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Employer Law Report

NLRB General Counsel provides roadmap for handbook policies

Posted in Labor Relations

Pushpin marking location on mapIf you have been trying to follow recent NLRB cases and guidance for what is considered legal in handbook policies, and if you feel a little lost, you are not alone. No employer wants handbook policies that a federal government agency considers illegal, but lately it has been a bit of a challenge to figure out what the NLRB will bless and what it will not. There is a little more direction now. The NLRB General Counsel recently issued a 30-page memorandum for guidance on handbook rules. The GC’s stated purpose is to “help employers to review their handbooks and other rules, and conform them if necessary, to ensure that they are lawful.” The GC memo is helpful, providing many examples of what the NLRB considers lawful and unlawful in handbooks and other workplace rules. But, the roadmap only gets you part way there. In some cases, the examples of what is considered lawful and what is unlawful seem very similar. This article examines the guidance and offers a few tips for reviewing and revising handbooks so that they are most likely to survive review by the NLRB.

Why worry?

If your workplace is non-union and you are wondering whether to worry about NLRB rules, consider this: Any disgruntled employee or union organizer looking for a flag to wave can file an unfair labor practice charge with the NLRB challenging handbook policies. What better way to get attention and credibility than to successfully challenge an employer handbook policy as unlawful. That is one good reason that all employers should make their best effort to conform their handbook policies to NLRB guidance.

Might the rules change later?

This can be another frustrating part of trying to stay current with NLRB thinking. NLRB guidance and case law is subject to change from time to time. The NLRB is made up of five members who are politically appointed. Therefore a change in the political landscape can result in new NLRB members and changes to the way the NLRB members look at issues.

A Little Context

Here is a refresher for understanding the context in which the NLRB is looking at handbook rules. Section 7 of the National Labor Relations Act protects the rights of all non-management employees, union and non-union, to discuss and to complain about wages, hours, and other terms and conditions of employment. With that in mind, it is easy to see why the following hypothetical handbook rules would clearly be illegal:

  • Employees may not speak negatively about working conditions at the Company;
  • Employees may not advocate for outside representation, such as a union;
  • Employees may not discuss wages and benefits, because those are considered confidential.

But, what about less direct restrictions? What about rules that say:

  • Do not make disparaging remarks about the Company, its managers or its other employees.
  • Do not disclose Company confidential information, including personnel information such as employee names, addresses, and phone numbers.

Both of these rules would likely be found unlawful by the NLRB. The NLRB considers any rule unlawful if an employee could reasonably construe it to prohibit protected activity. So, the first example could be read to mean that criticism of the Company’s terms and conditions of employment is prohibited. The broad phrase “personnel information” in the second example could be construed to mean that employees are not allowed to discuss wages. Also, employers are not permitted to prohibit discussion or sharing of employee names, addresses, or telephone numbers unless they are obtained by some improper means. Therein lies the challenge: drafting rules which put reasonable restrictions on employee behavior, but which will not restrict discussion or criticism of the Company or lively, even spirited, debate among employees about working conditions.

Here are a few examples directly from the GC memo and some related tips for reviewing your handbook:

Confidential information

Does your handbook prohibit disclosure of confidential information? It should. Is your policy lawful by NLRB standards? It might not be. The following handbook policies about confidential information were considered illegal by the NLRB:

  • Do not discuss customer or employee information outside of work, including phone numbers and addresses.
  • Never publish or disclose the Company’s or another’s confidential or other proprietary information.
  • If something is not public information, you must not share it.

The NLRB considers all of these statements so broad that employees could reasonably interpret them to prohibit discussion of wages, hours, or other terms and conditions of employment or to unreasonably restrict employee efforts to communicate with one another. Notice that the first example includes a reference to customer information. The NLRB is much more likely to approve restrictions on disclosure of customer information, but the rule as a whole was considered unlawful because of the more broad reference to employee information.

