Now more than ever employers must have a clear and concise policy regarding work email accounts.  While it is commonly understood that an employee’s work email is property of the employer and subject to search at any time, it is important to inform employees of this.  A recent case, Hoofnagle v. Smyth-Wythe Airport Commission out of the Western District of Virginia, demonstrates the importance of a clear policy on email accounts.

Hoofnagel was the manager of a small, local airport who was fired for his use of an email account he used both personally and for business to write an impassioned and volatile email to U.S. Senator Tim Kaine.  The manager’s email came in the wake of the Newtown school shooting tragedy and vehemently defended gun rights.  The airport did not have its own email system, or a written policy addressing the use of email and accompanying expectations.  The manager created the email account when he started there and the airport published the address as an official point of contact.  Further complicating the matter, the manager signed the email with his name and position.  Shortly thereafter, the airport commission voted to terminate the manager and he filed suit.  After the airport terminated the manager, it began going through his emails to check for airport business.

The Labor-Management Reporting and Disclosure Act requires labor organizations, consultants, and employers to file reports and disclose expenditures on labor-management activities. For over fifty years, the DOL has interpreted the provisions of the Act to require reporting only for what are known as “direct” persuasive activities, such as when employers hire consultants or attorneys to personally and directly deliver counter-union messages to employees. Under the Act, mere “advice” pertaining to persuasive activities is not reportable. The advice exemption permitted law firms and employers to avoid the reporting obligations since the law firms were not actually engaged in direct persuasion, but only in advice. However, in March of this year, the DOL set forth a Final Rule significantly broadening what is reportable by employers and consultants in an effort to require reporting on activities that have been viewed as “advice.” Significantly, the Northern District of Texas today issued an order preliminary enjoining the Department of Labor from enforcing its Final Rule until a lawsuit challenging the Final Rule can be fully litigated. Unless that preliminary ruling or other pending challenges to the Final Rule are successful and upheld on appeal, the Final Rule will apply to agreements entered into on or after July 1, 2016. Two important updates concerning the Final Rule are covered in this alert, one of which necessitates an employer taking action before July 1, 2016.

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).

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 (“Form I-9”), and depending on the size of your company’s workforce, you might complete new I-9s on a regular basis.  But have you ever gone back to do an internal audit of the already completed Forms I-9?  Do you know the most common mistakes found on I-9s?

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.”

The U.S. Department of Labor (DOL) announced the final version of their long-awaited overtime exemption rule today, which makes notable changes to the requirements for employees to qualify under the Fair Labor Standards Act’s (FLSA) “white collar” exemption. The most noteworthy change is an increase in the required salary level for exempt employees to $47,476 per year, but there are other important changes as well.

The rule first surfaced nearly a year ago in June 2015 and it has been a concern of all employers since then. The stated goal of the rule is to expand federal overtime regulations so that more than 4 million more workers will likely be entitled to overtime.

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.