Tag: employee

Dear Former Employee, Here Are a Few Things I Want You to Know

Do you provide terminated employees with information regarding their employee benefits upon termination? If not, consider doing so now—especially if you typically provide a lot of your benefits information on your intranet site, which employees will lose access to upon termination. Even though there is generally no legal requirement to do so, providing departing employees with a letter that includes important reminders and deadlines related to their benefits is beneficial for two reasons: (1) it will save your HR department time by reducing the number of benefits-related inquiries they receive from former employees, allowing them to focus their time on more valuable tasks, and (2) the letter can help defend against a claim by a former employee who loses benefits because they missed a deadline.

Here is a non-exhaustive list of items we recommend including in your letter to exiting employees regarding their benefits:

Remind them of important dates and deadlines, and provide them with other relevant information regarding their benefits, including:

  • The date their medical and other insurance coverages will stop
  • Whether their accrued vacation will be paid out
  • When they can expect to receive their last paycheck
  • If applicable, the deadline to exercise their outstanding stock options
  • Their right to convert their group life insurance coverage to an individual policy
  • The deadline to use their Flexible Spending Account (FSA) balances

    **Note that California recently passed a law that actually requires employers to notify employees starting January 1, 2020 of any deadline to withdraw funds from their FSAs before the end of the plan year, such as when an employee terminates employment.By drafting this letter now, you can get ahead of this requirement!

  • If applicable, the date that their non-qualified deferred compensation payments will begin

Provide them with a list of important documents they should be watching for in the mail to prevent employees from inadvertently throwing these important documents away, including:

  • 401(k) or pension distribution packets
  • COBRA election packets

Remind them to update you and your plan administrators if their address changes (both residential and email addresses), and provide them contact information for whom to send updated information, since you will need this information to send out their final Form W-2 and your plan administrators will need it to be able to provide plan information and notices.

As mentioned above, this is a non-exhaustive list. Consider gathering your HR and benefits professional staff together for a 15-minute brainstorming session about other topics to include. We’re sure you’ll come up with other helpful items.

© 2019 Foley & Lardner LLP

Employer Concerns with Employee Substance Abuse and Drug Use: A Q&A with Caroline J. Berdzik of Goldberg Segalla

With headlines and staggering statistics extolling the impact of the opioid epidemic ripping through the United States, and marijuana (medical and recreational) legalized and decriminalized and a patchwork of state, federal and municipal laws across the country; employers dealing with employee substance abuse and drug use issues have a lot of things to consider. Caroline J. Berdzik, a partner with Goldberg Segalla and chair of the firm’s Labor and Employment and Health Care Groups,  focuses on counseling employers on human resources and employment matters, and was kind enough to share her thoughts on the thorny issues of employers navigating employee substance abuse and drug use.  Read on for more insight and ideas on  how employers should proceed when an employee demonstrates some indication of substance abuse, what the concerns are for employers, and some thoughts on how to move forward keeping in mind changing attitudes on addiction and the laws that may apply.

Can you outline some of the dangers employers face when employing an individual who is struggling with addiction?

Unfortunately, substance abuse addiction and its ramifications cannot avoid the workplace. There is an acknowledgment that this is not an issue that has social or economic boundaries, anyone from highly compensated executives to hourly employees may struggle with addiction. Addiction can take many forms including alcohol abuse, opioid dependency, or the use of other illegal or legally prescribed substances. Employers need to be concerned about legal issues when dealing with an employee who is struggling with addiction. It may be difficult to confirm that an employee has an addiction as they may try to hide it and depending on the circumstances, there may be limits of how far an employer can pry into these concerns.

Once the problem is confirmed, some consideration needs to be given as to whether the employee can continue to do their job while working through addiction. If they are unable to perform their job responsibilities, there are options or reasonable accommodations available to the employee or employer (i.e., leave of absence for treatment). Other components to consider include the availability of drug and alcohol testing permitted under the law in their specific jurisdiction; whether the employee’s conduct has violated any company policies; and if the behaviors associated with the employee’s addiction is negatively impacting the quality of their work and interactions with co-workers, supervisors, clients, and others outside the workplace.

What are some of the issues employers must consider when discussing an employee’s addiction problems with an employee? What are the concerns, especially since addiction can be difficult to identify? 

Employers need to be very careful in this regard. Generally, potential addiction is brought to an employer’s attention through observation or by reports from other employees, supervisors, clients, or even customers. If alcohol is the issue, it may be difficult to detect when someone is under the influence, particularly if the consumption is during non-working hours and if the employee is merely coming to work hungover―as opposed to being intoxicated on the job. If the suspected addiction involves drugs (e.g., whether legal or illegal), there are states that don’t allow for reasonable suspicion testing and some states that make it virtually impossible to test at all. Additionally―depending on the nature of the drug―it may also not show up in the drug test depending on when the test is done.