By contrast, the NLRB considered the following handbook statements to be lawful:

  •  No unauthorized disclosure of business secrets or other confidential information.
  • Do not disclose confidential financial data, or other non-public proprietary Company information. Do not share confidential information regarding business partners, vendors, or customers.

Some of this language is similar to that which the NLRB considers unlawful. But, the NLRB found the language lawful because, read in context, it is pretty clear that it is not referring to wages, hours, and other terms and conditions of employment.

TIP:  Context is key. Make certain that policies restricting disclosure of confidential information give context making clear that they cover Company-protected business information. For example, a policy is more likely to be considered lawful if it defines confidential information in context, such as including as examples financial data, cost, and pricing information, business secrets, manufacturing processes or formulas.

Conduct

Does your handbook set out standards for how employees should behave towards supervisors? Does your handbook require employees to be respectful towards management and to not take actions which are contrary to the interests of the Company?

Well, (stay with me now), those policies might be illegal. The GC memo states: “For instance, a rule that prohibits employees from engaging in ‘disrespectful,’ ‘negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or contact, will usually be found unlawful.” The GC memo includes the following as specific unlawful examples:

  • Be respectful to the Company, other employees, customers, partners, and competitors.
  • Be respectful of others in the Company.
  • No defamatory, libelous, slanderous or discriminatory comments about the Company, its customers, and/or competitors, its employees, or management.

Even though some aspects of these policies are proper (like those prohibiting defamatory remarks about customers, competitors, or employees), they also include very broad language prohibiting saying negative things about the Company or management. The NLRB considers that to be a restriction on employee’s rights to be critical of the Company.

By contrast, the NLRB considered the following rules proper:

  • Each employee is expected to work in a cooperative manner with management/ supervision, co-workers, customers, and vendors.
  • Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/ supervisor, co-worker, customer, or vendor will result in discipline.

TIPBroad language insisting on respect for the Company or management or prohibiting negative remarks about the Company or management are likely to be considered unlawful. However, a more narrow policy focused on specific, clearly inappropriate conduct, such as insubordination or disrespect directed at a member of management, is more likely to be considered proper.

What about conduct towards co-workers. Surely, the NLRB will find no problem with a rule that requires employees to treat one another with respect, right? Well – up to a point. The GC memo states that employees “also have a right under the Act to argue and debate with each other about unions, management, and their terms and conditions of employment. These discussions can become contentious, but as the Supreme Court has noted, protected concerted speech will not lose its protection even if it includes ‘intemperate abusive and inaccurate statements.’ With that as a starting point, the NLRB GC memo goes on to say that when an employer bans “negative” or “inappropriate” discussions among employees, without further clarification, it violates Section 7. As examples, the NLRB considers the following handbook policies unlawful:

  • Don’t pick fights online.
  • Do not make insulting, embarrassing, hurtful, or abusive comments about other Company employees online and avoid the use of offensive, derogatory, or prejudicial comments.
  • Do not send unwanted, offensive, or inappropriate emails.

The Board considers those rules unlawful because they are written so broadly that they would prohibit spirited, lively debate about working conditions, about the Company or about unions.

This is one of the more troubling aspects of the GC Guidance Memo. It seems to presume that employees are incapable of recognizing the distinction between spirited argument and debate and specifically offensive or abusive language or conduct. That ignores the reality of the modern workplace. Employees are quite accustomed in 2015 to proper workplace policies that regulate behavior and require common civility.

The Board did consider the following policies to be proper:

  • Rules banning inappropriate gestures, including visual staring.
  • Threatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.
  • Rules prohibiting the use of racial slurs, derogatory comments, or insults.

The Board is making it difficult for employers to figure out where the line is between allowing for debate and difference of opinion and regulating improper workplace behavior that could be really disruptive, offensive, maybe harassing and that could even lead to workplace violence.

