hr forum: get up to speed on new labor & … · 7/6/2015 · & employment rules -- without...

©2016 Jackson Lewis P.C.

HR Forum:

Get Smart About New Labor

& Employment Rules --

Without Headaches or

Heartburn

Teresa Burke Wright

Jackson Lewis P.C.

[email protected]

April 25, 2016


2

Speaker Information

Teresa Burke Wright is a shareholder in the

Washington, D.C. Region office of Jackson Lewis

P.C., a national law firm dedicated to management-

side workplace law. After graduating summa cum

laude from Muhlenberg College in 1986, Ms. Wright

received her J.D. from Harvard Law School with

honors in 1989.

Ms. Wright’s employment law practice involves

litigation, agency work, day-to-day advice and

counseling, training, and policy review on a variety of

workplace law subjects.


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Speaker Information

Ms. Wright was the Litigation Manager of the

Washington, D.C. Region office from 2006 through

2014. She is a recognized subject matter expert on the

ADA, FMLA and other laws governing employee health

issues and the workplace. She is active in the Firm’s

Disability, Leave and Health Management Practice

Group, but her expertise also involves EEO, harassment,

wrongful termination and all of the topics covered

today.

She was named a Virginia and D.C. Super Lawyer from

2011 through 2016.


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Overview

• EEOC Initiatives and Priorities

• LGBT Issues in the Workplace

• Proposed Overtime Rule

• Accommodation of Pregnant Workers

• Paid Sick Leave

• “Ban the Box”

• The Non-Unionized Employer’s Guide to the NLRB


5

EEOC Initiatives and Priorities


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Strategic Enforcement Plan

• The EEOC issued its Strategic Enforcement Plan

for Fiscal Years 2012-2016 (“SEP”) on December

17, 2012.

• The SEP adopted six national enforcement

priorities.

• EEOC sought to focus its efforts on where it

believes it can have the most impact given its

resources.

• We continue to see these issues given high

priority by the EEOC.


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Priority 1: Recruitment & Hiring

• Includes all aspects of employers’ pre-employment

selection processes including:

– Pre-employment tests/online assessments

– Criminal background checks

– Credit checks

– Physical fitness tests

– Drug screens


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• Also includes:

– Exclusionary Policies & Practices

– Restrictive Application Processes

– Restrictive Screening Tools

– Steering Particular Groups into Specific Jobs

Practical tips: Always ensure that managers are asking appropriate questions when recruiting, interviewing and hiring candidates. Scrutinize and validate any pre-employment tests. Limit background checks except as authorized/required by law. Be prepared to defend your hiring/promotion decisions.

Priority 1: Recruitment & Hiring


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• Younger employees (teens)

• Migrant workers

• Immigrants

• Those with intellectual disabilities

Practical tips: Strictly comply with child labor

laws. Watch out for, and protect, vulnerable

employees. Accommodate employees with

intellectual disabilities or other vulnerabilities.

Priority 2: Vulnerable Employees


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• Sexual orientation/gender identity discrimination (more on this later)

• ADA issues

• Pregnancy accommodation (more on this later also)

Practical tips: Cases involving these issues often receive special scrutiny at the EEOC, particularly where local laws may not adequately protect these groups (e.g., where there is no law requiring pregnancy accommodation; where LGBT discrimination is not prohibited).

Priority 3: Emerging Issues


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• Employers must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … ”

• “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship.

Basics of Accommodations


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Four-step interactive process:

Determine the job’s essential functions.

Establish the individual’s limitations.

Explore potential accommodations.

Select the most appropriate accommodation

Failure to engage in the process can be deemed an ADA violation.

An employer does not have to choose the “best” accommodation or the employee’s first choice, so long as the accommodation is effective.



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“Accommodations” may include:

making facilities accessible;

job restructuring, part-time or modified work schedules;

medical leave;

acquiring or modifying equipment;

changing tests, training materials, or policies;

providing qualified readers or interpreters;

reassignment to a vacant position.

.



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Pay disparities based on gender still are a hot issue at the EEOC and in the press.

Practical tips: Examine any pay disparities in your organization, even unintentional ones. Practice good recordkeeping; document the criteria used for compensation decisions. Ensure employees are paid similar compensation for similar work. Audit and statistically analyze pay data.

Priority 4: Equal Pay


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• The EEOC is targeting policies or practices that discourage individuals from asserting their rights or impede EEOC investigations.

• Retaliation charges are the most difficult to defend.

• Severance agreements that appear to preclude the filing of charges receive special scrutiny.

