Technical Violations of Statutes May No Longer Be Enough

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

“Have you been injured?”  No longer just a query for auto accident victims, plaintiffs must increasingly be able to answer “yes” to that question before bringing suits for violations of statutory rights.

Once upon a time, a technical violation was enough. However, following the Supreme Court’s decision in Spokeo v. Robbins (2016), courts have been increasingly reluctant to permit legal claims, including under employment-related statutes, for technical statutory violations. Instead, as discussed below, plaintiffs must often demonstrate they were actually injured before their lawsuit proceeds.

To  have “standing” to bring a claim, essentially a person must be able to demonstrate that he/she has a personal stake in the outcome of the controversy sufficient to stand before the court. In Spokeo, the Supreme Court detailed the requirement that an injury be “concrete” and “particularized” to establish “standing.” The Court found that, although an injury need not be tangible, it must be “real,” and not “abstract.” Continue Reading

New NLRB Decisions Favor Employers

Posted in Labor Relations

With the change to a Republican President and the appointment of new NLRB members, the expectation that more pro-employer decisions will be issued has begun. Several NLRB decisions have re-established prior labor law precedents that were overturned by the Obama era NLRB.  A prime example of this is the recent decision involving Raytheon Network Centric Systems that restored the 50-year-old precedent regarding the requirement to negotiate certain changes with a union.  Continue Reading

Website Accessibility Cases Proceed Despite Absence of Regulations

Posted in Disability, Employment Litigation

Recent trends indicate that ’tis always the season for web accessibility litigation, so with the new year, you should take a new look at your website. Businesses around the country, and especially in Florida, are discovering that their websites are within the crosshairs of visually impaired plaintiffs who, on contacting a business for assistance, may be told to visit a website that might not be accessible.

The Department of Justice first promised to issue regulations on making websites compliant with the Americans with Disabilities Act back in 2010, and eventually projected that they will be issued this year. Meanwhile, private lawsuits are proceeding. Last year, following what may be the first trial of its kind, a Florida federal court entered a three-year injunction against a grocery store chain mandating that it make its website fully and equally accessible to the visually impaired. The case was one of more than 70 filed by plaintiff Juan Carlos Gil, who, in this suit, alleged that he is a visually impaired individual who could not access pharmacy coupons that were available to customers only on the web.   Continue Reading

Joint Employer Standard Relaxed – For Now

Posted in Employment & Consulting Contracts, Labor Relations

Business owners, franchisors, contractors, and staffing agencies can breathe a little easier – for the moment – following the National Labor Relations Board’s reversal last month of a controversial Obama-era standard that broadly defined “joint employer.”

In the 2015 Browning v. Ferris decision, the NLRB overturned decades of precedent and created an expansive definition of joint employer. Joint employers included not only those that exercised direct or indirect control over workers, but also those who had “reserved authority” to do, even if they never exercised it. That “reserved authority” could include something as basic as reserving the right to set opening and closing hours. In broadening the joint employer concept so dramatically, the NLRB essentially eradicated many of the advantages of using staffing agencies or franchise models. Also, in issuing the Browning-Ferris decision, the NLRB basically required entities that control the terms and conditions of employment, such as staffing agencies and corporate users of workers supplied by staffing agencies, to collectively bargain with the workers. After the Browning-Ferris case, the DOL followed suit and reaffirmed the broader concept of joint employment, and a federal appellate court adopted an even broader definition of joint employer in a wage and hour case, noting that two entities are joint employers unless they can show that they are “completely disassociated” from one another. Continue Reading

Workplace Civility Legal Again

Posted in Labor Relations

Rules mandating workplace civility and protection of confidential business information — recently the target of the National Labor Relations Board — are lawful again. Non-union employers take note: no longer will the Board automatically find an unfair labor practice for policy, work rule and handbook provisions that employees would construe as prohibiting protected concerted activity. Based on The Boeing Company decision issued last month, the newly re-constituted Board will now seek to strike a balance between employer and employee rights. The endorsement of workplace civility rules aligns with the EEOC’s 2016 Select Task Force on Harassment recommendation encouraging the NLRB to reconsider its position and support such rules.

