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.

Q: An employee is asking to take medical leave. What sort of questions am I allowed to ask her?

A: Ask any HR generalist, and they will tell you that the Family and Medical Leave Act (FMLA) provides up to 12 weeks of job protection and continuation of health insurance benefits to employees who have a serious health condition. HR practitioners also know that they are permitted to seek information about an employee’s serious health condition to determine whether the employee qualifies for leave. But, how much can they ask, and what kind of medical questions are allowed?

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.

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.