• In FY 2015, retaliation was by far the most frequently alleged basis for disputes brought to the EEOC, making up 45% of all private sector charges.

Priority 5: Access to Redress


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• On January 21, 2016, the EEOC released Proposed Enforcement Guidance on employee retaliation claims under numerous federal equal employment opportunity laws, including Title VII, ADEA, ADA, and GINA.

Practical tips: Avoid even the appearance of retaliation. Treat an employee who has engaged in protected activity no worse and no better than before. Review severance agreements and ensure they do not contain prohibited provisions.

Priority 5: Access to Redress


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• Sexual harassment is somewhat less common now than 20 years ago, but harassment based on other categories continues to grow.

• Harassment of Muslims continues to be an EEOC priority.

Practical tips: Harassment is unlawful when it is based on any protected category. Anti-harassment policies should cover more than just sex. Managers are the “eyes and ears” of the company and should not ignore harassment they experience, witness or become aware of.

Priority 6: Harassment


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LGBT Issues in the Workplace


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Overview Of Federal Gender Discrimination Laws

• There is no federal law that expressly protects

employees against discrimination based on sexual

orientation or gender identity/expression.

• The Employment Non-Discrimination Act (“ENDA”),

as currently drafted, would prohibit sexual

orientation discrimination and discrimination based

on gender identity or expression

– ENDA has been introduced in ten congressional sessions

and has never passed.


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• Title VII of the Civil Rights Act of 1964 prohibits

discrimination “because of . . . sex”

• Initial view from federal courts was that

discrimination against transgender plaintiffs or

gay/lesbian employees was not discrimination

“because of . . . sex”

– See, e.g., Ulane v. Eastern Airlines, Inc., (7th Cir. 1984)

(holding transsexual pilot not protected from discrimination

under Title VII).


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• The EEOC maintains, and numerous courts are

starting to hold, that Title VII protects employees

from discrimination based on gender identity or

expression, as well as sexual orientation.

• This is based on longstanding case law that holds

that treating employees differently due to failure to

conform to “gender norms” can be a form of sex

discrimination.


22

Price Waterhouse v. Hopkins (1989)

• U.S. Supreme Court decision in Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989) held that a woman

who failed to conform to her employer’s gender

stereotypes regarding how women should look and

act was protected from discrimination by Title VII.

• Hopkins, a female accountant, was advised by

certain partners in the firm that she could improve

her partnership chances if she would “walk more

femininely, talk more femininely, dress more

femininely, wear makeup, have her hair styled, and

wear jewelry.”


23

Price Waterhouse v. Hopkins (1989) (Cont.)

• Hopkins sued under Title VII for sex discrimination

after she resigned following the firm’s denial of

partnership.

• Justice Brennan, writing for the plurality, held that “in

the specific context of sex stereotyping, an employer

who acts on the basis of a belief that a woman

cannot be aggressive, or that she must not be, has

acted on the basis of gender.”


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State and Local Anti-Discrimination Laws Protecting

Transgender Employees

• Many states (for example, California, Colorado,

Connecticut, Delaware, Illinois, Maryland,

Massachusetts, Minnesota, New Jersey, Oregon,

Rhode Island, and Washington), Puerto Rico and

the District of Columbia include gender identity

and/or gender expression in their employment non-

discrimination statutes.

• Approximately 185 US cities and counties prohibit

discrimination based upon gender identity or

expression.


25

Macy v. Holder (EEOC Apr. 20, 2012)

• Job applicant Mia Macy applied for a job at the

Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATFE”).

• When Macy applied for a job, she presented as

male. Shortly thereafter, Macy informed ATFE that

she was transitioning from male to female.

• ATFE informed Macy that another applicant had

been hired because that applicant was farther along

in the background check process.


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Macy v. Holder (EEOC Apr. 20, 2012)

• Macy filed a complaint with the EEOC alleging that she was not hired was because of her “sex, gender identity (transgender woman) and on the basis of sex stereotyping.”

• The EEOC reasoned that Macy could establish a viable sex discrimination claim on the ground that:

– ATFE believed that biological men should present as men and wear male clothing; or,

– ATFE was willing to hire a man, but not a woman.

• Either way, the EEOC concluded, transgender discrimination is discrimination “based on...sex” and violates Title VII.


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EEOC v. Lakeland Eye Clinic (M.D. Fla. 2014)

• Six months into his employment, a male employee started wearing feminine attire to work, including makeup and women’s tailored clothing. Co-workers noticed and allegedly snickered and rolled their eyes.

