July 2004 Newsletter Headlines
NLRB Reverses Stances on Non-Union Weingarten Rights
Employers' Affirmative Defense to Constructive Discharge Claims
Clarified by the Supreme Court
Use of External Investigator Helps Ward off Damages

NLRB Reverses Stance on Non-Union Weingarten Rights

In a surprising reversal of its policy of extending Weingarten rights to non-union employees, the National Labor Relations Board (NLRB) recently held in its IBM Corp. decision that non-union employees are no longer entitled to have a co-worker attend an investigatory interview that they reasonably believe will lead to discipline. In a 2-3 decision the Board re-examined its policy considerations which lead to the Epilepsy Foundation of Northeast Ohio, decision in 2000, in which the Board extended the rights of representation in disciplinary hearings generally reserved for unionized employees to non-union employees. Considerations for its decision include the many changes in the workplace environment “… including ever-increasing requirements to conduct workplace investigations as well as new security concerns raised by incidents of national and workplace violence.” The NLRB further stated that “...an employer must be allowed to conduct its required investigation in a thorough sensitive and confidential manner. This can best be accomplished by permitting an employer in a non-union setting to investigate an employee without the presence of a co-worker.”

The Board noted several factors distinguishing a non-union workforce from a unionized workforce to support it change in direction on this issue. In particular the Board pointed out:

• Co-workers do not represent the interests of the entire workforce.

• Coworkers cannot redress the imbalance of power between employers and employees.

• Co-Workers do not have the same skills as a union representative.

• The coworker requested may be a participant in the incident being investigated.

• The presence of a coworker may compromise the confidentiality of information.

While the Board acknowledged that some of the same concerns may be present in a unionized environment, it concluded that limiting the rights of employees in a non-unionized environment was a better policy judgment.

Best Practices Note: Conduct investigations with discretion and confidentiality. Fact finding interviews where the witness is alone often yields a more effective investigation and encourages employees to participate openly and honestly.

Full Opinion NLRB v. IBM Corp.

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Employers' Affirmative Defense to Constructive Discharge Claims
Clarified by the Supreme Court

Employees who say they were forced to quit because their supervisors created an intolerable hostile work environment may sometimes recover damages despite failing to take advantage of a company complaint procedure, according to a recent U.S. Supreme Court decision, Suders v.Pennsylvania State Police. Employers continue to be strictly liable if an adverse employment action, such as a demotion or extreme cut in pay precipitates the constructive discharge, but in instances where the claim is that a hostile work environment lead to the constructive discharge employers can assert an affirmative defense that it had adequate measures in place to address the offensive behavior and the employee failed to avail him or herself of those measures.

Nancy Suders, a police communications operator, filed suit against the Pennsylvania State Police (“PSP”) claiming that the harassing conduct of her supervisors was so severe that she had no other choice but to resign. According to Suders, three supervisors subjected her to a continuous sexually harassment environment which included talk of bestiality, comments regarding oral sex and obscene sexual gestures.

Suders contacted the PSP’s EEO official to request help but did not give the official any of the details. The EEO official told Suders to file a complaint but did not tell her how to obtain the necessary forms. Two days after her call to the EEO official Suders was arrested and accused of stealing her own computer skills exam papers. Suders admitted to taking the papers after she discovered them in her supervisor’s desk and realized that the exam had not been passed on for grading. Her supervisor had previously advised her that she had failed the exam. Suders then resigned from her position and filed suit alleging sexual harassment and constructive discharge in violation of Title VII of the Civil Rights Act of 1964.

In its review of this case the Supreme Court clarified the plaintiff’s burden of proof in constructive discharge cases as well as the affirmative defense available to employers in such claims. As a result of this ruling, Plaintiffs alleging that they were constructively discharged must be able to show that the “abusive working environment became so intolerable that … resignation qualified as a fitting response”. An employercan now defend against such a claim, however, by showing “(1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus” (emphasis added). Pennsylvania State Police v. Suders ( U.S. Supreme Court, 6/14/04)

Best Practices Note: Employers would be well advised to review their anti-harassment and discrimination policies to ensure that they provide employees with adequate notice of their obligations, rights and recourse if subjected to harassing or discriminatory behavior.

Full Opinion Suders v. Pennsylvania State Police

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Use of External Investigator Helps Ward off Damages

When claims of harassment or discrimination are made by employees, companies often have choice to make: Who is the most appropriate person to investigate? Courts have given guidance regarding the qualifications of the investigator. The investigator should have the appropriate experience and training investigating claims and should be knowledgeable of employment laws. In some instances, the sufficiency of the investigation will be the defense to a lawsuit. If so, the investigator will be the key defense witness. The investigator should be able to gain the confidence of the accused, witnesses and a judge or jury, if the allegations proceed to court.

In addition to selecting a qualified investigator a company must ensure that it conducts prompt and effective investigations. A company that can demonstrate that its investigation into alleged misconduct was reasonable will be afforded the benefit of an affirmative defense in harassment and discrimination cases. Recently in a case before the 10 th Circuit Court of Appeals, Rennard v. Woodworkers Supply, (6/9/04 10 th Cir.), the court upheld the lower court’s summary judgment order for the Defendant in part because “…after learning of plaintiff's allegations … [the company] . . . promptly hired an outside investigator to investigate plaintiff's allegations….”

Best Practices Note: The manner in which an investigation is conducted and the qualifications of the investigator are crucial to defending against claims of harassment and discrimination. Failure to conduct a prompt investigation by a qualified investigator could cost the employer the establishment of an affirmative defense. Employers should give serious consideration to whether they have the internal skills and resources to conduct their own investigations or if a qualified external investigator would serve them better in the event of litigation.

Full Opinion Rennard v. Woodworkers Supply

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