Jottings By An Employer's Lawyer

Thursday, July 24, 2008

Free Government Advice from the EEOC, NLRB and the DOL


You can agree or disagree with it, but it is always helpful to know what the regulators think.

Tuesday, the EEOC published its updated Compliance Manual section on Religious Discrimination. Just as a reminder as to how broad religious discrimination can be, the definition of religion used by the EEOC is:

Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

Also on Tuesday, the NLRB General Counsel Ron Meissberg issued a Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy. Although it could have obvious implications during this election season, the reason for the advice memorandum was the immigration law demonstrations in 2006 which included employees leaving their jobs to protest proposed legislation.

According to the analytical approach set out in the memorandum, the GC concludes such conduct is covered by §7 of the NLRA:

Immigrant employees and even non-immigrant employees could reasonably believe that the bill could impact their interests as employees. For these reasons, employee attendance at and support of these demonstrations in our view was within the the scope of the "mutual aid or protection" clause.

However, coverage is not the key question, the question is whether it is protected activity. That requires both coverage by §7 and an analysis of the "means employed." The memorandum set out three principles that will guide that determination:
  • non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees' own time and in nonwork areas, is protected;
  • on-duty political advocacy for or against a specific issue related to a specifically
    identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules; and
  • leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.

    It is likely that the battleground in the immigration cases will be over the third principle.

    And a final bit of advice from the government comes from the folks at DOL, reminding that as of today, the Federal minimum wage increases to $6.55.

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