• Soon after, Lakeland confronted the employee about her changing appearance. She explained that she was undergoing a transition from male to female.

• The ostracism intensified. Two months later, Defendant discharged the employee, telling her that the position was being eliminated. She was replaced by a male employee.


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EEOC v. Lakeland Eye Clinic (M.D. Fla. 2014)

• On April 9, 2015, the EEOC entered into a historic

$150,000 settlement and consent decree with Lakeland

Eye Clinic.

• Lakeland was required to implement a new gender

discrimination policy; and

• Lakeland was required to provide training to

management and employees regarding

transgender/gender stereotyping as forms of

discrimination.


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EEOC v. RG & GR Harris Funeral Homes (E.D.

Mich. 2014)

• Aimee Stephens was employed by Defendant as a

funeral director since 2007.

• In July, 2013, Stephens notified her employer and co-

workers that she was undergoing a gender transition

from male to female and intended to dress in appropriate

business attire as a woman and asked for their support.

• Two weeks later, Defendant fired Stephens, telling her

that what she was “proposing to do was unacceptable.”

.


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EEOC v. RG & GR Harris Funeral Homes (E.D.

Mich. 2014)

• The EEOC filed suit against the employer in federal

court in Michigan.

• The case is still pending, and the judge has denied the

employer’s request for detailed anatomical information

about the employee.

• The ACLU filed a brief supporting the EEOC on April 15,

2016.

.


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G.G. v. Gloucester County School Board (Fourth

Circuit 2016)

• Gavin Grimm, a 16-year-old a high school student in

rural Virginia, was born female but identifies as

male.

• He was allowed to use the boys’ restrooms at his

high school in Gloucester County for several weeks

in 2014, but after parents complained, the school

board adopted a policy that required students to use

the restroom that corresponds with their biological

gender, or a private, single-stall restroom.

.


32

G.G. v. Gloucester County School Board (Fourth

Circuit 2016)

• On Tuesday, April 19, the 4th U.S. Circuit Court of

Appeals ruled that Title IX, the federal law that

prohibits gender discrimination and harassment in

schools, protects the rights of students to use the

bathroom that corresponds with their gender identity.

• This same rationale is likely to apply to employment

discrimination under Title VII.

.


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Executive Orders On LGBT Discrimination

• Executive Order 13672 – Signed July 21, 2014

• Amends EO 11246 to add “sexual orientation” and “gender identity” to non-discrimination provisions

• No exemption for religious organizations

• OFCCP Directive 2014-02 – Issued August 19, 2014

• Clarifies that discrimination on the basis of “sex” under EO 11246 includes gender identity and transgender status

• Follows 2012 EEOC interpretation of “sex” under Title VII

• Effective immediately

http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html




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DOL And Federal Contractor Employees

• Based on the foregoing directive, the DOL pledged

to focus enforcement efforts on investigating and

cracking down on employment bias against

transgender federal contractor employees

• The OFCCP plans to “investigate individual and

systematic complaints alleging sex discrimination

against transgender employees”


35

Proposed Overtime Rule


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Background: March 13, 2014 Presidential Memorandum

• “[R]egulations regarding exemptions . . . particularly

for executive, administrative, and professional

employees . . . have not kept up with our modern

economy.”

• Directs the Secretary of Labor to propose revisions

in order to:

– “[U]pdate existing protections consistent with the intent of

the Act”;

– “[A]ddress the changing nature of the workplace”; and


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Background: March 13, 2014 Presidential Memorandum

(cont’d)

– “[S]implify the regulations to make them easier for both

workers and businesses to understand and apply.”

• “Because these regulations are outdated,

millions of Americans lack the protections of

overtime and even the right to the minimum

wage.”


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Overview of the Notice of Proposed Rulemaking (NRPM)

• Released on DOL.gov on June 30, 2015 (295 pages).

• Published in the Federal Register on July 6, 2015.

• Proposes substantial increases to the salary thresholds

for the executive, administrative and professional

exemptions, as well as for “highly-compensated”

employees.

• Proposes no changes to the duties standards for

any exemption. BUT

• Solicits input on a number of other topics, including

duties.


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Overview of the NPRM

• Allowed a 60-day comment period.

• Despite numerous requests for an extension,

including from members of Congress, DOL kept the

original date.

• The comment period closed on September 4, 2015.

• DOL received more than 289,000 comments.


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Proposed Salary Levels: General

• Would increase the current minimum salary level of $455 per

week ($23,660 per year) to $921 a week ($47,892 per year).

