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Employer Law Report

Join our webinar – Tips for Preparing your 2015 Affirmative Action Plans – on February 10

Posted in Events

Tips for Preparing Your 2015 Affirmative Action Plans

Implementing the New Veterans and Disability Requirements, Incorporating Sexual Orientation and Gender Identity in your AAPs, Tips for Best Practices



Tuesday, February 10

2:30 – 4:00 ET

Topics to be covered:

  • Preparing AAPs for compliance with new expanded regulations regarding affirmative action for protected veterans and individuals with disabilities
  • A review of regulatory changes from 2014, including the obligation to incorporate sexual orientation and gender identity in AAPs
  • Best practices for developing and revising AAPs

In a 90-minute webinar on February 10, Mike Underwood and Jamie LaPlante will discuss the most important changes and best tips contractors should consider as they prepare AAPs in 2015. Among the topics will be the AAP obligations for protected veterans and individuals with disabilities. Many contractors will be incorporating these in their AAPs for the first time in 2015. Mike and Jamie will discuss the new regulations and tips for how best to come into compliance, including the necessary revisions to written AAPs; new required analysis, reporting, and documentation; and other new obligations.

Mike and Jamie will also discuss best practices for Executive Order 11246 AAPs covering minorities and females. The webinar will offer effective, practical, and defensible steps for 2015 AAPs. They will share best practices for writing meaningful plans of action and narrative portions of AAPs and for the new requirement to incorporate sexual orientation and gender identity in AAPs.

The webinar will also cover numerous new regulatory developments, including: the OFCCP’s new scheduling letter format, the new form to replace the VETS-100A, minimum wage requirements, a new veterans benchmark figure, and various proposed regulations covering employee rights to discuss wages and working conditions, disclosure of labor violations in the procurement process, and compensation data submission.

Secure your spot by registering today!

Employment Law Proposals Highlight State of the Union Address

Posted in EEO, Leave Administration, Wage & Hour

In last night’s State of the Union Address, President Obama reemphasized that employment and labor reform are at the forefront of his current agenda. He urged lawmakers to pass laws regarding the following:

  • Equal pay law for women;
  • Higher federal minimum wage;
  • Government-mandated 7 days of paid sick leave per year.

As we have previously reported, many states, including Ohio, and municipalities have raised minimum wages at the state or local level. As of January 1, 2015, Ohio’s minimum wage is $8.10 per hour for employers with annual gross receipts of $297,000 or more, which is higher than the current federal minimum wage of $7.25.

Many states and municipalities have also passed paid sick leave laws. Proponents of such a law in Ohio initiated a ballot referendum in 2008, but withdrew the referendum prior to the November election that year. Had it been enacted, it would have required employers with 25 or more employees to guarantee full-time employees at least seven days of paid sick leave each year (and part-time employees a pro-rated amount of leave) to care for themselves and their families’ medical needs.

We will continue to update you if any of these proposals become law at the federal level.

Flu season: guidance for employers

Posted in Leave Administration, Workforce Strategies

Flu Season - iStock_000015547443Small

Looking for more articles on seasonal workplace issues?  Check the Forecast here. Our Employer Law Forecast covers relevant seasonal issues to help you more effectively manage your workforce.



As the weather turns colder, concerns about the flu resurface. With many reports that this year’s flu vaccine is less effective than usual, flu season figures to be worse than ever. The U.S. Department of Health and Human Services has issued updated guidance for businesses and employers, which can be found at: Make It Your Business to Fight the Flu: A Toolkit for Businesses and Employers. Employers should be ready to implement strategies to protect their workforces while ensuring continuity of operations. Most of the recommendations boil down to simple common sense:

  1. Encourage workers who are sick to stay home (or go home if they’ve reported to work);
  2. Encourage good hygiene in the workplace;
  3. Prepare for increased numbers of employee absences due to illness in employees and their family members, and plan ways for essential business functions to continue;
  4. Prepare for the possibility of school and daycare dismissal and closure; and
  5. Encourage workers to get vaccinated.

NLRB “quickie election” rule challenged in court

Posted in Labor Relations

On December 18, 2014, we posted about the National Labor Relations Board (“NLRB”) proposed rule which will expedite procedures for union representation petitions and elections. The proposed rule is expected to make it easier for unions to successfully organize employees because it will curtail the time available for employers to communicate to employees before the vote occurs.