TIPIn crafting rules that regulate behavior towards co-workers, be sure to include sufficient specific examples of clearly unprotected behavior, such as threats, racial slurs, and intimidation. Try to stay away from more broad phrases, like offensive or derogatory unless you join them with specific examples of improper conduct.

Contact with media, use of logos, trademarks and photographs

Handbook policies sometimes limit employee rights to discuss the Company in public or to use the Company’s name, logo, or images of the Company. But the NLRB considers policies unlawful if they restrict an employee’s right to discuss the Company’s wages, hours, and terms and conditions of employment. The NLRB also considers it improper to limit too greatly an employee’s use of the Company name or images in exercising their rights.

For example, rules that state a broad prohibition of employees discussing the Company with the media are considered unlawful. By contrast, a carefully-crafted rule that restricts employees from speaking to the media on behalf of the Company is considered proper.

Many employer handbooks state a broad prohibition against employee use of the Company logo, name, or trademark information. The NLRB recognizes a company’s right to protect its intellectual property. However, the GC memo also states that “employees have a right to use the name and logo [of the Company] on picket signs, leaflets, and other protest material. Employer proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.” So, a broad ban on the use of the Company name or logo or trademark is considered improper. By contrast, the Company can restrict the illegal use of Company logos or trademarks, such as using them for a commercial purpose.

Many companies prohibit or restrict the use of photography or recording equipment on Company property. Doing so usually is for the very legitimate purpose of protecting the privacy interests of the Company and co-workers. The GC memo states: “Employees also have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures and recordings.” The NLRB considers rules placing a total ban on photography or recordings at the workplace to be unlawful. The GC memo gives very little guidance on what would be considered a proper restriction on photography and recording. The only example of a proper rule given is:

  • No cameras are to be allowed in store or parking lot without prior approval from the corporate office.

But that rule was considered proper only because it was imbedded in a media policy and was considered to be a restriction only on news cameras, not personal cameras.

TIPMake certain that restrictions on contact with the media clearly restrict only the employee’s contact with the media that might be considered to be on behalf of the Employer. Tailor restrictions on the use of logos or trademarks to prohibit only illegal use of those things for commercial purpose. Craft rules that restrict photography and recording so that they are clearly targeted at making images which either compromise the employer’s legitimate confidentiality interest (such as a ban on photographs in areas of the facility that might disclose confidential information) or protect legitimate employee privacy interests (such as bans on photography in locker rooms or other uniquely private areas).

Walking out

The right to strike is most commonly associated with union-represented employees. However, non-union employees also have the right to strike. As a result, the NLRB considers rules which state a broad prohibition against “walking off the job” to be an unlawful restriction on the right to strike. However, rules that are crafted specifically to protect against harm to production or customer interests are more likely to be unlawful.

TIP:  If you want to include a handbook a rule requiring employees to remain on the job, draft it so that it does not appear to ban a lawful strike. Stay away from broad phrases like “walking off the job” which might be read to include a legal work stoppage and instead refer to the employees’ obligation to arrive on time for each shift and not to leave before the end of the shift without permission.

Conclusion

The GC memo is a useful roadmap. However, trying to craft employer handbook policies to assure they would pass muster with the NLRB remains a challenge. Keep two key principles in mind: First, for any rules that restrict employee communication or conduct include sufficiently-specific examples or detail so that employees are not likely to construe the rules to mean that they are prohibited from discussing, debating, or even arguing about wages, hours, terms and conditions of employment. Second, context seems to be key to the NLRB. A rule which might otherwise be considered unlawful will pass review if it is stated in a context so that employees could not reasonably believe it to be a restriction on protected activity.

Employers can also consider including in the handbook a specific assurance that none of the handbook rules restrict employees from discussing their wages, hours or other working conditions or to restrict any other rights they have. There is no legal obligation to include that assurance, but it could reduce the chance that employees might misconstrue a rule. There are legal and practical issues to consider before including a disclaimer like this and employers are advised to discuss it with their legal counsel before taking this step.

