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03 Aug

July 2020 Federal HR Updates

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Supreme Court Rules in Favor of Religious Employers

What happened?
On July 8, 2020, the Supreme Court decided two cases involving the impact of religion in employment – both by a 7-2 vote – one case regarding the “Ministerial Exception,” and one case regarding religious employers refusing to provide contraceptives.

What are the details?
The “Ministerial Exception”

In Our Lady of Guadalupe School v. Morrissey-Berru (“OLG”), the Court clarified the scope and applicability of the “Ministerial Exception” previously recognized by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). The Court determined that the four factors examined in Hosanna-Tabor were not a rigid test and that there was sufficient evidence in the record to conclude that both plaintiffs performed vital religious duties that triggered Hosanna-Tabor’s limitation on judicial interference on employment decisions of a religious nature, which means that as long as the employer can show that the primary duty of the employee is furthering the teachings of the church above all, then even though the employee may not strictly be a minister, they can act as one for the purposes of these cases.

The Supreme Court’s published opinion on the “OLG” case can be found here.

Contraceptive Coverage Mandate

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, et al. and Trump v. Pennsylvania, et al., the Supreme Court upheld Trump administration rules providing that employers who have sincerely held beliefs against providing insurance coverage or payments for contraceptive measures to covered females are exempt from the Patient Protection and Affordable Care Act of 2010 (“ACA”) requirements to provide such coverage.

The Supreme Court’s published opinion of this case can be found here.

A more detailed breakdown of each case can be found here.

What do employers need to do?
Religious institutions should look into updating their employee handbook and employment contracts to closely match the criteria used by the Supreme Court to determine that the employee was acting as a minister while completing their normal job functions. Religious employers should read more about Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, et al. and Trump v. Pennsylvania, et al. to see if they might fall into the criteria outlined by the Supreme Court in order to deny coverage of contraceptives to their employees.


The NLRB General Counsel Issues Guidelines for In-Person Elections

What happened?
The National Labor Relations Board (“NLRB”) General Counsel (“GC”) has issued new guidelines for conducting secret ballot elections in the workplace.

What are the details?
The NLRB GC has issued guidelines for conducting secret ballot elections in the workplace in an effort to increase their use. Both the NLRB and employers have historically favored in-person voting for secret elections, elections held to determine if employees want to be represented by a union. The NLRB prefers in-person voting due to its increased security and ease of surveillance to ensure that both sides are adhering to the NLRB’s rules. Employers prefer in-person voting due to the fact that they can educate employees all the way up to the moment they vote, whereas with voting by mail the union may make house visits to sway employees but the employer may not. Some of the new guidelines include:

  • Enforcement of physical distancing in the voting area.
  • Plexiglass barriers between voters, agents, and observers.
  • Consistent cleaning of the voting area according to established CDC hygiene and safety standards.

An article going over more guidelines can be found here.

 You can download the memo sent out by the NLRB GC by clicking here.

What do employers need to do?
Employers should refer to these new guidelines if the need for a secret election occurs while the current COVID-19 pandemic is ongoing.


NLRB Modifies Standard of Workplace Conduct Protected by NLRA

What happened?
The NLRB has decided to use the Wright Line standard moving forward when ruling on cases of employee terminations due to abusive or offensive conduct. What are the details?
In a decision issued for the General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020) case, the NLRB has decided to use the Wright Line standard in future cases regarding employees being terminated for abusive or offensive conduct while participating in actions protected by Section 7 of the National Labor Relation Act (“NLRA”). The NLRB had previously used several different fact-specific standards that had allowed employees to remain protected while behaving in “…obscene, racist” ways, as long as they were participating in union-related activities.

The Wright Line standard follows two steps.

  1. The GC must prove that the employee’s protected activity was a motivating factor in the discipline.
  2. If the GC is successful, the employer must prove it would have taken the same action even in the absence of the protected activity, for example, by showing consistent discipline of other employees who engaged in similar abusive or offensive conduct.

By using the Wright Line standard, the NLRB is hoping to reduce the number of times that abusive employees may hide behind Section 7 to conduct themselves in ways that are clearly unacceptable in the modern workplace.

The General Motors LLC case can be found on the NLRB’s rulings page, found here.

What do employers need to do?
Employers should review their policies and make changes needed to ensure a consistent disciplinary system is used in the workplace. Managers should be trained to identify workplace conduct that is out of line and how to punish employees in appropriate ways. Consistency in the workplace will help protect employers from claims of abusing Section 7 of the NLRA.


NLRB Rules in Favor of Employer Searches of Employee Vehicles and Employer-Provided Electronic Devices

What happened?
The NLRB has ruled in the Verizon New York, Inc (Verizon) in favor of employer searches.

What are the details?
The NLRB’s ruling specifically applies to employers searching personal property if it was on/in the company premises, including company vehicles. Verizon had maintained a policy that is needed to reserve the right to search at any time in order to secure a safe workplace. The NLRB, overturning the initial judgment of an administrative judge, agreed. The NLRB felt that a reasonable employee would understand that the need for searches was to secure the workplace and investigate misconduct.

Additionally, they felt the administrative judge’s concern that the searches may conflict with protected conversations employees may be having in the company vehicle was purely speculation.

The NLRB also weighed in and confirmed that employers, generally speaking, are allowed to monitor communications happening on company devices or service. 

The case may be found for viewing, via download on the NLRB’s website here.

What do employers need to do?
Employers should keep in mind that the NLRB rulings are extremely fact-specific. Employers should not base their policies after one NLRB ruling but instead, consider the general rulings on a case-by-case basis. The current trend is that the NLRB is supportive of employer searches on employer property, as long as they are communicated clearly and occur consistently.


OFCCP Voluntary Self-Identification of Disability Forms due by August 4, 2020

What happened?
The Office of Federal Contract Compliance Programs has sent out reminders regarding the upcoming due date of their Voluntary Self-Identification of Disability form.

What are the details?
Federal contractors and subcontractors will have until August 4, 2020, to fill and file their CC-305 form to their applicant and human resources systems and processes.

The form can be found here.

What do employers need to do?
Federal contractors and subcontractors that live with a degree of disability should fill out the form and file it before the August deadline.


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