Author: Dinse

Kendall Hoechst, Amy M. McLaughlin, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Kendall Hoechst

The National Labor Relations Board (NLRB) is a federal agency vested with the power to prevent and remedy unfair labor practices (ULPs) committed by employers. In the past few years, the NLRB has broadly construed employees’ rights to engage in concerted activities and has struck down many employer policies that tend to “chill” protected conduct in a variety of contexts. A recent NLRB decision upheld by the U.S. 2nd Circuit Court of Appeals (whose rulings apply to all Vermont employers) suggests this trend is continuing.

Section 7 rights generally

Section 7 of the National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” as well as the right “to refrain from any or all such activities.” Employers are prohibited under Section 8(a)(1) of the NLRA from interfering with or restraining their employees’ Section 7 rights. In short, if an employer’s policy tends to chill, or dissuade, employees from exercising their Section 7 rights, the employer has committed a ULP under federal law.

Even if an employer’s policy or rule doesn’t explicitly restrict protected activity, the rule is considered a violation if:

1. Employees would reasonably construe the language of the policy to prohibit protected activity;
2. The rule was promulgated in response to union activity; or
3. The rule has been applied to restrict the exercise of protected rights.

The employer’s intent is not always relevant.

In recent years, the NLRB has taken special interest in protecting employees’ Section 7 rights and has been interpreting the NLRA more and more broadly, particularly when it comes to employees engaging in “concerted activities.” A recent NLRB decision upheld by the 2nd Circuit suggests that focus will continue, at least for now.

Whole Foods case

Whole Foods Market maintained rules prohibiting any recording in the workplace—including conversations, phone calls, images, and company meetings—without prior management approval. The rule applied to all areas of every store, to employees and managers alike, and to all electronic devices. Two unions representing Whole Foods employees objected to the rule and filed a ULP charge with the NLRB.

A Whole Foods representative testified that an essential part of the company’s “core values” and “culture” is allowing employees the freedom to speak up and speak out on many issues, work-related or not. Annual regional “town hall” meetings are held without store management present, and the comments, but not the identities of the employees who speak, are later given to management. Whole Foods also periodically holds store meetings and team meetings at which employees voice criticism but are not identified so as not to disrupt team harmony.

Furthermore, Whole Foods suggested that its internal processes for termination decisions and meetings at which employees request assistance with issues involving confidential matters, such as financial need, death or illness in their families, or personal crises, would be adversely affected without the no-recording policy. In other words, in Whole Foods’ view, the policy was designed “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue, and an atmosphere of trust.”

Despite the company’s justifications for its norecording policy, the NLRB found that the rule would reasonably be construed by employees to prohibit them from engaging in Section 7 activity. The NLRB reasoned that photography and recording in the workplace as well as work-related posts on social media are protected by Section 7 if employees are acting in concert for their mutual aid and protection and there is no overriding employer interest against such conduct. Furthermore, in many past NLRB cases, photographs or recordings, often made covertly, were an essential element in vindicating the underlying Section 7 right.

The 2nd Circuit upheld the NLRB’s decision, agreeing that Whole Foods’ rule was overly broad. For example, the rule could prevent employees from recording images of picketing or from documenting unsafe workplace conditions without management approval. The court held that the language of the policy could chill employees’ exercise of their Section 7 rights because the rule, as written, wasn’t limited to controlling activities in which employees don’t act in concert.

What does this mean for Vermont employers?

Employers should review any policies that address employees recording activity in the workplace or posting work-related content on social media and consider whether they are open to a broad interpretation along the same lines as Whole Foods’ policy. It doesn’t matter what the potentially good intentions behind the policy are.

The 2nd Circuit noted that not every no-recording policy will infringe on employees’ Section 7 rights, explaining that it should be possible to craft a policy that places some limits on workplace recording that doesn’t violate the NLRA. The court didn’t provide more specific guidance than that general assertion, but it suggested that concerns about patient privacy in a hospital setting or safety policies for reporting unknown visitors could fit the bill.

While it’s possible that the Trump administration may set the pendulum swinging in the opposite direction, the future of NLRB enforcement is uncertain. For now, employers should continue to be wary of implementing or maintaining any policy that, broadly construed, could be seen as chilling employees’ Section 7 rights. The Whole Foods decision signals that the NLRB’s trend of broadly interpreting workplace policies is continuing.