The dawn of .sucks — protecting your brand

Posted in Traps for the Unwary, Workforce Strategies

Although companies’ marketing departments likely are all over this issue, it won’t hurt their human resources directors to ponder what might happen if a few of their disgruntled former employees gets their hands on this new top level domain name.

Our colleagues at Porter Wright’s Technology Law Source blog have watched the launch of hundreds of new generic top-level domains (gTLDs) through the past several months. Introduced to increase competition in the domain name market and enhance the Internet’s stability and security, these new gTLDs are projected to change the face of the Internet and how we use it. Today, they share an article that should be of interest to anyone with a recognizable brand: The .sucks gTLD has entered its sunrise period. What does that mean? If unclaimed, brand owners could wake up to a full-fledged — and completely legal — gripe site come September. Read more

 

Same Sex Marriage Rule set to go in effect today halted by court

Posted in Leave Administration

We reported in February on a Department of Labor (DOL) rule permitting same sex partners who are legally married to take FMLA leave to care for their spouse, regardless of whether they live in a state that recognizes same sex marriage (so long as they were legally married in a state that recognizes same sex marriage). The law was set to go into effect today. Yesterday, however, a group of attorneys general from Texas, Nebraska, Arkansas, and Louisiana obtained a preliminary injunction that will delay the rule’s implementation until the court considers the full merits of this case. , while ordered by a Texas federal court, broadly directs the DOL to stay application of the rule and, therefore, appears to impact all states where same sex marriage is prohibited, including Ohio, even though Ohio has not joined in the suit. The future of the DOL’s rule also hinges on the Supreme Court’s decision in Obergefell v. Hodges in which the Court is expected to address the constitutionality of same sex marriage bans. Oral argument in that case is set for April 28, 2015.

New “significant burden” test for pregnancy discrimination

Posted in EEO

Yesterday, in a 6-3 decision, the U.S. Supreme Court clarified the Pregnancy Discrimination Act (PDA) and answered the question of how to apply the law to an employer’s policy that accommodates many, but not all, workers with non-pregnancy related issues.

Peggy Young was a part-time driver for United Parcel Service (UPS). After becoming pregnant, her doctor advised her she should not lift more than 20 pounds. UPS required drivers like Young to routinely lift up to 70 pounds. UPS told Young that she could not work while under the temporary lifting restrictions which accompanied her pregnancy.  At the time, UPS provided such “light duty” accommodation only to workers who were injured on the job, those who had disabilities covered by the Americans with Disabilities Act, which did not include temporary conditions, or those who had lost Department of Transportation Certificates, so were not legally permitted to perform their driving jobs.

Young filed a federal suit under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act, 42 U.S.C. sec. 2000e(k), alleging disparate treatment. The statute states that employers must treat “women affected by pregnancy … the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”

UPS prevailed on summary judgment in both the district court and the Fourth Circuit, but Wednesday, the U.S. Supreme Court vacated and remanded the case back to the circuit court. In an opinion by Justice Breyer, the Supreme Court disagreed with Young’s position and noted that the Act does not require an employer to give pregnant employees “most-favored-nation status” by requiring that they be accommodated whenever an employer accommodates any other person similar in their ability or inability to work. The Court also, however, rejected UPS’ argument that it had not violated the PDA since its policies were facially neutral and the Act simply defined sex discrimination to include pregnancy discrimination. Finally, the court was unpersuaded by the EEOC’s new pregnancy discrimination guidance that an employer cannot deny light duty to a worker based on a policy that limits light-duty work to employees with on-the-job injuries.

Rather, the Court announced a new standard for pregnancy discrimination, finding that under the traditional McDonnell Douglas burden-shifting approach, when it comes time for the plaintiff to show pretext: “We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.”

