Labor Law Archives - Page 9 of 29 - The National Law Forum

Union Launches National Organizing Effort in Gaming and Tech Industries

The Communications Workers of America (CWA) has begun a nationwide union-organizing campaign targeting game and tech industry employees, in partnership with Game Workers Unite! (GWU), a so-called “grass-roots” worker group founded in Southern California in 2018 to spur unionization in the gaming industry. As here, such groups typically are founded and funded by established labor organizations.

The idea for the organizing effort is the result of discussions between the CWA and GWU over the past months. In addition, CWA Canada is partnering with the GWU chapter in Toronto. The CWA has used similar partnerships with other activist groups, most recently teaming up with the Committee for Better Banks to attempt to organize banking sector employees.

Organizing is being spearheaded by Emma Kinema, a co-founder of GWU, and Wes McEnany, a former organizer with the Service Employees International Union and leader of the “Fight for 15” effort. Kinema will lead the organizing on the West Coast, McEnany will focus on the East Coast. Organizers from CWA locals across the country will populate the teams. According to Kinema, the issues on which the union will focus are: “crunch,” or long hours for weeks or months to meet launch deadlines; cyclical layoffs; harassment; misogyny; gender-based pay discrimination; values and ethical issues, such as working with Immigration and Customs Enforcement (ICE); climate change; AI ethics; and pay, severance, and benefits. According to Tom Smith, CWA’s lead organizer, “For a lot of folks, that’s what led them to do this work in the first place, and people are feeling a disconnect between their personal values and what they’re seeing every day in the working lives.”

With the moniker CODE – Campaign to Organize Digital Employees – the ambitious initiative seeks to organize employees across the industry, typically at individual shops or employers. According to Kinema, “We believe workers are strongest when they’re together in one shop in one union, so the disciplines can’t be pitted against each other – none of that’s good for the workers. I think in games and tech, the wall-to-wall industrial model is the best fit.” Smith said the CWA would be open to craft-based organizing – where the focus is industry-wide bargaining units composed of employees performing similar work at different employers – if that is what employees want. In an industry where workers frequently move from employer to employer, portable benefits can be attractive.

An annual survey by the International Game Developers Association, an industry group, found that gaming worker interest in unions had increased to 47 percent by 2019. Indeed, a representation petition is pending at the Brooklyn office of the National Labor Relations Board on behalf of the employees at a gaming company. About 220,000 employees work in the two-billion-dollar gaming industry.

The union has established a website — www.code-cwa.org – as well as a presence on other social media platforms such as Facebook and Twitter.

As most union organizing is based on the presence in the workplace of unresolved employee issues, a comprehensive analysis of such matters may be valuable to employer. Also, supervisors and managers often interact frequently with employees when organizing is afoot or underway. Training regarding their rights and responsibilities under the labor laws often is essential.

ARTICLE BY Patrick L. Egan and Jonathan J. Spitz of Jackson Lewis P.C.

For more on unionizing news, see the National Law Review Labor & Employment law page.

Chicago Workers to Earn $15 Minimum Wage by 2021

On Nov. 26, the Chicago City Council approved Mayor Lori Lightfoot’s proposal to increase the city’s minimum wage from $13 per hour to $15 per hour. This puts the Chicago minimum wage four years ahead of those mandated by the state of Illinois, which will not hit a minimum wage of $15 per hour until 2025. Our previous coverage of the Illinois minimum wage hike cited a 2017 report by the National Employment Law Project finding that 41 percent of all workers in Illinois currently earn less than $15 per hour.

Chicago’s minimum wage will increase in waves, first to $14 per hour on July 1, 2020 and then to $15 per hour on July 1, 2021. After that, it will rise annually with the consumer price index. For tipped workers, sub-minimum wages will increase to $8.40 per hour in 2020, up from the current $6.40 per hour, and to $9 per hour by 2021. Tipped wages will also increase annually after 2021, to remain at 60 percent of the minimum wage.

Mayor Lightfoot stated that these wage increases would address wage stagnation, affecting hundreds of thousands of workers, as the cost of living in Chicago continues to increase. It would likewise eliminate exemptions for disabled workers and minors. Specifically, employers will no longer be able to pay disabled residents below the minimum wage, starting in 2024. Workers below the age of 18 will receive a gradual increase in wages, starting at $10 an hour in 2020 and ultimately reaching $15 an hour by 2024, until the minimum wage exemption for minors is eliminated in 2025.