Many times, this is a difficult conversation to have with an employee since they will most likely deny having any issue because they don’t want to jeopardize their income or employment prospects. Employers need to be careful not to potentially run afoul of the Americans with Disabilities Act (ADA) and other state anti-discrimination laws when discussing a suspected substance abuse problem. Merely perceiving the employee as having a disability can open the employer up to legal risk. Therefore, it is critical to proceed with caution and consult internally or externally with legal counsel and human resources on how to best handle the situation.

How does the legality of the substance the employee is addicted to impact the employer’s actions?  For example, an employee addicted to legal opioid painkillers vs. an employee who is addicted to cocaine or other illegal substances?

The laws are greatly evolving in this area, particularly with respect to cannabis. More and more states have legalized medical marijuana and recreational marijuana. With respect to alcohol, it’s legal to drink alcohol as long as the individual is of age; however, alcohol abuse can cause just as many problems as an employee struggling with a substance abuse problem.

While it may seem easier to take certain actions when managing employees with addictions to other substances (e.g., opioids and cocaine), there are still considerations that come into play. For example, employers in some states cannot take actions against employees based on what activities that they do during off-duty hours.

Irrespective of the legality of the substance, the employer needs to focus on whether the employee is impaired at work or at work functions (e.g., on a business trip, attending a conference, meeting with clients, etc.). They also need to consider the impact of those behaviors on the individual, the company, and anyone else involved. Employers also need to be cognizant of the laws in their jurisdictions and the policies the company may have regarding the use of alcohol and drugs in the workplace. If someone is a current user of an illegal substance, there is typically no protection afforded to them under the ADA or similar anti-discrimination laws. However, if an employee can tie their addiction to an underlying mental health disorder, it becomes murkier. For employees who are recovering drug addicts or alcoholics, there is likely more protection afforded under anti-discrimination laws.

The key thing for employers to remember is to not make any knee-jerk decisions when evaluating these issues. Employers should take time to fully analyze the circumstances before taking any action and determine what legal obligations, if any, it may have to try to accommodate employees.

What legal requirements come into play when human resources intervene with an employee struggling with addiction?  For example, can this be a situation where the ADA applies?

The ADA is typically something that would come into play when dealing with an employee struggling with addiction. Human resources should consult with legal counsel while navigating through this type of issue. There are a myriad of laws that are intertwined that could potentially be relevant including the federal Family Medical Leave Act, as well as other state or local counterparts. In many circumstances, the employer may need to provide a reasonable accommodation to assist an employee struggling with addiction. Best practices may dictate this type of documented discussion with the impacted employee, even without a legal requirement to do so.

Attitudes toward addiction are changing with addiction increasingly being seen as a disease that should be treated without judgment–how does this shift change an employer’s reaction to employees with addiction issues?

As these issues become more prevalent, including the revelation that they impact individuals at higher level positions at companies, employers are increasingly willing to work with employees to get them the help they need. I have seen an uptick in counseling calls where employers are genuinely concerned about their employees’ well-being and want to find ways to assist them. However, I have seen situations where employers have gone above and beyond to work with a struggling employee and the employee failed to help themselves with the assistance being offered.

Rates of prescription opioid abuse are skyrocketing. How is this worrisome trend affecting employers, and are there any proactive steps employers can take?

Opioid use is a very serious problem impacting the workplace. Employers are well advised to have employee assistance programs (EAPs) in place. They should also have open-door policies to encourage employees to come to human resources to seek help for their addiction.

Many thanks to Caroline J. Berdzik of Goldberg Segalla for sharing her thoughts and insights on this complicated, yet increasingly relevant employment law issue.

Copyright ©2019 National Law Forum, LLC

More employment law issues on the National Law Review Labor & Employment page.

Mexico Mandates Protection From Workplace “Psychosocial Risks”

Globalization, technology developments, and the world’s economy, among other factors, have changed our day-to-day dynamics and have transformed the way we work. This means that employees must deal with emotions and circumstances that in the past were not significant but today are studied and classified by scientists as “psychosocial risks.”

The World Health Organization (WHO) and the International Labour Organization (ILO) define psychosocial risks as the interactions within the work environment, content of the work, conditions of the organization and capacities, needs and culture of the employee, and personal considerations—external from work—based on perceptions and experience that can negatively influence health, performance at work, and labor satisfaction.

International organizations are trying to create a broad awareness of psychosocial risks and thereby prevent such risks from damaging employee health, both physical and psychological.

Mexico’s Regulation of Psychosocial Risks at Work

Mexico has taken a big step in the protection of employees with the amendment to the Federal Labor Law on November 30, 2012. This amendment incorporates into the law the concept of “decent and dignified work,” which encompasses respect for the human dignity of employees and, in consequence, the prevention of harm that employees may suffer because of the activities they perform at work.