The Court said the Fourth Circuit did not consider the question: “When the employer accommodated so many, could it not accommodate pregnant women as well?” Therefore, on remand, Young may be able to demonstrate a genuine issue of material fact and overturn the district court summary judgment finding by showing that UPS accommodates most non-pregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations and  that UPS’s reasons for excluding pregnant employees from its multiple policies that accommodate employees with lifting restrictions are not sufficiently strong to justify the burden.

Takeaways: Employers will want to review their accommodation policies, including those relating to light duty, to ensure that they do not substantially burden their pregnant employees who require accommodation. If those policies disproportionately impact pregnant employees and the business reasons are not sufficiently strong to justify this impact, then such policies should be revised accordingly to avoid violating the PDA.

More caution from the NLRB to employers with broad handbook prohibitions

Posted in Labor Relations, Social Media

Similar to our blog post last week on the National Labor Relations Board (NLRB) General Counsel’s guidance memorandum on employee handbooks, a NLRB administrative law judge (ALJ) last week ruled that two handbook provisions that once passed muster are no longer okay. In a decision that pre-dates the GC guidance memorandum, the ALJ found that a handbook rule prohibiting “[a]ny activity which causes harm to the operations or reputation of” the employer to be overly broad and unlawful. According to the ALJ, an employee could reasonably believe that a work strike or complaint to other employees about wages (including complaints on social media) were prohibited because such activities would cause harm to the operations or reputation of the employer. (It is notable that these activities are protected concerted activity under the National Labor Relations Act, regardless of the employee’s union status.)

In addition to the rule about harm to the operations or reputation, the ALJ also held that a rule barring “[a]ny action that “jeopardizes company contracts or loss of revenues” is unlawful. The ALJ reasoned that an employee could reasonably conclude that union organizing activity leading to the formation of a collective bargaining agreement could have a negative effect on existing contracts or revenues of the Company.

Additionally, the ALJ reasoned that both rules were overbroad because nothing in the handbook suggested protected activity was excluded from the rules. The ALJ stated in a footnote that the employer could have made each provision lawful by expressly excluding protected concerted activity and union organizing activity from the prohibitions.

Notably, the ALJ found against the employer even though the employer withdrew the rules almost a year before the decision because the handbook provisions had been in place for almost two years before their withdrawal.

The lesson for employers: any ambiguous handbook provision will be construed against the employer and if there is any reasonable way in which an employee could view the provision as restricting Section 7 rights, the provision will be considered unlawful by the NLRB. The jury is still out on whether a federal court would agree with the NLRB.  Very few of the NLRB’s handbook policy decisions have been appealed that far.

The decision is Latino Express, Inc. and Teamsters Local Union No. 777, No. 13–CA–122006 (Mar. 17, 2015).

NLRB general counsel guidance memo on employee handbook policies is required reading for all employers

Posted in Labor Relations, Workforce Strategies

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued Memorandum GC 15-04, which he intended to bring some clarity to the NLRB’s sweeping enforcement effort against employee handbook policies his office has deemed to be overbroad and infringing on workers’ Section 7 rights. All employers, particularly those that are not unionized, should take this 30-page memo in hand and compare it to their own employee handbooks to see if any of their policies  might be considered illegal by the NLRB.

The memorandum is split into two parts. In the first part, it compares policies found to be unlawful with policies found to be lawful and attempts to explain that reasoning. The second part discusses a recent settlement with Wendy’s International LLC regarding its handbook policies. In this part of the Memorandum, the general counsel sets forth Wendy’s rules that initially were found unlawful with an explanation, along with Wendy’s modified rules, adopted pursuant to an informal, bilateral board settlement agreement, which the Office of the General Counsel does not believe violate the act.

Though the guidance provides a single place for employers to see the GC’s office position on a wide spectrum of common employee handbook policies, the rationale provided for the distinctions made between lawful and unlawful policies will be no more satisfying to employers. Indeed, with respect to many of the policy types, it can be frustrating to try to reconcile the general counsel’s reasoning from one policy to the next. Just one example hopefully illustrates this point: “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors” was considered to be lawful, but “Be respectful of others and the Company” was not.  See the difference? I don’t.