Kendall Hoechst can be reached at khoechst@dinse.com or 802- 859-7042.

Karen McAndrew, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Karen McAndrew

Sometimes it’s difficult to tell whether the court is talking about employment law or just old-fashioned “premises liability,” but in the end, that apparently doesn’t make a great deal of difference when it comes to your obligation to provide safe workplace premises. And, as a recent Vermont Supreme Court case shows, you’d better not instruct or invite someone to do something that is just plain dangerous even when the danger is open and obvious to the dude who’s about to do it.

Facts

Hector LeClair, who had experience in the construction business, owned a building in need of a new roof. He asked his son, Ricky, who was also in construction, about replacing the roof. Ricky in turn asked his son, Joseph, who was an unemployed roofer at the time, if he was interested in the job, saying it would be “good money.” Joseph took on the job, and Ricky delivered the materials and equipment to the jobsite. Joseph later alleged, however, that his grandfather, not his father, told him what to do.

Several days after having removed the old shingles, Joseph showed up on an October morning to find that an early frost covered the exposed underlayment. He saw the obvious danger and decided he shouldn’t work on the slippery roof. He claimed later, however, that his grandfather told him to get to work. Joseph then climbed a ladder to a porch roof, and from there began to climb on the second story roof when he slipped and fell to the ground, suffering serious and permanent injuries to his head and back. He then sued his grandfather.

Grandfather’s responsibility?

The trial court dismissed Joseph’s complaint without a trial, holding that Hector owed no duty to protect someone on his property from a known and obvious danger. At the last minute, Joseph tried to amend his complaint to allege that his grandfather was really his employer, and because Hector didn’t have workers’ compensation insurance, Joseph didn’t have to prove his grandfather’s negligence in order to recover for a workplace injury. He also wanted to include a “common law claim” that, as his employer, Hector had an obligation to provide him with a safe workplace. His grandfather opposed this attempt on a variety of grounds, among them the late-in-the-day filing of it. The trial court didn’t allow the amendment, so the case proceeded to the Vermont Supreme Court.

Over the strenuous dissent of two members of the court, the majority managed to find a means by which Joseph’s case could proceed to trial. Most of the ink was spilled on the “premises liability” issue, not the employment claim, but there is considerable overlap, and particularly if you own your workplace premises, the decision deserves some attention.

Traditionally, the law made distinctions among categories of visitors—employees, “business invitees,” “licensees,” and trespassers—and the duty owed to a person coming on the premises depended on the category into which that person fell. Distinctions among employees, business invitees, and other visitors have now largely disappeared, however—and even some trespassers may now be owed some measure of care if the property owner has reason to know that trespassers are likely to come onto the premises and encounter danger. In general, the duty is to protect against or warn visitors of latent or hidden dangerous conditions on the premises.

Until now, however, there has not been a duty to warn of open, obvious dangers. And in general, a visitor who voluntarily assumes the risk of an open and obvious danger has no claim against the landowner for injuries that result from that activity. (It was largely those principles that drove the dissent to argue that Joseph shouldn’t recover for climbing onto the roof that he knew was slippery.) So how does all of that play out among the LeClairs?

Court’s decision

Because Hector hadn’t claimed that Joseph “assumed the risk” of climbing on the icy roof—concentrating instead on the question of whether he owed any duty to him in the first place—the supreme court also turned its attention to the question of whether there was a duty to protect against or warn Joseph about the slippery roof. The answer would appear to be obvious, as Joseph had admitted that he observed the condition, knew it was dangerous, and decided to “risk it,” after first having decided it was a bad idea.

However, the court pounced on an exception to the general rule, which notes that there are cases in which the owner or possessor of land “should anticipate that the dangerous condition will cause physical harm . . . notwithstanding its known or obvious danger” or has reason to understand that the visitor will “fail to protect themselves against” the danger. That exception prompted the court to focus on the testimony from Joseph that Hector ordered him to get to work, despite the frosty condition of the roof. The court posited that a worker in that situation might feel compelled to do the work despite the danger or risk losing his job. And that was enough for the court to send the case back to the trial court for a jury to determine whether Hector did in fact order Joseph to work on the icy roof and, if so, whether he should have anticipated that his grandson would be injured.

