Category Archives: Current Affairs

February 26, 2013

Who Owns Your Employees’ LinkedIn Profiles? The Answer Might Surprise You.

If your employees use LinkedIn to establish and maintain contacts for business purposes (such as sales), what happens to those accounts—and contacts—when the employee quits or is fired? Can an employer who has access to an employee’s LinkedIn profile change her password and replace information in her profile following her termination? No, says at least one federal judge in Pennsylvania recently, though that case is not yet over. As explained below, employers should be careful before assuming that they own their employees’ LinkedIn profiles.

Employer Access to High Level Executive Profiles

Edcomm, Inc., a banking education company, strongly urged its employees to create LinkedIn accounts using their company email addresses as a business networking tool. It had employee policies governing online postings and specified that if employees identified themselves as an Edcomm employee, they needed to use a specific template that contained pre-approved content about the company and referred to the company’s website. The company provided a photographer to take professional photos for employee use on their LinkedIn accounts. It also allowed some Edcomm employees to access, develop and administer the LinkedIn accounts of senior management, such as responding to invitations, inviting new contacts and researching good news stories to include on their LinkedIn pages.

After being acquired by another company, Edcomm, Inc. terminated its company president and founder, Linda Eagle, as well as several other top executives. After her termination, Edcomm locked Eagle out of her LinkedIn profile by changing her password. It then changed the information on the profile to that of the new acting CEO.

Company Argues LinkedIn Account was Akin to a Client List

Eagle sued Edcomm alleging numerous violations of state and federal law, including invasion of privacy by misappropriation of identity, misappropriation of publicity, identity theft and conversion. Edcomm argued that the LinkedIn accounts were used to contact new clients and promote the company’s services. As such, the company claimed that its take over of Eagle’s account was similar to the company keeping possession of a client list after an employee is terminated.

The Judge didn’t buy it. At a recent hearing, Judge Ronald Buckwalter stated that Edcomm likely had no right to change Eagle’s LinkedIn password and change her profile information. He noted that the company had no internal policy that would hand over ownership of employee profiles when employees left the company and that the LinkedIn accounts belonged to the individual employees.

Be Prepared For An Employee’s Departure

Although it is wise to implement a social media policy to address employee use of company information on personal or company-sponsored social media accounts, you need to be wary of who owns the rights to such information. First, as indicated in the Edcomm case above, you risk potential invasion of privacy and other claims. Second, the employee might have rights to the account independent of the employer, as established in an agreement between the service provider and the employee. At a minimum, consider implementing specific policies that address these issues up front, and consider what services your employees are using to establish and maintain connections with clients. The fact that contacts are connected through LinkedIn, Facebook, or some other social media site can significantly impact an argument that such contacts are protectable trade secrets. Lastly, don’t forget that forcing access to employees’ social media can be risky. Four states have enacted legislation to prohibit or restrict employers from asking for social media access and many other states are currently debating similar restrictions.

February 12, 2013

FMLA and Facebook Don’t Mix – Vacation Pictures Catch Employee in a Lie

By Mark B. Wiletsky

Co-workers “friend” each other on Facebook all the time. But sometimes those “friends” turn against their own, providing employers with evidence of wrongdoing. In a recent case (Lineberry v. Richards), an employee learned the hard way that posting pictures on Facebook can come back to bite you.

Lineberry, who worked as a full-time Registered Nurse, claimed she needed Family and Medical Leave Act (FMLA) leave after suffering severe pain in her lower back and legs. Her employer granted her request.

About four weeks into her leave, Lineberry took a prepaid, planned vacation to Mexico. As many people do today, Lineberry posted photos of her Mexico trip on her Facebook page. Her co-workers, who had legitimate access to Lineberry’s Facebook page, saw the photos, including pictures of Lineberry riding in a motorboat, lying on her side while holding up two bottles of beer, standing while holding a grandchild on each hip and making trips to Home Depot. Based on the Facebook postings, the co-workers complained to Lineberry’s supervisors. Responding to her supervisor’s inquiry about her activities, Lineberry wrote that she had used a wheelchair at both airports while on her trip.