This guidance is particularly important for non-union employers to understand because their policies have never been the subject of collective bargaining. Employers are urged to compare their handbook policies to those addressed by the general counsel. If any of the employers’ policies are likely to be found unlawful, they should contact their labor and employment counsel to address the potential deficiencies and to prepare workable policies that are likely to survive the General Counsel’s Office’s scrutiny. Although the memorandum includes policies the office considered to be lawful, many of them appear to be excerpted from larger policies, and the context may make all the difference in the world.

Stay tuned – we expect to have a more in depth analysis of this guidance next week.

Insurance policies do not protect employers from intentional torts in Ohio

Posted in Workers' Compensation

In Hoyle v. DTJ Ents., Inc., the Ohio Supreme Court has ruled that provisions of an insurance policy do not require an insurance company to indemnify employers if they are found to have intentionally injured their employee.

On March 25, 2008, Duane Allen Hoyle, while working for DTJ Enterprises and Cavanaugh Building Corporation, fell approximately 14 feet from a ladder-jack scaffold, landed on concrete and suffered injuries. Hoyle sued his employers alleging claims of intentional tort, including an allegation that his supervisor would not permit him to use bolts and pins to secure the ladder jacks to the ladders. The employers’ insurance company intervened and filed a complaint for declaratory judgment that it had no obligation to indemnify the employers for Hoyle’s injuries.

Most work-related injuries are covered by Ohio’s workers’ compensation system as the employee’s exclusive remedy. However, when an employee’s injury results from acts or omissions committed by the employer with an intent to injure or “with the belief that the injury was substantially certain to occur,” Ohio’s intentional tort statute permits the employee to also file a lawsuit for compensatory and punitive damages against the employer. Oddly, the statute defines “substantially certain” to mean that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

In this case, the employers had obtained insurance coverage from Cincinnati Insurance Company and had purchased an additional policy that covered Employer Liability. The additional policy obligated the insurance company to pay when the employer’s acts were substantially certain to cause injury, but barred coverage for acts committed with the deliberate intent to injure. At trial, the insurance company argued that it had no duty to indemnify the employers and the trial court agreed, specifically noting that any liability Hoyle might establish would fall within the policy exclusion and granted judgment in favor of the insurance company. A divided panel of the Ninth District Court of Appeals reversed the decision and the Supreme Court accepted a discretionary appeal.

The Supreme Court reversed the appellate court and held that because liability for an intentional tort requires a finding that the employer acted with the intention to injure an employee, an insurance provision that excludes from coverage liability for an insured’s act committed with the deliberate intent to injure an employee precludes coverage for employer intentional torts. Hence, the Supreme Court held that the insurance company was not required to indemnify the employers even if Hoyle were to prevail on his claims against them. Indeed, the court held, “Because the Employers Liability Coverage Form excludes from coverage ‘liability for acts committed by or at the direction of an insured with the deliberate intent to injure,’ there is no set of facts under which [the employers] could be legally liable to Hoyle that falls within the policy’s coverage.” This result certainly begs the question of what coverage the insurance company was actually selling to the employers for the additional premiums it obtained from them under the Employer Liability policy. The majority avoided this question by noting that the employers never argued before the lower courts that the coverage provided by the insurance company was illusory.

Interestingly, Justice O’Neill was not willing to let this issue pass unaddressed. In a scathing dissent lamenting “insurance agents selling worthless pieces of paper that will never pay a claim,” he asked, “Can this court truly countenance an insurance company’s assertion that it should be permitted to collect a premium for an event that is never going to happen?” Despite this language, Justice O’Neill’s opinion was not really founded on feelings of sympathy for the employers, but rather a belief, recognized as well by Justice Lanzinger in her concurring opinion, that it is extraordinarily difficult for an employee to establish that his or her employer has committed an employment intentional tort under the current statute.