The Boeing Company decision represents a marked retreat from the  Board’s 2004 decision in Lutheran Heritage Village-Livonia when the NLRB signaled that it would find innocuous employer rules attempting to protect its property or business or promoting workplace civility violated the NLRA if employees would merely “reasonably construe the language” to prohibit “Section 7” activities— activities such as the right to unionize or engage in collective action, to discuss wages, terms and conditions of employment and to air and investigate their grievances.  Following Lutheran Heritage, the Board prosecuted dozens of unfair labor practice charges over  benign workplace rules asking employees to “work harmoniously,” “to conduct themselves in a positive and professional manner,” “to keep customer and employee information secure” and to “refrain from inappropriate discussions about the company.” The Board’s Obama-era General Counsel had even issued a detailed memorandum cataloging scores of decisions finding various workplace rules unlawful, even if they had never been applied to restrict employees’ rights under the NLRA and were not issued in response to union activity.

In its December 14, 2017, 3-2 decision in The Boeing Company, the new Republican majority Board reversed the decision of an Administrative Law Judge that found Boeing’s policy restricting camera-enabled devises such as cell phones on its property in violation of the NLRA. The ALJ had applied the Lutheran Heritage analysis to the no-camera rule. Under that analysis, rules would violate the NLRA if any of the following existed: (1) employees would reasonably construe the Rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the Rule had been applied to restrict the exercise of Section 7 rights. The ALJ had found that under the first prong of that analysis, employees would reasonably believe that the rule prohibited them from possessing cell phones that could take pictures to support bargaining demands or gather evidence for grievances. The ALJ gave no weight to Boeing’s concern that photographs could be taken that undermined its obligation to keep national security matters secret, safeguard its confidential information and trade secrets, and protect the privacy of its employees.

The Board’s decision scrapped the first prong of the Lutheran Heritage test. The Board enunciated a new standard for facially neutral rules that requires the Board to strike the proper balance between the employer’s business justification and employee rights under the NLRA.  Finally, the Board will now consider the employer’s justification for imposing rules. Past decisions invalidating rules promulgated in response to union activity or that were actually applied to restrict Section 7 rights will not be impacted by the Boeing decision. In announcing its decision, the Board delineated three categories of Rules:

  • Category 1 includes Rules that the Board designates as lawful either because, when reasonably interpreted, they do not prohibit or interfere with the exercise of Section 7 rights; or the potential impact on protected rights is outweighed by the justifications associated with the rule.  Boeing’s  no-camera requirement and rules calling for employees to abide by basic standards of civility fit in this category.
  • Category 2 includes rules that warrant individualized scrutiny as to whether the rule would prohibit or interfere with employees’ Section 7 rights and, if so whether any adverse impact on such protected rights is outweighed by legitimate justifications.
  • Category 3 includes Rules that the NLRB will designate as unlawful because they would limit Section 7 rights and the adverse impact on these rights is not outweighed by its justifications.  An example would be a rule that prohibited employees from discussing wages with each other.

Although the Boeing decision portends future unfair labor practice litigation to begin the process of pigeon-holing Rules into the categories that will or will not require the Board’s scrutiny in future cases, employers can be at ease in knowing that most rules designed to promote workplace civility and security of its property and information will fit into Category 1. Other types of rules will now require a balancing test—a balance that includes consideration of the employer’s reasons for implementing the rules.  However, rules enacted in response to union activity or applied to restrict employees from engaging in protected activity will still be subject to unfair labor practice charges.  Despite the employer-friendly decision, employers should take the opportunity to review their rules and policies to avoid being the test cases.

NLRB Gift: Staying Non-Union May Be A Little Easier

Posted in Labor Relations

The NLRB offered a holiday gift to employers this year, overturning an Obama-era decision that allowed unions to organize “micro-units” of employees, by restoring a more employer-friendly standard to determine an “appropriate bargaining unit.” In PCC Structurals, Inc., the NLRB overturned the 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile which had allowed the unionization of “micro-units.” The new decision re-establishes the traditional “community of interest” standard for determining which employees should be included in an appropriate bargaining unit.

