Two Major Rulings Help Employers

By John Lowe IV

NLRB Reverses Course, Strikes Weingarten Rights for Nonunion Employees

For the fourth time in 23 years, the National Labor Relations Board changed one of its most important rules affecting nonunion employers.

First, a Little History (I promise this will be quick and painless)

In 1975, the U.S. Supreme Court held in NLRB v. J. Weingarten Inc. that employees in unionized workplaces are entitled to representation during investigatory interviews that might lead to discipline. In 1982, the NLRB extended Weingarten rights to nonunion settings in Materials Research Corp., holding that employees in nonunion companies have the right to have a coworker present during an investigatory interview that might lead to discipline. Three years later, in Sears, Roebuck & Co., the Board reversed course, ruling that Weingarten rights do not apply outside of a union setting. Three years after that, in a 1988 case against E.I. DuPont & Co., the Board again modified its rationale, but stuck with the holding of Sears. And then in 2000, in a 3-2 decision, the Board overruled Sears and DuPont and returned to its position in Materials Research – holding that Weingarten rights do apply to nonunion settings.

Got that?

The New, Old Rule

The Board just announced that we now get to pretend it is 1981 again. (Remember that time…back when The Great Communicator was appointing the first female Justice of the Supreme Court, Walter Cronkite signed off for the last time, MTV debuted and Sting didn't work for Jaguar, but "The Police"). Stated another way, the rule that existed in 1981 is back: Weingarten rights do not apply in nonunion settings; nonunion employees have no right to be accompanied by a co-worker during an investigatory interview.

The Board explained its rationale, in part, as follows:

The years after the issuance of Weingarten have seen a rise in the need for investigatory interviews, both in response to new statutes governing the workplace and as a response to new security concerns raised by terrorist attacks on our country. Employers face ever-increasing requirements to conduct workplace investigations pursuant to federal, state, and local laws, particularly laws addressing workplace discrimination and sexual harassment...the policy considerations expressed in DuPont have taken on a new vitality…We reaffirm, and find even more forceful, the result and the rationale of DuPont. [IBM Corp., 341 NLRB No. 148 at 4.]

Nonunion employers, this is a reason to celebrate. Union employers, this is a reason to wish even harder that you were nonunion.

Supreme Court Rules That Employers With Appropriate Policy Can Be Protected From Liability In Constructive Discharge Cases

Back in 1998, the Supreme Court announced that employers could escape liability for harassment by a supervisor when no tangible job action was taken against a plaintiff by showing that the company exercised care to prevent and promptly correct sexually harassing behavior. As a result, Larry Feheley and I have spent the last six years harping about how, among other things, "every company needs an anti-harassment policy with a complaint procedure."

Earlier this week the Supreme Court considered whether someone who quits in the face of harassing behavior has suffered a "tangible job action." Most courts have answered that affirmatively, holding that someone who quits because of harassment has been "constructively discharged," and thus has suffered a "tangible job action." If anyone had asked me to bet on the matter, I would have bet a fair amount that the Supreme Court would agree with that conclusion.

My bet would be considered, at best, a draw. Here is why:

The Supreme Court said that unless the plaintiff can show that her resignation was prompted by an "official adverse job action," the employer can avoid vicarious liability for the supervisor's acts by showing that it had in place a complaint system that the plaintiff unreasonably failed to use before quitting. Justice Ginsburg, writing for all justices except dissenting Justice Clarence Thomas, stated that unless an official act is "the last straw" that causes the plaintiff to quit, the company would have no reason to believe plaintiff's resignation was anything out of the ordinary and thus should not be liable.

This ruling will almost certainly lead to a great deal of litigation over the term "official action," which was taken from the Justice Department's brief to the Court. Of course, neither the Department of Justice nor the Court defined "official action." Instead, it will be defined by case law in the coming years.

"Okay John, but what should we get from this case?"

Think of this case as the Court issuing you a friendly reminder: "We really meant what we said." So:

1. You need to have a thorough, well-written anti-harassment policy that has a complaint mechanism.

2. You've got to thoroughly investigate and promptly respond to any complaint of harassment.

The harping continues…

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