2013 Legal Trends: Expect Federal Workplace Scrutiny to Increase

By Kristin R. Erenburg

So, the good news is that, with the election over, we’ve gone back to regular TV programming without being bombarded with political ads.

The not-so-good news is that the fallout of the election results will be felt shortly as President Obama prepares to officially begin his second term.

For employers, this means continued and increased scrutiny of workplace policies by the National Labor Relations Board and the Equal Employment Opportunity Commission. Many are beginning to perceive these two agencies as agenda watchdogs.

A green-light for pro-labor, pro-employee agendas

Without a doubt, 2012 was certainly a year in which both agencies flexed their muscles in an unprecedented manner, prompted by the support of the Obama Administration. And President Obama’s re-election is like a green light, signaling both agencies to move forward with the noticeably more pro-employee and pro-labor agendas that began during his first term.

In fact, the President’s influence on workplace policies and procedures could be further reinforced by his ability to nominate what some predict as between one and three Supreme Court justices.

In 2012, the NLRB’s impact was perhaps felt the most in areas implicating employees’ rights under Section 7 of the National Labor Relations Act, i.e., concerted activities. Do not underestimate the extent of this influence by assuming that the NLRB’s reach stops just short of you. Its jurisdiction includes union and non-union settings.

Key issues for the NLRB last year

Here is just a cursory overview of some of the more noteworthy actions taken by the NLRB in 2012 in this area alone:

  • The NLRB issued three reports on social media in the past 12 months alone. The most recent construes the legality of multiple social media policies under the NLRA and goes so far as to approve one in its entirety. Employers, take note, and let the most recent report in particular, serve as a guideline for implementing your company’s own social media policy. Additionally, after waiting with bated-breath, employers are just beginning to see the first few NLRB “Facebook firing” decisions, each construing whether the conduct at hand was protected, concerted activity.
  • The NLRB even took on employee handbooks in 2012. The agency found — as overly broad and discriminatory — what would be considered a “standard” employment at-will handbook statement. The NLRB found the statement problematic because it specified that the at-will nature of employment could only be modified in writing. The agency reasoned that such language could be interpreted by employees to mean that even union representation and collective bargaining could not alter at-will status, thus discouraging concerted activity.
  • The NLRB additionally found that blanket policies which require participant confidentiality during workplace investigations violate Section 7 of the NLRA. Instead of routinely mandating confidentiality, employers must now take a case-by-case approach in determining whether confidentiality should be required, and be prepared to defend such a decision. Unfortunately, the end result is that employers could lose control over the integrity of their investigations. Worse, it could impair their ability to run a workplace free of unlawful or dangerous activity.

EEOC also taking more action

The NLRB recently attacked another aspect of workplace investigations when it considered — and vacated — a long standing NLRB rule relied on by employers in workplace investigations.

The rule, established in 1978, protected the confidentiality of witness statements by removing them from an employer’s general duty to provide relevant materials to the union. This “categorical exemption” has now been replaced with a balancing test where employers must again be prepared to defend a decision to maintain confidentiality as determined on a case-by-case basis. Needless to say, this ruling is wrought with the same types of issues implicated by the decision discussed immediately above.

But it wasn’t just the NLRB that became more assertive in examining workplace policies, as the EEOC also made its authority known in 2012. Specifically, it took a similar position regarding blanket confidentiality policies in workplace investigations.

A Buffalo, New York EEOC field office issued a pre-determination letter finding that blanket confidentiality policies applicable to participants in workplace investigations violated Title VII of the Civil Rights Act. The EEOC reasoned that employees could incorrectly interpret the confidentiality requirement as a prohibition from even contacting the EEOC to discuss a complaint or file a charge.

EEOC’s five-year strategic plan

On a larger scale, the EEOC issued its Strategic Plan for 2012-2016. This document, perhaps more than any other action taken, clearly signals the priorities of the agency by identifying five areas of increased attention.

  1. Class/systemic discrimination;
  2. Protecting vulnerable workers;
  3. Addressing issues arising under the ADA (the Americans with Disabilities Act);
  4. Title VII coverage for LGBT (lesbian, gay, bisexual, transgender) individuals;
  5. Accommodations for pregnancy.

The EEOC has already begun to take action. Very recently in fact, the EEOC issued new workplace guidelines to protect victims of domestic violence and stalking under Title VII and the ADA. With just this one act, the EEOC arguably touched on three of the five categories listed above.

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As further proof, the EEOC also recently instituted multiple class actions alleging sexual harassment and abuse on behalf of farm workers who are “particularly vulnerable due to isolated working conditions and lack of familiarity with the protections of the law.”

Other areas expected to get scrutiny

Finally, for the first time, the EEOC has begun providing charge data broken down by type, state and year. The data currently covers Fiscal Year 2009 – Fiscal Year 2011. The areas most likely to see greater numbers in the coming years are those implicated by the Strategic Plan.

For example, Title VII coverage for LGBT individuals is likely to correspond with increased sex discrimination and retaliation charges. Similarly, charge data for disability discrimination is sure to increase as the EEOC marches to the objectives of its Strategic Plan, aided in part by the release and application of the 2011 ADA final regulations.

It is also interesting to note how the U.S. Supreme Court is weighing in on these timely issues. Oral arguments were recently held in a case that will decide who is a “supervisor” for purposes of vicarious employer liability under Title VII.

Since 1998, when two landmark Supreme Court cases were decided (Faragher v. City of Boca Raton and Ellerth v. Burlington Industries, Inc.), federal courts of appeals had been left on their own to determine just who is a “supervisor.” In the ensuing years, some defined a supervisor as a person with the power to hire, fire, demote, promote or discipline.

No indication trends will change anytime soon

Other jurisdictions defined a supervisor more broadly, and included those employees who direct and oversee a colleague’s daily work. Depending on how the Supreme Court rules, employers in the former jurisdictions could face increased liability for the actions of employees who were not historically considered supervisors. The case is Vance v. Ball State University.

Given the trends of 2012, it should come as no surprise that labor and employment attorneys are warning employers to expect even greater scrutiny of workplace policies in 2013. As many commentators pointed out in President Obama’s first term, this is a labor- and employee-friendly administration.

For these reasons and others, there are no indications that this trend will change any time soon. The best defense is to be proactive and keep up to date with the latest rulings, guidance and trends. Seek the assistance of legal counsel as needed, and make sure that workplace policies and procedures are reviewed and revised as necessary.

Kristin Erenburg is an attorney in the Labor & Employment Group of the Cleveland-based law firm Walter & Haverfield. She practices in the areas of public and private sector labor and employment law and education law, including day-to-day counseling to a diverse range of private and public sector unionized and non unionized employers in a variety of matters. Contact her at kerenburg@walterhav.com.

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