The amendment and subsequent obligations agreed upon by the current federal government in its national development plan, as well as internationally, compelled the Mexican Ministry of Labor and Social Welfare to issue the Federal Regulation of Health and Safety at Work. Its goal is to establish health and safety provisions, which must be observed at the workplace, “in order to have the conditions to prevent risks, and as a consequence, guarantee employees their right to perform their activities in an environment that assures their lives and health, according to the Federal Labor Law.”

What to Expect in 2019 and 2020: The Psychosocial Risk Factors Standard

Based on the above and with the purpose of complying with current legislation, the Ministry of Labor and Social Welfare developed the Official Mexican Norm: NOM-035-STPS-2018 “Psychosocial Risk Factors at Work – Identification, Analysis and Prevention.” Its main objective is to “identify, analyze and prevent psychosocial risk factors, as well as to promote a favorable organizational environment at workplaces.”

Though the rule has been valid since October 23, 2018, the Ministry of Labor and Social Welfare will not review employers’ compliance with the rule until the October 2019 or October 2020, depending on the employer’s size. Since this matter requires specialist analysis and evaluation, employers may want to contact a specialist on psychosocial risks in order to achieve compliance.

The following are employers’ main obligations under the rule:

  • Establish, maintain, and disseminate among the employees a psychosocial risks prevention policy

  • Identify psychosocial risk factors and evaluate the organizational environment (applicable to work places with more than 50 employees)

  • Use questionnaires to identify psychosocial risk factors (applicable to work places with 16–50 employees)

  • Disseminate to employees the policy and measures adopted to reduce psychosocial risks

  • Identify the employees subject to psychosocial damages while working or derived from their work

  • Provide a registry where employees can learn about psychosocial risk factors and corrective actions taken

  • Maintain a confidential complaint system so the employees can inform the employer about psychosocial risk factors

  • Take actions to prevent psychosocial risk factors and corrective measures if psychosocial damage occurs

Co-Authored by Natalia Merino, a law clerk in the Mexico City office of Ogletree Deakins.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Learn more about International Legal issues on the National Law Review Global page.

Are Uber Drivers Employees?

With the advent of ridesharing services, there is an extremely large number of drivers for those companies out on the roads. But are drivers for Uber and similar companies “employees”? Over the years these companies have taken the position the drivers are not employees but rather independent contractors. The Office for the General Counsel of the National Labor Relations Board (NLRB) recently weighed in on this issue, and he agrees with Uber.

In a recently released advice memo, the board concluded that Uber drivers are independent contractors under the National Labor Relations Act (NLRA). When analyzing the relationship between Uber and its drivers, the memo states that it needed to primarily evaluate: “(1) the extent of the company’s control over the manner and means by which drivers conduct business and (2) the relationship between the company’s compensation and the amount of fares collected.” Looking at those factors, the board held:

“Consideration of all the common-law factors, viewed through the ‘prism of entrepreneurial opportunity,’ establishes that UberX drivers were independent contractors. The drivers had significant entrepreneurial opportunity by virtue of their near complete control of their cars and work schedules, together with freedom to choose log-in locations and to work for competitors of Uber. On any given day, at any free moment, drivers could decide how best to serve their economic objectives: by fulfilling ride requests through the App, working for a competing ride-share service, or pursuing a different venture altogether. As explained in detail below, these and other facts strongly support independent-contractor status and outweigh all countervailing facts supporting employee status.”

The memo arrived at the same conclusion for UberBLACK drivers – another category of driver – based on the same analysis. The NLRB’s newly restored test for evaluating independent status was cited extensively.

Independent contractor status poses significant consequences under the NLRA because such workers are not covered under the act. This means they cannot form unions or seek redress for any alleged violations of the NLRA. However, employers must take care to ensure they do not misclassify workers as independent contractors because that can pose significant legal risk. This new advice memo sets forth a potential roadmap for companies desiring to use an independent contractor model, at least when it comes to the NLRA.

 

© 2019 BARNES & THORNBURG LLP
This post was written by David J. Pryzbylski of Barnes & Thornburg LLP.
Read more about employee classification on the National Law Review’s Labor and Employment page.

Illinois Employers Face A Recent Rash of Class Action Lawsuits Filed Under State Biometric Information Privacy Law

Illinois enacted its Biometric Information Privacy Act (“BIPA”) in 2008 to regulate, among other things, employer collection and use of employee biometric information.  Biometrics is defined as the measurement and analysis of physical and behavioral characteristics.  This analysis produces biometric identifiers that include things like fingerprints, iris or face scans, and voiceprints, all of which can be used in a variety of ways, including for security, timekeeping, and employer wellness programs.

