Seyfarth Synopsis: While employers usually deal with employees directly, sometimes an employer must engage with an employee’s representative. These circumstances vary, as do the potential consequences to the employer.
Employers typically expect to deal directly with their employees. But employers should think before using Hodor’s approach of “Hold the door!” to exclude any employee representative. The employer who emulates Hodor in this regard may find itself in an analogous situation: holding off costly litigation coming with all the ferocity of a horde of White Walkers.
Dealing with Employee Representatives Under the FEHA
The FEHA contemplates direct communications between employer and employee; the interactive process aims to help the parties work together to identify reasonable accommodations. The presence of a third party—whether it be the employee’s physician, attorney, or other representative—may help or hinder this process. Employers need to be careful whom they should admit into the conversation and how the conversation should proceed.
For example, because employers aren’t clairvoyant like Bran, and because employees are sometimes less than forthcoming regarding what actually might assist in removing workplace barriers, employers may find it helpful to work directly with a medical provider to determine reasonable accommodations. Employers must obtain express authorization from the employee before doing so, however, and should be careful about what information they request, as they may receive more than they bargained for in terms of diagnostic and genetic information.
As for dealing with an employee’s attorney in the interactive process, employers often can bar an attorney’s entrance into its fortress and insist on dealing directly with employee. But in “unusual circumstances” that insistence could be unreasonable. One case indicates that it might be unreasonable to deny an employee’s request to communicate through counsel where the employer had previously terminated the employee.
Dealing with Employee Representatives Under the Labor Code and the NLRA
Much like the gatekeepers of Castle Black, attorneys serve as gatekeepers in discussions between employers and employees. Labor Code section 923 recognizes employees’ rights regarding “designation of representatives … to negotiate the terms and conditions of [their] employment.” Although Section 923 focuses on the concerted acts of employees to engage in collective action (like an uprising of the Unsullied), California courts have extended Section 923 rights to employees who are acting individually. These courts seem sympathetic to the view that the party in power (think the King or Queen on the Iron Throne) should give more dignity to the little guy, and have interpreted Section 923 to allow the individual employee to designate an attorney to negotiate terms and conditions of her employment.
California courts have found that “terms and conditions of employment” can cover discussion of wages and accommodations relating to a pregnancy. Courts have also found, however, that employees are not entitled to deal through their attorneys when it comes to discussions about an employee’s job performance. The wall of distinction here is not so high, though. The NLRA Weingarten right empowers an employee to have a union representative present at an investigatory interview where the employee reasonably apprehends discipline (think of Cersei’s concern as she contemplated a trial before the High Sparrow). California courts waiver here in their “loyalties”—some pay homage to the view that NLRA fully preempts Section 923, while others have concluded that preemption is unfitting. Complicating matters even further, public employers (and private employers whose conduct may be rendered governmental conduct) must heed an employee’s constitutional right to the presence of an attorney in a custodial interrogation. These contrary outcomes result in employers finding themselves in a dilemma, the likes of which Tyrion Lannister would love.
Gatekeeping Dilemma—What’s an Employer To Do?
So what is the confused employer to do? Much as the Mother of Dragons takes each conquest in step-by-step fashion to achieve her ultimate goal, so must an employer. Employers should carefully assess which law applies, and whether the situation permits or would be furthered by the designation of an employee representative. While neither the FEHA nor Section 923 necessarily obligates an employer to negotiate with a designated attorney or other third party, it may behoove the employer to engage in that process.
But employers should heed the lessons learned by the Westeros elite and remain mindful of the information exchanged with and obtained from an employee’s representative, as such discussions hinge on private information and the desires of the employee, not the representative. As usual, in California, an employer must proceed cautiously as an artfully pleaded complaint may give rise to liability under multiple statutes requiring differing actions.