There is some relief for small employers, as employers with fewer than 20 workers will have until 2023 to increase wages to $15 per hour, and businesses with fewer than four employees are exempt from all increases, with a few exceptions.

Mayor Lightfoot cited support for her proposal from elected officials as well as labor and business leaders, but some employers are concerned that the higher wages will harm their businesses or force them to hire fewer workers. However, Mayor Lightfoot views her proposal as a compromise, as it keeps tipped workers below the minimum wage – a move the restaurant industry applauded. While employers are legally required to pay the difference if an employee’s tips do not add up to the minimum wage, workers’ advocates allege that this does not always happen in practice.

The minimum wage increases in Chicago and Illinois will have far-reaching consequences for employers and employees alike. Employers will need to adjust their budgets and financial projections to prepare for these anticipated wage increases. Employers should also consider reviewing their payroll practices, both to verify they will be paying the appropriate wage and overtime rates for employees affected by the minimum wage increases and to ensure their tipping practices comply with the new law.

ARTICLE BY Kelsey J. Schmidt and John F. Kuenstler of Barnes & Thornburg LLP.

More on minimum wage increases across the US, via the National Law Review Labor & Employment law page.

“OK, Boomer!”: Not Okay In the Office

As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “War Between the Generations” has gone viral: “OK, Boomer!” The phrase, popularized on the Internet and, in particular, Twitter by Generation Z and Millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.

And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces. There is “OK, Boomer!” merchandise and, just last week, a 25 year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a debate about climate change.

While many may find “OK, Boomer!” a harmless way to point out generational differences, the phrase’s popularity could lead to problems once it creeps into the workplace. Age (over 40) is a protected category under both California law (i.e., the Fair Employment and Housing Act) and federal law (i.e., the Age Discrimination in Employment Act). Whether the speaker is well-intentioned or not, dismissive attitudes about older workers could form the basis of claims for discrimination and/or harassment. And, as one radio host recently opined, the phrase “OK, Boomer!” may be regarded by some as an outright slur.

Generation Z and Millennial employees understand that using derogatory or dismissive comments related to gender, race, religion, national origin, disability and sexual orientation are inappropriate. Yet, for some reason, some may not have made the leap with regard to insidious/disparaging comments about a co-worker’s age. Given the prevalence of age discrimination lawsuits, employers should take heed and consider reminding their workforce about the impropriety of this and other age-related phrases, and train their employees to leave the generation wars at the door.

ARTICLE BY Anthony J Oncidi, Philippe A. Lebel and Cole D. Lewis of Proskauer Rose LLP.

For more on employment discrimination see the National Law Review Labor & Employment law page.

AB 1291 Forces California Cannabis Companies To Sign “Labor Peace Agreements” With Unions, But Statute May be Unconstitutional

On October 12, 2019, Governor Newsom signed Assembly Bill 1291 (“AB 1291”) into law, which requires companies to sign a so-called “labor peace” agreement with a union or risk losing their cannabis license; thereby, strengthening already union-friendly statewide cannabis law. AB 1291 was supported and endorsed by various unions, including the United Food and Commercial Workers Western States Council, a 170,000-member branch representing thousands of cannabis workers. This bill, as well as other California statutes and local laws, signals a growing insistence by state and local regulators that employers doing business in California accept pro-union requirements. However, many of these new pro-union laws, including AB 1291, may be unconstitutional.

The main takeaways of AB 1291 are as follows:

Effective January 1, 2020, California cannabis license applicants must sign so-called labor peace agreements with a union within 60 days of their 20^th hire or risk losing their cannabis license.
Employers and business associations seeking to challenge AB 1291, and other similar state or local union-related ordinances, are encouraged to speak with experienced labor counsel to discuss their options.
Employers seeking to comply with AB 1291 and sign labor peace agreements should conduct due diligence on the labor unions they are considering entering into negotiations with. Not all unions are the same. Additionally, businesses should be thoughtful about what they agree to put into a labor peace agreement to satisfy the requirements under California’s cannabis laws. For example, these agreements are frequently mistakenly referred to as “neutrality agreement.” Neutrality agreements typically contain a commitment from the employer to remain “neutral” through a union organizing campaign. In contrast, AB 1291 does not use the term “neutral(ity)” and, thus, arguments can be made that strict “neutrality” is not required under the statute and may not need to be included in the labor peace agreement. Thus, employers should speak with experienced labor counsel before negotiating labor peace agreements with unions.

