Butler Snow: Workplace Vol. 2014 No. 1

ENDA: Will It Ever Become A Reality?

Senate Bill 815, referred to as the “Employment Non-Discrimination Act of 2013” (ENDA), passed the Senate on November 7, 2013.  The bill had bipartisan support with 64 Senators (10 Republican) voting in favor and 32 opposing the bill.  ENDA has now moved to the House where, in its current form, most observers believe that it is unlikely to pass.  Will this be a repeat of the effort in 2007 when a similar bill (but without transgender protection) was defeated in the House, or will this be the next in a series of significant employment laws that have been enacted during the past 25 years? 

ENDA, which applies to an “employer” with 15 or more employees, prohibits employment discrimination on the basis of sexual orientation or gender identity.  It defines “sexual orientation” as “homosexuality, heterosexuality, or bisexuality;” and “gender identity” as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”  Significant to many potential employers is that it does not prohibit “reasonable dress or grooming standards,” which are not otherwise prohibited by federal, state or local law.

Aside from personal views and religious opposition to ENDA, the most controversial aspects of the bill are its protection of transgendered individuals, its exemption for religious organizations, and its failure to include a “bona fide occupational qualifications” exception.  It provides for what is seen by many as a sweeping religious exemption for religiously affiliated organizations, far beyond just churches.  ENDA appears to provide such religiously affiliated organizations with seemingly unfettered rights to engage in employment discrimination against lesbian, gay, bisexual and transgender individuals (also known as LGBT).  By its own terms, ENDA does not apply to “a corporation, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of Title VII of the Civil Rights Act of 1964.” 

Missing from ENDA is an exception for “bona fide occupational qualifications.”  This exemption is a critical piece to many of the anti-discrimination laws and is a significant provision for many employers.  It is critical because such an exception recognizes generally that protected characteristics (other than race) can from time to time be legitimate job qualifications.  For instance, gender can be a legitimate job qualification for positions such as a restroom attendant or other positions that involve privacy concerns.  Likewise, religion can be a legitimate qualification when it is important to hire individuals who share a particular religious faith.  However, to require a private school with no religious affiliation to continue to employ a male teacher who decides mid-year to dress as a woman is the type of right that many lawmakers do not believe that employers must surrender.  There are many examples of gray areas, but ENDA does not make any exceptions. 

The future of ENDA is up in the air.  This is despite a 2011 poll, which found that 73 percent of likely voters support protecting lesbian, gay, bisexual and transgender  people from discrimination in employment, and a widely held belief that a majority of Americans in every U.S. congressional district support such laws.  ENDA faces many challenges as it moves through the House.  We will simply have to wait and see what happens.

Break Time for Nursing Mothers: A Little Known Provision of the Affordable Care Act

In March 2010 a little known provision of the Affordable Care Act amended the Fair Labor Standard Act (“FLSA”) overtime rules to require a “reasonable break time” for nursing mothers who are not exempt from overtime pay requirements to express breast milk.  Even before this federal law went into effect, Mississippi had been a leader in adopting legislation to protect a mother’s right to nurse her child, including in the workplace, when it enacted several laws during the 2006 regular legislative session. 

The federal FLSA amendment requires the break time each time the non-exempt nursing mother needs to express breast milk for one year after a child’s birth.  The location for the break time cannot be a restroom and must be an area that “is shielded from view and free from intrusion from coworkers and the public,” although it does not have to be a dedicated space.  If it is temporary, however, it must be available when needed by the nursing mother.  A vacant room with a lock on the door should suffice as long as it meets the location requirements of the federal rule. 

The federal law does not require the nursing employee to be paid for the work time spent in breast milk expression.  On the other hand, the regulations promulgated under the amendment make clear that for employers who already provide paid breaks, an employee using such time to express breast milk must be compensated in the same manner as other employees on paid breaks are compensated.  The general requirement under the FLSA for non-exempt employees to be completely relieved from duty or else the time must be compensated as work time also applies to time spent expressing breast milk. 

Finally, under the FLSA amendment and related regulations, all employers covered by the FLSA are subject to the break-time-for-nursing-mothers requirement.  An employer that has less than 50 employees is not subject to the requirements “if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  Given that the FLSA amendment is intended to benefit employees, both the Department of Labor and federal and state court likely will the undue hardship exception narrowly. 

