Employment Laws

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If you are an HR professional, you surely worry about workplace violence.  Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.

I recently read an article from the Business Journal publications that I found useful:  “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.”  This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence. 

Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers.

Signed into law on May 11 of this year, the federal Defend Trade Secrets Act of 2016 (“DTSA”) amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation, and it has been hailed by the New York Times and other authorities and media outlets as the “most significant expansion in federal intellectual property law in the past 70 years.”  Yet, for decades, state trade secret laws have already been a fundamental source of protecting the confidential information of business in the United States. 

Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting.  It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action.

The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF).   The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade.  Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed.

Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer.  In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur.  Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required.  Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.

Estimates are that nearly 1 in 4 non-union employers require their employees to sign mandatory arbitration agreements as a condition of employment.  These agreements are designed to keep workplace disputes out of courthouses and avoid expensive and protracted litigation.  More and more, these arbitration agreements include clauses that bar employees from pursuing class or collective claims.  Among other perceived benefits, these waivers eliminate the risk associated with high exposure aggregate litigation that plagues many industries.  The enforceability of these agreements is governed by the Federal Arbitration Act (FAA).  Generally speaking, under the FAA, an arbitration agreement can mandate the waiver of a procedural right but not a substantive one.  Until recently, federal courts have largely held that these waivers of class or collective actions were lawful because the right to pursue aggregate litigation under the Fair Labor Standards Act (FLSA) and Federal Rule of Civil Procedure 23 was procedural, not substantive.

Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.”  While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition).

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.

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.”