Background

Since its adoption into law in 2018, the Medicinal and Adult Use of Cannabis Regulation and Safety Act (“MAUCRSA”) has required applicants for state cannabis licenses with 20 or more employees to “provide a statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement.”¹ (Cal. Bus. & Prof. Code § 26015.5(a)(5)(A).) A labor peace agreement, as defined under California’s cannabis laws, must contain the following commitments, at a minimum:

Employer shall not “disrupt” efforts by the union to “communicate with, and attempt to organize and represent” the employer’s employees;
Employer shall give the union “access at reasonable times to areas in which the employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under state law, and terms and conditions of employment;” and
Union and its members shall not engage in picketing, work stoppages, boycotts, and any other economic interference with the employer’s business.

(Cal. Lab. & Prof Code § 26001(x).)

Effective January 1, 2020, AB 1291 requires an applicant for a state license under MAUCRSA with 20 or more employees to provide a notarized statement that the applicant will enter into, or demonstrate that it has already entered into, and abide by the terms of a labor peace agreement. If the applicant has less than 20 employees and has not yet entered into a labor peace agreement, AB 1291 requires the applicant to provide a notarized statement as a part of its application indicating that the applicant will enter into and abide by the terms of a labor peace agreement within 60 days of employing its 20th employee. By expanding the scope of the crime of perjury, AB 1291 imposes a state-mandated local program and authorizes the Bureau of Cannabis Control, the Department of Food and Agriculture, and the State Department of Public Health to revoke or suspend a license for a violation of these requirements.

AB 1291 May Be Unconstitutional

AB 1291 poses substantial questions as to whether it is unconstitutional due to preemption by the National Labor Relations Act (“NLRA”) under two complementary preemptions doctrines: Garmon and Machinists. In San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the U.S. Supreme Court declared that the states are constitutionally barred by the U.S. Constitution’s supremacy clause from regulating conduct that NLRA protects, prohibits, or arguably protects or prohibits. Garmon preemption exists to protect the National Labor Relations Board’s (“NLRB”) primary jurisdiction and to preclude a state’s interference with its interpretation and enforcement of the integrated regulatory scheme that is the NLRA. Indeed, Congress delegated exclusive authority to the NLRB because it sought to establish a single, uniform national labor policy that would be unaffected by the vagaries of state law or shaped by local attitudes or prejudices. (Garner v. Teamsters Union, 346 U.S. 485, 490 (1953).) In Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), the U.S. Supreme Court similarly declared that the NLRA forbids states to regulate conduct that Congress intended “to be unregulated because left ‘to be controlled by the free play of economic forces.’” Together, Garmon and Machinists preempt state and local policies that would otherwise interfere with the “integrated scheme of regulation” and disrupt the balance of power between labor and management embodied in the NLRA.

It appears AB 1291’s purpose is to afford unions greater rights than provided under the NLRA and make it easier for unions to organize cannabis employers. AB 1291 arguably presents the type of state interference in labor-management relations that Garmon and Machinists preemption forbids. For example, in Golden State Transit Corp. v. City of Los Angeles (“Golden State I”), 475 U.S. 608, 616 (1986), the Supreme Court held that while the NLRA “requires an employer and a union to bargain in good faith, … it does not require them to reach agreement,” nor does it demand a particular outcome from labor negotiations.” The substance of labor negotiations, and the results therefrom, are among those areas Congress intentionally left to the free play of economic forces when it legislated in the field of labor law. (Id.) In that case, the Supreme Court found that Machinists preempted the City of Los Angeles’ (“City”) refusal to renew a taxi cab company’s license when it failed to reach an agreement with striking union members. By conditioning the renewal of the taxi cab franchise on the acceptance of the union’s demands, the City effectively imposed a timeline on the parties’ negotiations and undermined the taxi cab company’s ability to rely on its own economic power to resist the strike. (Id. at 615.) The Supreme Court held that the City could not pressure the taxi cab company into reaching a settlement and thereby “destroy[] the balance of power designed by Congress, and frustrate[] Congress’ decision to leave open the use of economic weapons.” (Id. at 619.)

The facts of Golden State I are instructive here. Like the taxi cab company in Golden State I, California cannabis businesses now face a Hobson’s “all or nothing” choice under AB 1291. If a cannabis business refuses to negotiate a labor peace agreement with a labor organization, it effectively loses the right to do business in California. But if the cannabis business negotiates a labor peace agreement, the union knows full well that it can hold out for significant concessions in exchange for its members giving up one of their most valuable economic weapons – the power to strike.

