Troutman Pepper Locke's Labor + Employment Group

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Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.  Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny.

While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations.  No surprise, most of the hands (maybe all of them) went up.

For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential.  For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation.  Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint.  Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.

In 2011, the U. S. Supreme Court issued a landmark decision regarding certification of employment discrimination class actions. The opinion, Wal-Mart v. Dukes, rejected the “trial by formula” approach of allowing a random sample of the class members’ claims to be tried, with the results of those trials to be applied to the entire class. Among other problems, the Court found that this shortcut approach deprived defendants of the ability to litigate statutory defenses to individualized claims. Dukes, however, did not reach the narrower issue of whether “representative,” “sample” or “anecdotal” evidence” is ever appropriate in a class-action employment case.

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1.

For our second program in this series, we will take a closer look at the Risks and Rewards of Using Independent Contractors.  Many companies think that independent contractors are the solution to their staffing problems, providing flexibility and keeping labor costs down without increasing headcount.  However, there are risks involved in using independent contractors – primarily the risk that the IRS or the Department of Labor will find that they should properly be classified as employees!

The Supreme Court recently ruled 6-3 that a state appeals court erroneously upheld a lower court order refusing to enforce an arbitration agreement that included a class waiver. This decision reaffirmed the supremacy of the Federal Arbitration Act. Wendy Sugg, in Troutman Sanders’ Orange County office, spoke with Employment…

This year, we recognize 25 years of the coverage of the Americans with Disabilities Act (ADA) on workplaces and commercial establishments.  While you may be most familiar with how employment policies and practices have been subject to the ADA and its regulations for the past 25 years, that is not the only significant impact of the ADA.  Public entities and transportation providers have had obligations under the ADA too.  In fact, a large part of the ADA specifically applies to places of public accommodations and commercial facilities.  So, anyone who opens their doors for retail, service, office, or warehouse purposes is required to ensure full and equal enjoyment of all goods, services, facilities, and accommodations to those with disabilities.