8th Cir. Backs NLRB on Jimmy John’s Protests

Jimmy Johns Sick PosterBy Lawrence E. Dubé

March 25 — A Jimmy John’s franchisee illegally fired workers who publicly linked their complaints about sick leave to questions about restaurant food safety, the U.S. Court of Appeals for the Eighth Circuit ruled in a 2-1 decision.

The March 25 decision enforces a National Labor Relations Board order in favor of the workers. The opinion shows there is a continuing controversy about giving legal protection to employees who disseminate negative publicity about their employer’s products.

MikLin Enterprises Inc. argued the employees had no legal right to make false claims that the company’s policy on medical absences compromised the health of the workers who prepared customers’ sandwiches. However, Judge Jane Kelly wrote for the court that exaggerated rhetoric is common in labor disputes and was protected during a publicity campaign by Minnesota restaurant workers. Judge Kermit E. Bye joined in the opinion.

Judge James B. Loken dissented in part, stating the employees lost the protection of the National Labor Relations Act by broadcasting a “scare message” about MikLin’s food that was deliberately false, devastating to the employer and unnecessary for the advancement of the employees’ cause.

Flier Linked Worker Leave, Health Risk

According to the decision and NLRB records, MikLin operated Jimmy John’s sandwich shops in the Minneapolis-St. Paul area.

The Jimmy John’s Workers Union, an Industrial Workers of the World affiliate, lost an October 2010 representation election but remained active among the employees and pressed MikLin to adopt workplace changes, including the introduction of paid sick days for employees.

The board said union supporters took the dispute public by posting in and near MikLin restaurants fliers that pictured identical sandwiches side-by-side above a message “Can’t Tell the Difference?”

The flier labeled one sandwich as being made by a healthy worker and one by a sick worker. The flier asserted that workers didn’t get paid sick days and couldn’t even call in sick.

NLRB Found Discharges Unlawful

MikLin fired six employees for participating in the publicity campaign and the IWW filed an unfair labor practice charge.

An administrative law judge found the discharges violated Section 8(a)(3) of the NLRA, which prohibits discrimination due to union activity, and Section 8(a)(1), which forbids interference with employees’ NLRA-protected activity .

The board affirmed in a 2-1 decision (361 N.L.R.B. No. 27, 200 LRRM 1604 (2014) ..

In the Eighth Circuit proceeding, MikLin argued the “sandwich” fliers were false because employees weren’t precluded from calling in sick. However, Kelly observed a written company rule said, “We do not allow people to simply call in sick” and the company required employees to find their own replacements if they were ill.

The NLRB heard evidence that employees were told to report to work while sick, and Kelly said the board had sufficient evidence to conclude the employees’ claims about MikLin’s leave policy weren’t intentionally false or maliciously motivated.

“There was sufficient evidence in the record tying the effort to obtain paid sick leave with the effect that the lack of paid sick leave could have on MikLin’s product,” Kelly wrote.

Stating the board found employees did no more than suggest the “realistic potential” for illness, the court said it would defer to the NLRB’s finding that the employees’ communications “were not so disloyal as to lose protection under the Act” and it enforced the NLRB findings of unlawful discharges.

Dissent Sees Unprotected Attack on Employer

Dissenting from the court’s ruling on the discharges, Loken cited the U.S. Supreme Court’s decision in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 33 LRRM 2183 (1953), and argued the NLRA doesn’t protect “calculated devastating attacks upon an employer’s reputation and products.”

The “dramatic poster allegations of food contamination were not necessary to aid the employees’ labor dispute,” Loken said. Stating “the employees punished MikLin by urging customers not to buy its sandwiches out of an unwarranted fear of becoming ill,” Loken concluded the employees’ activity wasn’t protected by the NLRA, and their discharges were lawful.

Michael A. Landrum of Landrum & Dobbins LLC in Edina, Minn., argued the appeal for MikLin Enterprises Inc. NLRB attorney Joel A. Heller in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the opinion is available athttp://www.bloomberglaw.com/public/document/MikLin_Enterprises_Inc_doing_business_as_Jimmy_Johns_Petitioner_v.

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California Updates Nondiscrimination Regulations Concerning Pregnancy and Sexual Harassment

Changes Effective April 1, 2016

The California Department of Fair Employment and Housing (DFEH) has released new final regulations, effective April 1, 2016, that address (among other things) pregnancy and sexual harassment under the state Fair Employment and Housing Act (FEHA).

Background
The FEHA prohibits harassment and discrimination in employment on the basis of certain protected classes, such as race, color, religion, disability, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions). The law generally applies to employers with 5 or more employees; however, the provisions regarding harassment apply to all employers.

New Provisions
Highlights of the new regulations include the following:

  • In addition to distributing the DFEH-185 brochure on sexual harassment (or an alternative writing that complies with Government Code section 12950), a covered employer must develop aharassment, discrimination, and retaliation prevention policy that meets specific requirements (§ 11023).
  • New content standards for the abusive conduct component of the required sexual harassment training are included.
  • An employer must maintain and pay for group health coverage for an eligible female employee who takes pregnancy disability leave for the duration of the leave—not to exceed 4 months over the course of a 12-month period per pregnancy—beginning on the date the pregnancy disability leave begins, at the same level and under the same conditions that coverage would have been provided if the employee had not taken pregnancy disability leave.
  • A covered employer must post (and keep posted) notice of rights and obligations regarding pregnancy, childbirth, or related medical conditions on its premises, in conspicuous places where employees are employed. The notice must explain the FEHA’s provisions andprovide information about how to contact the DFEH to file a complaint and learn more about rights and obligations under the law.
  • If the employer publishes an employee handbook that describes other kinds of reasonable accommodation, transfers, or temporary disability leaves available to its employees, that employer must include a description of reasonable accommodation, transfer, and pregnancy disability leave in the next edition of its handbook that it publishes following adoption of the regulations. In the alternative, the employer may distribute to its employees a copy of its notice (described above) at least annually.

Employers are advised to read the regulations in their entirety for additional changes and details.

ORIGINALLY POSTED BY http://www.HR360.com

Oregon: Minimum Wage Scheduled to Rise Up to $14.75 in Certain Areas Over the Next Decade

New Law Establishes Tiered Rates Based on Geographical Location of Employers

The minimum wage in Oregon will rise over the next several years, according to the following schedules:

Base Minimum Wage
In general, employee wages cannot be computed at a rate lower than:

  • From July 1, 2016, to June 30, 2017, $9.75;
  • From July 1, 2017, to June 30, 2018, $10.25;
  • From July 1, 2018, to June 30, 2019, $10.75;
  • From July 1, 2019, to June 30, 2020, $11.25;
  • From July 1, 2020, to June 30, 2021, $12.00;
  • From July 1, 2021, to June 30, 2022, $12.75;
  • From July 1, 2022, to June 30, 2023, $13.50; and
  • After June 30, 2023, beginning on July 1 of each year, a rateadjusted annually for inflation.

Urban Growth Boundary of Portland
For employees working within the urban growth boundary of ametropolitan service district, wages generally cannot be computed at a rate lower than:

  • From July 1, 2016, to June 30, 2017, $9.75;
  • From July 1, 2017, to June 30, 2018, $11.25;
  • From July 1, 2018, to June 30, 2019, $12.00;
  • From July 1, 2019, to June 30, 2020, $12.50;
  • From July 1, 2020, to June 30, 2021, $13.25;
  • From July 1, 2021, to June 30, 2022, $14.00;
  • From July 1, 2022, to June 30, 2023, $14.75; and
  • After June 30, 2023, such employees must be paid no less than $1.25 per hour more than the base minimum wage as adjusted for inflation (above).

Note: The Labor Commissioner is expected to adopt rules for determining an employer’s location as an urban growth boundary.

Non-Urban Counties
For employees working within a nonurban county (as described in section 2 of the law), wages generally cannot be computed at a rate lower than:

  • From July 1, 2016, to June 30, 2017, $9.50;
  • From July 1, 2017, to June 30, 2018, $10.00;
  • From July 1, 2018, to June 30, 2019, $10.50;
  • From July 1, 2019, to June 30, 2020, $11.00;
  • From July 1, 2020, to June 30, 2021, $11.50;
  • From July 1, 2021, to June 30, 2022, $12.00;
  • From July 1, 2022, to June 30, 2023, $12.50; and
  • After June 30, 2023, such employers must pay an employee no less than $1 per hour less than the base minimum wage.