The proposed rule is to take effect April 14, 2015. On Monday, January 5, 2015, the United States Chamber of Commerce, the National Association of Manufacturers and other management representative groups filed a lawsuit in the United States District Court for the District of Columbia. The lawsuit challenges the proposed rule on the basis that it violates the First Amendment rights of employers to communicate effectively in response to union organizing and that it violates the due process rights of employers by preventing them from effectively exercising their rights in response to union organizing. The lawsuit asks the Court for an injunction prohibiting the NLRB from enforcing the rule and for an Order vacating the rule.

Ohio Appellate Court Decision reminds employers to think twice before they terminate the thorn in their side!

Posted in Other Articles

Relying on Ohio’s public policy favoring workplace safety, the Tenth District Court of Appeals in Blackburn v. American Dental Centers, et al. recently concluded that evidence that employees were terminated for complaining about work conditions and practices that were unsafe to both the employees and patients of a dental office may support a claim of wrongful discharge in violation that public policy.


Heather Esposito began working for American Dental Centers (“ADC”) in 1989 as a dental hygienist, and Barbara Blackburn began working for ADC in 2001 as a dental assistant. Dr. Sherman Allen joined the practice in June 2002. After Dr. Allen was hired, Ms. Blackburn and Ms. Esposito began investigating his background. They discovered Dr. Allen had lost his dentistry license in Michigan, been convicted of several criminal offenses, and was not supposed to leave the state of Michigan. Both also claimed they witnessed Mr. Allen engaging in substandard and dangerous patient treatment and performing unnecessary dental procedures. They further alleged they witnessed Mr. Allen at work intoxicated, hungover, smelling of alcohol, and falling asleep while examining his patients.

Ms. Blackburn and Ms. Esposito claimed they informed their supervisors about the issues and in return were threatened, retaliated against, received reduced wages and were terminated. In fall of 2002, ADC terminated Dr. Allen’s employment and shortly thereafter, terminated Ms. Esposito’s employment. Ms. Blackburn remained employed. In late April of 2003, Blackburn wrote a letter to ADC discussing Dr. Allen’s misconduct, and in May, another employee wrote a letter to ADC indicating she and Blackburn would not return to work until they felt safe. Blackburn did not return to work at ADC, which ADC described as job abandonment, and she alleges was termination.

Blackburn and Esposito File Suit

On January 4, 2008, Ms. Blackburn and Ms. Esposito filed a complaint against ADC alleging, among other things, wrongful termination, violation of public policy, and violations of the whistleblower statute. ADC filed a motion for summary judgment in November 2009, and the trial court granted the motion, finding Esposito and Blackburn were not able to demonstrate the necessary elements of a whistleblower claim.

Esposito and Blackburn appealed to the Tenth District Court of Appeals. The court upheld the trial court’s ruling on all claims, including the whistleblower claims; however, the Tenth District found the trial court erred when it held that as a matter of law Esposito and Blackburn had not sufficiently pleaded the claims for public policy wrongful discharge, based on the drug and substance abuse in the workplace, patient safety, and workplace safety. The court remanded the case back to the trial court, which again sustained ADC’s motion for judgment as a matter of law. Plaintiffs again appealed.

Relying on established Ohio law setting forth the four elements of a wrongful discharge claim based on public policy, the appellate court required Esposito and Blackburn to demonstrate that:

  1. There exists a clear public policy that is manifested in a state or federal constitution, statute, or administrative regulation, or in the common law (the “clarity” element),
  2. Dismissal of the employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize that public policy (the “jeopardy” element),
  3. The plaintiffs’ dismissal was motivated by conduct related to the public policy (the “causation” element), and
  4. The employer lacked an overriding legitimate business justification for the dismissal (the “overriding justification” element).

The appellate court determined the first two elements had been met and charged the trial court with determining the last two elements.

Esposito and Blackburn argued three clear public policies existed under the statewide law of Ohio: a policy against drug and substance abuse in the workplace; a policy promoting workplace safety generally, and a policy promoting patient safety. Both former employees claimed to have informed ADC of a specific incident when Dr. Allen physically accosted and harassed them and an incident when a dentist brought in a machete to confront Dr. Allen. In support of their efforts to establish a clear public policy, Esposito and Blackburn cited to two Ohio statutory provisions, one which outlines the “Duty of the employer to protect employees and frequenters” and another which outlines the “Duty of employer to furnish safe place of employment.”