• Salary level would be subject to annual increases thereafter.

• DOL plans to update the figure based on new economic data

when it publishes the Final Rule, and that final number is

likely to be $970 a week ($50,440 per year).

• These changes would amount to a 102% increase ($921) or

a 113% increase ($970) over the present salary requirement.

• Rationale is that the new salary level reflects the 40th

percentile of earnings for full-time salaried employees.


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Highly Compensated Employees

• For highly compensated employees, in addition to

salary-basis compensation of $921 (or $970) a week, the

total minimum compensation increases from $100,000 a

year to $122,148, subject to annual increases thereafter.

• DOL set this level at the 90th percentile for full-time

salaried employees.


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Anticipated Impact

• DOL expects that these changes will render 4.6 million

currently exempt salaried employees ineligible for exempt

status, or about 25% of all exempt employees currently

subject to the salary basis standards.

• Over the next ten years, annual salary threshold increases

will cause an additional 500,000 to one million currently

exempt salaried employees to become ineligible for exempt

status.

• The effects of these regulations will impact the South, the

Midwest, and rural areas due to local economics.

• Industries with front-line supervisors will be particularly

impacted.


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DOL Also Sought Comments Regarding…

• Whether to adopt the California “primarily engaged in”

standard for exempt status;

• Whether to place other limits on the amount of non-exempt

activity an exempt employee may perform;

• Whether to allow nondiscretionary bonuses or even

commissions to satisfy a portion (perhaps up to 10%) of the

required salary;

• What industries commonly have nondiscretionary bonuses

and incentive compensation;

• Whether requiring these bonuses to be paid monthly (or at

some other frequency) is most appropriate;


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DOL Also Sought Comments Regarding…

• Whether to readopt a long test / short test approach to

exemptions, as existed before the 2004 revisions to these

regulations;

• Whether the concurrent duties concept for executive

employees is working;

• To what extent exempt executive employees are performing

non-exempt work; and

• What further examples to list illustrating types of jobs that

would be exempt under the computer employee exemption.


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What Happens Next?

• DOL sent the draft Final Rule to the Office of Management

and Budget (OMB) for clearance on March 15, 2016.

• There may be Congressional oversight hearings challenging

the proposed regulations on any number of grounds.

Congress could also attempt to block the regulations through

the Congressional Review Act, the appropriations process, or

other legislation.

• Unless blocked, DOL will issue the Final Rule, probably in

May or June of 2016, effective 60 days thereafter.

• In the end, it seems likely that some form of these regulations

eventually will take effect.


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What Should You Do Right Now?

• Identify all employees currently classified as salaried exempt

who earn less than $50,440 a year.

• If you use the highly-compensated exemption, identify all

employees earning between $100,000 and $122,148 a year.

• For employees who may be reclassified, how many hours do

they currently work? Consider tracking their working time in

order to assist with modeling post-reclassification pay.


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What Should You Do Right Now?

• Begin to develop a strategy for responding in the event that

the minimum salary threshold for exemption increases to

$50,440.

– Increase employees to that level if their pay is close?

– Set an hourly rate that assumes the same number of

working hours and for the same total pay?

– Manage the workload by reducing schedules to avoid

overtime and increasing headcount or shifting exempt

duties to other employees?

• Consider treating these regulations as an opportunity to

make related exemption changes.


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Accommodation of Pregnant Workers


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Accommodations for Pregnant Workers

• Prior to 2014, most courts held that employers were

not required to provide “reasonable

accommodations” to pregnant workers. Now:

– The EEOC has reinterpreted the Pregnancy

Discrimination Act (PDA) to require accommodations;

– States and cities are passing laws requiring pregnancy

accommodations; and

– The Supreme Court recently confirmed that employers

must accommodate pregnant employees the same as

others “similar in their ability or inability to work.”


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Protected Classes Under PDA (According to EEOC)

• Current pregnancy

• Past pregnancy

• Potential or intended pregnancy:

– Reproductive risk;

– Intention to become pregnant;

– Infertility treatment;

– Use of contraception.

• Medical condition related to pregnancy or childbirth:

– Lactation and breastfeeding;

– Abortion.


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Reasonable Accommodation Under the PDA

• Employers are obligated to treat pregnant

employees who are temporarily unable to perform

their jobs the same as they treat other

employees who are similar in their ability or

inability to work.

• How the employee became unable to perform the

job does not matter.

• Frequent issue: “light duty” is provided to

employees injured on the job but not to anyone

else; no longer permitted under the PDA.