The U.S. Supreme Court’s decision in Chamber of Commerce v. Brown, 554 U.S. 60 (2008) is also instructive. At issue in Brown was California’s Assembly Bill 1889 (“AB 1889”), prohibiting certain private employers from using state funds to “assist, promote, or deter union organizing.” (Id. at 63 [quoting Cal. Govt. Code §§ 16645.1–16645.7].) The Court held that AB 1889 was unconstitutional. As explained by the Court, the current text of Sections 7 and 8 of the NLRA are amendments made to the NLRA in 1947 as part of the Labor Management Relations Act, also known as the Taft Harley Act, for the purpose of overturning earlier NLRB precedent. The NLRA was amended in in several key respects. First, it emphasized that employees “have the right to refrain from any or all” union activities. (29 U.S.C. § 157.) Second, it added Section 8(b), which prohibits unfair labor practices by unions. (29 U.S.C. § 158(b).) Third, it added Section 8(c), which protects speech by both unions and employers from regulation by the NLRB. (29 U.S.C. § 158(c).) Specifically, Section 8(c) provides:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.

With the amendments, Section 8(c) “manifested a “congressional intent to encourage free debate on issues dividing labor and management.” (Id. at 6-7.) That Congress amended the NLRA, rather than leaving to the courts the task of correcting the NLRB’s decisions on a case-by-case basis, is “indicative of how important Congress deemed such ‘free debate.’” (Id. at 7.) In addition, Sections 8(a) and 8(b) “demonstrate that when Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so.” (Brown, 554 U.S. at 67.) Moreover, “the amendment to §7 calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization.” (Id.) “[T]he addition of §8(c) expressly precludes regulation of speech about unionization so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.” (Id. [internal quotation omitted].) Thus, based on these overriding principles, the Court concluded that “California’s policy judgment that partisan employer speech necessarily interfere[s] with an employee’s choice about whether to join or to be represented by a labor union” and struck down AB 1889. (Id. at 68 [internal quotation omitted].)

AB 1291 is arguably no different. By forcing unwilling cannabis businesses to negotiate and accept labor peace agreements, AB 1291 compels a result Congress deliberately left to the free play of economic forces. The NLRA does not allow state and local governments to interfere with employer rights to communicate with employees regarding unionization under Section 8(c). Nor does it allow state and local governments to “introduce some standard of properly balanced bargaining power . . . or to define what economic sanctions might be permitted negotiating parties in an ideal or balanced state of collective bargaining.” (Machinists, 427 U.S. at 149-50.) Yet, this is exactly what AB 1291 appears to do. Accordingly, AB 1291 may be unconstitutional.

¹ A labor peace (aka a labor harmony agreement) is essentially a contract between an employer and an organized labor union in which the employer agrees to help the union organize the employer’s workforce (i.e., unionize) by providing, for example, certain information or agreeing not to interfere with the union organizing efforts, in exchange for the union’s agreement not to strike or cause other disruption in the employer’s workforce during a union organizing campaign. Because these agreements open the door to union activity within the workplace, they should not be entered into casually. Rather, unionization may result in increased labor costs, contractual contributions to union pension plans, loss of flexibility, and adherence to union rules set forth in a legally binding contract. In addition, once a union is recognized or certified as the collective bargaining representative of employees, it is practically impossible to terminate that relationship. Indeed, only after a costly and divisive decertification election can a workforce return to the merit-based and flexible non-union environment.

ARTICLE BY Keahn N. Morris of Sheppard, Mullin, Richter & Hampton LLP.

For more on union regulation, see the National Law Review Labor & Employment law page.

Happy New Year! – Prepare to Track Time of More Employees or Increase Salaries

The US Department of Labor finally released its highly anticipated changes to the overtime provisions of the Fair Labor Standards Act (FLSA). This rule, which goes into effect on January 1, 2020, will make more employees eligible for overtime because it updates the minimum salary thresholds necessary to exempt certain employees from the FLSA’s minimum wage and overtime pay requirements, as it will:

Raise the salary level from the current $455 per week to $684 per week (or $35,568 per year for a full-year worker)
Raise the total annual compensation level for highly compensated employees from the current $100,000 per year to $107,432 per year
Allow employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the salary level
Revise the special salary levels for workers in US territories and in the motion picture industry

This means all employees who are paid a salary falling below the new salary threshold will be non-exempt beginning on January 1, 2020. Said another way, these employees will be eligible for overtime for all hours worked over 40 in a workweek.