The Ruling

The Tenth District Court of Appeals found Esposito and Blackburn had demonstrated the clarity element, because they were able to show the statutes, when taken together establish the existence of a clear public policy favoring workplace safety for employees and frequenters. The court also found that the plaintiffs had set forth sufficient evidence to establish the jeopardy element by providing evidence that Dr. Allen had reported to work intoxicated or hung over and complaints that he had botched simple procedures and disfigured patients.

Finding both the clarity and jeopardy elements had been met, the court remanded the case to the trial court to consider the final two elements of the wrongful discharge test. The Tenth District found the trial court erred in finding there is no Ohio public policy against retaliation by employers against employees who report workplace conditions that jeopardize staff and dental patient safety.

Takeaway for employers

Plaintiffs’ failure to establish a statutory whistleblower claim under Ohio law will not absolve employers of liability if the plaintiffs can establish a public policy wrongful termination claim. Employers must take employee complaints seriously and timely investigate allegations. Upon completing the investigation, the employer should immediately take any necessary steps to address any identified unsafe conditions . In addition, employers may not retaliate against employees who have lodged complaints in good faith. If an employer must terminate an employee who has recently lodged a complaint, employers should be sure the grounds for termination, separate and apart from the complaint, are well-documented.

NLRB poised to relax standard for establishing joint employment; may mean more union issues in franchising and temporary service worker deals

Posted in Labor Relations

On Friday, December 19, 2014, the NLRB General Counsel’s office issued complaints against McDonalds and 13 of its franchisees, alleging that they jointly retaliated against workers who participated in the many fast food minimum wage protests that occurred around the country earlier this year. Many business analysts are projecting that a Board decision finding that McDonald’s is a joint employer with its franchisees would rock the fast food industry as well as the many other industries that rely heavily on the franchising model for their economic viability. While the McDonald’s complaints are getting a lot of attention, the Board itself is expected to make a decision any day now in Browning-Ferris Industries of California, Inc., in which it is expected to overturn a 30 year old standard for determining if joint employer status is appropriate in the context of the relationship between a temporary staffing company and its client. These developments could not only result in improving union organization odds, but also an upheaval in how these common business models typically operate.

The NLRB’ General Counsel is taking the position that McDonald’s “through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of” the NLRA. According to the General Counsel, “This finding is further supported by McDonald’s, USA, LLC’s nationwide response to franchise employee activities while participating in fast food worker protests to improve their wages and working conditions.” A copy of one of the Complaints, which was filed in Region 13 (Chicago) can be found here. Thus far, no complaints have been issued in either Region 8 (Cleveland) or Region 9 (Cincinnati).

In Browning-Ferris, Browning-Ferris (“BFI”) obtained temporary employees from Leadpoint Business Services pursuant to a contract between the two companies. In attempting to organize the Leadpoint employees who were working at BFI, the union also alleged that BFI was a joint employer of the workers. An ALJ concluded that Leadpoint was the sole employer of the workers, noting that Leadpoint provided its own human resources function on-site at BFI; recruited, screened and hired all of the employees it assigned to BFI; and provided its own on-site managers and supervisors for the workers it employed at BFI. The union appealed and invited the Board to revisit its 30 year old standard for determining joint employer status. In reaching his decision, the ALJ relied on the current joint employer standard, which has been in place since 1984, in which the Board concluded that a joint employer relationship exists if two entities share or co-determine the essential terms and conditions of employment of the employees in the petitioned-for bargaining unit.