When Lineberry was released to return to work, her employer called her into an investigative meeting. Initially, she stood by her claim that she had used wheelchairs in the airports on her trip, but after questioning, she admitted that she lied and had never used a wheelchair while on vacation. A week later, Lineberry was terminated for dishonesty and falsifying or omitting information, a violation of the company’s policies. Lineberry sued, claiming that her employer violated her FMLA rights.

Termination Was Based on Dishonesty, Not FMLA

During her deposition, Lineberry admitted again to lying about her use of a wheelchair while on vacation. Because of the undisputed evidence of Lineberry’s dishonesty, the Court ruled that her employer had the right to terminate her without regard to her leave status. The Court explained that the FMLA does not afford an employee greater rights that he or she would have if not on FMLA leave. Because her employer had the right to terminate Lineberry for dishonesty whether or not she took leave, the termination on that basis was permitted by the FMLA.

Employer Lessons

A few key pointers for employers:

1) Although you should always be cautious before disciplining or terminating an employee on protected leave, keep in mind that the employee’s leave status is not a free pass to lie or commit fraud.

2) Of course, before firing or taking disciplinary action against an employee on leave, make sure you have all the facts. If you have a progressive discipline policy, follow all procedures set forth in the policy. The employer in Lineberry waited to make its termination decision until it called Lineberry in for an investigative meeting, as was required under its discipline policy. Failure to follow your own procedures can lead to lawsuits even when your underlying reasons for discipline or termination are justified.

3) Don’t “friend” your employees so that you can surf their Facebook pages – you could be liable for invasion of privacy. In addition, you could learn characteristics that you otherwise would not know (e.g., religion, national origin, disability, etc.) that could later serve as the basis for a discrimination claim. However, if others who legitimately obtained information from Facebook report it to you, treat it like any other workplace complaint and conduct an appropriate investigation.

February 11, 2013

Wage and Hour Collective Actions Face Higher Class Certification Standard

By Jeffrey T. Johnson

Employers can thank the Seventh Circuit Court of Appeals for raising the standard that employees must meet when seeking final certification of a Fair Labor Standards Act (FLSA) collective action or state wage and hour law class action. In an opinion written by Judge Richard Posner, the Court recently refused to certify a proposed class of 2,341 employees, finding that a trial would not be manageable due, in large part, to the differences in damages among the class members. Espenscheid v. DirectSat USA, LLC, No. 12-1943 (7th Cir. Feb. 4, 2013). The ruling will likely make it more difficult for plaintiffs to get a wage and hour class certified at the critical final certification stage.

Court Finds No Reason for Different Certification Standards

FLSA collective actions are similar in many respects to class actions brought under Rule 23 of the Federal Rules of Civil Procedure—both permit an individual (or small group) to file suit on behalf of all similarly situated individuals. One key difference, however, is that Rule 23 sets forth relatively rigorous standards for certifying a class while FLSA collective actions are reviewed under a more lenient “similarly situated” analysis, typically pursuant to a two-step approach. The Seventh Circuit’s recent decision turns that distinction on its head.

Noting that Rule 23’s procedural provisions are intended to promote efficiency, Judge Posner stated “there isn’t a good reason to have different standards for the certification of the two different types of action.” Moreover, he wrote that “[s]implification is desirable in law,” especially given the fact that plaintiffs often join a collective action and a class action in one lawsuit. This collapse of differing class certification standards gives employers beneficial language to argue against collective action certification on the basis of Rule 23 commonality, numerosity and typicality requirements.

Decertification Proper Where Trial would be Unmanageable

The Court went on to reject certification of the proposed DirectSat “class,” finding that the plaintiffs had not presented a feasible trial plan. The proposed “class” consisted of 2,341 technicians who installed and repaired home satellite dishes. They worked directly in customers’ homes and were paid on a per job basis, not a fixed hourly wage. They alleged that DirectSat forbid them from recording time spent on certain tasks, such as filling out paperwork and picking up tools, and that they often worked more than 40 hours a week without being paid overtime.