Illinois is not the only state with a biometrics privacy law on its books, however, its version is considered the nation’s most stringent.  BIPA requires a business that collects and uses biometric data to protect the data in the same manner it protects other sensitive or confidential information; to establish data retention and destruction procedures, including temporal limitations of three years; to publish policies outlining its biometric data collection and use procedures; and to obtain prior, informed consent from any individuals from whom it plans to obtain and use biometric data.   The statute also requires  businesses to notify employees in the event of a data breach.

Protection of biometric data is viewed as critical because, unlike passwords comprised of letters, numbers, or typographical characters, biometric data is unique and cannot be replaced or updated in the event of a breach.  Technology now allows biometric data to be captured surreptitiously, such as recording a voice over the phone, or face mapping individuals in a crowd or through photographs, increasing the risk for its theft or unauthorized or at least, unknown, use.  In fact, these more furtive methods of collecting and using biometric data is what led to the filing of five BIPA class action lawsuits in 2015 – four against Facebook, and one against online photo website Shutterfly – that alleged these companies used facial recognition software to analyze online posts, but did not comply with BIPA’s consent or other procedural requirements.  These first lawsuits brought attention to the private right of action authorized under BIPA, which provides that any “aggrieved” person may sue and recover $1,000 for each negligent violation and $5,000 for each intentional or reckless violation, or, in both circumstances, actual damages if greater than the statutory damages.  Prevailing parties may also recover their attorneys’ fees and costs.

The plaintiffs’ employment bar recently has gotten seriously into the BIPA class action game; since August 2017, approximately 30 lawsuits have been filed in Cook County, Illinois (where Chicago is), alone.  These putative class actions have been filed against employers in many industries including gas stations, restaurants, and retail, and typically involve the employer’s use of fingerprint operated time clocks.  The cases allege that the defendant employers failed to obtain proper informed consent or fail to maintain and inform employees about policies on the company’s use, storage, and destruction of biometric data.  Many of these lawsuits also allege the employer companies have improperly shared employee biometric data with third-party time clock vendors, and some even name the vendor as a defendant.

In addition to the obvious cost of class action litigation, these suits present additional legal challenges because many aspects of BIPA remain untested.  For example, the statutory term “aggrieved” person leaves open the question whether a plaintiff must be able to prove actual harm in order to recover.  The U.S. District Court for the Northern District of Illinois and U.S. District Court for the Southern District of New York both have dismissed BIPA suits for lack of standing where the plaintiffs did not allege actual harm.  The latter case, Santana v. Take-Two Interactive Software, is currently before the United States Court of Appeals for the Second Circuit, which heard oral argument in October 2017, but has not yet issued its ruling.   Other aspects of BIPA also remain in flux – such as whether facial recognition through photography is biometric data, as defined under the statute, and what forms of consent are compliant.  On the other side, defendants are challenging the constitutionality of the damages provisions, arguing that their potentially disproportionate nature to any actual harm violates due process.  As these issues are flushed out under BIPA, they are certain to affect other states who have already enacted, or may seek to enact, laws regarding use of biometric data.

This post was written by Daniel B. Pasternak of Squire Patton Boggs (US) LLP., © Copyright 2017
For more Labor & Employment legal analysis go to The National Law Review 

Employees Sue for Fingerprint Use

Employees of Peacock Foods, an Illinois-based food product manufacturer, recently filed a lawsuit against their employer for alleged violations of Illinois’ Biometric Information Privacy Act. Under BIPA, companies that collect biometric information must inter alia have a written retention policy (that they follow). As part of the policy, the law states that they must delete biometric information after they no long need it, or three years after the last transaction with the individual. Companies also need consent to collect the information under the Illinois law, cannot sell information, and if shared must get consent for such sharing.

According to the plaintiff-employees, Peacock Foods used their fingerprints for a time tracking system without explaining in writing how the saved fingerprints would be used, or if they would be shared with third parties. According to the employees, this violated BIPA’s requirement for explaining -in the consent request- how information would be used and how long it would be kept. The employees also alleged that Peacock Foods did not have a retention schedule and program in place for deleting biometric data. The employees are currently seeking class certification.

Putting it Into Practice: This case is a reminder that plaintiffs’ class action lawyers are looking at BIPA and possible complaints that can be brought under the law. To address the Illinois law – and similar ones in Texas and Washington – companies should look at the notice and consent process they have in place.   

This post was written by Liisa M. Thomas & Mukund H. Sharma of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017

For more Labor & Employment legal analysis, go to The National Law Review

It’s Time for Tax-Exempt Entities to Restate Their 403(b) Plans

Under a new IRS program, tax-exempt entities who sponsor 403(b) retirement plans can adopt pre-approved documents that include determination letters that confirm the tax-qualified status of their plans. Plan sponsors need to adopt pre-approved plans before March 31, 2020, in order to qualify for the program.

