Last week, the Oregon Court of Appeals upheld the dismissal of an employee’s age discrimination claim under state law for failure to comply with the employer’s grievance and arbitration procedure. In Hatkoff v. Portland Adventist Medical Center, the employee had signed a written acknowledgement that he had received the employee handbook and was responsible for reading it and understanding its contents. The acknowledgement also stated that in the event he was dissatisfied with any action taken by his employer, the employee would submit the matter to the employer's grievance and arbitration procedures.
For employers that have a written grievance or other alternative dispute resolution procedure in their handbook, the case opens the door for a complete defense to a claim by an employee who fails to follow the procedure.
Earlier this year, the NLRB Office of General Counsel issued OM 12-59, its third memo on employer social media policies, addressing whether such policies violate an employee’s right under Section 7 of the National Labor Relations Act to engage in “concerted activities.” At times the difference between what the NLRB concluded is and is not unlawful came down to wordsmithing. For example, while it was permissible for an employer to suggest that employees address concerns through internal procedures, it was unlawful to say that employees are encouraged to use such resources rather than social media. A particularly disconcerting issue for employers is the NLRB’s finding that a policy restricting the release of "confidential information" about the company, co-workers or guests, and restricting sharing confidential information with co-workers, was unlawful.
On July 30, the NLRB issued an opinion in Banner Health System, also related to confidentiality, in connection with its investigation of an unfair labor practice charge. The NLRB found that the employer violated employees’ rights under Section 7 by routinely asking employees who lodged a complaint not to discuss the matter with coworkers while the employer was investigating the complaint, so as to protect the integrity of the investigation. The NLRB further stated that to impose such a restriction, the employer must first determine in each case whether witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up.
Last month, a post on the One Mediation blog reported a crackdown on an employee confidentiality policy by the EEOC. It stated that that the Buffalo, NY office of the EEOC issued a letter to an employer disapproving its written policy warning employees who participate in an internal investigation not to discuss the investigation, and stating that a violation of the policy may result in discipline. It called the policy a “flagrant violation” of Title VII and itself an adverse employment action, because it interferes with the employee’s right to “oppose” discrimination. The full text of the EEOC’s letter has not been published, but the blog reported that the case was believed to involve allegations of sexual harassment.
Given the prevalence of policies restricting the disclosure of confidential information and limiting discussion of internal complaints of harassment or discrimination, employers should consider reviewing their employment policies with counsel to see what risks are present and whether any changes are necessary.
Buried in a lengthy Ninth Circuit opinion about a controversial Arizona sheriff is a procedural nugget of interest to federal court litigants: Failure to reallege a dismissed claim in an amended complaint no longer constitutes a waiver of the right to appeal the dismissal of that claim.
In Lacey v. Maricopa County, journalists asserted civil rights claims against Sheriff Joe Arpaio and others, claiming retaliation in violation of the First Amendment, false arrest, and selective prosecution. An en banc panel of the Ninth Circuit last month denied defendants' motions to dismiss and determined that the claims can proceed against Arpaio and two county prosecutors.
While none of the parties briefed the issue, the court sua sponte addressed whether plaintiffs had waived their right to appeal the dismissal of claims against one of the prosecutors by failing to name him as a defendant in an amended complaint. The court's longstanding rule, which it called the Forsyth rule, is that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint. Criticized as harsh and overly formalistic, the rule has been rejected by other circuits.
The court disclaimed the Forsyth rule and held that "for claims dismissed with prejudice and without leave to amend, we will not require that they be repled in a subsequent amended complaint to preserve them for appeal." As to claims dismissed voluntarily, the court will continue to consider them waived if not repled.