Plaintiffs’ arguments to achieve class certification failed. Judge Posner held that lack of uniformity on the amount of damages suffered by each technician doomed certification. Plaintiffs’ proposal to use 42 “representative” members of the class to determine damages on behalf of the entire class was rejected. A further complication was the piece-rate pay basis where those technicians who completed jobs quickly made a higher “hourly” rate than those who worked slower. In the end, plaintiffs’ counsel admitted that it would “be difficult for Plaintiffs to provide an objective framework for identifying each class member within the current class definitions without making individualized findings of liability.” The failure to provide a feasible litigation plan to address these complexities doomed the plaintiffs’ effort to obtain final class certification.

Good Development for Employers

This is a significant decision for employers facing wage and hour collective actions. The standards for final class certification are not very well-developed in most jurisdictions, and Judge Posner’s well-reasoned opinion will carry substantial weight well beyond the Seventh Circuit. Further, if the more stringent Rule 23 standard is to be applied upon final certification, it is only logical that courts will also begin applying it at the earlier conditional certification stage, thereby making class certification more difficult for plaintiffs. Judge Posner and the Seventh Circuit have provided employers with an important tool to defend against these types of class and collective claims.

February 4, 2013

HIPAA Omnibus Rule

Have questions about the January 17, 2013 HIPAA Omnibus Rule? Join Kim C. Stanger of Holland & Hart's Health Law Group in this recorded webinar.

https://hollandhartevents.webex.com/hollandhartevents/lsr.php?AT=pb&SP=EC&rID=6311067&rKey=f55b55e7eb59d88e

There are significant changes that are reflected in the regulations that will become effective March 26, 2013. Covered entities and business associates must comply with the new rules by September 23, 2013. I think you will agree that Kim's presentation is very enlightening. Enjoy!

Steven M. Gutierrez

January 30, 2013

EEOC Fails to Prove Credit Checks have Discriminatory Impact

By Mark B. Wiletsky

Is checking an applicant’s credit history discriminatory? According to the Equal Employment Opportunity Commission (EEOC), using credit checks to screen out applicants may be discriminatory if it has a disproportionately significant impact on a protected group. Although a court recently dismissed an EEOC lawsuit against an organization concerning its use of credit checks, the case should serve as a reminder to review your own policies and procedures with respect to using background and credit checks in the hiring process, as this is likely not the last time the EEOC or the courts will address the issue.

EEOC Sues Claiming Use of Credit Checks Has Disparate Impact on Black Applicants

In December 2010, the EEOC sued Kaplan Higher Learning Education Corporation (Kaplan), alleging that Kaplan’s practice of using credit history in making hiring decisions has a disparate impact on Black applicants in violation of Title VII. In other words, the EEOC asserted that Kaplan’s use of credit histories—while not facially discriminatory—had a disproportionate impact in terms of screening out Black applicants. Kaplan, however, defended its use of credit histories in the hiring process. It claimed that it used credit reports to assess applicants for financial and operational positions after discovering system breaches that allowed business officers to misappropriate student funds. Kaplan asserted that it reviewed an applicant’s credit history to determine whether the individual is under “financial stress or burdens” that might compromise his or her ethical obligations.

In order to provide statistical analysis showing disparate impact on Black applicants, the EEOC relied on its expert, Dr. Kevin Murphy, to analyze the applicant pool and those rejected due to their credit report. Because the race of each applicant was not known, the EEOC’s expert tried to use other means to make determinations about the applicant’s race, even when it was not known.

Kaplan asked the Court to exclude Dr. Murphy’s testimony and report and ultimately, dismiss the EEOC’s case, arguing that Dr. Murphy’s method of determining race was scientifically unsound. The Court agreed. In the absence of any reliable, scientifically sound evidence to link the use of credit reports to race, the Court granted summary judgment to Kaplan.