52

State Pregnancy Accommodation Laws

• Many states (and some cities) are starting to

adopt laws expressly requiring accommodation

of pregnant employees.

• Examples:

– Maryland

– District of Columbia

– New York City

– Delaware

– Illinois


53

Paid Sick Leave


54

PSL: Overview of Jurisdictions

• 5 States: California, Connecticut, Massachusetts,

Oregon, Vermont

• 1 District: Washington, D.C.

• 1 County: Montgomery County, MD

• A growing number of cities: CA; NJ; NYC;

Philadelphia; Seattle, Tacoma; Portland, OR.

• More to come? State of Washington, New Jersey,

Minnesota, Minneapolis, St. Paul, San Diego?

• PSL failed to pass in Maryland this legislative

session.

.

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Just Say No! The “Kibosh” States

• Alabama

• Arizona

• Florida

• Georgia

• Indiana

• Kansas

• Louisiana

• Mississippi

• North Carolina

• Oklahoma

• Tennessee

• Wisconsin

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PSL and Government Contractors

• Labor Day 2015: President Obama signs

Executive Order 13706 requires certain

government contractors to provide PSL to certain

employees.

• Feb 25, 2016: DOL releases NPRM, Notice of

Proposed Rule Making.

• January 1, 2017: Executive Order 13706 goes

into effect.

• Healthy Families Act: Still pending in Congress, is

not likely to move at least until 2017, if at all.

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Typical Provisions of PSL Laws

• Covered employer

• Eligible employees

• When accrual begins; when accrued time can be

used

• Accrual formula: 1 hour of leave for every X hours

worked, to a max of Y per year, with the right to

carryover up to Z accrued but unused hours

• Employer and employee notice requirements

• Cap on annual use


58

Typical Provisions of PSL Laws

• Medical documentation

• Reasons for leave:

– Employee and family medical reasons;

– Definition of “family;”

– Beyond medical reasons.

• Safe harbor provided by employer’s current PTO policies

• Integration with labor contracts, other leave laws

• Anti-retaliation provisions

• Sick leave abuse

• Enforcement mechanisms


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Cost Issues for Employers

• The cost of additional paid leave itself – If the

employer already provides paid leave, then consider

the cost of extending leave to part-timers, temporary

employees, seasonal workers and interns.

• The cost of compliance – learning new

requirements, tracking leave, modifying policies,

providing notice.

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Modifying Leave Policies

• Perhaps the most significant challenge: modifying

leave policies to comply with these laws, particularly

for multistate employers.

– Most employers do not provide leave to part-timers or

temps; most paid sick leave laws require this.

– Some employer policies provide for leave accrual based

on scheduled hours; most paid sick leave laws require

leave based on hours actually worked.

– Many employers do not permit carryover; most paid sick

leave laws require carryover.


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Checklist for Compliance

• Evaluate Impact on Related Policies

– Existing paid leave programs

– ADA, FMLA and state equivalents

– Workers’ comp

– Attendance policies

• Those that involve “points” and other discipline

• Method of “calling out sick”

– Maternity/paternity or parental leave

– Other leaves

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Strategies for Compliance

• Drafting Compliant Policy(ies)

– If multi-jurisdiction, consider one policy vs core policy with

addenda

– Consider offering “fail safe” complaint process

• Training

– Who: HR, payroll, managers

– What: PSL generally, but in particular addressing “sick

leave abuse”

• Designate Person to Track “Updates”

• Evaluate Agreements with Outsource Vendors

• Comply with Posting and Notice Requirements


63

“Ban the Box”


64

“Ban the Box” Laws

• “Ban the Box” laws prohibit employers from asking

applicants about criminal convictions on until after

the first interview, or sometimes after a conditional

job offer is made.


65

Arguments For and Against

• Why BAN the Box?

– Disparate impact concerns (race, gender, national origin);

– Provide increased opportunities for those trying to reintegrate after release from incarceration.

• Why KEEP the Box?

– Statutory mandates for certain jobs/industries

– Sensitive nature of certain positions

– Workplace safety

– Cost and delay: Why go through full pre-hire process if candidate is not qualified?


66

“Ban the Box:” Other Provisions

• Some of these laws specify procedures to be followed before

an applicant is rejected – for example, notice to the applicant

and opportunity to respond.

• Some of these laws require that certain factors be considered

before the applicant is rejected, such as the length of time

since the conviction, the age of the applicant at the time

(“youthful indiscretion”), evidence of rehabilitation, whether the

nature of the conviction is closely related to the job.

