Murtha Cullina LLP

July 2014 - Labor and Employment News

July 31, 2014

EEOC Issues New Guidance on Pregnancy Discrimination: Pushes the Envelope on Employee Protection

The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance on the Pregnancy Discrimination Act (“PDA”) which updated prior guidance in light of legal developments over the past 30 years.  The PDA amended Title VII to prohibit discrimination based on: current pregnancy, past pregnancy, intended or potential pregnancy as well as medical conditions related to pregnancy or childbirth.  The EEOC’s guidance provides a safe harbor for employers, but may well be more protective of pregnant employees than the law requires.

Employers should be aware that the following actions may violate the PDA:

  • Taking an action to protect women who have childbearing capacity or who intend to become pregnant;
  • Asking employees or applicants about their intention to become pregnant;
  • Taking employment actions related to a female employee’s use of contraceptives or excluding coverage for prescription contraceptives; and
  • Taking an action based on a woman’s decision to have or not to have an abortion. 
  • Imposing policies including weight-lifting restrictions, light duty restrictions, and restrictive leave that disproportionately affect pregnant women
  • Denying light duty when it is offered to similarly situated employees.

The following actions usually will not violate the PDA:

  • Excluding health insurance coverage for abortions unless the woman’s life is endangered and
  • Excluding infertility treatments under employer provided health insurance. (Insured plans in Connecticut must offer this coverage)

Employers must provide equal access to benefits to both pregnant and non-pregnant employees alike. 

  • For example, some leave policies have been found to impact pregnant women unfairly including a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment. 

Under the Americans with Disabilities Act (“ADA”) as amended in 2008, courts have found that some pregnancy-related impairments qualify as disabilities under the Act. 

  • Employers must make reasonable accommodations for pregnant workers suffering from disabilities unless they can prove the accommodation causes undue hardship. 

Other requirements prescribed by law that affect pregnant employees include:

  • The Family and Medical Leave Act (“FMLA”) which allows 12 workweeks of leave during a 12 month period for birth
  • and care of an employee’s child;
  • Executive Order 13152 Prohibiting Discrimination Based on Status as Parent;
  • Section 4207 of the Patient Protection and Affordable Care Act providing reasonable break time in a private location for women who are breastfeeding to express milk; and
  • State laws which sometimes provide greater protections than the PDA.  (Connecticut requires employers to offer pregnancy related disability leave; Massachusetts requires family leave)

For a list of suggested best practices, please click here.  Additionally, the EEOC has provided a Questions and Answers page about the new Enforcement Guidance on the Pregnancy Discrimination Act that can be found by clicking here.  Please contact Lissa J. Paris at 860.240.6032, or Susan J. Baronoff at 617.457.4031, if you have any questions concerning the issues discussed in this article.

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NLRB Continues Approval of “Micro-Bargaining Units”

The National Labor Relations Board (NLRB) recently strengthened the ability of unions to gain a foothold in a workplace by organizing sub-groups of employees when they are unable to get more broad-based support among co-workers. On July 22, the Board decided to hold an election limited to the Cosmetics and Fragrance employees at a Macy’s store. Other sales employees were not included in the vote. Employers, particularly those in the retail industry, should pay close attention to the way that they structure their workforce. Differences may open them to such focused union organizing efforts.

Under the National Labor Relations Act, employees can petition the NLRB to conduct a secret ballot election to determine whether a majority of the employees in a particular “bargaining unit” wish to be represented by a union for purposes of collective bargaining. If a majority of the employees in the bargaining unit vote in favor of representation, then the union becomes the representative of all the employees in that bargaining unit. The question in the Macy’s case was how narrowly the petitioning union could draw the lines for a “bargaining unit.”

In 2011, the NLRB held an election among all the employees at the Macy’s store in Saugus, Massachusetts to determine whether they would be represented by the United Food and Commercial Workers union. The union lost the election. In 2012, the union filed a petition to represent a subset of the store’s employees - only the employees who worked selling cosmetics and fragrances. Macy’s argued that segregating the cosmetics and fragrance employees from its other retail sales employees was improper, and that the smallest bargaining unit should be all employees who sold goods at the store.

The NLRB held that a unit consisting of only the cosmetics and fragrance employees was an appropriate unit, and ordered that an election be held just among that group. It analyzed the evidence presented at the representation hearing and decided that Macy’s had not proven that other employees shared an “overwhelming” community of interest with the cosmetic and fragrance salespeople. Thus, the union now has the opportunity to convince a much smaller group of employees to vote in favor of representation and perhaps create a beachhead in the store for further organizing efforts.

While couched in language indicating that this was a straightforward application of long-standing law, this decision would almost certainly have gone the other way under previous administrations. It indicates the current NLRB's greater willingness to facilitate union organizing. The potential proliferation of “micro-units,” such as the sub-group of sales employees, will combine with the imminent regulations shortening the time period for pre-election hearings and campaigns to put employers facing unexpected union organizing petitions at a significant disadvantage. The consequence of losing an election for a sub-group like this are likely worse for an employer than having a larger unit organized because both the employer and the union will be focused on the impact of bargaining on unrepresented employees working side by side with the represented employees, making negotiations more difficult and divisive.

Significantly, a week after the Macy’s decision, the Board issued a decision that seemed to go the other way. In that case, a union petitioned for an election among all the women’s shoe salespeople at a Bergdorf Goodman store. The requested unit included all the salespeople in the store’s “salon unit” and all those members of the “Contemporary Sportswear” department that sold shoes. The Board held that the proposed unit was not appropriate because it did not coincide at all with the way the employer organized its workforce. While not a determinative factor in all cases, the fact that the Union sought to organize a department and a half, as opposed to 1 department or even 2 combined departments, made the unit inappropriate.

In light of these cases, and the imminent regulations, employers should review their organizational structure and decide whether to make changes that might avoid such “micro-units.” Now more than ever employers need to understand how the NLRA works, because they will not have the luxury of time once a petition is filed.

Please contact Hugh F. Murray, III at 860.240.6077, or Michael C. Harrington at 860.240.6049, if you have any questions concerning the issues discussed in this article.

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