Updated posters reflecting the new rates are not yet available. Click hereto read the text of the law.

HR360 Editorial Team http://www.hr360.com

Cal/OSHA Cites ExxonMobil for Failing to Repair Equipment that Exposed Workers to Dangerous Chemical Leaks

Explosion at ExxoMobil oil refinery in TorranceSanta Ana—Cal/OSHA issued citations to ExxonMobil Refining & Supply Company today after it discovered the company did not repair faulty equipment at its Torrance refinery for four years, exposing workers to possible serious injury or death.

Cal/OSHA opened an investigation following a hydrofluoric acid leak at the refinery’s alkylation unit on September 6, 2015. Investigators found that the leak was related to a temporary clamp that was installed on a three-inch nozzle flange following an earlier leak in 2011. The nozzle was not replaced until January, 2016.

“This is a case, a minor repair could have prevented workers at this refinery from exposure to a life-threatening acid,” said Cal/OSHA Chief Juliann Sum. “These citations and penalties are a wake-up call that refineries must follow strict safety protocols to protect their employees.”

The three citations issued today include one willful-serious, indicating the employer was aware of the hazardous condition and did not take reasonable steps to address it, and two general citations for ExxonMobil’s failure to conduct a hazard analysis and identify and address the 2011 leak. Proposed penalties total $72,120.

ExxonMobil mitigated the leak caused by the faulty clamp within 48 hours of the release. The company also removed tank 5C-31 from service, where the faulty nozzle was attached, to make repairs. Before ExxonMobil was allowed to restart operations in January, a complete inspection of the alkylation unit was conducted to ensure there were no additional leaking flanges or nozzles.

Cal/OSHA previously issued 19 citations with proposed penalties of $566,600 to ExxonMobil following an explosion on February 18, 2015 that injured four workers. Today’s citations are unrelated to that incident.

Cal/OSHA’s Process Safety Management Unit is responsible for inspecting refineries and chemical plants that handle large quantities of toxic and flammable materials. Health and safety standards enforced by the PSM Unit, including adequate employee training, are intended to prevent catastrophic explosions, fires and releases of dangerous chemicals.

DOL Issues Guidance on Joint Employment Under the FLSA

Fact Sheets and Q&As Available for Employers

The United States Department of Labor (DOL) has issued guidanceregarding the meaning and applicability of joint employment under the federal Fair Labor Standards Act (FLSA).

Background
The FLSA requires employers to (among other things) pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. Under the law, it is possible for a worker to be employed by two (or more) joint employers who are both responsible for compliance. This is because joint employment is included in the law’s definition of “employment,” which was written to have as broad an application as possible.

Determining When Joint Employment Exists
According to the guidance, the most likely scenarios for joint employment are:

  • Where the employee has two or more technically separate but related or associated employers. Joint employment exists where two or more employers benefit from the employee’s work and they are sufficiently related to or associated with each other (this is sometimes called “horizontal joint employment” by the courts).
  • Where one employer provides labor to another employer and the workers are economically dependent on both employers. Joint employment also exists where a worker is, as a matter of economic reality, economically dependent on two employers: an intermediary employer (e.g., a staffing agency or other labor provider) and another employer who engages the intermediary to provide workers. (Some courts have called this “vertical joint employment.”)

Responsibilities of Joint Employers

  • Joint employers (whether vertical or horizontal) are responsible—both individually and jointly—for compliance with the FLSA.
  • Joint employers must combine all of the hours worked by the employee in a workweek to determine if the employee worked more than 40 hours and is due overtime pay.

Note: The analysis for determining joint employment under the Family and Medical Leave Act (FMLA) is the same as under the FLSA. For information about how joint employment affects FMLA coverage and eligibility determinations, click here.

Additional resources, including Fact Sheets and Q&As, are available on the DOL’s website.

HR360 Editorial Team http://www.hr360.com