The court then went on to consider whether to add— when the case got back to the trial court—Joseph’s claim that his grandfather was his “employer” and whether Hector had an obligation under the circumstances to provide him with a safe place to work. That duty has now been established in a statute, but because the statute doesn’t provide an employee a basis to assert a claim against the employer, Joseph had to rely on the duty that developed under the common law.

Hector argued that he wasn’t Joseph’s employer because Ricky had engaged him to do the work and supplied the materials and equipment. Joseph argued, on the other hand, that his grandfather was the one who “controlled” the work, was present on the premises, and ordered him to get to work.

Although the definition of “employer” under Vermont’s workers’ comp statute is broader than this, the court agreed that, for these purposes, the “right to control” is the essential determinant of who is an employer but noted that can’t be true where the “proposed employee” has specialized knowledge that the “proposed employer” doesn’t have. Where that is the case, other factors become relevant, such as who supplies the tools and equipment, whether the work is “by time or by job,” whether the work is part of the regular business of the employer, and so on.

In this case, the court said that because there were so many conflicting facts and allegations, a jury should have been allowed to sort them out, so it sent the case back for trial on Joseph’s original complaint as well as his amendment.

And the moral is?

Is there at least something employers can learn from this? Perhaps.

First, to state the fairly obvious, it’s not a good idea to instruct, or even ask, anyone working on your premises— employee, independent contractor, or otherwise— to engage in something that is obviously dangerous, even if you think the danger should be understood by the worker.

And second, it’s not as easy as defining your duties to provide safe working conditions by whom you consider to be your employees. Don’t assume that because an independent contractor is working on your premises that you have no duty to provide a reasonably safe place to work or to warn of hidden or latent defects.

Faced with a complaint, employers tend to say, “They were making it up.” But that’s not usually the case; the employee generally has a “good-faith belief” that he is right. And that’s all that’s required legally. The complainer doesn’t have to be right about the complaint.

Cultivate culture of criticism that leads to loyalty

Employers already understand the need for policies that don’t merely prohibit discrimination but also prohibit retaliation and the adverse treatment of whistleblowers. But it isn’t enough to just inform workers that they are protected from retaliation. Instead, companies should create a culture that supports internal criticism across the spectrum of issues, large and small. Whistleblowing can either increase cooperation and reduce selfishness within the group or increase dissent and denigration. The difference comes down to group culture.

Organizations looking to reduce the threat of retaliation lawsuits should consider creating a culture that welcomes criticism. The thought is that if you encourage employees to blow the whistle internally and your company views dissent as a good thing (i.e., it makes the company better), loyalty is enhanced, and whistleblowing to an outside entity such as the EEOC becomes less likely.

Part of that effort should include strong, well-publicized policies that encourage internal reporting of potential violations or wrongdoing. But it should also include training supervisors on how to welcome criticism and avoid retaliation toward subordinates who speak up, in addition to conveying other messages that highlight the value of internal constructive criticism.

Make whistleblowing ‘less noble, more normal’

If an employee’s whistleblower or retaliation claim heads to court, you might benefit from evaluating your complex feelings toward the whistleblower. You may not want to explicitly play the loyalty card because blaming the employee for breaking ranks may seem to reinforce his argument that your company had a retaliatory motive. Instead, seek to normalize the act of whistleblowing.

If your company has embraced a culture of criticism, you should be able to point to several features of your policies and culture that don’t just allow whistleblowing but positively encourage it. The ability to prove that such a culture exists permits you to suggest that whistleblowing isn’t a uniquely noble act on the employee’s part but instead is something you expect of all your employees. The fact that a claim was made means you need to take it seriously, but it doesn’t mean you retaliated against the employee.

Ultimately, the complexity of our views of whistleblowers is a reminder that employment decisions and court cases aren’t just about claims, evidence, and the law. They are also about perceptions and a story and how each of the parties fits within that story’s moral frame.

Questions your company should ask

Finally, ask yourselves these questions:

• Are we clear and honest about what we want?
• Are we encouraging “dissensus”? (When discussion, criticism, and reporting are part of your job and part of your culture, it’s harder to get worked up.)
• Is whistleblowing normalized?
• Are we aiming to keep it nonpersonal?
• Are we consistent?
• Do we follow through? (Employees need to see that the complaint process is followed).
• Do we publish outcomes (“We investigated and corrected” or “we found no violation but see the need for more training.”)
• Do we properly implement whistleblower discipline? (Yes, you can impose discipline on someone who is a whistleblower, but only with care.)