Under the regulations promulgated by the Department of Labor’s Wage and Hour Division regarding such break time, all employees who work for an employer covered by the FLSA are counted in determining the 50-employee threshold.  This is true regardless of whether they work at the same worksite, and including full-time and part-time employees, and “any other individuals who meet the FLSA definition of employee….”  If no employees of a given employer need to express breast milk, the employer has no obligation to provide space for such an activity.  Of course, this situation can change.  Covered employers should keep in mind the gender discrimination prohibitions of Title VII of the 1964 Civil Rights Act.  The U.S. Equal Employment Opportunity Commission likely would view as gender-based discrimination refusing to hire, firing, or taking other negative action against a female because she either is or could become a nursing mother. 

Mississippi statutes are found in the Mississippi Code of 1972, as it as amended in 2006 (the “Mississippi Code”).  Under section 17-25-7 of the Mississippi Code, counties and municipalities are prohibited from enacting any ordinance that restricts a woman’s “right to breast-feed her child….”  Section 17-25-9 permits a mother to breast feed “in any location, public or private, where the mother is otherwise authorized to be.”  This law applies regardless of whether “the mother’s breast or any part of it is covered during or incidental to the breast-feeding.” 

The employment-specific Mississippi statute on breastfeeding, section 71-1-55 of the Mississippi Code, states that employers cannot prohibit their employees from “expressing breast milk during any meal period or other break period provided by the employer.” 

General rules of construing federal and state statutes on the same subject provide that where the federal law provides more protection, the federal law applies rather than the state rule; if the state statute provides more protection, then it applies rather than the federal law.  Neither the FLSA amendment, the Mississippi breast-feeding and related laws, nor the interaction of the two has been addressed by a state or federal court in Mississippi in a published opinion.  Applying the general rules of statutory construction suggests that in Mississippi, there probably is no “number of employees” limit on the application of the Mississippi’s law requiring employers to allow their employees to express breast milk during meal or break periods.  Nor is Mississippi’s workplace law limited to non-exempt employees.  On the other hand, the federal law requiring that a place other than a restroom that is shielded from view and access by others likely applies in Mississippi to non-exempt employees who are expressing breast milk. 

The Department of Labor has some helpful fact sheets and overviews of the FSLA requirement that can be accessed here.  The Centers for Disease Control and Prevention has a toolkit for creating a breastfeeding support program at worksites. Click here to access the toolkit.

Employer’s No-Recording Rule Survives Initial Stage of NLRB Attack

Almost everybody has a smart phone and almost every smart phone is capable of recording conversations in the workplace.  Is it lawful for employers to prohibit electronic recordings by employees in the workplace?  

Since at least 2001, Whole Foods Market has maintained a work rule throughout the Company, including its grocery stores, that prohibits employees from secretly recording conversations without prior approval of management.  Specifically, the rule states as follows:

  • Team Member Recordings

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership.  The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.  This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

Violation of this policy will result in corrective action up to and including discharge.

Based on unfair labor practice charges filed by two unions, the General Counsel of the National Labor Relations Board (“NLRB”) issued a complaint against Whole Foods alleging that its no-recording rule violates the National Labor Relations Act (the “Act”).  More particularly, the General Counsel alleged that the rule is overbroad and “could be reasonably interpreted by employees to prevent them from recording statements or conversations that involve activities permitted by . . . the Act.”  Whole Foods Market, Inc., JD(NY)-50-13 at 6 (Oct. 13, 2013).  Further, the General Counsel alleged “that the rule broadly prevents the employee from recording conversations related to protected activities including allegedly unlawful statements made by supervisor, and recording evidence to be presented in administrative or judicial forums in employment related matters.”

After a trial, an Administrative Law Judge (“ALJ”) of the NLRB held that Whole Foods’ no-recording rule does not violate the Act.  The ALJ held, among other things, that “[t]he rule does not prohibit employees from engaging in protected, concerted activities, or speaking about them.  It does not expressly mention any Section 7 activity.  The only activity the rule forbids is recording conversations or activities with a recording device.  Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations.”  As to the General Counsel’s argument that the rule limited the ability of employees to gather evidence of illegal employer behavior, the ALJ stated, “I agree, but the employee may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters.  Only electronic recordings of conversations are prohibited.”  “The rule itself clearly explains its purpose – ‘to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded, and that recordation may inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.’”  That explanation is a clear, logical and legitimate description of the reason for the rule.”

The Whole Foods Market decision is a rare victory for employers attempting to defend work rules.  Employers are cautioned, however, that this ALJ decision is likely to be appealed to the full Obama Board and possibly a Circuit Court of Appeals, and thus may not survive appellate review.  Further, ALJ decisions may or may not be persuasive authority to NLRB Regions and it must be remembered that the General Counsel did in fact issue a complaint in this case.