That’s a Wrap! Highlights in Labor & Employment from 2017

This year has brought about many changes to the world of labor and employment law. This newsletter highlights a few of the most important developments from 2017 that will carry forward in 2018 and beyond, why they matter, and what to watch out for.

Administrative Changes at the National Labor Relations Board

The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the National Labor Relations Act (NLRA), which gives employees the right to act collectively. To protect these rights of “concerted activity,” the NLRB has developed an extensive body of law on such topics as employees’ right to criticize their employers, the right to organize, the right to form a union, and the right to request information, among others. 

In 2017, the Trump administration shifted the formerly Democratic NLRB back to a Republican board. The NLRB currently consists of three Republicans and two Democrats (all board members are appointed for five-year terms). And the current chair, Philip Miscimarra, was originally appointed by President Obama in 2013 but will not serve another term when it ends in 2018.  We expect that the current board will peel back many employee-centered positions taken by the board under President Obama, such as:

• Protecting employees’ criticism of employers/supervisors;
• Permitting employees to use company email for union activities;
• Shortening the time between a union demand for a recognition election and actual vote; and
• Expanding the concept of joint-employer liability (i.e., possibility of control).

We’ll keep you updated on how the NLRB’s position on these issues shifts in the months to come.

The Equal Employment Opportunity Commission’s Renewed Focus

The Equal Employment Opportunity Commission (EEOC) handles charges of employment discrimination filed by an employee against her employer and occasionally litigates such charges.

The EEOC has identified the following substantive priorities to focus on for fiscal years 2017-2021:

• Immigrant, migrant, and other vulnerable workers and underserved communities;
• Inflexible leave policies that discriminate against individuals with disabilities;
• Issues related to complex employment relationships, including temporary workers, staffing agencies, and independent contractor relationships;
• Backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups;
• Gender-based pay discrimination; and
• Significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.

What does this list mean for employers? First, as always, check, check, and re-check your policies.  Second, educate and train your employees consistently and often. Because the EEOC is focusing on discrimination, and especially disability discrimination, be careful when drafting return-to-work letters and always consider vacant positions. And remember that the EEOC has issued guidance that “leave” can be a reasonable accommodation and this year explained that “[e]mployees should never be terminated or forced to resign simply because they need additional leave for their disabilities.”

Recent Trends in Discrimination Claims

From increased claims of sexual harassment  to new claims of discrimination based on sexual orientation and accommodations for mental illness or emotional disability, it has been a busy year for discrimination claims.

What is sex discrimination anyhow?

It’s clear that sex discrimination is more than just discrimination based on sex.  President Obama’s 2014 Executive Order 13672, which is still in force today, prohibits federal employers and contractors from discriminating on the basis of sexual orientation and gender identity. While discrimination based on sexual orientation is not illegal in most courts around the country (but remember the recent Seventh Circuit case), according to the EEOC, discrimination based on sexual orientation and gender stereotyping are both illegal. 

So how can you comply with what is an ever-changing and unclear landscape of “sex discrimination” under Title VII? There’s no question that gender stereotyping is sex discrimination—both courts and federal agencies agree. Think of gender stereotyping as a claim that the employee was not acting “sufficiently manly or femininely” in the workplace. Those types of claims usually survive a motion to dismiss in federal court. But regardless of whether the alleged discrimination is based on sexual orientation or gender stereotyping, the best practice is to take any and all complaints from employees about sex issues very seriously.  It’s also essential to train employees on all discrimination and harassment policies so that employees are encouraged to report bad conduct and managers can competently address any potential claims of sex discrimination.

Are emotional and mental illnesses really disabilities?

Yes! Mental impairments count as disabilities under the Americans with Disabilities Act (ADA). A covered disability includes a “mental impairment that substantially limits one or more of the major life activities of the individual.” And EEOC regulations define “mental impairment” as any “mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. §1630.2(h). 

But if the employee’s alleged mental impairment is such that the employee can no longer perform the essential functions of her job, termination is not a violation of the ADA. That’s what happened in the Sixth Circuit case of Williams v. AT&T Mobility Services LLC earlier this year. The Sixth Circuit found that because regular attendance was an essential job function and the employee’s mental impairment prevented her from regularly attending work, her termination was not in violation of the ADA. In addition, she didn’t ask for reasonable accommodation.

While the Sixth Circuit’s decision was ultimately a win for the employer, emotional and mental illnesses are tricky. Remember to always discuss reasonable accommodation and engage in the interactive process. If an employee volunteers that they have a disability, get HR involved immediately!

We’ll be sure to keep you updated on how these developments pan out in the new year.