The union appealed and has urged the Board to adopt a broader standard that considers any indirect control that one entity may exert on the terms and conditions of another’s employees. For instance, in Browning-Ferris, the union argues that BFI exerts indirect control over the Leadpoint employees because (1) BFI owns the facility at which they work; (2) maintains production and operational policies that impact employee hours; (3) requires Leadpoint to perform certain screening methods on employees before they are assigned to BFI; and (4) BFI has the right to direct Leadpoint to terminate any employee’s assignment at BFI. Presumably, another influence that BFI would have over the employees terms and conditions of employment would be the price or reimbursement rates it was willing to pay for the temporary services that Leadpoint provides. The lower the price, the less Leadpoint can afford to pay its employees. As noted in one of the amicus briefs, however, the expansion of the joint employer standard would have numerous adverse effects on businesses that utilize temporary workers. First, businesses create operational and production policies and reimbursement rates paid to temporary service providers not for the purpose of impacting worker terms and conditions, but rather to efficiently and safely run its business. A joint employer finding would negatively impact these legitimate business interests. In addition, the proposed indirect standard would discourage businesses from including responsible contractor policies and supplier codes of conduct in their agreements for fear of being labeled a joint employer, could prompt businesses to terminate existing temporary service relationships to avoid joint employer status, and would create potential liability for the unfair labor practices of the supplier company.

We will provide updates along the way as the McDonald’s complaints move through the administrative process and when the Browning-Ferris decision is issued. In the meantime, franchisors and businesses either providing or using temporary services will want to consider their options if they were to be considered as joint employers in the context of their current business relationships.

Confused or overwhelmed about the new obligations and regulatory activity related to federal contractors? – You aren’t alone

Posted in EEO, Workforce Strategies

The Office of Federal Contacts Compliance Programs (OFCCP) has been very busy changing the rules for federal contractors and subcontractors. There are 8 new developments from the second half of 2014 that all covered contractors should be aware of:

  1. Final rule prohibiting discrimination against sexual orientation and gender identity for federal contractors subject to Executive Order 11246.
  2. New scheduling letter released requiring submission of data regarding veterans, disabled persons, compensation, and other items not previously required.
  3. New form for annual submissions about veterans to be used beginning in 2015 (replaces VETS-100A and VETS-100).
  4.  Proposed rule to prohibit federal contractors from discharging or discriminating against employees and job applicants for discussing, disclosing, or inquiring about compensation of themselves or others.
  5. Proposed rule on the Fair Pay and Safe Workplaces Executive Order addressing 3 issues: (A) companies bidding for contracts in excess of $500,000 must disclose labor law violations in the past 3 years, which may be used against them during the bidding process; (B) companies with a federal contract in excess of $500,000 must make certain disclosures on employee pay stubs regarding hours and pay; and (C) restrictions on the use of pre-dispute arbitration agreements for contractors with a contract of more than $1 million.
  6. Proposed rule to require an annual Equal Pay Report, with summary compensation data, be submitted by federal contractors with more than 100 employees.
  7. Final rule on federal contractor minimum wage—$10.10 per hour—for all federal contractor employees, beginning with contracts resulting from solicitations for contracts issued after January 1, 2015.
  8. The benchmark for veterans hiring, required by amended VEVRAA rules, has been lowered from the initial proposal of 8% to 7.2%.

(1) E.O. 13672 and Directive 2014-02 – Gender identity and sexual orientation protected

On December 9, 2014, OFCCP recently issued final rules regarding gender identity and sexual orientation discrimination (without issuing proposed rules or soliciting public comment). These rules implement Executive Order 13672, issued July 21, 2014, and protect gender identity and sexual orientation. These two new classes must be included in flow down language in subcontracts and purchase orders but may be covered by incorporating the regulatory language by reference (as most contractors do). Contractors must also state in job advertisements that applicants will receive consideration for employment without regard to protected characteristics, including sexual orientation and gender identity, which can be accomplished through a reference to the employer as an “Equal Opportunity Employer.” These two new protected classes must be included in nondiscrimination clauses along with race, color, religion, sex, national origin, veteran status, and disability status. Contractors are not required to solicit applicants or employees to self-identify on these bases or to conduct affirmative action statistical analyses. These rules are effective April 8, 2015 and apply to contracts issued after that date.

While these rules will not be effective until April 8, 2015, OFCCP issued Directive 2014-02 on August 19, 2014, which is in effect and includes gender identity and sexual orientation within its enforcement jurisdiction under protections against sex discrimination. In addition, while these rules were issued in final without issuing proposed rules and soliciting public comment, amid criticism from lawmakers, OFCCP is now soliciting comments on the implementation of the final rules for 60 days. (Comments must be submitted by February 6, 2015.) It is unclear what effect these comments will have on the rules since they were already issued in final form. OFCCP is also planning to issue a new “EEO is the Law” poster incorporating these changes.