Karen McAndrew can be reached at kmcandrew@dinse.com or 802-864-5751.

Karen McAndrew, Kendall Hoechst, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Karen McAndrew

Work-life balance is a topic much on the minds (and tongues) of employees these days, and how employees’ concerns about balancing their personal and professional lives affect business operations is correspondingly on the minds of HR professionals and senior managers. Flexibility in scheduling (i.e., “flextime”) is a tool that, when used creatively and managed well, can convey that you recognize your employees have lives and competing demands on their time outside the workplace. How you implement flextime in your workplace will determine whether it’s successful—resulting in a happier, more productive workforce with a high retention rate—or not—leading to grumbling, resentment, and high turnover.

Legislation as a starting—but not stopping—point

Vermont has certainly been at the forefront in terms of family-friendly employment laws, enacting protections for employees that include:

• Parental and family leave that’s more widely applicable than the federal corollary (the Family and Medical Leave Act, or FMLA);
• Short-term family leave to attend a child’s school activities or take a parent, child, or spouse to routine medical and other professional appointments;
• Limited paid sick leave;
• Town meeting leave;
• Workplace accommodations for nursing mothers; and
• Employer obligations to consider in good faith employees’ requests for flextime.

Paid maternity leave has also been under consideration by our legislature, although it hasn’t yet been adopted.

Those legislative enactments haven’t always been welcomed by employers—particularly small employers, which are so ubiquitous in Vermont—because they can be seen as impositions on productivity and the bottom line. But instead of viewing family-friendly legislation and flextime as an impediment to management’s objectives, some employers are beginning to think that there’s a more positive way to think about accommodations, particularly when they’re used creatively for hourly and “blue-collar” workers, who may be the most negatively affected by rigid workplace schedules.

Companies, both big and small, have come to realize that flexibility in accommodating employees’ scheduling needs doesn’t just benefit employees. It may prove beneficial in building a stronger and more loyal workforce, which in turn can boost productivity and reduce turnover, with all its related costs. It’s worth thinking about.

Social change means blue-collar work has changed

When many of us hear the term “blue-collar workers,” we conjure images of men (yes, men) wearing overalls and carrying metal lunch pails as they pour out of the factory gate at the sound of the shift-change whistle. And then, if we’re old enough, we picture those men going home to wives in dresses and heels, putting a family-style meal on the table as two or three young children grab their chairs. The men punch the time clock day after day, while the women stay home to manage the family. But that’s a nearly nonexistent profile these days.

Of course, as we hear almost daily from politicians of all stripes, many of those factory jobs have been usurped by robots or moved out of the country. At any rate, a lot of the jobs that remain wouldn’t be recognizable to those guys in overalls. And chances are, the average hourly worker’s family life is even less like it used to be.

Today’s workers (both men and women) are just as likely to be carrying the baby’s lunch as they detour to the day care on their way to work in the morning after discussing with their spouse or partner which one of them will leave work in a rush at the end of the day to pick up not just the baby but the groceries and the mail, and then maybe take an older child to soccer practice before heading home to put a hastily assembled meal together. Moreover, a large percentage of workers are without a spouse or partner and must do all those things single-handedly at the beginning and the end of the day.

Managing time off by minimizing it

If wages had risen as rapidly as family life has changed, the pressures on blue-collar workers might not be so severe. But in this long stretch of relatively flatlined wages, having to take a half day of compensatory time off (CTO) to meet the cable installer or cover a delayed school opening or address some other situation not covered by short-term family leave can mean that CTO is eaten up before the summer. That may mean the employee has to use unpaid leave for all or a portion of a planned summer vacation with her family, which cuts further into their already stretched budget.

If you’ve long had a rule requiring CTO to be used in half-day or larger segments, it may be worthwhile to consider whether that’s really necessary. Is your only basis for the requirement the perceived inconvenience of scheduling or accounting for workers’ CTO in smaller blocks? Perhaps there’s a software program that would help you manage a more flexible system without enormous disruption to payroll processing. And you might find the cost offset by what you gain when employees take less unpaid (and often unplanned) time off.

Allowing employees to take time off in one- or two hour segments might not only be a very welcome benefit for them but may also mean that they spend more time on the job, benefiting the company as well.

What about flextime?

