Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

The vast majority of private sector employers in Iowa do not have a unionized workforce. Many employers (and employees for that matter) don’t understand that the National Labor Relations Act (NLRA) still applies to them.     Section 7 of the NLRA grants employees the rights to engage in various kinds of “concerted activities” for the purpose of collective bargaining or “other mutual aid or protection.” Employers are often surprised to learn that conduct prohibited in their employee handbooks—things like discussing compensation among employees, posting notices in the break room, or using social media to complain about wages or working conditions—may actually be protected by section 7.     Unfortunately, ignorance is seldom bliss, particularly if you find yourself the target of a National Labor Relations Board (NLRB) unfair labor practice charge.

Although employees have had section 7 rights for decades, many non-union employers in Iowa never used to worry about the NLRB.   That could and should change, given the agency's more activist agenda in recent years.  Two recent announcements in particular highlight the importance of becoming more educated about your rights (yes, employers have rights under the NLRA) and those of your employees, so as to avoid ending up at the wrong end of an expensive and time consuming investigation, or worse.

First, the NLRB’s Acting General Counsel recently released a report detailing its investigation into cases involving employer’s social media policies and employee’s use of social media.  The report focuses on employee terminations related to Facebook postings, blogs, and Tweets, as well as social media policies generally that the Board contends are overly broad. The U.S. Chamber of Commerce also issued a survey on the NLRB’s social media activity.   Both of these reports are a must-read.

Second is the NLRB’s announcement of a new Rule requiring most private sector employers to post notices informing employees about their rights under the NLRA. The New York Labor and Employment Law Report has a good summary of the requirements. While there is some debate whether the NLRB has legal authority to require such postings, the rule nonetheless goes into effect November 14.   Employers are encouraged to find out between now and then your rights and responsibilities under this new rule, and especially the consequences for failing to follow it. 

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Last week a federal judge in the Southern District of New York Judge dismissed the EEOC’s long running sex and pregnancy discrimination lawsuit against financial media company Bloomberg, LP.    EEOC claimed Bloomberg engaged in a “pattern and practice” of discrimination against pregnant women and mothers returning from maternity leave by reducing their pay, demoting them in title, removing responsibilities, and subjecting them to stereotypes about female caregivers.

What is notable about the case is not the judge’s conclusion based upon the evidence, but the fact that she took the unusual step of offering some “concluding remarks” highly critical of the EEOC’s approach to the case.   Judge Preska wrote: “[a]t bottom, the EEOC’s theory of this case is about so-called “work-life balance”…"It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance."   But, she noted, despite the fact that it may be desirable, the law does not mandate “work-life balance”. “The law simply requires fair treatment of all employees. It requires holding employees to the same standards.”   In a company like Bloomberg, which explicitly makes all-out dedication to the company its expectation, “making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers….”    As a final bombshell, the judge concluded:

Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most “family-friendly” company. The fact remains that the law requires only equal treatment in the workplace. Employment consequences for making choices that elevate non-work activities (for whatever reason) over work activities are not illegal.

Predictably, Judge Preska’s opinion unleashed a firestorm of both support and criticism.  One commentator claimed the judge has “contempt for women with kids who have ambition”, while others recognized the fact that the balance between work and family is ultimately a personal decision that all employees make, regardless of gender. 

Coincidentally, the Bloomberg decision follows closely on the heels of an announcement by the Iowa Attorney General that the State paid $180,000 to settle a sex discrimination lawsuit by employee who alleged she was terminated because of family care obligations.  The plaintiff alleged her boss (also a woman) made unfavorable comments about the work commitment of mothers with children.  The reasons given for the termination was that the plaintiff lacked dedication to her job because she was unwilling to work the necessary long hours.  She claimed she was replaced by a man who worked the number of hours she did without complaint from the supervisor. 

These two cases illustrate the increasing trend of family care discrimination claims.  Indeed, EEOC has made such claims an important part of its enforcement agenda.   Bloomberg is an important reminder, however, that equal treatment does not impose on employers the obligation to accommodate an employee's personal life choices.  At the same time employers must ensure they avoid making decisions based upon gender stereotypes, and hold all employees, regardless of gender, to the same standards. 

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Wal-Mart v. Dukes, decided by the U.S. Supreme Court in June, could derail a class action race discrimination case against the State of Iowa that has been pending since 2007 (See our posts here and here on the Wal-Mart case).    The Iowa case involves 32 named plaintiffs who claim the State maintained hiring and promotion practices that discriminated against African American applicants and employees.   The suit was certified as a class action in 2010 to include class all African Americans who sought appointment to or held a merit based position in the Executive branch since July 1, 2003.   The class claims could potentially involve up to 6,000 persons in addition to the named plaintiffs. 

The court held a hearing last week concerning the potential application of the Dukes case.  The holding in Dukes that potentially applies to the Iowa case involves the question of “commonality”. That is, are the circumstances of the class members sufficiently common that their discrimination claims can be addressed as a group rather than individually.   In Dukes, the Court held that claims of 1.6 million female employees alleging gender discrimination at thousands of Wal-Mart stores across the United States could not, as a practical matter, be adjudicated as a class.   The essential question in a discrimination claim—“why was I disfavored”-involved too many individual circumstances. 

According to coverage of the hearing in the Des Moines Register,  the Iowa Plaintiffs are trying to overcome the Dukes decision by showing the State of Iowa’s hiring and promotion practices were centralized and applied to each African American applicant and employee.   At Wal-Mart, on the other hand, the evidence showed the hiring and promotion decisions occurred at the store level and therefore were highly decentralized.   The Plaintiffs’ evidence against the State of Iowa relies to a great extent on statistics purporting to show African Americans were less likely to survive an initial round of applicant screening, less likely to be interviewed, and less likely to be hired.

Another important difference in the Iowa case is that it is pending in Iowa state court rather than federal court.   Although similar, Iowa courts and federal courts have two different sets of rules governing these types of proceedings. 

The Dukes case is a powerful weapon for employers defending class actions, and it will be interesting to see whether it will allow the State to avoid a trial in this case.

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