Employer Law Report

NLRB sides with Kroger’s action to remove union representatives from company property

On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning customers in the parking lot of a store in Portsmouth Virginia. The nonemployee union representatives were there to solicit customer support for the union’s protest over a decision to close the store and relocate employees to a different location 25 miles away.

The administrative law judge who initially heard the case ruled in favor of the union, noting that the grocery store’s managers had previously allowed several charitable entities to distribute literature and sell goods outside the store’s entrance. Applying Sandusky Mall Co., 329 NLRB 618 (1999), the administrative law judge held that Kroger violated the NLRA and discriminated against the union by regularly granting access to company property to civic, charitable and promotional activities by nonemployees while prohibiting nonemployee union representatives from petitioning on company property. Continue Reading

Misclassifying employees as “independent contractors” does not violate NLRA

The decision to classify a worker as an independent contractor, rather than as an employee, carries significant legal implications. Misclassifying employees as independent contractors can result in employer liability for unpaid payroll taxes, unpaid unemployment and workers’ compensation premiums, and responsibility for failure to provide the various rights afforded under employment laws to employees but not to independent contractors. A careful approach, including legal advice, is always wise in evaluating whether a worker can properly be classified as an independent contractor. However, the National Labor Relations Board (NLRB) has taken one element of risk out of the decision.

In a recent case involving a transportation company, the NLRB concluded that the company had misclassified some of its drivers as independent contractors. But, the NLRB also concluded that the misclassification, standing alone, did not constitute a violation of the National Labor Relations Act (NLRA). The case is Velox Express, Inc. 15-CA-184006, 368 NLRB No. 61

The NLRB Administrative Law Judge (ALJ) who initially heard the case had concluded that the fact of misclassification violated the NLRA rules which protect the rights of employees to join unions. Independent contractors, unlike employees, do not have the right to organize. The ALJ felt that by classifying the drivers as independent contractors Velox had inherently interfered with their right to organize. On appeal the NLRB overruled the ALJ’s decision. The NLRB concluded that just the fact of misclassification does not inhibit or otherwise interfere with the rights of employees to organize.

This decision does not mean that employers can let down their guard when making classification decisions. Misclassification can still bring significant legal risk under tax law, employee benefits law, and other laws protecting employee rights. Misclassification can also indirectly lead to problems under the NLRA. In the Velox case the company had terminated one of its drivers after she complained about being misclassified. The NLRB ruled that since the driver was, in fact, an employee, she had the right under the NLRA to complain on behalf of herself and others about what she felt was a misclassification. So, although the misclassification, standing alone, was not an NLRA violation, the adverse action taken against a complaining employee was.

New York’s new discrimination law—Aberration or the start of a trend?

Employers with facilities in New York are probably aware of the significant piece of anti-discrimination legislation Gov. Cuomo signed recently. The new law:

  • expands coverage to all employers regardless of size;woman in conference room
  • expands protections against discrimination to certain non-employees;
  • increases the statute of limitations for sexual harassment claims from one to three years;
  • adds punitive damages and mandatory attorneys’ fees as potential remedies;
  • prohibits mandatory arbitration of discrimination claims;
  • adds to the notice requirements an employer must provide regarding its sexual harassment policy, including in the language identified by any employee as their primary language; and
  • places significant specific restrictions upon the use of non-disclosure agreements

While these changes are certainly significant, the more troubling aspect of the law for employers and their counsel may be its expansive definition of sexual harassment as well as its open dismissiveness of federal law. Continue Reading

Are Ohio workers’ compensation laws changing?

As we reported in June, the Ohio legislature attempted to make substantial changes to workers’ compensation laws as part of the overall budget. However, after the House and Senate could not reach an agreement on many parts of the budget, Gov. DeWine permitted the legislature additional time to reach a compromise. The actual budget submitted to and signed by the governor contained NO changes to the workers’ compensation laws. Conspicuously absent from the budget was the House’s proposal requiring any applicant for workers’ compensation benefits to disclose whether they were a citizen or not. Further, the budget did not include any provision for first responders with post traumatic stress disorder (PTSD) to obtain workers’ compensation benefits. Hence, for now, the Ohio workers’ compensation laws have not changed.

Rumors exist that legislators intend to introduce specific legislation to address these proposed changes as well as other changes. Stay tuned and we will keep you updated should the legislature introduce any new bills to change the Ohio workers’ compensation laws.

Myths, rumors and clarification on the status of the H-4 EAD

In February of this year, USCIS announced that the proposed rule to eliminate the ability of foreign nationals in H-4 status to apply for an Employment Authorization Document (EAD) was sent to the Office of Management and Budget (OMB) for final approval. Five months later, OMB has still not released the proposed rule for publication. The delay likely reflects substantive issues and is more than mere bureaucratic delay. In the meantime, the H-4 EAD is alive and well. The proposed rule must still clear several administrative hurdles before it becomes effective and can be implemented. Continue Reading

EEO-1 reporting: Pay data filing begins July 15, 2019

 The Equal Employment Opportunity Commission (EEOC) has announced the filing window for the newly required Component 2 pay data opens July 15, 2019. Private employers with at least 100 employees are required to submit pay data for calendar years 2017 and 2018 by Sept. 30, 2019. This new requirement is ordered by the court decision in the National Women’s Law Center v. Office of Management and Budget case.

The EEOC has taken a number of steps to assist employers with this new filing requirement.

Continue Reading

#MeToo: Looking to best teaching practices for effective training

When did canned web-based presentations become the norm for harassment, discrimination and other inappropriate workplace conduct training? Companies who rely on pre-prepared, generic materials often find those trainings for HR, management, supervisors and employees to be ineffective, particularly now that #MeToo is a part of our vocabulary. For the employer who has the goal of efficient and effective HR trainings, it is helpful to look to best teaching practices. Educators know that teaching a lesson in a memorable and engaging way will help student retention…algebra or workplace harassment alike. Simply put, face-to-face, interactive training is the most effective way to communicate key concepts and reduce complaints related to workplace behavior.

True engagement requires connection

We all have a favorite teacher. Perhaps it was your third-grade teacher, who smiled as they asked how you were doing each day. Maybe it was a college professor whose lectures were so engaging that you couldn’t help but absorb their every word. My favorite was one I had in high school, who used storytelling in his teaching. He was an expert at weaving in vivid details of his life into his lessons; memories of being a young boy in South Africa, or the experience of the first time he held his newborn son into his lessons. I will always remember these lessons in vivid detail because true engagement requires connection. In order to affect learning and ultimately change behavior, one has to make a genuine connection with another person to bring about new understanding. My high school teacher did this, and undeniably your favorite teacher did too.

Building a culture of transparency in the age of #MeToo

Discrimination manifests in many shapes and sizes, through workplace harassment, sexual harassment or retaliation (to name a few). In the age of #MeToo, employers are seeking efficient and effective HR trainings for their workers that will resonate with their employees, and will produce more than just a printed certificate of completion. Trainings that push past the discomfort of the topic, engage their audience, generate thought and encourage open discussion will ultimately have the greatest impact on employee behavior. The more we engage our employees in these trainings, the more likely our workplaces will develop a culture of transparency. This will aid in helping your employees feel comfortable coming forward with situations they feel the need to discuss.

Efficient and effective HR training as risk management

It’s far more pleasant to educate your staff than to prepare for a deposition. Training is an essential part of the defense to harassment, discrimination, or retaliation charges and lawsuits. Further, the EEOC strongly recommends these trainings, and are required by law in some states. In short, harassment and other improper workplace conduct is not just a legal risk; it is a day-to-day damage that can effect employee morale, retention, attendance and more. Effective training is your best chance to actually change employee behavior.

Porter Wright holds effective, in-person training for HR, management, supervisors and employees for many businesses. If you have interest in talking about cost-effective training sessions, visit the HR Audit page at porterwright.com.

Are changes coming to the FMLA?

