Tag Archives: NLRB

2018 Labor & Employment Law Checklist

Each year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find our 2018 Labor and Employment Law Checklist to be a helpful guide to best practices for the year ahead.

Download the checkable PDF here. Print it out for yearlong reference, or get started right away and enjoy the satisfaction of checking some very important items off your list.

Deal with the Elephant in the Room and Conduct Harassment Training for Your Workforce. With the headlines around harassment and abuse allegations and the #MeToo and #TIMESUP movements, there is no hotter topic in employment law right now than workplace harassment. Appropriate training ensures both that your employees know how to stop harassment when they experience it and that your company can take advantage of certain defenses to claims that may come up in the future.  If your company has not conducted training in the last two years, put it on the agenda for 2018.

Decide on Your Investigation Procedures Now. When serious allegations of harassment and discrimination arise, they need to be investigated by experienced legal and HR professionals in order to get to the bottom of what really happened. Well run investigations also form another foundation in a company’s legal defense.  Because speed counts when employees raise issues, determine now which outside investigators are on your short list and how you will approach such investigations.

Determine Whether to Ask About Applicant Pay History. In an effort to eliminate gender discrimination in compensation, many state and local governments have taken steps to ban employers from asking applicants about their pay in prior jobs. For example, California’s law took effect January 1, 2018 and Massachusetts’ law takes effect on July 1, 2018.  Making things more complicated it that it’s not entirely clear which state’s law applies when the recruiting process crosses state lines.  Employers need to determine if the jurisdictions where they operate have laws of this kind and immediately take steps to change hiring procedures to account for them.

Monitor the Changes at the NLRB. The National Labor Relations Board is now fully controlled by its Republican members, and rulings are already starting to change the landscape for employers. For instance, recent decisions by the NLRB have relaxed the standard applicable to policies in employee handbooks.  Consider re-reviewing employee handbooks to take advantage of this change and be aware of how other changes at the NLRB impact your business.

Review Changing Leave Laws. One area where employee rights have continued to expand is in the area of leave laws. For instance, New York has a new law on paid family leave that took effect on January 1, 2018, and California has a law that took effect on that date expanding parental leave rights.  Many states and municipalities also have passed new paid sick leave laws.  It is important for employers to ensure that their HR teams understand these new laws and that their leave policies encompass the broader rights being given to employees.      

Don’t Let Employees Engage in Distracted Driving. When employees drive as part of their job, employers can be held liable for accidents that result from distracted driving. Laws around distracted driving are getting tougher.  For instance, Rhode Island recently passed a law banning all mobile phone use by drivers, with limited exceptions for hands-free devices.  In Washington, a new law went into effect on January 23rd that prohibits drivers from even holding gadgets at a stop sign or red light.  Be sure your policies make clear that safety comes first, appropriately address employee responsibilities while driving and give employees the right to defer calls until they are off the road. 

Is It Time to Reconsider Using Arbitration Agreements? Some employers have been reluctant to use arbitration agreements with their employees because of uncertainty about the enforceability of these agreements, particularly in situations involving class actions. Last fall, the Supreme Court head oral argument in a case that is expected to clarify the law in this area.  If this ruling ends up being favorable for employers, it may be time to reconsider whether arbitration is a better forum for resolving employee disputes.  

Be Careful Gathering Genetic Information. Employers must be careful in how they gather and use genetic information concerning employees and applicants. Congress passed the Genetic Information Nondiscrimination Act in 2008 and approximately 37 states have laws on this topic.  As of January 1, 2018, changes to the Illinois Genetic Information Privacy Act prohibit employers from penalizing employees who refuse to provide genetic information.  This law was intended to head off efforts to require employees to provide genetic information in wellness programs.

If Using Biometric Data, Make Sure You Know Legal Requirements. In 2017 we saw a large number of class actions filed under the Illinois Biometric Information Privacy Act (IBIPA) against employers whose employees clock in and out using their fingerprint or a hand scan.  These cases, which allege that the employers failed to meet the very specific requirements set out in IBIPA, are still in their early stages, but employers who use fingerprints or other biometric information for time tracking, security access, or other purposes should make sure that they understand and are complying with IBIPA’s requirements.

Review how Marijuana is Treated Under Drug Policies. Recreational marijuana is now legal in seven states, including California, and nineteen states have laws permitting the use of marijuana for medical purposes. In view of the spread of laws permitting marijuana use, many employers have re-examined their drug policies and decided to treat marijuana differently from other illegal drugs.  There are pros and cons to these changes and the right move depends to some extent on where an employer has operations, but 2018 may be the time to assess whether you are taking the right approach.

Are You Ready for a Data Breach? In 2017, nine states enacted new or amended security breach laws. Last year, updates to Illinois’ Personal Information Protection Act went into effect expanding the definition of protected information and increasing the notice obligations for breaches.  All employers should review the security safeguards being used to protect such information and also plan now for the steps that need to be taken in the event of a data breach.

Understand Pregnancy Accommodation Obligations. Under the Americans with Disabilities Act, employers have an obligation to accommodate pregnancy-related conditions. Now, however, many states are also passing specific laws requiring employers to accommodate employees who are pregnant or breastfeeding.  Illinois amended its own Human Rights Act in 2015 to protect pregnant employees, and other states have been catching up.  For instance, Vermont and Massachusetts have new laws going into effect in 2018.  Employers should be sure that as issues arise, they understand and comply with both their federal and state pregnancy accommodation obligations.