Composition of an appropriate bargaining unit usually has a significant effect on the result of the NLRB election to determine whether the employees will be represented by the union. The petition for an election filed by a union typically proposes a bargaining unit composed of employees who have already indicated their support for the union. An employer response may be to propose a larger bargaining unit including employees who may not have been organized by the union or who may not support the union. The NLRB must decide which bargaining unit is appropriate. Under the Specialty Healthcare standard, employers seeking to expand the bargaining unit were required to prove the existence of an “overwhelming community of interest” among the employees in the Petition and the employees that the employer seeks to add, which was a more stringent standard than had been in place for decades. If the union won the election, the result was that employers may have been required to bargain with multiple “micro-units”, instead of the traditional “wall-to-wall” bargaining units. PCC Structurals restored the prior standard. Continue Reading

An Employer’s Guide to Litigation Holds

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation, Uncategorized

Employers have a duty to preserve information that is potentially relevant to anticipated or existing litigation and failure to comply with that duty can have dire consequences. As such, issuing a litigation hold should be at the top of every employer’s to-do list once placed on notice of a lawsuit, an administrative charge, an agency investigation or any other claim or action. Below are some questions and answers that are worth considering the next time you find yourself in such a situation.

What is a Litigation Hold?

A litigation hold is an internal instruction issued by a company to its employees directing them to identify, locate and preserve paper and electronic documents and information that may be relevant to a particular dispute, claim or investigation. In addition to preventing the deletion, destruction or modification of documents and information by individuals, a litigation hold should also include the suspension of any routine document destruction pursuant to a company’s document retention policies or otherwise. Continue Reading

In the Continuing Battle Over Standing, Fair Credit Reporting Act Class Action Plaintiffs Must Show Actual Injury For Failure to Provide Stand Alone Notice

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers who run background checks on prospective employees take note – applicants who sue prospective employers for Fair Credit Reporting Act violations for failure to provide notice in a stand-alone format may not be able to maintain a lawsuit unless they can show that they suffered an actual injury. As employers should know, the Fair Credit Reporting Act has specific procedures employers must follow when running background checks, including providing notice to applicants in a stand-alone format and getting written permission before running the background check. Employers who don’t comply may find themselves facing expensive and time-consuming class action lawsuits for statutory damages of up to $1,000 per violation.  Continue Reading

Big Brother is Watching You: Feds Now Vetting Foreign Workers Via Social Media

Posted in Immigration Planning & Compliance

Employers may need to start “following” the information their foreign national workers share on Twitter or Facebook, as the Department of Homeland Security is turning social media into the federal government’s latest surveillance tool. In October, the Modified Privacy Act System of Records was quietly implemented placing Facebook likes, interests, friends, Instagram photographs, Twitter tweets, work information shared on LinkedIn and even Tinder activity into agency officials’ new dossiers on immigrants—information gathered directly from social-media profiles. The new surveillance program authorizes Homeland Security to collect and store “social-media handles, aliases, associated identifiable information and search results” in the permanent immigration files and official government records of all foreign nationals entering the United States, including permanent residents and naturalized citizens. Continue Reading

Disabled Access: A Chance to Fix Your Premises Before Being Sued?

Posted in Disability, Employment Litigation

New legislation seeks to level the playing field for businesses that have been targeted by “drive-by” claims alleging discrimination by customers with disabilities who may have never even gone to visit the place of public accommodation. Keep your fingers crossed.

Businesses frequently complain about “drive-by” lawsuits. Some courts have lamented the “cottage industry” that seems to have arisen under Title III of the Americans with Disabilities Act, particularly because of the availability of attorneys’ fees, and have suggested that reforms are necessary. Congress seems to have heard that discontent and is working on a solution through the proposed ADA Education and Reform Act of 2017, H.R. 620Continue Reading