It has been a decade since the United States Department of Labor (DOL) made any changes to the FMLA regulations, but we now have an indication that the DOL is at least willing to consider issuing new regulations at some point in the next few years. The United States Office of Management and Budget announced that, by April 2020, the DOL will “solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”

Employers interested in offering suggestions for the DOL’s consideration will be invited to do so. No promises, however, that the DOL will actually make any changes or that the changes, if made, will meaningfully address the aforementioned “administrative and compliance burdens.” But this is a start.

Applicants may be required to declare citizenship status when filing for Ohio workers’ compensation benefits

The Ohio House of Representatives passed a two year $645 million workers’ compensation budget on June 5, 2019. As part of the budget bill, a provision was added that requires anyone who files an application for a workers’ compensation claim through the Ohio Bureau of Workers’ Compensation, to identify themselves as either a U.S. citizen, a noncitizen with permission to work in the country or an illegal alien or an unauthorized alien. All applicants may be eligible for workers’ compensation benefits regardless of citizenship identification. However, under the bill, anyone providing false information on a claim application will be ineligible to receive workers’ compensation benefits and may be subject to criminal prosecution. Prior to this budget bill, anyone, regardless of citizenship status, who was injured in the course and scope of employment was entitled to receive workers’ compensation benefits through the Ohio Bureau of Workers’ Compensation.

Previous attempts in Ohio to introduce language to bills and laws to prohibit illegal or unauthorized aliens from obtaining workers’ compensation benefits have failed to be signed into law.

In addition, the current House budget bill includes a provision permitting first responders such as police, firefighters and emergency medical personnel diagnosed with post-traumatic stress disorder to be eligible for workers’ compensation benefits. Presently, Ohio law only permits a claim to be recognized for a psychological condition such as post-traumatic stress disorder when it arises out of an underlying physical injury.

The House budget bill will now proceed to the Ohio Senate for consideration. We will keep you updated should this budget bill become law.

Kentucky’s new pregnancy accommodation law goes into effect

Kentucky recently enacted the Pregnant Workers Act, which amends the Kentucky Civil Rights Act to provide accommodations to pregnant and lactating employees. The law goes into effect on June 27, 2019. Below are the important implications of the Pregnant Workers Act, which will affect employers that operate or maintain business locations in Kentucky.

Who does the law cover?

Covered employers are those that employ 15 or more persons during 20 or more calendar weeks in the current or preceding calendar year. Employees limited by pregnancy, childbirth or related medical conditions, including lactation, are eligible for reasonable accommodations under this law.

What are reasonable accommodations?

Covered employers must engage in a timely, good faith and interactive process to determine effective reasonable accommodations for the employee. The law goes beyond what the federal law  specifically requires, in that it identifies a number of reasonable accommodations to consider:

  • More frequent or longer breaks
  • Time off to recover from childbirth
  • Acquisition or modification of equipment
  • Appropriate seating
  • Temporary transfer to a less strenuous or less hazardous position
  • Job restructuring
  • Light duty
  • Modified work schedule
  • Private space, that is not a bathroom, for expressing breast milk

Employers cannot require an employee to take time off of work, if another reasonable accommodation is available.

Like under federal law, covered employers are not required to provide reasonable accommodations for pregnancy, childbirth or related medical conditions, if doing so would result in an undue hardship. A number of factors may be considered when determining whether a particular accommodation is an undue hardship, including the duration of the requested accommodation and whether similar accommodations are required by policy or past practice for any group of employees. If a covered employer has provided or is required to provide a similar accommodation to another group of employees, there is a rebuttable presumption that the particular accommodation will not pose an undue hardship on the employer.

Are there any notice requirements?

Employers must give new employees written notice of the right to reasonable accommodations at the commencement of employment and to existing employees no later than July 27, 2019. Finally, employers must display a written notice of the right to reasonable accommodations.

Next steps

Employers with operations in Kentucky should review full details of the law with counsel and update policies and notices to comply with the Pregnant Workers Act. These types of laws are a growing trend across the U.S. Multi-state employers should be aware of similar pregnancy accommodation laws in a number of other states.

Special thanks to Taeylor Stanley for her assistance on this article.