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Two Big Moves By New NLRB

National Labor Relations Board Building SignThe newly Republican-majority National Labor Relations Board (NLRB) has been busy — just yesterday  overturning two employee-friendly standards.

First, the Board overturned its decision in Browning-Ferris, which said that “indirect control” or the ability to exert such control over another company’s workers is sufficient to make a you a joint employer. With this ruling, the Board returned to its more employer-friendly joint employer standard, which looks to “direct and immediate” control.

Second, the Board reversed its aggressive position on employee handbook policies and provisions. Previously, the Board had held that a policy is illegal if employees could “reasonably construe” it to prohibit them from exercising their rights to come together (or collectively bargain) under the National Labor Relations Act (NLRA). This standard had been used by the board to find many employer policies (such as social media and confidentiality policies) illegal. However, per yesterday’s decision, the Board will instead be focusing on the “nature and extent” of a challenged policy’s “potential impact on NLRA rights” and the “legitimate justifications associated with the rule” — which together make for a far more pro-employer approach.

Employers now find themselves in a far better position when it comes to joint employer claims and handbook policy challenges. We expect to see additional employer-friendly decisions soon, so stay tuned.

Facebook Comments and “Likes“ Protected Activity?

Social Media keyboard

Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act?  What about hitting the “Like” button on a post?  The Second Circuit recently agreed with the National Labor Relations Board that they are.

In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook.  The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them.  The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.”  The second employee “liked” the first employee’s status update.  The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.

Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision.  The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act.  The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act.  However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook).  The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.

The take-away here?  It’s a good time for employers to review their social media policies.  As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity.  There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity.  It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.

Is Your Company Ready For A Union Campaign?

vote-unionThe NLRB’s “ambush election rules” – which became effective this Spring – continue to be challenged by business trade groups. See previous blog posts. These groups, however, have yet to persuade a court that the rules violate any laws.  What that means is that employers should take precautionary steps to prepare for a union organization effort, rather than waiting for a petition to be filed. If you wait for that petition, you won’t have much time at all (as little as 10-21 days) to effectively communicate with your employees .

What can be done now?

  • Training. Your managers/supervisors need to know how to detect union “storm warnings.” They should be aware – and immediately inform higher management – of:
    • Employee complaints changing or increasing
    • Employees being out of normal areas
    • Employees being on premises while “off duty”
    • Employees making unusual requests for information and materials concerning job descriptions, pay, benefits, compensation, policies, etc.
    • Employees asking unusually aggressive or argumentative questions at group meetings
    • Normally talkative and open employees avoiding speaking with managers/supervisors
    • Employee group conversations quieting down when managers/supervisors pass by
    • Lunchroom, locker room, and bathroom cartoons and graffiti
    • Over-qualified job applicants with spotty backgrounds
    • Employee complaints being made by groups of individuals
    • Strangers on company premises
    • Use of unusual technical language by employees
  • Communicate now. Educate your employees on the company’s position on unions and unionization now. Make sure your managers/supervisors are maintaining an open door policy with their employees and continue to train them on effective communication.
  • Review your policies and practices. Make sure all employment policies and practices are compliant with employment laws and the views of the NLRB.
  • Develop campaign materials in advance if any “storm warnings” are detected. You want campaign materials at your fingertips when a petition is filed so you can start campaigning right away.

The future of the NLRB’s new election rules is unknown. But as of right now, they stand, and employers need to be prepared.

Are You Ready for 2015?

checkEach year, LP’s Labor & Employment Practice Group is pleased to provide a short checklist of steps that all companies should consider taking to measure their readiness for the coming year. We hope that you find this 2015 Labor and Employment Law Checklist a helpful guide to best practices for the year ahead.

2015 Labor and Employment Law Compliance Checklist

U.S. Chamber and Business Groups File Suit to Block New NLRB Election Rule

National Labor Relations Board Building SignThis week, the U.S. Chamber of Commerce and several business trade groups announced that they jointly filed a complaint in federal court against the National Labor Relations Board (NLRB), seeking to strike the Board’s new “ambush” election rule that shortens the period between the filing of a union election petition and the election itself. The NLRB adopted the rule on Dec. 12, 2014 in a 3-2 vote. If not overturned, the rule is set to go into effect on April 14, 2015. See our previous post here.

The complaint alleges that the new rule violates the National Labor Relations Act, the Administrative Procedure Act, and employers’ free speech and constitutional right to due process. Read the press release here.

Joining the Chamber in the lawsuit are the Coalition for a Democratic Workplace (CDW), National Association of Manufacturers (NAM), National Retail Federation, and Society for Human Resource Management (SHRM). Worth noting is that this is only the third time SHRM has challenged a federal regulation in court.

NLRB Issues Quickie Union Election Rules

National_Labor_Relations_Board_logo_-_colorThe National Labor Relations Board has issued final rules that are intended to speed up the union election process.  These new rules will take effect on April 14, 2015. Read more about the final rule in the Federal Register.

The new election rules are being heralded by organized labor and decried by many in the business community.  The new rules compress the timeline between petition and election, give unions access to more information about employees, set up new employer procedural requirements, and limit hearing issues and appeals that may be raised before an election.  The end result is that the timeframe from petition to election will be significantly shorter, which is generally viewed as an advantage for unions.

Unless these rules are overturned, employers are well-advised to take precautionary steps to prepare for a union organization effort, rather than waiting for a representation petition to be filed.