The irony in many workplaces is that salaried workers, who may be far less financially stressed than hourly workers, are generally afforded a great deal more flexibility in terms of work hours and schedules than the time-clock-punching hourly workforce. If rigid fixed hours are just a historical legacy, rethinking ways in which you might accommodate more flexibility for your hourly workers could do a lot to foster your reputation as a family-friendly place to work.

Consider whether it’s really necessary to have every hourly worker show up and depart at the same time. Might you actually increase productivity (and still have adequate coverage during the busiest time of the day) if you allow some workers to arrive an hour or two before the normal start time and leave an hour or two before the closing bell, and others to do the reverse? Chances are, some of your salaried workers are coming in early or staying late, so the relatively insignificant impact that offering scheduling flexibility might have on your overall operations would be minimal. But the corresponding benefit to your hourly workers who could be home in time to meet the school bus might be game-changing. Conversely, a retail or food-service operation in a downtown location might consider opening at the regular time with only part of the staff, but having everyone on board over the busy noon hour, and then decreasing staff as business begins to wind down in the afternoon.

Flexible scheduling might at first glance sound like a manageable concept in a small operation at which individual jobs are less compartmentalized, employees have to cover whatever needs to be done (and cover for each other during unexpected absences and vacations), and shifts aren’t rigidly structured. But we’ve been reading more and more about larger, traditionally shift-based workplaces embracing (or at least accepting) the idea that their business model might be dated.

Hospitals and other healthcare organizations in particular have faced chronic nursing shortages in recent decades, and many have adapted by offering nurses an alternative to the regular 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., or 11:00 p.m. to 7:00 a.m. shifts on the same days (or nights) each week. Nurses now may work four days on and two days off, three days on and one day off, or any other combination that allows their employer to cover patient care but accommodates their own individual needs.

Other large employers are headed in the same direction. The Container Store, a large national retailer of home storage and organizing solutions, has held onto its long-standing place on the Fortune 100 list of Best Places to Work by promoting its “employee-first” culture not just in theory but in practice. Central to preserving that culture is a major investment in training both supervisors and employees, not just in the mechanics of their jobs, but also in the importance of communicating with one another about all aspects of their work, including work schedules.

The company hires many part-time employees for a variety of positions and works with them to accommodate their scheduling needs, which may change over time. For example, a student who works part-time may be able to work mornings and one afternoon during one semester, but she may be available to work weekday afternoons and one weekend day during the next semester. She knows that she can approach her supervisor about changing her schedule without trepidation, and the supervisor knows that she can retain a reliable employee by adjusting the schedule to fit the employee’s needs. The benefits of retaining already-trained (and appreciative) employees have proven to far outweigh the costs of constantly recruiting and training new employees.

Consistency and communication are essential

Flextime may sound like an employee-friendly idea, but when “flexibility”—i.e., unpredictability—is imposed from the top down, it can translate to instability or uncertainty for employees, particularly for blue collar workers who live close enough to the edge financially that predictability is highly valued. For example, if schedules are subject to change, especially at the last minute, the impact on workers with childcare obligations may be severe. Or if shifts are subject to a bidding process with relatively short notice about the availability of extra shifts, workers with outside obligations may be precluded from competing for the extra time.

Advertising jobs with the assurance that extra hours are often available or telling current employees that they have the opportunity to earn more by taking extra shifts may prove to be an empty promise if management doesn’t provide sufficient notice of those opportunities, or if the message is conveyed, however subtly, that declining the opportunity to work extra shifts is an impediment to advancement.

Bottom line: Employee retention is its own profit center Exempt employees, by definition, have some schedule flexibility built into their jobs.

Exempt staff can often manage their own hours, provided they get the job done and are present and available on-site as required. Working remotely and telecommuting is no longer a novelty for exempt employees. Most blue-collar workers don’t have those options, however.

That disparity can be dispiriting to hourly workers, who have just as many outside obligations and just as much need for work-life balance as their exempt coworkers, but far fewer options for maintaining that balance and managing those obligations. The more management can do to foster communication that leads to creative, thoughtful workarounds to those outside pressures, the more likely it is that hourly workers’ productivity, satisfaction, and loyalty will increase and employee turnover will decline.

The author can be reached at kmcandrew@dinse.com or 802-864-5751.

