Employment Legal Brief - April 2012 - The Blytheco Blog

Employment Legal Brief – April 2012

  • Coming Soon – The NLRB plans to launch a website aimed at informing nonunion workers of their rights under the National Labor Relations Act (NLRA). Perhaps emboldened by the “win” when a court upheld their right to mandate a poster with a similar message (see Post It, below), the mission to get the word out goes electronic with this proposed website. Many nonunion employers are dumbfounded to learn that their employees have rights and can bring workplace complaints under the NLRA. If this is you, it’s time to have a legal review of your handbook and policy/procedures to ferret out potential violations, before employees notice them and bring them to light. And a round of supervisor training may be a good idea, too.
  • Post It – A U.S. District Court ruled that the NLRB is within its rights to mandate the pasting of a new notice which puts all employees, including nonunion ones, of their rights under the NLRA. The deadline to display the poster is April 30. You can learn more about it at www.nlrb.gov/poster, The NLRA does not apply to public sector employees, employees of air and rail services who are covered under the Railway Labor Act, independent contractors and some others.
  • Face Off Over Facebook – Sen. Richard Blumenthal (CT) is drafting legislation to prevent employers from asking job applicants to disclose passwords to their private social media accounts, as part of the hiring process. Sen. Blumenthal was joined by Sen. Chuck Schumer (NY) in asking both the EEOC and DOJ to opine on the lawfulness of such demands. Specifically, they ask for an opinion whether such demands violate the Stored Communication Act and/or the Computer Fraud and Abuse Act, citing two cases where employers obtained passwords of current employees’ private social networking accounts and were later found liable under the SCA. The senators also ask for an opinion whether employers’ practice in this manner violates anti-discrimination laws.
  • No Go Fish – After two unsuccessful job applicants filed ADA claims (alleging perceived disabilities), the EEOC sent the nationwide employer a records request amounting to personnel information on all of its employees, current and past, for the past four years. The employer refused, the EEOC issued a subpoena, the employer still refused and the EEOC commenced enforcement action. Bad idea, since the district court said “pattern and practice” discovery was completely inappropriate where there are two claimants and the agency’s “wide deference” in enforcing the law just does not go that far. The 10th Circuit Court of Appeals agreed, upholding the lower court’s decision, and chided the EEOC for waiting so long to supply the requested justification for its fishing expedition. Which was clearly insufficient. EEOC v. Burlington Northern Santa Fe (10th Cir. Feb. 2012).
  • Safety Dance – Check out new guidance from OSHA which lists employer practices that may violate the Act and related whistleblower laws. The memo is posted at www.osha.gov/as/opa/whistleblowermemo.html. Examples of policies and practices that may be unlawful discrimination and/or violation of whistleblower protection include taking corrective action against an employee who reports a workplace injury, regardless of fault; corrective action against an injured employee who did not adhere to the employer’s accident reporting procedure; corrective action against an injured employee for violation of a safety rule; and bonus programs that may have the effect, intended or not, to incentivize employees to refrain from reporting their injuries.
  • Formula for Trouble – Employers often reach for a trusty “form” severance agreement or similar document that has served them well in the past. That may not be a good idea, such as when the rules governing what’s supposed to be in the form change and situations that appear to be the same (e.g., RIFs) may in fact require different treatment and, importantly, different wording. One company just learned that three of eight divisions which effected RIFs between 2005 and 2008 used faulty forms. Since the technical requirements of the Older Worker Benefit Protection Act were not followed, employees who signed severance agreements containing ADEA waivers in exchange for cash get to keep the money AND sue for age discrimination. Their ADEA waivers are no good. The problems arose from vague descriptions of the decisional units affected by the RIF, which hampered the employees’ ability to decide whether age played a factor in their selection for the RIF. Brendon F. Ribble et al v. Kimberly-Clark Corporation (E.D. Wisc. Feb. 2012).
  • The Times They Are A Changin’ – There is no existing federal law which protects trans-gendered individuals from employment discrimination, but a new case found protection for such individuals. The case involved a public sector employee and the court relied on the U.S. Constitution’s Equal Protection clause to find protection against sex discrimination arising from “gender non-conformity.” The employee was born a male and hired as a male but began the process of becoming a female while employed. The employee was discharged in part based upon the employer’s and co-workers’ discomfort and concerns with morality and disruption. Glenn v. Brumby (11th Cir. Dec. 2011). While this case involved a public sector worker, the court mentioned that similar protection may be found under Title VII, which applies to private sector employers.
  • Bosses Beware – The 3rd Circuit Court of Appeals joins the 5th and 8th Circuits in holding that both public and private sector individual supervisors can be held personally liable for violations of the FMLA. While the district court found that the supervisor did not exercise “sufficient control” over the terms and conditions of the employee’s employment to be held liable, the 3d Circuit took a much wider view of “control.” The found that an individual who exercises authority over a complaining individual can be responsible in whole or in part for the alleged violation even if he or she is not the ultimate decision-maker. Haybarger v. Lawrence County Adult Probation and Parole (3rd Cir. Jan. 2012).
  • Stated Differently– Here are some hot topics for you multi-state employers:
  • California – The CA Dep’t of Industrial Relations has formed a new criminal investigation unit to attack “wage theft” such as improper withholding/deductions and untimely payment of wages. The unit will be enforcing the Wage Theft Prevention Act (AB469) and Employee Misclassification Act (SB459) which have both civil and criminal penalties.
  • Indiana – Eff. July 1, 2012, smoking will be prohibited in places of employment and within 8′ of the entrance to any such facility. Employers are to advise employees and applicants of the prohibition, remove all ash trays and other smoking paraphernalia and post signs at each public entrance.
  • Massachusetts – A property management company was fined $15,000 under MA’s beefy data security law, when a company laptop with personal info on 621 individuals was stolen from a car. The law requires notice to affected parties when personal info has been breached, a Written Information Security Program, encryption of personal data which is stored on portable devices (e.g., laptops) and notice to the state Attorney General in the event of a breach.
  • Oregon – Eff. March 27, OR becomes the second state (joining NJ) to limit employers’ ability to deny job consideration and employment to those who are presently unemployed. The OR law prohibits employers from posting job ads that indicate unemployed individuals should not apply and/or won’t be considered for the posted job opening. It does not, however, prevent the employer from considering employment status later in the hiring process.
  • Pennsylvania – Applying the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, the 3rd Circuit Court of Appeals held that a PA state law which prohibits class waivers in employee arbitration agreements is “egregious” and is preempted by the Federal Arbitration Act, which allows such waivers. Quilloin v. Tenet HealthSystem Philadelphia, Inc. (3rd Cir. Mar. 2012).
  • Wisconsin – A pilot program called Wisconsin Wins will allow approved employers to provide a training period of up to six weeks to try out a worker before actual hire. The worker will be receiving unemployment compensation plus a stipend of $75/week during training. Employers will be asked to affirm that there is an actual job opening and those who fail to hire a reasonable percentage of qualified trainees will be banned from further participation in the program.
  • Legal Briefs for HR (“LB4HR”) is provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters. For answers to your specific questions, please consult with counsel. Legal Briefs for HR is being used by Blytheco with permission.

    Audrey E. Mross

    Labor & Employment Attorney

    Munck Wilson Mandala LLP


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