Remind Me About the Exemptions Affected

The FLSA generally requires employees to be paid at least minimum wage for every hour worked, and overtime (time and a half) for all hours worked over 40 in a workweek. Certain employees are “exempt” from the FLSA’s minimum wage, overtime, and record-keeping requirements. Key here are the “white collar” exemptions, namely the executive, administrative, and professional exemptions, which depend on three things:

The employee must be paid on a “salaried basis,” meaning the employee receives a fixed, guaranteed minimum amount for any workweek in which the employee performs any work. This means there can be no change in salary regardless of the hours worked.
The employee must be paid a minimum salary of, as of January 1, 2020, $684 per week ($35,658 annually).
However, paying a sufficient salary is not enough — the employee must also perform exempt job duties under one of the exemptions to satisfy this test. (Notably, the new rule did not make any changes to the job duties test, despite ambiguity and years of employer confusion.)

Let’s reiterate this important point again: to be exempt under one of these exemptions, all three prongs above must be satisfied.

I’m Busy — Can I Deal with This Later?

We wouldn’t recommend that. It’s time to start preparing because there are many moving parts when making classification decisions, and, as we all know, 2020 will be here sooner than we think. Also, we suspect these won’t be unilateral decisions made by the human resources department but that others will need to be involved; for most companies, that won’t happen overnight, as it may require significant analysis of the budgetary impact of potential salary increases before employee classifications can be finalized.

So what can you do now? We suggest you start by identifying employees who are currently classified as exempt but whose salaries fall below the new $684 weekly salary. Then, try to estimate the number of hours worked by the employee each workweek, which may be more difficult than it sounds, since exempt workers typically don’t track their time. Depending on the employee’s salary and the number of hours worked, you’ll want to consider whether you’re going to raise the employee’s pay to meet the new threshold or reclassify the employee as non-exempt and pay overtime; and, if you’re going to reclassify the employee, you’ll have to determine how and what the employee will be paid. You should go through the same analysis for those employees who are classified as exempt under the highly compensated employee exemption if their annual salary falls below the new $107,432 threshold.

Think you’re done? Wait, there’s more! Once you identify employees who will be reclassified, you’re going to need to craft your message to explain the changes and new expectations. You may need to develop new policies and/or train the newly non-exempt employees (and possibly their supervisors) on the company’s timekeeping policies as well as on the consequences for failing to follow them. Remember that the FLSA provides strict record-keeping requirements for employers to track the working hours of non-exempt employees. And you may be faced with the need to soothe the egos of employees who feel like being paid hourly is beneath them. (We know this sounds silly, but these morale concerns are real.)

Finally, if you have concerns about the classification of any of your other employees, or if it has simply been awhile since your employee classifications were reviewed, this is a prime time to conduct a general audit of your wage and hour practices. With many employees across the country, and likely within your own organization, being reclassified and becoming eligible for overtime come January 1, you’ll be able to make changes to the classification of other employees who may not meet any exemptions while drawing less attention.

ARTICLE BY Mary Margaret Spell and Christopher S. Mann of Jones Walker LLP.

For more on the New DOL Overtime Rule, see the National Law Review Labor & Employment law page.

Finally, the Final Part 541 Rule: $35,568 Is the New Salary Threshold for Exempt Employees

In its final part 541 overtime rule, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) set the salary level or amount test at $684 per week/$35,568 per year for exempt executive, administrative, and professional employees of section 13(a)(1) of the Fair Labor Standards Act (FLSA). The total annual compensation test for a highly compensated employee is $107,432. The standard salary level test of $684 is comparable to the amount proposed earlier this year since the WHD used the same methodology as it applied in the notice of proposed rulemaking (NPRM). The total annual compensation level for highly compensated employees of $107,432 is lower than that proposed earlier this year in its NPRM because it is based on the 80^th percentile of weekly earnings of full-time salaried employees nationally.

According to the DOL, which released the final rule on September 24, 2019, this final part 541 overtime rule “has been submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement on public inspection at the OFR and publication in the Federal Register.” These new thresholds for exemption from both the overtime and minimum wage provisions of the FLSA go into effect on January 1, 2020.

