Human Resources and Workplaces

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More than a year ago we wrote about the intersection of state laws permitting certain medicinal and recreational use of marijuana and employers’ lawful ability to enforce policies prohibiting drug use.  (A Hazy Area of the Law:  The Impact of Medicinal and Recreational Marijuana Laws on Employers.)  At that time, we noted that a Colorado Court of Appeals’ ruling strengthened the position that an employer can lawfully terminate an employee for using medicinal marijuana in violation of its drug policies, even if the employee was not impaired at work and did not use marijuana while at the worksite or during work hours.  The Colorado Supreme Court recently confirmed that proposition, giving employers a big sigh of relief.

National_Labor_Relations_Board_logo_-_colorEarlier this year, on March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued a report covering recent cases on employee handbook rules that encroached on employees’ Section 7 rights under the National Labor Relations Act.  Griffin’s report (GC Memo 15-04) stated that the vast majority of handbook violations are due to employers’ failure to comply with the first prong of the Lutheran Heritage test.  The report also provides timely guidance to employers in light of a recent NLRB decision against a fast-food restaurant’s finding Section 7 violations in its employee handbook.

California employers have long been aware that California state law prohibits inclusion of non-compete clauses in standard employment agreements.  But, in a first of its kind case, a divided federal appeals court panel has interpreted California Business and Professions Code Section 16600 to also bar “no-employment” contract terms that prevent a former employee from working for the former employer or any entity in contract with the former employer.  The court held that this type of provision limits an employee’s ability to work in contravention of the terms of Section 16600.

Online forums where anyone can post comments, reviews, or opinions about a company are growing in popularity.  As a result, employers are finding postings by former employees who may have left on “bad” terms and now share their unhappy feelings with the world.  Often such postings – while annoying and potentially embarrassing – are well within an employee’s rights.  Companies need to remember that the former employee will likely soon grow tired of the cyber smear campaign, and such posts do not often cause meaningful damages (particularly the type that can be proven in court).  Additionally, where such posts are on sites like Twitter or Facebook, the daily volume of postings means that any bothersome posts get moved down the feed pretty quickly.  Most of the time the employer’s best bet is to follow the advice of Disney’s “Frozen” and just “Let it Go.”

In 2014, the biggest headlines out of the Office of Federal Contract Compliance Programs (OFCCP) were the slew of regulatory and directive changes announced and finalized.  These included:

  • significant changes to the VEVRAA (veterans) and Section 503 (disabled) regulations;
  • an amendment to Executive Order 11246 (as well as new related regulations) to add sexual orientation and gender identity to the non-discrimination and affirmative action requirements;
  • a new Executive Order requiring contractors to provide  information regarding employment and labor law violations in connection with contract bids (and related other requirements);
  • release of proposed regulations that would require contractors to submit annually their compensation information by race and gender (that are expected to be finalized in early 2015);
  • an overhaul of the federal contractor compliance manual; and
  • a revised and significantly expanded compliance audit letter.

Georgia’s new statutory law of restrictive covenants became effective more than three years ago, on May 11, 2011.  The significance of the new law cannot be overstated.  Prior to the new law, Georgia Courts were required to follow sometimes arcane rules of construction that frequently resulted in covenants being invalidated in their entirety based on what seemed to be trivial defects.

I recently read a brief article regarding the former Captain of “The Best Damn Ship in the Navy.”  The article, an interview with Capt. D. Michael Abrashoff, formerly Captain of the USS Benfold (shown below), specifically focuses on his view that safety must be a top priority in any workplace.  As he says, even on a ship safety is something that you cannot just “order.” Rather, safety is something that has to be part of every individual’s daily thinking — from the Captain all the way down to the lowest ranking sailor.

Governor Jerry Brown recently signed legislation that compels California employers to provide sick leave for their employees. The law, AB 1522 – also known as the Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”) – provides that employees will be entitled to earn at least three paid days of sick leave per year and will go into effect on July 1, 2015.

The following information was sent out yesterday (August 21, 2014) by members of our Labor & Employment team in Virginia.  If you have employees in Virginia, you need to read this and consider how it may affect your company.

Virginia Governor Terry McAuliffe signed Executive Order 24 on August 14, 2014, to establish an interagency task force on worker misclassification and payroll fraud.