Under a 403(b) plan, eligible employees can elect to make pre-tax contributions towards the cost of their own retirement benefits. The accumulated savings is most often used to purchase an annuity when the participant retires. Until now, a plan sponsor could not receive a determination from the IRS that its 403(b) plan satisfied all applicable tax requirements.

However, on January 13, 2017, the IRS announced the opening of a “remedial amendment period” under which plan sponsors can adopt pre-approved plan documents retroactively to the later of January 1, 2010, or the date that the plan was first adopted. Various entities such as insurance companies, financial service providers and companies that sell standardized retirement plan documents have already received approval of their forms of 403(b) plan documents. Most plan documents can be customized to reflect the terms of an existing 403(b) plan. The IRS will not review or provide determination letters for individually designed 403(b) plan documents.

By adopting a pre-approved document that has a determination letter, a 403(b) plan sponsor can protect against an assertion (for example, in the course of an IRS audit) that its plan document is not tax-qualified and that the plan sponsor and participants are not eligible to receive the tax benefits afforded under the Code. Therefore, it is highly recommended that sponsors of 403(b) plans adopt an IRS-approved plan document before March 31, 2020. Although the deadline for adoption is almost three years away, plan sponsors should begin discussions with their legal counsel regarding the conversion of their current documents to a pre-approved plan.

*Katharine’s license application in the State of Wisconsin is pending.

This post was written by Katharine G. Shaw and Bruce B. Deadman of  Davis & Kuelthau, s.c.
For more legal analysis, go to The National Law Review

Athletes and Employees Speak Out: Do Your Employment Practices Drop the Ball in Addressing Diversity, Controversial Speech, or Tensions at Work?

With the 2017-18 National Football League (NFL) regular season and National Basketball Association (NBA) pre-season underway, many spectators are excited to don their favorite players’ jerseys and cheer on their teams. Yet in recent years, many fans also find themselves equally entrenched in controversial debates that have little to do with who wins or loses the game.

Rather, these dialogues relate to the frequent media coverage over the alleged “blacklisting” of former San Francisco 49ers quarterback Colin Kaepernick after he took a knee during the national anthem last season to protest police brutality against minorities, related demonstrations held in front of the NFL’s corporate offices, and actions of solidarity on football fields across the country by athletes like Marshawn Lynch and members of the Cleveland Browns virally trending with the hashtag #ImWithKap. Most recently ESPN sports host, Jemele Hill, drew the attention of the White House and placed her own employment in the cross-hairs by stating in a series of tweets that President “Donald Trump is a white supremacist who has largely surrounded himself w/ other white supremacists” and is “unqualified and unfit to president.” and in In response, the White House press secretary called Hill’s statements a “fireable offense.”

As athletes and other public figures use their careers to bring awareness to social movements and other world events such as the Charlottesville tragedy, the implications of social movements on employee relations remains a hot topic that poses challenging issues for employers related to diversity, inclusion, and free speech. Here are a few of those related topics and some practical suggestions of ways employers can address these issues in the workplace:

Does the First Amendment Apply to Athletes or Employees Generally?

People often mention their First Amendment guarantees without understanding that this right is not without certain limitations, especially in the employment context. Specifically, while this protection covers federal, state, and local government employees, courts have held that First Amendment protections do not generally extend to the employees of private-sector employers.

Does Social Media Change Things?

As evidenced by legendary athletes Dale Earnhardt Jr.’s and Kareem Abdul-Jabbar’s Twitter posts in response to the Charlottesville tragedy, many athletes and employees use social media to vocalize their positions on social issues. The National Labor Relations Board (NLRB) has taken on cases where employers have fired or taken disciplinary actions against employees who have engaged in certain protected speech via various social media platforms. On the agency’s website, the NLRB states: “The National Labor Relations Act protects the rights of employees to act together to address conditions at work…. [t]his protection extends to certain work-related conversations conducted on social media”.

This raises the question: Can an employee be disciplined for making racially- or politically- charged speech via social media?

The standard that the NLRB considers is whether the employee is engaging in “protected concerted activity” involving the terms and conditions of employment. Courts have used a multi-factor assessment to determine whether discipline or discharge violates Section 8(a)(1) of the NLRA, which evaluates whether:

  1. the activity in which the employee was engaged was “concerted” within the meaning of Section 7 of the NLRA;
  2. the employer knew of the concerted nature of the employee’s activity;
  3. the concerted activity was protected by the NLRA; and
  4. the discipline or discharge was motivated by the employee’s protected, concerted activity.

