Last year we warned that the NLRB pendulum was swinging pro-union, but even we could not have predicted just how swiftly the pendulum swing would happen. In the past year alone, General Counsel Jennifer Abruzzo of the National Labor Relations Board (NLRB) has continued to forcibly push the pro-union agenda by revealing the NLRB’s intent to explore doctrinal shifts in numerous key areas of labor law, and opining on numerous issues ranging from her belief that some student-athletes at the collegiate level are “employees,” to urging regional staff to aggressively seek injunctions under Section 10(j) of the National Labor Relations Act. The bottom line is that defending against a 10(j) petition is a costly undertaking for employers, and therefore, employers need to be aware of the consequences of taking actions that could invite a 10(j) petition.
Keep Cool: OSHA Targeting Heat-Related Injuries in the Workplace
Posted in Workplace Safety & OSHALast year was the deadliest weather year in a decade for the contiguous United States, according to the National Oceanic and Atmospheric Administration, and climatologists predict that 2022 will be the hottest year on record. Employers should pay particular attention as we head into summer. With heat already being the leading cause of death among all weather-related phenomena, climate change only increases the frequency and intensity of extreme heat conditions and the risk of related illness and injury. Employers across industries should already be familiar with their obligations to keep employees safe from heat-related illnesses, injuries, and death in both outdoor and indoor workplaces. The Occupational Safety and Health Administration (OSHA) issued enforcement guidance on this issue last fall, but now an OSHA standard is coming. OSHA standards are mandatory rules that must be followed, whereas guidance offers recommendations for compliance with general workplace safety and training initiatives where standards have not been defined.
It’s All Over but the Crying: Damages for Emotional Injuries Not Available Under Certain Anti-Discrimination Statutes
Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationHealthcare facilities and other entities receiving federal financial assistance can breathe a little easier after a U.S. Supreme Court decision issued last week barring the recovery of emotional damages for certain discrimination claims. Continue Reading
Work From Home – SOS! Post-Pandemic Legal Hazards
Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour, Workplace Safety & OSHAThe pandemic has revolutionized the workplaces and remote workforces will almost certainly survive the end of the pandemic. A Gallup poll last fall indicated that 61 percent of workers expect to work remotely at least part of the time in the future, and just 9 percent expect to work from home only minimally or not at all. With that in mind, employers and HR professionals must consider how to properly navigate the legal hazards stemming from our new normal. The following provides some key considerations in successfully managing a remote workforce.
Employee Terminations: Breaking Up is Hard to Do
Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & RetaliationFiring an employee can be much like breaking up with a significant other– stressful, messy, and awkward. No one wants to be the “bad guy,” and oftentimes it feels kinder to sugarcoat the facts rather than telling an employee the real reason for termination. But those good intentions may land employers in hot water.
When Can An Employer Require Fitness-For-Duty Exams?
Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Genetic Information Nondiscrimination Act, Medical & Other LeavesEmployers with fitness-for-duty exam requirements for employees returning from medical leaves should take note of a recent decision by a federal court in Massachusetts. In that case, the Court considered whether requiring every employee returning from an extended leave to undergo a fitness-for-duty exam violated the Americans with Disabilities Act (ADA).
Unsuccessful Union Election? Employers Might Still Be Ordered to Engage in Collective Bargaining
Posted in Employment Counseling & Workplace Claims Prevention, Labor RelationsEmployers with a workforce seeking to unionize may soon be ordered to bargain even without a union election (or potentially, even if the employer won the election)—if the NLRB’s General Counsel succeeds in resurrecting a 50-year-old legal framework called the Joy Silk Mills doctrine.
With U.S. Troops Heading to Europe, Employers Should Revisit Military Leave Policies
Posted in Employee Benefits, Employee Handbooks & Policies, Medical & Other LeavesIn the wake of the recent Ukraine invasion, more U.S. troops are being deployed to Europe to support NATO countries. Among these are members of the National Reserve and National Guard, who typically maintain civilian jobs throughout the year, but can be called for duty at any time. With that in mind, now is a good time for U.S. employers to revisit their policies regarding military leave to ensure they are fully compliant and tailored to best support employees who need to take leave from work due to deployment.
Thousands of COVID-Related EEOC Charges Filed; More to Come?
Posted in Employment Counseling & Workplace Claims Prevention, Employment LitigationEmployers should be prepared: while COVID may feel like it’s on the wane, COVID-related charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) are on the rise. According to data published by Bloomberg from the EEOC, from April 2020 through December 2021 the EEOC received more than 6,000 discrimination charges relating to COVID, providing a glimpse into the future of COVID-related employment litigation. The majority of those charges claimed violations of the Americans with Disabilities Act (ADA), while others cited to Title VII of the 1964 Civil Rights Act and other anti-bias laws.
A Cautionary Tale for Recruiters
Posted in Employment Counseling & Workplace Claims Prevention, Employment LitigationUnprecedented levels of employee attrition and turnover are forcing employers to pull out all the stops in attracting—and retaining—top talent. Hiring bonuses, relocation pay, and wellness benefits are quickly becoming the norm in the affected industries. But a recent decision from the California Court of Appeal, White v. Smule, reminds employers to proceed with caution, particularly when relocating new workers with such initiatives. Under the ruling, even at-will employers could now be held liable for influencing workers to relocate for work if they mislead them regarding the kind or character of their job. Although the opinion is based on a specific provision of the California Labor Code, its rationale will be familiar to employers and practitioners nationwide—and serves as an important reminder to take care with all recruiting outreach efforts.