Use of Credit Reports Going Forward

In the last four or five years, the EEOC has made an issue out of employers’ use of credit reports and criminal history records in hiring decisions, resulting in the filing of a number of lawsuits. The EEOC’s track record in these cases, however, is mixed. In an earlier case alleging disparate impact related to the use of criminal history records, the EEOC finally agreed to dismiss the case after more than three years while the federal court ordered sanctions of over $750,000 against the EEOC for continuing to litigate when it knew of fatal flaws in proving disparate impact. (See EEOC v. Peoplemark, Inc., No. 08-cv-907 (W.D. Mich. 2008)). On the other hand, the EEOC was able to obtain a $3.1 million settlement and policy revisions from Pepsi when it challenged Pepsi’s use of background checks in 2011.

Despite the EEOC’s spotty results in proving disparate impact in these background check cases, employers need to be careful and deliberate in how they use credit reports for hiring purposes. Credit reports should be used only where job-related, such as for applicants seeking positions involving financial responsibility, high level managerial decisions or as required by law. Conduct credit checks only after making a conditional job offer so as not to weed out candidates prematurely on the basis of credit. Finally, be aware that eight states currently have statutory restrictions on the use of credit history in employment decisions so if you are located or are hiring in California, Oregon, Washington, Illinois, Maryland, Connecticut, Hawaii or Vermont, you will need to comply with those restrictions.

January 28, 2013

Expect More FMLA Requests for Leave to Care for an Adult Child as a Result of New DOL Guidance

By Mark B. Wiletsky

Employers will likely face additional requests by employees seeking leave under the Family and Medical Leave Act (FMLA) to care for an adult child who is unable to care for themselves. The Department of Labor (DOL) recently issued an Administrator’s Interpretation (AI), No. 2013-1, clarifying the definition of “son or daughter” under the FMLA as it relates to covered leave for an adult child with a serious health condition. The AI also clarified FMLA leave to care for an adult child injured during military service. Let’s take a look at what employers need to know.

FMLA Leave for Care of a Son or Daughter

The FMLA provides an eligible employee with up to 12 weeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. If the child is age 17 or younger, the employee requesting leave need only show that the child has a serious health condition and the employee is needed to care for the child. However, if the child is age 18 or older, leave is available only if the child has a mental or physical disability and is incapable of self-care because of that disability.

Four-part Test to Determine FMLA Leave for an Adult Child with a Disability

To determine whether a parent is entitled to take FMLA leave to care for their adult (age 18 or older) child, four criteria must be met. The adult son or daughter must:

1) have a disability as defined by the Americans with Disabilities Act (ADA);

2) be incapable of self-care due to that disability;

3) have a serious health condition; and

4) be in need of care due to the serious health condition.

Disability Determination. Because the FMLA regulations rely on the definition of disability found in the ADA, the first criteria will be met if the adult child has a physical or mental impairment that substantially limits one or more of their major life activities. Because the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) expanded the definition of major life activities that lead to a disability determination, the issue of disability is not likely to require an extensive analysis.

Incapable of Self-Care. The second criteria specifies that the adult child must require active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” In essence, this means that the individual needs help with daily activities such as bathing, grooming, dressing, eating, cooking, cleaning, shopping, maintaining their home, using a telephone, etc. Determining whether an adult child is incapable of self-care due to their disability is a fact-specific analysis that must be made based on their condition at the time of the requested leave.

FMLA Serious Health Condition. If the adult child meets the first two criteria in the test, the analysis turns to whether the child has a serious health condition, as defined by the FMLA. This means the individual has an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In many cases, the impairments that meet the definition of disability under the ADAAA will also meet the definition of serious health condition under the FMLA. However, it is important to note that the serious health condition does not have to be associated with the individual’s disability (e.g., a broken leg may be the serious health condition for an individual whose disability is cancer).

Care Needed. Finally, the parent requesting leave must be needed to care for the adult child with a serious health condition. This threshold is relatively low as the term “needed to care” can include providing transportation for doctor appointments, preparing food and offering psychological comfort and reassurance.