If the employer alleges that an employee engaged in misconduct during otherwise protected activity, the NLRB generally considers four factors in determining whether speech is protected:

  1. the place of the discussion;
  2. the subject matter of the discussion;
  3. the nature of the employee’s outburst; and
  4. whether the outburst was, in any way, provoked by an employer’s unfair labor practice

In many instances, purely individual speech about a social or political topic that in no way involves an employee’s work conditions will not be protected by the NLRA. Because of the fact-specific nature of the inquiry, a determination must be made on a case-by-case basis.

So What Now?

Even employers not covered under the First Amendment and NLRA’s protections are finding themselves examining some weighty questions. For example:

  • Although there may be legally sanctioned limitations to free speech in the workplace, does the modern day work culture require employers to facilitate an employment experience that goes beyond what the law requires?
  • Are employers tasked with creating a workplace that is inclusive but also allows people to express unique (and sometimes controversial) viewpoints on social or political issues?
  • If so, how does this work and does it ultimately help the business to thrive long term?

Last year the NBA and the NBA’s Players Association (NBAPA) appeared to have answered this question in the affirmative and implemented this approach with its players. Despite having player agreements with language that can, in some cases, regulate players’ conduct, NBA athletes have expressed their positions on social issues both on and off the court.  For example, during pre-game warm ups LeBron James wore a t-shirt stating “I Can’t Breathe,” bringing awareness to the death of Eric Garner. Similarly, Carmelo Anthony and Dwyane Wade made a social action appeal during the 2016 ESPY awards.

Many players have been so outspoken that last year NBA Commissioner Adam Silver and NBPA Executive Director Michele Roberts penned a letter noting that both organizations were addressing the best ways they could move forward in “developing substantive ways . . . to come together and take meaningful action.” The letter noted that, in recent weeks, many teams had reached out to the organizations to figure out how they could “create positive change” and garner support with team efforts.

Employers may want to take note of the ways that the NBA and the NBAPA are attempting to address this topic. Additionally, employers may also want to review the following considerations.

Be Aware of Blacklisting Laws

Many states have blacklisting laws that, generally, prohibit employers from limiting former employees’ opportunities. The following are a handful of state laws regulating blacklisting:

  • North Carolina law prohibits employers from preventing or attempting to prevent any “discharged employee from obtaining employment with any other person, company, or corporation” whether by verbal or written action.
  • The California Labor Code also prohibits any person from preventing or attempting “to prevent the former employee from obtaining employment” by misrepresentation and punishes any manager or employee who knowingly “fails to take all reasonable steps to prevent” such action.
  • Indiana law makes it illegal for an employer to prevent a “discharged employee from obtaining employment with any other person” or employer.
  • Florida law makes it illegal for two or more people to “agree, conspire, combine or confederate together for the purpose of preventing any person from procuring work . . .  or to cause the discharge of any person.” The law also prohibits verbal, written, or printed communication that “threaten[s] any injury to life, property or business of any person for the purpose of procuring the discharge of any worker . . . or to prevent any person from procuring work”.
  • New York Labor Law says it is an unfair labor practice “[t]o prepare, maintain, distribute or circulate any blacklist of individuals for the purpose of preventing any of such individuals from obtaining or retaining employment because of the exercise by such individuals of any of the rights guaranteed by section seven hundred three,” which discusses the right to join a labor organization or to bargain collectively.
  • Arizona law explicitly defines the term “blacklist” as “any understanding or agreement whereby the names of any person or persons, list of names, descriptions or other means of identification shall be spoken, written, printed or implied for the purpose of being communicated or transmitted between two or more employers of labor, or their bosses, foremen, superintendents, managers, officers or other agents, whereby the laborer is prevented or prohibited from engaging in a useful occupation. Any understanding or agreement between employers, or their bosses, foremen, superintendents, managers, officers or other agents, whether written or verbal, comes within the meaning of this section and it makes no difference whether the employers, or their bosses, foremen, superintendents, managers, officers or other agents, act individually or for some company, corporation, syndicate, partnership or society and it makes no difference whether they are employed or acting as agents for the same or different companies, corporations, syndicates, partnerships or societies.”

Be Proactive

Do not wait for your company to become the next trending hashtag on social media as a result of a workplace controversy! Instead, be prepared and take proactive measures in the event employees take a stand on controversial issues. Some options are to proactively address and be sensitive to diversity issues, and to recognize and understand the benefits of workforce diversity both as a source of varied ideas and a competitive advantage. Employers may also want to consider hiring a Chief Diversity and Inclusion Officer or diversity and inclusion team responsible for addressing equity issues.

Be Current

Consider reviewing your employee handbooks, in addition to contracts you might have with individual employees (or athletes) and third parties to ensure your company’s policies regarding diversity and inclusion, nondiscrimination and harassment, and professional development are up to date. Employers may also want to consider evaluating successes and areas for growth in the following areas:

Finally, employers may want to examine records to determine whether all employees, especially management employees, have participated in appropriate diversity and inclusion trainings, particularly on implicit or unconscious bias.