(2) New desk audit scheduling letter

On October 2, 2014, the OFCCP issued a new scheduling letter to be used in desk audits beginning October 15, 2014. The new scheduling letter requires individual compensation data as of the date of the workforce analysis in the AAP (rather than aggregate, annualized compensation data). That compensation data must include columns for hours worked, incentive pay, merit increases, locality pay, and overtime. Second, contractors can no longer identify applicants and employees by “minority” and “non-minority” but must provide specific race or ethnicity information. Data must be provided electronically if it is maintained electronically. In addition, OFCCP will require submission of accommodation policies, assessment of personnel processes, and an assessment of physical and mental qualifications. The new scheduling letter also requires new data on veterans (benchmark information and documentation of required audits) and disabled individuals (utilization analysis and documentation of required audits).

(3) VETS-100A and VETS-100 replaced by VETS-4212 in 2015

On September 25, 2014, OFCCP announced that the VETS-100A and VETS-100 will be replaced in 2015 by a VETS-4212 Form. The requirement to report on categories of veterans will end, and contractors will only be required to report on aggregate numbers of “protected veterans” by EEO category.

(4) E.O. 13665 – Prohibiting discrimination for discussing compensation

On September 17, 2014, OFCCP issued a proposed rule implementing Executive Order 13665 prohibiting federal contractors from discharging or discriminating against employees and job applicants for discussing, disclosing, or inquiring about their own compensation or the compensation of another employee or applicant. The proposed rule mandates inclusion of the requirement in covered contracts. The proposed rule also requires that federal contractors incorporate the nondiscrimination provision into their existing employee manuals or handbooks, and disseminate the nondiscrimination provision to employees and to job applicants. There is an exception to the requirement where the employee or applicant makes the disclosure based on information obtained in the course of performing his or her essential job functions—e.g., payroll and human resources employees. Comments on the proposed rule are due by December 16, 2014.

(5) Proposed rule on Fair Pay and Safe Workplaces Executive Order

A proposed rule implementing the Fair Pay and Safe Workplaces executive order was issued September 17, 2014. The Fair Pay and Safe Workplaces Executive Order, issued July 31, 2014, has 3 parts. First, it requires any company bidding for a procurement contract of more than $500,000 to disclose labor law violations that occurred in the past three years. Violations are defined as “any administrative merits determination, arbitral award or decision, or civil judgment.” These violations include OSHA, FLSA, NLRB, OFCCP, federal equal employment (ADA, FMLA, Title VII, and ADEA), and equivalent state law violations. The contracting agency is instructed by the executive order to consider this information in awarding the contract. The contracting agency also must require contractors to update this information every 6 months. If new violations require any remedial measures or compliance assistance, the contracting agency can require such measures or assistance, or in extreme cases, termination or cancellation of the contract or an option on the contract or debarment. Contractors are further required to impose similar disclosure obligations on their subcontractors, where the subcontract is in excess of $500,000, and add language to covered subcontracts requiring disclosures of violations. This information as to subcontractors must be updated every 6 months. The Executive Order also mandates information sharing between executive agencies and labor agencies regarding federal contractors and subcontractors. The Department of Labor is directed to issue regulations to guide other agencies as to whether violations are serious (taking into account the number of employees affected, the severity of the risk or harm, and the amount of penalties), repeated (more than 1 violation of the same or a substantially similar requirement in the past 3 years), willful (knew of, showed reckless disregard for, or acted with plain indifference), or pervasive (depending on the number of violations and size of the entity). The Department of Labor has stated that single violations will not have a preclusive effect on procurement awards in most cases.

Second, the rule requires “paycheck transparency.” Contractors with a single contract for more than $500,000 must disclose—on each employee’s pay stub—hours worked, overtime hours, pay, and any additions or deductions from pay. Hours worked and overtime hours need not be included on pay stubs for FLSA-exempt employees, provided they are informed of this status. This requirement will be placed in all covered federal contracts and must be included in all covered subcontracts. Independent contractors must be informed in writing of their status as an independent contractor.

Third, contractors with a single contract for more than $1 million are restricted in their use of pre-dispute arbitration agreements. Covered contractors may only arbitrate claims arising under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment with the voluntary consent of employees or independent contractors and only after such disputes arise, except where (a) a collective bargaining agreement applies or (b) pre-existing agreements were in place before the executive order. This clause must also be included in federal contracts and covered subcontracts.