Jeff Nolan, Maggie Reynolds, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Jeff Nolan

In January 2017, a three-justice panel of the Vermont Supreme Court issued an order upholding an Employment Security Board ruling that a former ski resort employee was temporarily disqualified from receiving unemployment compensation benefits because he was fired for misconduct connected with his work. While three-justice orders aren’t formal precedent, the facts of the case are interesting, and the decision does provide some insight into how the court applied the law to those facts. The circumstances of the case also may inspire those of you in the service and hospitality sectors to consider the adoption of a “consumer review response” policy.

The law

In Vermont, if an employee is fired, he can and often does apply for unemployment compensation benefits. If the employer disputes the claim, it’s considered within the Vermont Department of Labor (VDOL) by a claims adjudicator. Any appeals are considered by an administrative law judge (ALJ) and the Employment Security Board. Claims adjudicators and ALJs typically hold fact-finding conferences by telephone, and the board typically holds in-person hearings. If someone isn’t happy with a decision of the board, the decision can be appealed to the Vermont Supreme Court.

It has been our experience that applications for unemployment compensation are routinely granted, even if the discharge was well justified and supported by clear evidence. Usually, a substantial record of progressive discipline and relatively strong evidence of misconduct are necessary before a former employee can be denied unemployment benefits.

In the following case, the court’s legal analysis began by quoting the pertinent statutory section, which provides that an employee may be disqualified from receiving unemployment compensation benefits for a specified period if he has “been discharged by his . . . last employing unit for misconduct connected with his . . . work.”

The court emphasized that this standard is higher than the threshold necessary to justify a discharge, stating, “The fact that misconduct may support a discharge does not necessarily mean that the same misconduct disqualifies an employee from receiving unemployment benefits.” This is because, according to the court, it “has defined misconduct sufficient to constitute disqualification under [the relevant statutory provision] as substantial disregard of the employer’s interest, either willful or culpably negligent.” The court maintains that “culpable negligence connotes something more than mere negligence or errors in judgment.” To further complicate matters for employers, the court has held that the employer “has the burden to establish misconduct by a preponderance of the evidence.”

The circumstances of the case discussed below should be evaluated in light of this relatively high standard.

The case

John Tansey worked for 2½ years as a bartender for the Mount Snow ski resort before he was discharged in January 2016. According to the court, he had received a written warning in August 2015 for making a guest feel unwanted and was told that any further behavior of this type could result in termination of his employment.

In early January 2016, Mount Snow became aware of a TripAdvisor review indicating that Tansey had been rude to the reviewer and her friends when they ordered drinks late one evening. Based on this review and the previous warning, Mount Snow discharged him from his bartending position.

A few days later, Mount Snow hired Tansey as a snowboarding instructor. Approximately one week after beginning his instructor job, he informed Mount Snow’s director of food and beverage that he had “contacted the TripAdvisor reviewer and told her that he had been fired because of her review and that she needed to think twice before placing such a review again.” Reportedly looking to get his bartender job back, he informed the director of food and beverage that the reviewer had removed her review after he contacted her. Upon learning this, Mount Snow’s HR director discharged Tansey again, this time for contacting the TripAdvisor reviewer without obtaining Mount Snow’s permission.

In seeking unemployment compensation benefits, Tansey reported to the VDOL that he had been fired because of a complaint on TripAdvisor, but he denied being rude. Based on this information, a claims adjudicator determined that he was entitled to unemployment benefits because Mount Snow had failed to demonstrate sufficient grounds to constitute misconduct.

Mount Snow appealed to an ALJ, who determined that Tansey was temporarily ineligible to receive unemployment benefits because the company had demonstrated he was “fired for misconduct connected to his work.” He appealed to the board, which agreed with the ALJ’s decision. He then appealed to the Vermont Supreme Court.

Court’s analysis

On appeal to the Vermont Supreme Court, Tansey made a variety of fact-based arguments, including a claim that his discharge was in retaliation for a workers’ compensation claim he made in 2013 and claims that Mount Snow’s HR director made false representations on factual issues during the VDOL proceedings. The court rejected the retaliation claim out of hand because it was raised too late—arguments can’t generally be raised for the first time on appeal. It also rejected the fact-based claims because the applicable standard of review required it to “uphold the Board’s decisions unless it can be demonstrated that the findings and conclusions were erroneous.” In applying this standard, the court emphasized that “as long as there is some evidence to support the findings of the Board and the ALJ, we must accept those findings even if based on the testimony of a witness that [the appealing party] asserts was lying.”