• These requirements overlap somewhat with federal

requirements in EEOC guidance and the Fair Credit Reporting

Act.

• Arrests generally cannot be considered at all.


67

“Ban the Box” Exceptions

• “Ban the Box” laws often include exceptions for

employers that are required to conduct background

checks due to legal requirements, which generally

are based on their industry or the nature of the

position. Examples:

– Security clearances

– Work with vulnerable populations


68

Proposed Federal Legislation: Fair Chance Act

• On October 7, 2015, the Senate approved The Fair

Chance Act – legislation prohibiting federal employers

and contractors from asking about an applicant’s

criminal history before he/she has received a

conditional offer of employment.

• On the House side, similar legislation was introduced

on September 10.

• Both bills exempt positions for which consideration of

criminal history record prior to a conditional offer is

required by law.


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Proposed Federal Legislation: Fair Chance Act

• The bills also exempt federal contracts where

employees will have access to classified information or

law enforcement or national security duties.

• Most recent action: 01/12/2016 Placed on Senate

Legislative Calendar under General Orders.


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Best Practices

• Consider EEOC Guidance on Criminal Convictions.

• Ensure FCRA requirements are incorporated in process.

– Independent disclosure and authorization

– Pre-adverse action letter

– Adverse action letter

• Identify applicable state and local restrictions and

requirements on screening

– Ban-the-Box restrictions

– Other state laws (e.g., older laws prohibiting consideration of

arrests)

– Credit report restrictions and requirements.


71

The Non-Unionized Employer’s

Guide to the NLRB


72

I Don’t Have a Union.

Why Do I Care About the NLRA?

The National Labor Relations Act

confers rights on both union and non-

union employees, although its

protections extend only to non-

supervisors.


73

Rights Under the NLRA

“Employees shall have the right to self-organization, to

form, join or assist labor organizations, to bargain

collectively through representatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other mutual

aid or protection.” (emphasis added).

These are referred to as “Section 7” rights.


74

The NLRA and Your Handbook

• Handbook rules and other workplace policies must comply with Section 7.

• It is unlawful to maintain any rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights”, even if the rule is not enforced.

• If the rule has some legitimate purpose but also could chill Section 7 rights, the NLRA generally will construe the rule against the employer.

• It is also separately unlawful to enforce such a rule against an employee (other than a supervisor).


75

Handbook Rules & Workplace Policies

• Conflicts of Interest – A generic handbook statement to the effect

that “a conflict of interest with the employer is not permitted” is

invalid unless the context makes clear that the prohibition involves

ethical conflicts, outside employment or competitive interests.

• Outside Communications – A policy stating, “never discuss details

about your job, company business or work projects with anyone

outside the company” was found to be invalid as overly broad.

• Confidential Information – A prohibition on disclosure of

confidential information can be invalid unless the context shows that

the confidentiality provision is limited to non-protected activity, such

as competitive information or information protected by law.


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• Company Email - Employees may use company email to solicit

each other for the union so long as they do so during non working

time

• Social Networking - Employees cannot be disciplined for criticizing

the company or its managers on Facebook when discussing terms

and conditions of employment with one or more co-workers. Even a

“like” is legally protected.

• Confidentiality of Company Investigations - Employer cannot

request or require employees to keep company investigations

confidential.

• Camera Phones - Employee photographing and videotaping is

protected activity (e.g. documenting unsafe workplace equipment,

working conditions, inconsistent application of rules)


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• Contacts with the Media – Policies restricting employees from

speaking with the media must make clear that the policy is limited to

communications on behalf of the company; employees are free to

discuss with the media their own concerns and experiences. Same

with contacts with law enforcement.

• Gossip; Negative Comments – The NLRB also found unlawful a

policy that required employees to “avoid unwarranted negative

criticism of colleagues” when talking with customers.

• Misconduct During Protected Activity – Extreme profanity and

threatening behavior may be protected, depending on

circumstances

Review employee handbooks and remove any language that could

be found to infringe on Section 7 rights.


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Lawyerly Disclaimer

Jackson Lewis P.C. has prepared the materials

contained in this presentation for reference and

general information. These materials are not legal

advice. Attendees should consult with counsel

before taking any actions that could affect their legal

rights and should not consider these materials or

discussions about these materials to be legal or

other advice regarding any specific matter. These

materials also do not necessarily represent the

statements or opinions of SourceAmerica.


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Thank You!

hr forum: get up to speed on new labor & … · 7/6/2015 · & employment rules -- without...

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