A proposed rule was issued on September 17, 2014. Comments on the proposed rule are due December 16, 2014.

(6) Proposed rule to require annual submission of compensation data

On August 6, 2014, OFCCP issued a proposed rule to require prime contractors first-tier subcontractors with more than 100 employees and a contract of $50,000 or more to submit summary information on compensation. See our previous blog on this subject. Specifically, covered contractors would be required to submit total W-2 compensation for each EEO-1 job category for each race, ethnicity, and sex. Contractors would also be required to submit total hours and total numbers of employees by race, ethnicity, and sex. This data would be submitted electronically as a companion to the annual EEO-1 report by March 31st of each year (whereas the EEO-1 report will still be due September 30th) on year-end compensation data for the prior year. The information would then be shared publicly aggregated by industry. According to OFCCP, companies and their employees could use the publicly available data to benchmark their compensation against that of other companies in their industry. Comments on this proposed rule are due by November 6, 2014.

(7) E.O. 13658 – Minimum wage changes

On June 17, 2014, the Department of Labor proposed rules for the minimum wage hike for federal contractors, imposed by a February 12, 2014 executive order (Executive Order 13658). [See our Confused or overwhelmed about the new obligations and regulatory activity related to federal contractors? – You aren’t alone.(For more information, read our earlier blog for more discussion of these rules) Final rules were published October 7, 2014. Of note, contractors must include a clause on the minimum wage in all covered subcontracts providing that “Executive Order 13658 – Establishing a Minimum Wage for Contractors, and its implementing regulations, including the applicable contract clause, are incorporated by reference into this contract as if fully set forth in this contract, [with a citation to a webpage that contains the contract clause in full, to the provision of the Code of Federal Regulations containing the contract clause set forth at Appendix A of the regulations, or to the provision of the FAR containing the contract clause promulgated by the FARC to implement this rule].” An additional requirement is imposed by the final rules, requiring posting a notice to all employees of the minimum wage (the notice is forthcoming). The minimum wage applies to employees working on the covered contract (even if only 1 hour) or working 20% of the time “in connection” with the contract. The final rules make it clear that the minimum wage requirement applies to Davis-Bacon Act construction contracts, in addition to those contracts typically covered by rules for federal contractors—supply and service contracts.

(8) New benchmark figure for veterans hiring

The benchmark for veterans hiring, required by amended VEVRAA rules, has been lowered from the initial proposal of 8% to 7.2%. This figure will be updated annually.

With all of the different rules, coverage levels, and obligations, is your head spinning yet?

NLRB issues final rule on “quickie elections”

Posted in Labor Relations

The National Labor Relations Board has issued a final rule making significant changes to the procedures leading up to union representation elections. To secure the right to represent a group of employees, unions must first get a showing of interest among an appropriate group of workers. That is typically done by getting employee signatures on authorization cards. With at least a 30% showing of interest, a union can file a petition with the NLRB requesting a representation election. Once the petition is filed there must be a determination of what is the appropriate group of jobs to be included in the voting. Sometimes that occurs by agreement between the company and the union. Sometimes it requires a hearing in front of an NLRB judge. Also after a petition is filed, there is typically a period of communication by the company to the voters, expressing legal reasons that the company feels that union representation is not in the best interest of the employees or the company.

The new rule takes effect April 14, 2015. Among other things, it paves the way for elections to occur much more quickly after a petition. Under the new rule the expected time to election will be approximately 14-21 days after the petition. Conceivably an election could happen in as few as 10 days. Compare that with the current average time of about 40 days between petition and election even when there is agreement on what jobs are in the voting unit. That means less time for management to communicate effectively to workers before the vote. At the time a union files a petition, it has often already obtained authorization cards from 50% or more of the workers. Obviously, being able to get to election as quickly as possible is in the union’s best interest. That has caused some to refer to the new procedures as “election by ambush.” Another significant change under the new rule is the requirement that the list of eligible voters provided to the union include employee telephone numbers and email addresses. Currently only names and home addresses must be provided. The new rule also restricts the kinds of voter eligibility challenges that can be made in a pre-election hearing, requiring that most of those challenges be raised after the election in an effort to set-aside the results.

