Special thanks this month to Audrey E. Mross, Labor and Employment Attorney for Munck Carter, LLP, for this month’s legal update. Mross provides free legal updates to her email group. To be added, contact her at firstname.lastname@example.org.
Once again, the NLRB has a problem with your employee handbook policies and this time, the D.C. Circuit agrees. The genesis for this and similar attacks on routine policy statements is the concern that they tend to infringe on employees’ NLRA section 7 rights to engage in concerted activity relating to terms and conditions of employment. Crafting handbook policy requires careful word choices and what was fine in the past may not be OK anymore. In this case, three policies used by Hyundai America Shipping Agency were found to be overbroad:
A November 2 White House press release announces new executive action to “ban the box” among federal agencies, coupled with presidential support for broader Congressional mandates that could affect all federal workers and federal contractors. The announcement is short on specifics, saying only that OPM is directed to modify its rules to delay inquiries into criminal history until later in the hiring process. For more info, see https://www.whitehouse.gov/the-press-office/2015/11/02/fact-sheet-president-obama-announces-new-actions-promote-rehabilitation.
Employers breathed a sigh of relief when the Supreme Court held, in Integrity Staffing Solutions, Inc. v. Busk, that the time nonexempt employees spent waiting to have their bags checked before leaving their shift at an Amazon warehouse was not compensable under the FLSA. The Supremes found that the security checks were not “integral and indispensable” to any principal activity the employee had been hired to perform. Further, the fact that the checks were primarily for the employer’s benefit did not matter. A class action involving Apple retail store employees in CA who were also subject to pre-exit checks was pending when the Busk decision came down, resulting in dismissal of their FLSA claims. However, the judge was left to consider whether CA law, which hinged on whether the employees were subject to their employers control during the searches, provided a remedy. The judge concluded that “free choice is fatal to their claims” noting that the searches could be avoided by the employees by simply not bringing bags into the workplace. Apple’s summary judgment motion was granted and the class of roughly 12,400 former and current employees went sour. The Busk decision is very helpful with FLSA “off the clock” claims arising from security checks, but don’t forget to see if state law might provide a second bite at the apple. Sorry, Apple, could not resist.
OSHA fines have not increased since 1990, but that is fixin’ to change. Starting in August 2016, Congress has given OSHA the OK to effect a one-time “catch up” increase in their fines of up to 82%. As an example, the fine for “failure to abate” is now $7,000/day but could jump to $12,740 a day. After the big bump, OSHA will be authorized to trigger annual increases in amounts, tied to the amount of inflation during the prior fiscal year. Safety audit, anyone?
Employers with employee safety incentive programs are bracing themselves for a new final rule in the final stages of consideration, at OMB, before publication. It’s no secret that OSHA is not a fan of employer programs that reward employees based on the lack of reported workplace injuries or illnesses, since the prizes or bonuses (not to mention peer pressure, where group incentives are offered) might discourage accurate reporting by affected employees and violate the employer’s duty to maintain accurate records of workplace mishaps. Stay tuned.
On October 19, 2015, OFCCP made a card called “Requesting a Reasonable Accommodation” available via its website. The card instructs federal contractor applicants and employees how to go about asking for accommodation of a disability and provides contact info for the OFCCP, in case they do not like the answer they get. You can check it out at http://www.dol.gov/ofccp/posters/ReasonableAccommodationPocketCard/index.htm.
Until recently, a 30% plus showing of interest needed to trigger a union election was accomplished with a stack of signed authorization cards. Under new rules, those expressions are now acceptable in electronic form. The process is explained in Revised Memorandum 15-08 from the General Counsel of the NLRB, which was posted on October 26, 2015. You can read the memorandum and four related examples at https://www.nlrb.gov/reports-guidance/general-counsel-memos.
Judges generally are not fans of noncompetes. And they really get their backs up when the employer drafts them more broadly than necessary to protect the employers interests. In AssuredPartners, Inc. v. William Schmitt, an IL appellate court struck down post-employment noncompete, nonsolicit and confidentiality obligations AND refused to blue line (read: modify) the overbroad scope of the restrictions in order to make them fair and enforceable. Employers in IL should be particularly careful when drafting post-employment restrictive covenants and all employers should remember that many courts have a right but not a duty to fix a bad noncompete. Here are some of the provisions that nuked the entire agreement:
Texas-based bank bought out a bank in Oklahoma. As part of the deal, the OK-based bank VPs signed employment agreements with their new employer containing post-employment restrictive covenants. The agreements had a Texas choice of law provision. After a spell, the OK-based VPs left and were hired by another bank in OK. TX-based bank sought to enforce the covenants via an injunction against the VPs. The lower court split the baby and, on appeal, the 5th Circuit made the following calls: