Employer Law Report

Important update regarding DOL’S new “Persuader Rule”

As we previously reported, the U.S. Department of Labor’s (DOL) new “Persuader Rule” is set to take effect July 1, 2016. The rule is highly controversial because it requires employers and labor relations consultants, including attorneys, to file reports with the DOL regarding any arrangements to assist the employer in “persuading” employees regarding their rights to engage in, or refrain from engaging in, union organizing activities or to collectively bargain. Under the new Persuader Rule, many legal services that labor consultants and lawyers typically provide to employers will have to be reported to the federal government effective July 1, 2016. Examples of activities that will have to be reported under the new rule include:

  1. Planning, directing  or coordinating activities undertaken by supervisors or other employer representatives, including meetings and interactions with employees
  2. Providing material or communication for dissemination to employees
  3. Conducting a union avoidance seminar for supervisors and other employer representations
  4. Develop or implement personnel policies, practices, or actions for the employer that are intended to influence or persuade employees regarding their rights to engage or abstain from engaging in union organizing activities

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Ohio’s new law legalizing medical marijuana includes key exceptions for employers

A special thanks to one of our summer clerks, Abigail Chin, for her assistance with this article.

In the wake of Ohio’s new medical marijuana law, you may be thinking, what does it mean for your drug-free workplace policy? Ohio’s new medical marijuana law, H.B. 523, provides targeted exceptions for employers.

Ohio’s law goes into effect in approximately 90 days; however, it is expected that full implementation could take up to two years before the Ohio Department of Commerce, State Medical Board and Board of Pharmacy can establish licensing requirements for growers, processors, testing laboratories, dispensaries and physicians. H.B. 523 allows people with the following qualified medical conditions to receive a physician’s recommendation for medical marijuana: HIV/AIDS, Alzheimer’s disease, Amyotrophic lateral sclerosis (ALS), cancer, chronic traumatic encephalopathy (CTE), Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is chronic, severe and intractable, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury and ulcerative colitis. Marijuana is only permitted in certain forms, like edibles and vaporizers; as smoking it is prohibited under the new law. Continue Reading

Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements

As our sister blog, Technology Law Source has reported, on May 11, 2016, President Obama signed into law the Defending Trade Secrets Act (DTSA), which creates a federal trade secret misappropriation cause of action. As noted, businesses have a lot to consider in deciding whether to pursue this new cause of action in federal court when the security of their trade secrets are threatened. Because the DTSA does not pre-empt state laws protecting trade secrets, however, if a federal forum is otherwise appealing, there really is no reason not to pursue a DTSA cause of action.

Employers will be particularly interested in knowing that the DTSA includes an immunity from criminal and civil liability for employees who disclose their employers’ trade secrets if:

  • the disclosure is made in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting a violation of law;
  • it is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

The DTSA also permits an individual who files a lawsuit against his or her employer alleging retaliation for reporting a suspected violation of law to disclose the employer’s trade secret to an attorney and use it in a court proceeding if the document containing the trade secret is filed under seal and in response to a court order. Continue Reading

OSHA issues final rule requiring electronic submission of workplace illness and injury logs

On May 11, 2016, OSHA issued a final rule requiring electronic reporting of illnesses and injuries. The new rules apply to establishments with 250 or more employees. The rules require electronic submission of the 2016 OSHA form 300A summary report by July 1, 2017, and the 2017 300 log, 300A summary and 301 incident report for 2017 by July 1, 2018. In each subsequent year, all reports for every establishment must be submitted by March 2 of the following year. The new rules also require employers in high-risk industries (construction, manufacturing, furniture stores, waste collection and nursing care facilities) with 20-249 employees to electronically submit their 300A summary. OSHA has stated that no exceptions will be granted to employers who file the required reports in paper format. The information electronically submitted by employers will then be posted on OSHA’s website. OSHA has stated that it will post establishment-specific data but not post any data that would identify any employee. However, in major injury incidents (especially those where there is publicity), it would not be difficult to determine the identity of the employee(s).

OSHA has stated that it believes that publishing the data will encourage safer workplaces. In addition, OSHA has said that it intends to use the data to determine the employers and industries on which to focus its enforcement efforts.

This is a major change from the current injury and illness recording requirements. Presently, employers are required to maintain the 300 logs, 301 incident reports and 300A annual summary and to post the 300A summary in the workplace each year. There is no requirement to submit the records to OSHA. Generally, OSHA only reviews them in the event of an onsite inspection. The only current obligation to report to OSHA is the requirement to report fatalities, amputations, hospitalizations or the loss of an eye. Continue Reading

DOL issues long-anticipated overtime rules—Here are the highlights

Today the Department of Labor (DOL) issued information about the final rules increasing the salary minimum for employees covered by the white-collar FLSA exemptions. While the official rules have not been published yet, here are the key points you need to know:

  1. The new minimum salary level will rise to $47,476 or $913 per week
  2. The annual compensation for highly compensated employees will rise to $134,004
  3. The effective date of the changes is Dec. 1, 2016
  4. The salary and compensation levels will automatically rise every three years
  5. Employers may use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new minimum salary level
  6. The rules make no changes to the duties tests
  7. The DOL has a webpage with additional details and fact sheets, which is where the officially-published rules will be posted when available

We will keep you posted on further developments.

EEOC issues new guidance on employer-provided leaves as a reasonable accommodation

Earlier this week, the EEOC issued new guidance addressing what it described as common issues it continues to see in discrimination charges filed under the Americans with Disabilities Act. This new guidance provides nothing new that has not already been included in its Revised Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, but does highlight, among other issues, the EEOC’s view that the ADA requires employers to: Continue Reading

EEOC issues fact sheet in response to state bathroom laws

Likely in response to laws recently passed in North Carolina and Mississippi (and being considered in other states, including Ohio), the EEOC has issued a fact sheet regarding bathroom access for transgender employees under federal anti-discrimination law. In the fact sheet, the EEOC takes the position that transgender status is protected under Title VII and, accordingly, employers may not:

  • Deny an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination
  • Condition this right on the employee undergoing or providing proof of surgery or any other medical procedure
  • Avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it)

In addition, the EEOC takes the position that complying with contrary state law is not a defense. So, for example, an employer who imposes bathroom access as permitted by North Carolina law may find itself in the EEOC’s crosshairs for sex discrimination under federal law.

The word “or” might render your non-compete worthless

The Northern District of Ohio recently refused to grant a Temporary Restraining Order (TRO) or Preliminary Injunction against an employee for allegedly violating a non-compete because the court said the agreement was written in the disjunctive. Alloy Bellows & Precision Welding Inc., v. Cole, Case no. 1:15CV494 (N.D. Ohio, April 22, 2016).

The claim was brought by Ohio corporation Alloy Bellows that manufactures “bellows assemblies,” which are highly specialized components of machines used in aerospace, heavy equipment, medical, nuclear, petrochemical, power generation (gas turbine) and semiconductors. Its former business development manager, Defendant Jason Cole, took a job with one of Alloy Bellows’ top competitor, Senior Flexonics. It was undisputed that his position with Senior Flexonics was “virtually identical” to the one he had with Alloy Bellows. Continue Reading

8th Circuit upholds unfair labor practice findings in Jimmy John’s “Sick Sandwich” case

In a 2-1 decision, the 8th Circuit on March 25th in MikLin Enterprises, Inc., v. National Labor Relations Board enforced an NLRB Order finding that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for participating in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers hung posters at their shops and then later elsewhere suggesting that customers would not be able to visually tell the difference between sandwiches made by sick and healthy Jimmy John workers.

Noting that its employees were not told they needed to come in to work when they were sick, the franchisee protested that the workers lost their protection under the NLRA because the posters did not accurately describe the franchisee’s sick leave policy. To the contrary, employees were required to wait 24 hours before symptoms disappeared before returning to work. The 8th Circuit majority disagreed, however, stating that the posters “accurately characterized the practical impact” of the policy.

Under established Board law – that phrase is probably an oxymoron at this point, isn’t it? – otherwise protected statements lose that protection if they are made with “reckless disregard of its truth or falsity.” As it relates to the posters, the Jimmy John’s franchisee argued that the posters’ statements that workers “can’t even call in sick” was knowingly false because they knew that they were required to wait for symptoms to subside before returning to work. On the other hand, the 8th Circuit noted that the record created at the ALJ hearing included evidence that employees worked 80% of the time they were sick because they could not obtain a replacement to work for them, could not afford to miss the day of work or both. Alternatively, the court also rejected the Jimmy John’s franchisee argument that the workers’ statements were unprotected because they were disloyal and publicly disparaged its product.

Take Aways:

This dispute arose in the context of a labor dispute arising out of the workers’ efforts to organize at least in part to obtain better sick leave benefits. As a result, the court (and the Board before it) gave the workers wider latitude that they might otherwise have gotten in maintaining the protected nature of their statements. Nevertheless, employers need to be careful before resorting to self-help in these types of situations. Clearly, the Board is taking a much more lenient view of what constitutes protected statements and activity under the NLRA and this decision is an example showing that the courts are according considerable deference to the Board’s conclusions regarding such statements. Because of the deference that Board decisions are due in the courts, employers should not expect the courts to overturn Board findings on protected activity unless those findings are clearly egregious.

 

Website accessibility case shows big risks to companies

We have reported previously on the emerging trends in litigation over website accessibility. Briefly, Title III of the Americans with Disabilities Act (ADA) requires accessibility for disabled persons to places of public accommodation. Increasingly, disabled persons are pursuing litigation or threats of litigation, arguing that a company’s website which provides access to goods and services must be accessible under the ADA. The law remains somewhat unsettled. Federal courts have reached varying conclusions on the question of whether websites are places of public accommodation and, if they are, what steps are required to make them accessible under the ADA. The U.S. Department of Justice (DOJ) takes the position that websites are places of public accommodation. DOJ has promised to issue guidance on specific steps needed to comply. Although DOJ’s ADA compliance guidelines were initially expected in April 2016, DOJ has pushed the expected ADA compliance guideline timeframe to 2018. Continue Reading

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