues Final Rule On Disparate Impact

By Mark Wiletsky

Last week, the Equal Employment Opportunity Commission (EEOC) issued its final rule governing disparate impact claims arising under the Age Discrimination in Employment Act of 1967 (ADEA).  A disparate impact occurs when a policy or practice that is facially neutral has a disparate, or significantly greater, impact on older workers than younger ones.  The EEOC's final age bias rule addresses the “reasonable factors other than age” defense, or RFOA, under the statute.  According to the EEOC, the rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA [reasonable factors other than age], and not business necessity[.]”  For more information, see the post by my colleague, Scott Randolph.