This final rule is the culmination of a long-term effort to increase these salary and total annual compensation requirements—set forth in part 541 of title 29 of the Code of Federal Regulations—which were last increased in 2004. These regulations define and delimit the exemptions for bona fide executive, administrative, and professional employees. As we wrote previously, the DOL/WHD published a notice of proposed rulemaking in March 2019, with a 60-day comment period that expired on May 21, 2019. After its review of the comments, the DOL submitted its draft final rule to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget on August 12, 2019. OIRA completed its review of the final overtime rule and returned it to the DOL on September 13, 2019.

In addition to finalizing the salary amount test for exempt employees and the total annual compensation requirement for highly compensated employees, the final rule also permits employers to apply non-discretionary bonus and other incentive payments to satisfy up to 10 percent of the standard salary level, provided such non-discretionary payments are paid at least annually or more frequently. Also in keeping with its proposed rule, the final overtime rule does not include a provision that automatically would increase the salary level test or total annual compensation amount on some regular or periodic basis. Most significantly, the final overtime (part 541) rule does not make any changes to any of the duties tests for these exemptions.

As you may recall in 2016, employer-aligned interests brought suit to challenge the final overtime rule issued during the final year of the Obama administration. The litigation was successful, and the 2016 final rule was enjoined by a federal district court in Texas and has never gone into effect. The 2019 final part 541 rule formally rescinds the 2016 final rule. At this juncture, it is difficult to predict whether employee advocates will mount a similar legal challenge to this rulemaking. While several have expressed interest in doing so, almost all of these advocates argue that the salary level test in the 2019 final rule is insufficient. Instead, they support a salary level requirement along the lines of that published in the 2016 rulemaking that set the salary level test at $913 per week/$47,476 per year for exempt executive, administrative, and professional employees..

ARTICLE BY Alfred B. Robinson, Jr. of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more DOL regulation, see the National Law Review Labor & Employment Law page.

Does Inconsistency Always Kill the Cat?

Spoiler alert – this article doesn’t have anything to do with cats. But it is about something you hear all the time from employment attorneys. You have to be consistent when it comes to enforcing your attendance policies and plant rules. You have to treat all employees the same. If you don’t, there is a huge risk you won’t be successful in defending your disciplinary decisions in labor arbitrations and employment litigation. As a general rule, this is excellent advice.

Does this mean, though, that you absolutely have to be consistent 100% of the time? If you make an exception to your attendance policy by giving a particular employee one last chance (other than for reasons relating to the ADA or the FMLA), will that be the end of your ability to enforce the policy?

Will excusing a violation of a plant rule in one instance mean you can never enforce it? Will your company be a victim of the “no good deed goes unpunished” rule?

The answer is that if you make exceptions sparingly, and wisely, you will probably be okay. Here are some tips that will put you in a better position to defend the (very) occasional exception:

Make sure you have a compelling reason for making an exception, something that really makes this employee’s situation very different from other cases (e.g., some combination of a long service employee, an otherwise outstanding overall record, and a believable and sympathetic explanation from the employee as to why there was a problem and why it won’t be repeated).
Document why you made an exception. Two years from now, when you are defending an employment litigation and the plaintiff is pointing out how he/she was treated “worse” than the employee for whom you made an exception, you will be in a far better position to remember and explain why you made the exception, and have a judge or jury decide the exception shouldn’t be held against you, if you have contemporaneous documentation explaining the exception.
Be extremely judicious in your use of exceptions. If lack of consistency becomes the rule, rather than the exception, you are going to have a very hard time enforcing your policies and rules.
Make sure the circumstance in front of you today (when you are not making an exception) really is different from the circumstance where you made an exception two years ago. In other words, if the employee you are considering disciplining now is in substantially the same boat as the employee for whom you made an exception, you should rethink whether to impose the discipline.

None of this is meant to minimize the problems that can be caused by inconsistent treatment. Even the EEOC, however, recognizes that there are circumstances where disparate treatment is justifiable. Enforce your rules and policies consistently, but don’t be afraid to make an exception where circumstances, and fairness, demand it.

Article by Thomas C. Pence of Foley & Lardner LLP.

For more in employment & scheduling, see the National Law Review Labor & Employment page.

Does Asking About Employee’s Alcohol Use Violate the ADA?

In Lansdale v. UPS Supply Chain Solutions, Inc., No. 16-4106 (July 23, 2019), the United States District Court for the District of Minnesota concluded that a jury had sufficient evidence to find that an employer’s discharge of an employee for suspected corporate credit card abuse following an investigation in which the employee was asked about his alcohol use and drinking habits did not constitute disability discrimination in violation of the Americans with Disabilities Act (ADA) or corresponding state law.