By Christina M. Jepson:

NLRB Modifies Standard for Offensive Outbursts in Favor of Employees

The National Labor Relations Board (NLRB or Board) recently considered two matters in which employees were discharged for their conduct at work. In one case, the employee said that the company’s response to safety complaints at a shooting range was “bullshit.”

On May 1 and 3, 2023, the NLRB issued rulings that make it more difficult for employers to terminate an employee who has an outburst at work. The rulings give employees more freedom for heated comments about working conditions whether they are made to managers, on social media or on the picket line. The rulings recognize that when an employee has an outburst while engaging in protected activity, the Board will look at the specific setting in which the outburst took place. Misconduct that occurs while engaging in protected activity is more likely to be protected than in other settings. The Board noted that the elevation of civility “gives employers dangerous discretionary power over employees whenever they exercise their statutory rights in opposition to the employer’s interest.” The Board noted that the National Labor Relations Act (NLRA) does not require employees to be “civil” when exercising their right to engage in concerted activity to change workplace conditions. Using this standard, the Board ordered that the employee who made charged comments to the safety manager had to be reinstated and made whole. 

If you have been following this issue, you know that these standards vacillate with every new executive administration. With Democratic President Joe Biden in office, the Board is dominated by more employee-leaning Democratic appointees. The Board overruled more employer-friendly standards, which were adopted during the prior administration. 

Two of the new rulings can be found here: NLRB Decision One and NLRB Decision 2

NLRB Finds in Favor of Employees in BLM Case

In another case, a National Labor Relations Board (NLRB) administrative law judge found in favor of employees who were prohibited from wearing Black Lives Matter (BLM) buttons and masks following the murder of George Floyd. The judge found that the employees’ conduct was protected by the NLRA. The judge noted that the company had previously supported BLM, and employees could reasonably believe that their support for BLM was allowed and encouraged. The judge also noted that the company had allowed employees to wear buttons for other causes. The judge found that the company had unilaterally changed enforcement of dress code practices without notices the union. 

Union Activity Continues

Speaking of protected activity, we continue to see more union activity across the country. As you have probably heard, the Writers Guild of America (WGA) is on strike. The WGA represents Hollywood writers who are responsible for the scripts of most television shows. If the strike is not resolved quickly, you may miss your late-night jokes, and fall programming may be delayed. The WGA is striking about compensation, staffing and other issues.   

On April 25, the Salt Lake Tribune reported that Salt Lake City Public Library employees are attempting to create the first library union in Utah.

On May 1, a Starbucks location in South Salt Lake became the fourth Starbucks in the state to unionize. 

Want to avoid unionizing at your workplace? Want to avoid strikes? Maintain good communication with your employees and work to solve their issues. Please know that certain activities are not allowed to avoid unionizing. Check with counsel if you have questions.   

Pregnancy Workers Fairness Act Takes Effect June 27, 2023

You may recall that the federal government passed the Pregnancy Workers Fairness Act (PWFA) in December 2022. This law will go into effect next month on June 27. On that date, the Equal Employment Opportunity Commission (EEOC) will begin accepting charges of discrimination that occur on or after that date. The PWFA requires employers to provide reasonable accommodations to employees who have limitations due to pregnancy, childbirth or related conditions. There is an exception if the accommodation would require an undue hardship for the employer. Keep in mind that PWFA does not require the employee’s limitation to rise to the level of a “disability” as defined by the Americans with Disabilities Act (ADA). The PWFA also requires employers to accommodate temporary limitations that may prevent the employee from performing the essential functions of their job. The EEOC has noted that these accommodations may include: drinking water; receiving closer parking; having flexible hours; receiving appropriately-sized uniforms and safety apparel; receiving additional break time to use the bathroom; eat; rest; taking leave or time off to recover from childbirth; and being excused from strenuous activities or activities that involve exposure to compounds not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is defined as significant difficulty or expense for the employer.

The PWFA covers public and private employers with at least 15 employees. The EEOC has also stated that covered employers cannot: 

  • Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation
  • Require an employee to take leave if another reasonable accommodation can be provided that would allow the employee keep working
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation)
  • Interfere with any individual’s rights under the PWFA 

Utah Vaccine Law Took Effect May 3, 2023 

Speaking of new laws, this is a reminder that Utah’s new vaccine law took effect May 3, 2023. This law prohibits employers from requiring employees to provide proof of vaccination or immunity. There are many exemptions to the law, including for federal contractors; employers who are required by Medicare or Medicaid to require vaccinations; employees who have exposure to human blood or infectious materials; certain childcare programs; and in situations where the employer establishes a nexus between vaccines and job duties or external requirements. 

An employee who feels they have been discriminated against under the new law may file a charge of discrimination with the Utah Anti-Discrimination and Labor Division (UALD). 

Marijuana and the Workplace

Employers are often asking about the state of the law regarding marijuana in Utah. Utah has legalized medical marijuana but not recreational marijuana. In terms of medical marijuana, this is what you need to know:  

1. Utah has legalized medical marijuana and offers medical marijuana cards for patients with qualifying conditions.

2. Employers and insurance companies are not required to pay for or reimburse employees for cannabis or medical cannabis devices.

3. Private employers may have policies restricting the use of medical cannabis by employees and applicants and are not required to accommodate an employee’s use of medical cannabis.

4. State or political subdivisions must:

·        Treat a public employee’s use of medical cannabis the same way the state or political subdivision treats an employee’s use of opioids and opiates

·        Not take an adverse action against a public employee who has a valid medical cannabis card for failing a drug test due to marijuana or THC without evidence that the employee was impaired or otherwise adversely affected in their job performance due to cannabis use

By Garrett Kitamura:

Question Corner

Applying the Value of Personal Time Off to Employee Repayment Obligations

Q.       Our employee owes us money and has told us she wants the value of her paid time off (PTO) applied to her repayment obligations. Can we do this? What is required to pull the money from her paycheck?

A.       To the first question—whether an employer may apply PTO to an employee’s repayment obligations—the answer is that no Idaho or federal law prohibits the practice. However, it is recommended that any such repayment arrangement be memorialized in writing and all employees be given the same option to use PTO for any repayment obligations moving forward. Inconsistent application of this arrangement could form the basis for a disgruntled employee’s discrimination claim.

To the second question, an employer may only deduct from an employee’s paycheck to satisfy a repayment obligation if the employer has a written authorization from the employee for deductions. Employers should exercise caution if the deduction will cause the employee’s wage to fall below the required minimum wage or overtime compensation. In that case, deductions are only permitted for certain employer-provided items that are provided for the benefit of the employee, such as meals, lodging or other facilities (i.e., amenities, provisions). If the deduction causes the employee wage to fall below the minimum wage, an employer will have to engage in a further, fact-specific analysis to determine whether the obligation recouped via wage deduction qualifies as an item that was provided for the employee’s benefit.