Be Careful

Employer-created bans on any socially- or politically-related speech rarely if ever actually work and may create exposure to liability under the First Amendment, the NLRA, or state-specific laws. Rather than imposing an outright ban on certain conduct, employers may want to slow down and engage in careful thought at the outset prior to taking any action on behalf of the organization. Employers may also find it beneficial to acknowledge that what happens in the world impacts the workplace. Accordingly, employers may want to develop affinity or employee resource groups, and/or maintain a diversity committee that facilitates well-thought-out inclusion initiatives. With many issues at play from reducing the risk of unlawful discrimination charges to preventing social media reputational harm, planning ahead may help to avoid potential risks.

This post was written by Karla Turner Anderson & Dawn T. Collins of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved. © 2017
For more Labor & Employment legal analysis go to The National Law Review

Share Recent Eighth Circuit Case Illustrates the Need for Newest Members of the NLRB to Be Confirmed Sooner Rather Than Later

In another example of a federal circuit court taking the National Labor Relations Board (NLRB) to task for stretching federal labor law past the point of recognition, the Eight Circuit Court of Appeals recently refused to enforce a NLRB order reinstating several former employees. The former employees were discharged after they posted flyers around town insinuating their employer was selling unsafe, germ-laden sandwiches as part of a campaign to enhance their sick leave. MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (July 3, 2017).

In its decision, the Eight Circuit upbraided the NLRB for abandoning and ignoring the Supreme Court of the United States’ precedent regarding when an employee can be disciplined for “disloyalty” in the midst of a union organizing drive. The Eighth Circuit took particular issue with the NLRB’s interpretation of the seminal Supreme Court case NLRB v. Local Union No. 1229, IBEW (Jefferson Standard) and found that the NLRB’s reasoning effectively overruled Jefferson Standard.

Background

MikLin is a family business that owns and operates 10 Jimmy John’s sandwich shop franchises in the Minneapolis-St.Paul area. In 2007, several MikLin workers began an organizing campaign seeking representation by the Industrial Workers of the World (IWW) union.

In an attempt to garner more support for a rerun election, union supporters began a sick leave campaign in early 2011. They posted a flyer on community bulletin boards in MikLin stores with two identical images of a Jimmy John’s sandwich. Above the first image were the words, “YOUR SANDWICH MADE BY A HEALTHY JIMMY JOHN’S WORKER.” The text above the second image said, “YOUR SANDWICH MADE BY A SICK JIMMY JOHN’S WORKER.” Below the pictures, the white text asked: “CAN’T TELL THE DIFFERENCE?” The response, in red and slightly smaller, said: “THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.” Below, in slightly smaller white text, was the warning, “WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST.” The text at the bottom of the poster asked readers to help the workers win paid sick days by going to their website.

The day before the IWW could request a rerun election, its supporters distributed a press release, letter, and the sandwich poster to more than 100 media contacts. The press release highlighted discussed the employees’ need for sick leave and ended with a threat: If MikLin would not talk with the IWW about their demands for paid sick leave, they would proceed with “dramatic action” by “plastering the city with thousands of Sick Day posters.”

Days later, IWW supporters implemented their threat to plaster the city with posters. However, in the new version of the poster, rather than asking for support of the employees’ request for paid sick leave, the public posters listed the MikLin CEO’s personal telephone number and instructed customers to call him to “LET HIM KNOW YOU WANT HEALTHY WORKERS MAKING YOUR SANDWICH!” Two days later, MikLin fired six employees who coordinated the attack and issued written warnings to three others who assisted in it.

The NLRB Proceedings

The Board’s administrative law judge (ALJ) determined that MikLin violated the National Labor Relations Act by discharging the employees. Citing prior Board decisions, the ALJ ruled that the NLRA “protects employee communications to the public that are part of and related to an ongoing labor dispute” unless they are “so disloyal, reckless, or maliciously untrue as to lose the Act’s protections.” The ALJ found that to lose the act’s protections “an employee’s public criticism . . . must evidence ‘a malicious motive’ or be made with knowledge of the statements’ falsity or with reckless disregard for their truth or falsity.”

The ALJ found that the posters in question were not maliciously untrue. “While ‘it is not literally true that employees could not call in sick,’ the ALJ observed, employees ‘are subject to discipline if they call in sick without finding a replacement,’” and thus—according to the ALJ—the assertion that employees were required to work when sick was protected hyperbole. Though MikLin had a strong track record with the health department, the ALJ found that “it is at least arguable that [MikLin’s] sick leave policy subjects the public to an increased risk of food borne disease.”