Age at Onset of Disability Doesn’t Matter

An important clarification made by the DOL is that the disability of the child does not have to have occurred or been diagnosed before the child turned 18 years old. For purposes of FMLA leave, it does not matter when the disability commenced. The DOL believes this interpretation is consistent with the legislative history and purpose of the FMLA.

Caring for Adult Children Injured During Military Service

Under the FMLA military caregiver provision, the parent of a covered servicemember who incurred a serious injury or illness during military service may take up to 26 weeks of FMLA leave in a single 12-month period. Recognizing that the impact of the injury may extend beyond a single 12-month period, the DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years due to the adult child’s serious health condition, provided all other FMLA requirements are met.

What Do I Do Now?

With the potential influx of new FMLA leave requests related to the care of an adult child, review your FMLA policies and procedures now to ensure that they are consistent with the new DOL guidance. Train your human resource professionals and any supervisors who handle leave requests to recognize the issues associated with leave for the care of an adult child. And finally, given the complexities involved in this four-part test, consult with your legal counsel when faced with a leave request to care for an adult child.

January 14, 2013

ADA Reasonable Accommodations Require an Interactive Proces

by Mark B. Wiletsky

Although some say talk is cheap, that saying does not apply when evaluating an employee’s request for a job accommodation under the Americans with Disabilities Act (“ADA”). Instead, it is important to engage in an open discussion with the disabled employee; failing to do so can easily land your organization in court. A Texas school district recently learned that lesson when a federal judge ruled that discharging a disabled classroom aide without engaging in a good faith interactive process regarding reasonable accommodations could result in liability for the district for a violation of the ADA. Nelson v. Hitchcock Indep. Sch. Dist., No. 3:11-CV-00311 (S.D. Tex. Dec. 21, 2012).

Disabled employee needed accommodation after exhausting FMLA leave. Iris Nelson had worked for the Hitchcock Independent School District (“District”) as a teacher’s aide for the Head Start program since 1996. In February 2009, Nelson learned she needed to have knee replacement surgery on both knees due to severe bilateral knee arthritis. Nelson soon took leave covered by the Family and Medical Leave Act (“FMLA”) for surgery on her right knee. In August 2009, shortly before the new school year was to begin, Nelson met with the District’s payroll and benefits supervisor, Theresa Fails, to request another two-and-one-half months off for surgery on her left knee. Fails informed her that she had exhausted her FMLA leave and would not be eligible for additional leave until the following year.

Nelson claims that she told Fails that she would work using a cane or a walker until she became eligible for more leave but Fails allegedly responded that she could not use walking aids. Nelson also stated that she would just have to take pain pills, a suggestion Fails supposedly refused as well. After the meeting, Fails notified the District’s interim Head Start director and the school superintendent of the conversation and recommended that until a doctor’s note could be obtained and a decision made, Nelson should not be allowed to return to work.

Without hearing anything more on her accommodation request, Nelson returned to work on August 17, 2009 and filed a form requesting leave which would begin on August 20, 2009. Nelson did not receive a response to her leave request and unilaterally took off to have her surgery on August 23, 2009. On August 25, 2009, the District’s superintendent sent Nelson a letter denying her leave request, noting that she had exhausted her FMLA entitlement. Six days later, the superintendent sent Nelson a notice of termination, informing her that her “employment with Hitchcock ISD has been terminated for being unable to perform the essential functions of your job.” Not surprisingly, Nelson sued, claiming that the District violated the ADA when it terminated her instead of accommodating her disability.

Court finds evidence that District failed to engage in ADA-required interactive process. The Court concluded that Nelson’s ADA claim could proceed to trial as Nelson presented sufficient evidence that the District never engaged in the communication and good faith interactive process regarding her accommodation requests that is required under the ADA. The Court noted that Nelson offered to postpone her surgery had she been allowed the accommodation of using a cane, walker or pain pills. Although the District argued that it would have been unreasonable to allow Nelson to supervise children while using a walking aid or while under the influence of pain medications, the Court ruled that it need not reach a reasonableness determination because the District had failed to engage in the required interactive process that would have allowed the District to assess the alternate accommodations. The Court pointed out that had the District discussed the alternatives with Nelson, it could have clarified whether she needed a walking aid or pain pills or both, whether any over-the-counter medications would have been sufficient and what the side effects of any required dosage would be. Only by engaging in that dialog could the District determine whether Nelson’s requested accommodations would impose an undue hardship on the District.