In recent months, the NLRB has taken various steps affecting the process for union organizing and many feel the Board is determined to make the process easier for unions. For example, we have pointed out here the Board’s recent cases that support organizing smaller units of employees, which increases a union’s chance of success. More recently, we wrote here about the Board’s Purple Communications case, opening the door for employees to use company email systems for union organizing.

There may be legal challenges to the rule, but it could be difficult to sidetrack. Employers are wise for now to presume that the NLRB will continue to pave a smooth road for union organizing. It is especially important that companies re-evaluate their commitments to the things which make union organizing less likely. Those include fair and consistent treatment for all employees, well-constructed human resources policies and practices, effective communication with all employees, and a management group that is attuned to those commitments and well-trained to spot the early signs of organizing and to respond appropriately.

Obama Board declares 30-year old NLRB deferral standard inadequate

Posted in Labor Relations

On December 15, 2014, the National Labor Relations Board (“NLRB” and “Board”) issued a decision in which the three Democratic-appointed members of the Board struck down the standard that the NLRB has applied for the last 30 years to determine whether to defer to arbitral decisions in cases that also involve alleged violations of Section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA”). The case, Babcock & Wilcox Construction Co., Inc., is broad in scope, because the majority also use it as an opportunity to announce changes to the NLRB’s pre-arbitral deferral standard and to its standard for determining whether to defer to settlement agreements arising from the grievance-arbitration process. Not surprisingly, the two Republican-appointed members of the Board offered sharply worded dissents.

For the past 30 years, the NLRB has followed the deferral standard set forth in Olin Corp., 268 NLRB 573 (1984). Under Olin, deferral to an arbitral decision was deemed appropriate where the contractual issue is “factually parallel” to the unfair labor practice issue, the arbitrator was presented generally with the facts relevant to resolving the issue and the award is not “clearly repugnant” to the Act. Also, under Olin, the burden of proof was placed on the party opposing deferral to demonstrate that the standards for deferral had not been met. For three decades, this standard had been accepted by the Board and by reviewing federal courts of appeals as striking the proper balance between reconciling the Board’s obligation to prevent unfair labor practices with national labor policy encouraging the voluntary settlement of labor disputes through grievance and arbitration procedures.

However, the Obama-appointed General Counsel to the NLRB and organized labor attacked the existing standard as inadequately protective of employees’ rights under the NLRA. The three-member majority of the Obama Board agreed. In Babcock & Wilcox, they announced that, going forward, the new standard for post-arbitral deferral cases involving Section 8(a)(3) and (1) cases (i.e., those alleging that employers have retaliated against employees exercising their Section 7 rights) would be as follows:

“If the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if the party urging deferral shows that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.”

Although not at issue in this case, the three-member majority also used its decision in Babcock & Wilcox as an opportunity to announce changes in the NLRB’s pre-arbitral deferral standard and its standard for determining whether to defer to settlement agreements arising from the grievance-arbitration process. Regarding the former, the three-member majority announced that the NLRB will no longer defer unfair labor practice allegations to the arbitral process unless the parties have explicitly authorized the arbitrator to decide the unfair labor practice issue, either in the collective bargaining agreement or by agreement of the parties in a particular case. Regarding the latter, under the new standard, a settlement agreement arising from the grievance-arbitration process will not preclude litigation of companion unfair labor practice allegations unless the party seeking deferral can show that the parties intended to settle the unfair labor practice issue; that they addressed it in the settlement agreement; and that Board law reasonably permits the settlement agreement.

The Republican-appointed Board members, Philip Miscimarra and Harry Johnson, wrote separate dissenting opinions, both of which assailed the majority for needlessly overruling over 30 years of accepted Board practice. The decision is clearly another big win on a long list of recent wins for organized labor handed down by the Obama Board.


Doctrine of dual intent/dual purpose does not apply to Ohio workers’ compensation claims

Posted in Workers' Compensation

The Supreme Court of Ohio in Friebel v. Visiting Nurse Association of Mid-Ohio recently determined that an employee who was injured in a car accident while dropping passengers off at a mall on the way to perform her work duties could not use the doctrine of dual intent or dual purpose in support of her request for workers’ compensation benefits.