The Hoyle decision almost certainly forecasts the death of employer liability insurance policies purporting to provide coverage for employment intentional tort claims in Ohio. Though employers may feel that the heightened intentional tort standard provides its own protection because they would never deliberately intend to injure an employee, they should not be lulled into a false sense of security. As Justice O’Neill pointed out in his dissent, the statute creates rebuttable presumptions that an injury was caused intentionally if it was caused by the deliberate removal of a safety guard or the deliberate misrepresentation of the toxicity of a substance or chemical. Certainly, one does not have to have too fertile an imagination to believe that such conduct is possible in the workplace. As a result, employers still need to remain diligent in maintaining safe workplaces for their employees.

ERISA damages—two bites off the same apple are impermissible

Posted in Employee Benefits/ERISA

Rich McHugh, editor of our sister blog – Employee Benefits Law Report - published a blog earlier today on a recent en banc decision by the United States Court of Appeals for the Sixth Circuit that may be of interest to our readers. On March 5, 2015, the United States Court of Appeals for the Sixth Circuit issued an en banc decision in Rochow v. Life Insurance Company of North America that deals with the ability of a participant in a plan covered by ERISA to recover benefits due from that plan while simultaneously pursuing “other appropriate equitable relief” based on that same asserted injury. In a decision likely to be applauded by many plan sponsors, the court’s en banc decision concluded that both forms of recovery are inappropriate when based on the same injury except in limited circumstances—circumstances that were not satisfied in this case. I would encourage you to read Rich’s post.

Gawker update: class notification via social media limited

Posted in Employment Class & Collective Actions, Social Media

In a previous post, we discussed plaintiffs’ attempt in the class action lawsuit Mark v. Gawker Media LLC (S.D.N.Y.) to notify potential members of the class via social media. On March 5, 2015, U.S. District Judge Alison Nathan took a very limited view of what kind of notification would be permitted when using forums like Reddit, Tumblr, Facebook, Twitter, and LinkedIn. Judge Nathan stated the court’s contemplated use of social media was simply an analogue to the typical mailing of notice and agreed upon use of email. Posts on Reddit and Tumblr must specifically target individuals with opt-in rights, rather than simply calling attention to the lawsuit. Similarly, the use of Twitter, LinkedIn, and Facebook is to be limited to private, personalized notifications sent to potential plaintiffs whose identities are known and may not be reachable by other means. So it appears, at least for now, the court is allowing the use of social media only to the extent it mirrors more traditional means of class notification. This ruling is good news for employers because the use of social media as a means for FLSA class action notification as restricted by the court should not greatly expand the number of opt-in plaintiffs.

DOL’s new rule puts same-sex couples on level footing under the FMLA

Posted in EEO, Leave Administration

On Monday, February 23, 2015, the Department of Labor issued a new rule providing FMLA leave benefits to workers in legal, same-sex marriages, regardless of where the couple resides. Employees in same-sex marriages now have consistent federal family leave rights as those in opposite-sex marriages to take leave to care for a spouse with a serious health condition. The new rule updates the regulatory definition of “spouse” providing benefits now based on the law of the place where the same-sex marriage was entered into, regardless of whether the state in which the couple currently resides recognizes such marriages.

An employee seeking leave under the new rule may be required to provide a copy of a court document or reasonable documentation or statement asserting the family relationship, as outlined in 29 C.F.R. § 825.122(k). Employers should decide whether they are going to require documentation or not and then apply its decision uniformly to all married employees.

Employers that are covered by the FMLA should be sure to do the following:

  • Train human resource officers and supervisors to make sure they understand the impact of the final rule and the expanded benefits;
  • Update FMLA policies, procedures, notices, and forms to include the updated definition of “spouse”;
  • Update all references to FMLA benefits found in employee handbooks; and
  • Be sure to uniformly apply all FMLA policies regardless of whether processing leave for a same-sex or opposite-sex married employee.