Lessons learned. When faced with an accommodation request, employers should not jump to deciding whether the proposed solution places an undue burden on the company, without first actually talking to the employee and seeking further input from the employee if the proposed solution seems unreasonable or unworkable. Employers must engage the employee in an interactive dialog to discuss what would allow the employee to perform the essential functions of their job. Remember, when it comes to reasonable accommodations under the ADA, there is often more than one way to skin a cat. The first accommodation requested may not be the only, or even the best accommodation for a particular disabled employee. By including the affected employee in the accommodation process, employers meet their ADA obligation while exploring the options that could allow the employee to stay on the job. You may not always reach a solution that works for both parties, but as long as you try in good faith—and appropriately document your efforts—it is much harder for the employee to attack your process and actions in a lawsuit down the road.

November 12, 2012

Consider ADA Before Discharging Employee When Leave Expires

By Mark Wiletsky

Can you fire an employee who is unable to return to work due to a medical impairment if that individual has exhausted all of his available leave? What if the employee has been on an extended leave of absence, and has exhausted his Family and Medical Leave Act (FMLA) leave and short-term disability benefits, but still has some restrictions on his ability to work? The answer: maybe, but only if you have engaged in an individualized inquiry under the Americans with Disabilities Act (ADA) before doing so.

Some companies provide generous amounts of leave for employees with health or medical issues. Still, a company should not have a policy by which it automatically terminates employees who cannot return to work when they have exhausted available leave, or if they are unable to return without restrictions. Such policies likely violate the ADA, which generally requires an individualized approach to working with individuals with disabilities. Automatically discharging an employee just because that person has exhausted available leave is not consistent with the ADA's individualized inquiry. Similarly, demanding that individuals be 100% recovered from an injury or impairment before returning to work typically violates the ADA's requirement to accommodate disabled employees who are qualified, but unable to perform the essential job functions without an accommodation.

The Equal Employment Opportunity Commission (EEOC) has challenged a number of companies that maintained these blanket policies, and it continues to do so. On November 9, the EEOC announced that it entered into a consent decree (which is essentially a public settlement agreement) with a nationwide trucking company that supposedly discharged employees automatically upon exhausting their leave or when they were unable to return to work without restrictions. Although the company admitted no wrongdoing, to resolve the lawsuit it agreed to pay $4.85 million, revise its policies to comply with the ADA, provide mandatory periodic training to employees on the ADA, report particular employee complaints about the ADA to the EEOC, post a notice about the settlement, and appoint an internal monitor to ensure compliance with the consent decree.

To avoid these issues or a potential ADA violation due to your leave policies, consider the following tips:

If you have a policy that requires an employee to be able to work without restrictions, or if you discharge employees as soon as they exhaust available leave, you should work with counsel to revise those policies.
When an employee is nearing the end of his available leave, send a letter or call the employee to remind him that his leave is about to expire. If the employee is unable to return when the leave expires, set a time to meet with the employee to determine whether you can accommodate the employee, either with more leave (potentially) or with some other type of accommodation. While you are not required to provide indefinite leave, you may be required to grant some additional time off, or consider another accommodation, if the employee qualifies for protection under the ADA.
Follow-up in writing with the employee after the interactive meeting, to confirm the discussion and avoid any disputes down the road about what was said or agreed upon in terms of the employee's status and ability to return to work.

Managing employee leaves is not easy, and it often requires navigating a variety of statutory rights, including the FMLA, the ADA, and workers' compensation. But taking an individual approach is far better than relying on a "one-size-fits-all" policy, which may very well result in a lawsuit or enforcement action.

