If you are an HR professional, you surely worry about workplace violence. Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.
I recently read an article from the Business Journal publications that I found useful: “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.” This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence. [Read more →]
August 25, 2016 No Comments
Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers. [Read more →]
August 16, 2016 No Comments
The Defend Trade Secrets Act: What Does it Really Mean for Employers? The Good, the Bad and the Ambiguous, Part 1
Signed into law on May 11 of this year, the federal Defend Trade Secrets Act of 2016 (“DTSA”) amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation, and it has been hailed by the New York Times and other authorities and media outlets as the “most significant expansion in federal intellectual property law in the past 70 years.” Yet, for decades, state trade secret laws have already been a fundamental source of protecting the confidential information of business in the United States. [Read more →]
August 9, 2016 No Comments
Listen up, employers: On August 1 — that’s two days ago! — the Department of Homeland Security increased the Form I-9 violation fines by approximately 96%. Specifically, the range of fines for violations went from $110-$1,100 per Form I-9 to $216 -$2,156 per Form I-9. This could be particularly problematic for larger companies, as an untrained staff person completing numerous I-9s incorrectly can lead to an exorbitant amount in fines. On the other hand, smaller companies have less in volume but sometimes they can commit more substantive errors which can lead to fines on the higher-side of the range. Both are bad results that your business should want to avoid. [Read more →]
August 3, 2016 No Comments
Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting. It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action. [Read more →]
July 25, 2016 No Comments
The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF). The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade. Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed. [Read more →]
July 19, 2016 No Comments
Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer. In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur. Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required. Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.
The case involved a sheet metal workers union that sought to represent construction workers, including those employed both directly by Miller & Anderson Inc. and those supplied to provide temporary labor to it by Tradesman International. Under the existing standard at the time the petition was filed, both the employer and the staffing agency needed to consent to the unit, and they did not. The union challenged this requirement and the NLRB, in its continuing goal to include more “jointly employed” workers in unionization efforts, overturned its existing standard from Oakwood Care Center that required the employers’ consent.
The Board held that the only consideration is whether the direct employees and the jointly-employed workers who work just for that same employer share a “community of interests” under the traditional factors used in that analysis. Consent of the employers is no longer required. In announcing the ruling, the Board stated that where a unit such as this elects union representation, a “user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. . . . However, [a user employer] will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”
This case follows on the heels of another recent Board case, known as Browning-Ferris, that opened up the standard for determining a staffing agency worker is a “joint employee” of the business customer, which makes it easier for unions to bring both staffing agencies and their user employers to the bargaining table. This has been a clear trend of the Board under the Obama Administration. A member of the Board who dissented in yesterday’s decision noted that precise goal and its real consequences. Board Member Philip Miscimarra’s dissent said the decision “substantially enlarge[s]” the already expanded joint employer world created in the Browning-Ferris decision, and he believes that this most recent Board decision will only contribute to further confusion for parties about whether a proposed unit such as the one in this case will be certified and how bargaining will occur with such a unit if it elects union representation. From his perspective, and that of most employers, this confusion benefits no one — not the employers, not the workers, and not even the unions who hope to represent such workers.
July 12, 2016 No Comments
Enforceability of Class and Collective Action Waivers In Mandatory Arbitration Agreements: The Circuits Are Now Split
Estimates are that nearly 1 in 4 non-union employers require their employees to sign mandatory arbitration agreements as a condition of employment. These agreements are designed to keep workplace disputes out of courthouses and avoid expensive and protracted litigation. More and more, these arbitration agreements include clauses that bar employees from pursuing class or collective claims. Among other perceived benefits, these waivers eliminate the risk associated with high exposure aggregate litigation that plagues many industries. The enforceability of these agreements is governed by the Federal Arbitration Act (FAA). Generally speaking, under the FAA, an arbitration agreement can mandate the waiver of a procedural right but not a substantive one. Until recently, federal courts have largely held that these waivers of class or collective actions were lawful because the right to pursue aggregate litigation under the Fair Labor Standards Act (FLSA) and Federal Rule of Civil Procedure 23 was procedural, not substantive. [Read more →]
July 6, 2016 No Comments
Now more than ever employers must have a clear and concise policy regarding work email accounts. While it is commonly understood that an employee’s work email is property of the employer and subject to search at any time, it is important to inform employees of this. A recent case, Hoofnagle v. Smyth-Wythe Airport Commission out of the Western District of Virginia, demonstrates the importance of a clear policy on email accounts.
Hoofnagel was the manager of a small, local airport who was fired for his use of an email account he used both personally and for business to write an impassioned and volatile email to U.S. Senator Tim Kaine. The manager’s email came in the wake of the Newtown school shooting tragedy and vehemently defended gun rights. The airport did not have its own email system, or a written policy addressing the use of email and accompanying expectations. The manager created the email account when he started there and the airport published the address as an official point of contact. Further complicating the matter, the manager signed the email with his name and position. Shortly thereafter, the airport commission voted to terminate the manager and he filed suit. After the airport terminated the manager, it began going through his emails to check for airport business. [Read more →]
June 29, 2016 No Comments
Persuader Rule Update: Agreements before July 1 Not Subject to Disclosure; Ruling on Lawfulness of Persuader Rule Issued
The Labor-Management Reporting and Disclosure Act requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. For over fifty years, the DOL has interpreted the provisions of the Act to require reporting only for what are known as “direct” persuasive activities, such as when employers hire consultants or attorneys to personally and directly deliver counter-union messages to employees. Under the Act, mere “advice” pertaining to persuasive activities is not reportable. The advice exemption permitted law firms and employers to avoid the reporting obligations since the law firms were not actually engaged in direct persuasion, but only in advice. However, in March of this year, the DOL set forth a Final Rule significantly broadening what is reportable by employers and consultants in an effort to require reporting on activities that have been viewed as “advice.” Significantly, the Northern District of Texas today issued an order preliminary enjoining the Department of Labor from enforcing its Final Rule until a lawsuit challenging the Final Rule can be fully litigated. Unless that preliminary ruling or other pending challenges to the Final Rule are successful and upheld on appeal, the Final Rule will apply to agreements entered into on or after July 1, 2016. Two important updates concerning the Final Rule are covered in this alert, one of which necessitates an employer taking action before July 1, 2016. [Read more →]
June 28, 2016 No Comments