Monday morning musings for workplace watchers.
Virtual Work Environments| UAW Updates in Bessemer
Riddhi Setty: The Equal Employment Opportunity Commission’s newly finalized enforcement guidance on workplace harassment updates the commission’s policies to present day through its inclusion of virtual work environments, which have exploded in popularity particularly as part of the Covid-19 pandemic.
The final guidance says “sexist comments made during a video meeting, ageist or ableist comments typed in a group chat, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting” can all contribute to a hostile work environment.
“The realities of harassment online, still connected to the workplace, are different now than they were, you know, five years ago and certainly than they were 25 years ago, the last time we updated the guidance,” Democratic EEOC Commissioner Kalpana Kotagal told Bloomberg Law.
While employers generally aren’t responsible for employees’ conduct outside of the workplace, “they may be liable when the conduct has consequences in the workplace and therefore contributes to a hostile work environment,” according to the guidance.
The EEOC’s guidance also notes that social media posts that target another employee or the employer can contribute to a hostile work environment, even when posted from a personal account and personal cell phone or computer.
Non-consensual distribution of real or computer-generated intimate images online also could lead to a hostile work environment, the guidance said, including images created using artificial intelligence, or “deepfakes”.
Curbing harassment in virtual workspaces could prove challenging for employers, however, because unlike physical workspaces where instances of harassment can be overheard or reported, the nature of online harassment makes it more difficult for employers to know what’s going on, said James Paretti, a management-side attorney at Littler Mendelson P.C. and former EEOC senior counsel to the chair.
“It shifts the burden a little bit to the employee who is to come forward and make a complaint and to say, ‘Hey, this is happening. I need this to stop.’ Which may or may not have been the agency’s intent, but I don’t know another way to get around it,” he said.
However, other attorneys said the difference between virtual and physical spaces won’t be a significant one for employers to navigate.
For example, in a large company, the challenges of not knowing what’s going on in a conversation between employees or whether there is racist imagery in an employee’s workspace would exist even in physical spaces, said David Lopez, a professor at Rutgers Law School and former EEOC general counsel.
READ MORE:
- EEOC Workplace Harassment Policy Tackles Bathrooms, Pronouns
- EEOC Harassment Guidance Ripe for Suits Over LGBTQ+ Protections
- LGBTQ+ Protections in New EEOC Guidance Face Legal Headwinds
- Federal Judge Topples EEOC’s LGBT Bathroom, Pronoun Guidance
Ian Kullgren: Remember the first
The NLRB regional office in Atlanta last week began hearings over 311 challenged ballots that will determine the outcome of the second election, and started the process of addressing a myriad of unfair labor practice charges from both sides. The hearings are scheduled to resume May 13 after a week-long break, but won’t fully wrap up until mid-July.
Resolution still seems a long way off, with both sides challenging the validity of ballots. Some ballots were contested—including some by both parties—for varied reasons, including a worker’s supervisory status because managers aren’t allowed to vote, alleged irregularities with signatures and envelopes, and employment status, among others.
The NLRB regional office has the option to call for a third election, or, less likely, order Amazon to bargain with the union. In the case of either outcome, a regional director would have to find enough merit in the union’s unfair labor practice charges alleging, among other things, that the company illegally spied on employees engaged in union activity.
Amazon argues in separate charges that the union spread misinformation and coerced workers to depress turnout, visiting employees at home and offering to give them “ballots of unknown origin.”
There are several reasons that another election could break in favor of the union. Bessemer workers would no longer be voting on whether to become the first Amazon warehouse union in the US, a question that was resoundingly rejected in the initial election in 2021. Since then, JFK8 workers led the way on Staten Island, while Volkswagen AG workers joined the UAW in the first southern organizing win in decades—and could be joined by Mercedes employees just 25 miles away from Bessemer later this month. In other words, the water is warmer.
Moreover, Amazon is already on thin ice with the NLRB this week after CEO Andy Jassy was found to have violated federal labor law based on disparaging comments he made about unions in 2022.
But the fact remains that Amazon resoundingly won the first election by a landslide. Adding even more confusion to the saga, those results were thrown out after an NLRB regional director found that management meddled in the election by having the US Postal Service install a mailbox on company property, lending the impression that it was surveilling voters. Still, the initial outcome—with 70% of voters siding against the union—shows the union still has a mountain to climb.
We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.
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