The court found that there was sufficient evidence to support the board and ALJ findings in the case. It noted that Tansey didn’t argue his action in contacting the TripAdvisor reviewer was an “error in judgment” or “mere negligence”—that is, the type of conduct that might justify a discharge, but not a disqualification from unemployment compensation benefits. The court observed that the board determined this conduct was sufficiently inimical to Mount Snow’s interest to constitute misconduct temporarily disqualifying him from unemployment compensation benefits.

On the important issue of progressive discipline and a notice against further misconduct of the same sort, the court emphasized that the company had demonstrated its concern about conduct toward guests when it warned Tansey after the earlier rudeness incident. As a result, it “acted appropriately when it reacted to [his] contact with the [TripAdvisor] reviewer to complain about the review and its consequence for him.” Using these observations, the court found no basis to overturn the board’s determination that his conduct substantially disregarded Mount Snow’s interest. Tansey v. Department of Labor (Mount Snow, Ltd., Employer), 2017 WL 262042 (non-precedential Entry Order, not reported in A.3d).

Lessons learned

On the unemployment compensation law front, this decision illustrates the importance of documenting performance problems. If misconduct is repeated and a discharge results, documentation provides at least a higher likelihood (but no guarantee) that the employee will be disqualified from unemployment compensation benefits, at least if the misconduct is willful, culpably negligent, and sufficiently inimical to the employer’s interest to meet the applicable standard.

On the “navigating social media” front, the circumstances of the decision suggest that employers in the service and hospitality industries should consider adopting a social media review response policy that advises employees not to contact social media reviewers directly and requires that employer approval be obtained before posting a response. To use the social media platform highlighted by this case, TripAdvisor has detailed suggestions and guidelines for management responses to reviews (www.tripadvisor.com/TripAdvisorInsights/ n2428/how-add-management-responses-tripadvisortraveler- reviews).

Those guidelines provide that management responses will be posted only if they fall within specific parameters (e.g., they should be professional and respectful). Obviously, if an employee is appearing to speak for a service- or hospitality-based business, the company would want to have control over how the postings could affect the company’s brand, positively or negatively.

This decision indicates that the reviewer at issue chose to remove her review after being contacted by Tansey, but it’s also easy to imagine that an already unsatisfied reviewer could react to such contact by posting a much more negative review and by posting extensive commentary on the issue on other social media. If, for example, a negative personal attack on a reviewer went viral, that could have very significant brand implications. Having a policy that seeks to prevent such posts from being made in the first place, serves as the basis for employee education on the topic, and provides a clear basis for discharge if the policy is ignored could very helpful.

Jeff Nolan can be reached at jnolan@dinse.com or 802- 864-5751.

Amy McLaughlin, Leigh Cole, Editors
Dinse, Knapp & McAndrew, P.C., Burlington

by Amy McLaughlin

You work hard to ensure that your workers are being paid fairly and justly—and, of course, equally when they are essentially performing the same job. Indeed, the federal Equal Pay Act (EPA) guarantees equal pay in those circumstances and prohibits compensation discrimination based on a worker’s gender. The risk of getting it wrong is huge. Luckily, you have a bit more guidance for analyzing your pay equity practices as a result of a recent decision from the U.S. 2nd Circuit Court of Appeals (whose rulings apply to Vermont employers).

Facts

Following her graduation from veterinary school, Deirdre Chiaramonte completed an internship and a residency at Animal Medical Center (AMC), a not-for-profit veterinary teaching hospital. She then began working for AMC as a veterinarian. In 2002, she was tasked with administering a program at AMC dedicated to serving the pets of donors and other important individuals. The program was formalized in 2004 as the president’s council.

Chiaramonte’s responsibilities as director of the president’s council included an additional set of job duties on top of her veterinary work. In 2005, she also helped establish a rehabilitation and fitness service at AMC and became responsible for directing it. After various personnel disputes, however, her employment was terminated on July 24, 2012.

Following her termination, Chiaramonte sued AMC, alleging it violated the EPA by paying male employees higher wages than it paid her for performing substantially equal work. At AMC’s request, the district court dismissed her claims, concluding that she hadn’t established a case of discrimination under the EPA because she failed to demonstrate that she performed work substantially equal to that of her better-paid male colleagues. Chiaramonte appealed to the 2nd Circuit, arguing that the district court erred in its conclusion.