November 9, 2012

NLRB: Irrelevant Union Requests Demand Timely Response

by Bradford J. Williams

A union’s request for information demands a timely response, even if the requested information is irrelevant to the collective bargaining relationship or any underlying grievance. That’s the ruling of a recent National Labor Relations Board (NLRB) decision expanding an employer’s duty to bargain in good faith under Section 8(a)(5) of the National Labor Relations Act (NLRA). Employers must now timely respond to all requests for information involving bargaining unit members or risk an unfair labor practice charge.

The statutory duty to bargain in good faith includes the duty to provide unions with information needed to engage in collective bargaining or administration of a collective bargaining agreement (e.g., through a grievance procedure). As such, the NLRB has long held that employers must timely provide unions with information that is relevant and necessary to their performance as collective bargaining representatives. It has also long held that employers must timely object to requests for relevant information that might lawfully be withheld on the basis of confidentiality, privacy, or other interests.

Before its decision last month, however, the NLRB had never previously decided whether an employer must timely respond to a union’s request for information that is determined (or admitted) to be irrelevant. An employer must now timely respond.

In its October 23, 2012, decision, the NLRB held that a company engaged in interstate trucking violated Sections 8(a)(1) and 8(a)(5) of the NLRA by failing for a period of four and one-half months to respond to a union’s request for information involving the company’s drivers. This was so even though the union admitted that the request was irrelevant to any pending grievance. In its ruling, the Board characterized the requested information as “presumptively relevant” at the time the request was made because it related to unit employees. The Board determined that the company had a duty to “respond promptly” to the union’s request, even if just to explain its reason for refusing to provide the (irrelevant) requested information.

The Board’s latest decision is troubling. Employers may now no longer ignore union requests, even when the requested information is clearly irrelevant to collective bargaining or contract administration. Instead, they must promptly respond to all requests and either (a) provide the requested information, or (b) explain why it is being withheld. This is true with respect to any requests involving bargaining unit members. Employers are thus encouraged to consult counsel immediately after receiving information requests to ensure the preparation of an adequate and timely response. Failure to do so may expose employers to unfair labor practice charges and give unions leverage in ongoing negotiations or grievance proceedings.

November 5, 2012

NLRB Affirms At-Will Disclaimers

By Dora Lane and Mark Wiletsky

Most employers today provide a handbook or another document confirming employees' at-will status. Until recently, there was no question that this is a good business practice. But earlier this year, an NLRB (National Labor Relations Bureau) administrative law judge concluded in Am. Red Cross Ariz. Blood Servs. Region, No. 28-CA-23443 (Feb. 1, 2012), that such a disclaimer violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA). The judge reasoned that the disclaimer, which said “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way,” effectively precluded employees from engaging in concerted activity (a protected right under the NLRA) to alter their at-will status.

Thankfully, the NLRB—which enforces the NLRA—has pulled back. On October 31, 2012, the NLRB issued two memos regarding the enforceability of “at-will” provisions in employee handbooks. The first memo involved a provision, stating as follows:

“No manager, supervisor, or employee at Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”

This provision was found permissible because it explicitly permitted the company’s president to enter into written employment agreements that modify the employment at-will relationship, and therefore included the possibility of potential modification of the at-will relationship through a CBA ratified by the president.

The second memo involved the following provision:

“No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.”

This provision was determined to be lawful (but a closer question than the first provision) because it only highlighted the company’s policy that its own representatives cannot modify the at-will relationship and reinforced that the handbook did not create a contract of employment.

With both of those provisions, the NLRB distinguished the American Red Cross case because there the at-will employment relationship could not be altered or modified “in any way."

Bottom line: As with its position on social media policies, the NLRB appears to be splitting hairs in terms of what type of language is, and is not, a violation of the NLRA with respect to at-will disclaimers. While these two decisions suggest that the NLRB will not take an unreasonably aggressive approach in challenging at-will disclaimers, it's not a bad idea to compare your own disclaimer to the ones the NLRB approved to avoid any potential issue with the NLRB.