A divided panel of the Board affirmed the ALJ’s findings and conclusions. The majority found “that neither the posters nor the press release were shown to be so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” The public communications “were clearly related to the ongoing labor dispute concerning the employees’ desire for paid sick leave. . . . Indeed, any person viewing the posters and press release would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment by obtaining paid sick leave rather than to disparage [MikLin] or its product.”

MikLin appealed the Board’s order reinstating the employees to the Eighth Circuit Court of Appeals. On appeal, a three-judge panel upheld the NLRB’s ruling, but upon rehearing en banc by the full court, the ruling was overturned.

The Eighth Circuit’s Analysis

In its full court hearing, the Eighth Circuit took the NLRB to task for significantly misreading the Supreme Court’s decision in Jefferson Standard. First, the majority focused on the Board’s interpretation that no act of employee disparagement is unprotected disloyalty unless it is “maliciously motivated to harm the employer.” They found this additional requirement impermissibly overruled Jefferson Standard.

Second the court balked at the Board’s definition of “malicious motive.” The Board excluded from Jefferson Standard’s interpretation of Section 10(c) of the NLRA all employee disparagement that is part of or directly related to an ongoing labor dispute as improper. In other words, the Board refused to treat as “disloyal” any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner in which, and the extent to which, it harms the employer.

The court rejected that idea:

By requiring an employer to show that employees had a subjective intent to harm, and burdening that requirement with an overly restrictive need to show “malicious motive,” the Board has effectively removed from the Jefferson Standard inquiry the central Section 10(c) issue as defined by the Supreme Court — whether the means used reflect indefensible employee disloyalty. This is an error of law.

Rather than employee motive, the Eighth Circuit explained that critical question in the Jefferson Standard disloyalty inquiry is whether the employees’ public communications reasonably targeted the employer’s labor practices or indefensibly disparaged the quality of the employer’s products or services. The Eight Circuit found that when employees convince customers not to patronize an employer because its labor practices are unfair, subsequent settlement of the labor dispute brings the customers back—to the benefit of both employer and employee. By contrast, the court found, sharply disparaging the employer’s products or services as unsafe, unhealthy, or of shoddy quality causes harm that outlasts the labor dispute to the detriment of employees, as well as the employer.

Key Takeaways

While the Eighth Circuit’s decision is heartening, its effect will be limited for the time being as the NLRB is under no obligation to recognize the court’s interpretation of federal labor law. Further, the decision highlights the cost of fighting incorrect NLRB decisions for employers; MikLin had to appeal the ALJ’s decision to the NLRB, then appeal that decision to the Eighth Circuit, and then request a rehearing after the three-judge panel wrongly decided the appeal. Many employers simply do not have the resources to see a fight like this through to the end.

With President Trump’s selections to the NLRB being vetted by Congress this week, we can hope for a light at the end of this long, dark tunnel for employers.

This post was written byMatthew J. Kelley of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Go to the National Law Review for more legal analysis.

Employees Celebrate Chip Party: Embedding RFID Chips – Would You Agree to This?

On 1 August 2017, employees of a Wisconsin-based technology company enjoyed a “Chip Party” – but not the salty kind.  21 of Three Square Market’s 85 employees agreed to allow their employer to embed radio frequency identification chips in their bodies. We are familiar with the Internet of Things, is this the Internet of People?

Three Square Market (known as 32M) highlighted the convenience of microchipping their employees, reporting that they will be able to use the RFID chip to make purchases in the company break room, open doors, access copy machines and log in to their computers.

While the “chipped” employees reported that they felt only a brief sting when the chips were inserted, chipping employees draws deeper cuts through ethical and privacy issues.

One such issue is the potential for the technology to gradually encroach with further applications not contemplated by its original purpose. RFID technology has the potential to be used for surveillance and location-tracking purposes, similar to GPS technology. It also has potential to be used as a password or authentication tool, to store health information, access public transport or even as a passport.

While these potential applications will offer convenience to employers and consumers, the value of the information generated by each transaction is arguably greater for the marketers, data brokers and law enforcement entities that use it for their own purposes. Once data like this exists it can be accessed in all manner of circumstances.  Can you ever provide sufficient advice and counselling to employees to create informed consent free from the power imbalance of the employment relationship?

All keen on tech here at K&L Gates, but no one was putting their hand up for a similar program here, we’ll all just use our pass card to open the door, thanks.  We were left brainstorming films that use implants to see where this technology could take us as it is all too common in Sci-Fi films.  Have a look at The Final Cut, 2004 (warning 37% Rotten Tomato rating), where implants took centre stage by storing people’s experiences.  We are not there yet, but we have taken the first wobbly step on the path.

Read more about 32M’s use of RFID chips here.

See here to find out more about tracking employees with other technologies.

Read more legal analysis on the National Law Review.

Olivia Coburn and Cameron Abbott of K&L Gates contributed this article.