Legal standard

The EPA prohibits employers from discriminating in compensation on the basis of gender. Under the legal standard the 2nd Circuit uses to analyze EPA claims, an employee can prove a violation of the law by demonstrating that (1) her employer pays different wages to employees of the opposite sex, (2) the employees perform equal work in jobs requiring equal skill, effort, and responsibility, and (3) the jobs are performed under similar working conditions. The court stated that the equal work inquiry, which is critical to an EPA claim, requires evidence that the comparable jobs are substantially equal.

However, “substantially equal” doesn’t mean identical. The court indicated that the employee must establish that the comparable jobs entail common duties or content and do not simply overlap in title or classification. According to the court, “A successful EPA claim depends on the comparison of actual job content; broad generalizations drawn from job titles, classifications, or divisions, and conclusory assertions of sex discrimination, cannot suffice.”

Decision of the 2nd Circuit

After considering the evidence, the 2nd Circuit concluded that the district court properly dismissed Chiaramonte’s EPA claim because she was unable to support it with anything more than mere generalizations drawn from job titles and divisions. Although she argued that her better-paid male colleagues performed substantially equal work because they were all department heads with similar credentials and significant responsibilities, the court of appeals concluded otherwise.

The 2nd Circuit found that even though Chiaramonte’s position as director of the president’s council and the rehabilitation center shared some common characteristics with her male coworkers’ positions (e.g., administrative responsibilities), she overlooked material differences in the congruity of job content. The appellate court reasoned:

Chiaramonte’s responsibilities as the Director of the President’s Council entailed primarily public- relations-type duties, as well as primary care. She performed basic treatments—parallel to those performed by a general practitioner—and would refer patients to specialists if necessary. Similarly, the overwhelming majority of [her] work at the Rehab Center could be performed by technicians and aides. By contrast, [her] better- paid male colleagues practiced in specialized areas of veterinary medicine and performed complex procedures. Unlike the alleged comparators, Chiaramonte was not responsible for supervising interns or other veterinarians, and she contributed little if any scholarly research. Moreover, [she] carried a low patient load, seeing only one to three patients a day. Although she did perform some rehabilitation treatments at the Rehabilitation Center, she could go months without treating patients. Some of her better-paid male colleagues, on the other hand, treated up to 15 patients a day.

In the end, the 2nd Circuit agreed with the district court, which noted that Chiaramonte’s efforts to draw comparisons between her job and the jobs of her five male coworkers “miss the mark because they essentially require the [c]ourt to embrace the principle that the work of all veterinarians is equivalent, thereby ignoring distinctions among the different specialties in veterinary medicine.”

The 2nd Circuit observed that “the fact that Chiaramonte and the alleged comparators are department heads whose positions share some common responsibilities is insufficient to demonstrate substantially equal work in light of the drastic differences in job content—that is, the differences in specialties, patient loads, supervision, teaching, and research contributions.” The appellate court concluded that other than the broad generalizations drawn from the fact that her alleged comparators were department heads and veterinarians, their work content simply wasn’t equivalent to hers.

Chiaramonte also claimed that the district court erred by failing to consider her evidence of company-wide pay discrimination. As the 2nd Circuit explained, however, she essentially presented as statistical evidence “a roll call of [veterinarians] and salaries, with no effort made to explain what each [veterinarian] did.” That, reasoned the court, was insufficient statistical evidence of pay disparity.

According to the court of appeals, whether “other female veterinarians are paid less than male veterinarians, without more, cannot suffice to establish that, because of sex alone, [Chiaramonte] was indeed paid less than males who performed substantially equal work.” The 2nd Circuit therefore concluded that the district court properly declined to consider her proposed statistical evidence of pay discrimination at AMC.

Significance for employers

As this case demonstrates, you must be prepared to adequately explain any pay disparity between male and female employees who have the same job title. The critical factor in any EPA case is whether the better-paid opposite-sex comparator actually performs substantially equal work. When conducting pay equity audits, you should focus, not on job titles, but on the actual work employees perform, and be able to validate any pay discrepancies with legitimate business justifications.

Amy McLaughlin can be reached at amclaughlin@dinse.com or 802-859-7031.