Home health nurse Tamara Friebel was employed by Visiting Nurse Association of Mid-Ohio (“VNA”) to travel to client’s homes and provide in-home health care services. While working, she was primarily in client’s homes, and not at VNA’s offices, but sometimes she went to the offices to pick up supplies or attend meetings. During the week, VNA paid Freibel for travel time and mileage, but subtracted 24 miles from the mileage and 30 minutes from the travel time each day to account for the time and distance it would take Friebel to travel to and from her home and VNA’s offices, even when she never presented to the offices. On weekends, VNA paid Freibel for travel time and mileage and did not make any deductions.

On Saturday, January 22, 2011, Friebel was scheduled to work at a patient’s home in Ontario, Ohio. On the way to her patient’s home, Friebel chose to take her daughter, her son and two family friends to the Richland Mall in Ontario. Prior to dropping anyone off at the mall, Friebel’s car was hit from behind. Subsequently, Friebel filed an application for a workers’ compensation claim for a neck injury sustained in the car accident.

Administratively, the Industrial Commission of Ohio allowed the claim, finding that because the employer had conceded that Friebel was paid mileage and for her travel time from her home to her patient’s home on the day of injury, that the injuries were sustained in the course and scope of employment. VNA appealed to the Richland County Court of Common Pleas and filed a motion for summary judgment, alleging Friebel was not in the course and scope of her employment at the time of the accident.

The trial court granted judgment in favor of VNA, concluding that Friebel’s action of transporting her children to the mall was a personal errand and that her injury did not arise out of her work duties and did not occur in the course of her employment. The court found that it was immaterial that Friebel was paid for travel time and mileage on the weekends because at the time of the accident, she was travelling to the mall, not to her patient’s home. Friebel appealed and the Fifth District Court of Appeals reversed. In a split decision, the Court of Appeals held that, as a matter of law, Friebel’s injury arose out of her work duties and occurred in the course of her employment. The Appellate Court found that Friebel had the dual intent to travel to her patient’s home and perform her work duties and drop her children off at the mall. Further, the court found that Friebel would not have been at the place of the accident had she not been performing her work duties because she was on route to her patient’s home when the accident occurred. VNA appealed to the Supreme Court of Ohio.

In Ohio, an injury is compensable when the injury occurred in the course of and arising out of the injured worker’s employment. In general, for employees with a fixed place of employment, injuries sustained while traveling to and from their place of employment are not compensable.

In this case, the Supreme Court focused its analysis on whether the doctrine of dual intent or dual purpose is applicable when determining whether a request for a workers’ compensation claim is compensable. Other states have created this doctrine to permit a claim to be recognized when an employee is travelling for both business and personal purposes.

In New York, a court defined the test for determining when a travelling employee is acting in the course of his employment as: “[i]f the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had dropped, and would have been cancelled upon the failure of its private purpose, though the business errand was undone, the travel is then personal and personal the risk.” In re Marks v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929).

Here, the Supreme Court soundly rejected the dual intent or dual purpose doctrine and held the doctrine is not applicable in determining the compensability of a claim. Instead, the Supreme Court stated that the proper way to analyze a workers’ compensation claim in Ohio is to apply tests to determine whether the injury occurred ‘in the course of’ employment and ‘arose out of’ an employee’s work duties. Ultimately, the Supreme Court reversed the Court of Appeals decision and remanded the matter back to the trial court to determine whether Friebel was injured in the course and scope of her employment with VNA.

Potentially, this fact pattern was not an ideal set of facts for the Court to evaluate whether this doctrine should be applicable in Ohio. In other states, the doctrine applies when an employee was performing a personal task at the same time as a business task. For example, in the New York case, the employee was asked by his employer to perform a task in a different city only because the employee was already planning to travel to that city to meet his wife. In this case, if Friebel was going to meet a patient at the mall as well as drop her children off at the mall, the facts may have been more applicable to address this doctrine. As the Court was explicit in its conclusion that the doctrine is not applicable in Ohio and did not address the underlying facts in this particular case, it appears the Court’s approach to the doctrine will remain intact. However, it is likely another employee with a more applicable fact pattern may ask the Court to revisit this issue down the road. For now, employers will have a solid defense to any claim in which an injured employee alleges dual intent or dual purpose in pursuit of a workers’ compensation claim.