Tuesday, December 30, 2014

The NLRB's New Quickie Election Rules: How to Handle the Unwelcome Stocking Stuffer

Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie” election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for employers.

These rule changes were not unexpected, as the NLRB first introduced them in 2011, received some 50,000-plus comments, and only abandoned them after they were enjoined by federal courts of appeal. In February of 2014, the NLRB re-issued the proposed rule, which left the 2011 proposed rule unchanged.

The NLRB has provided a helpful fact sheet and comparison chart showing the changes to the procedures that will result from the new rule, which becomes effective April 14, 2015. While we don't have space to cover all of the changes, the following are few important points for employers to note:
  • Length: They aren't called "quickie” election rules for nothing. The rules are meant to streamline and expedite the process for employees to elect union representation, from petition to election to post-election litigation. The Wall Street Journal reports that the new rules have been estimated to reduce the average time between petition to election to 25 days or less— substantially less than the 2013 average of 38 days. One specific change to the timeline is that a pre-election hearing generally will be set for eight days after notice of the petition, and, as discussed below, the new rule now requires employers to submit more information prior to that hearing. The shorter timeline makes it far more challenging than ever for an employer to prepare and conduct a reasonable campaign so that its voice can be heard on the unionization question along with the voices of the union. 
  • Employee Information: Two major changes were made to an employer's obligation to provide the union with employee information. First, when the employer provides the required list of prospective voters, it must now include their job classification, shifts, and work locations, within very few days of receiving the petition. Previously, this information was not required until after an election was ordered. Second, in an effort to "bring the representation rules into the twenty-first century," an that the employer must provide (to the union through the NLRB) after an election is ordered (commonly known as the "Excelsior List") must include employees' personal phone numbers and email addresses, if available to the employer, in addition to the home addresses that have long been required under the old rule. Also, this information is also due earlier than in the past—just two days after an election is ordered.
  • Making Challenges: The new rule limits the manner in which the employer may raise challenges during and after an election campaign. First, the employer must submit a "statement of position" identifying any issues the employer has with the petition, generally one business day prior to the pre-election hearing, which is, again, just a few days after the petition jump-starts this entire process. Significantly, subsequent litigation that is inconsistent with these positions will generally not be allowed. And, during the pre-election hearing, litigation will generally be limited to issues that are necessary to a determination of whether an election in the proposed unit of employees is appropriate. Issues involving voter eligibility that formerly would be decided at this early hearing now will generally be deferred until the post-election stage, and will often be mooted by the election results. Additional changes to the process for challenges to voter eligibility are discussed in the NLRB's fact sheet and comparison chart.
So what's the main take-away for employers? BE PREPARED! After implementation of the new rule, it is more important than ever to prepare for possible organizing activity and to respond immediately once a petition is filed. The new rule gives employers a very short window to gather employee information, formulate a position, raise issues, and communicate with employees.
We will be discussing this and other issues facing non-unionized employers at a free Breakfast Briefing by our Labor Law Team on January 27th in our Minneapolis office. Click here for more information and to register.

Monday, December 22, 2014

The NLRB’s Busy Holiday Season

The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its “quickie election rules” and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are “managerial” employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then, last week, the Labor Board issued complaints in nearly 50 unfair labor practice cases, alleging that franchisor McDonald’s Corporation is a joint employer with its franchisees and, therefore, responsible for alleged unfair labor practice.

In the coming weeks, we will issue a series of blog posts providing more information on these labor board actions and suggesting action steps for employers to consider in response to these significant changes in the labor law. In the meantime, if you need immediate labor counsel or advice on any of these subjects, our Labor Practice Group Team can be reached by emailing our chair, Mark Mathison, at mark.mathison@gpmlaw.com or calling him at 612.632.3247.

Beware of Stock Vendor Background Check Forms

If you are like many employers, you use an online job application or are considering switching to an online process. Online applications have many benefits, and there are numerous vendors prepared to help you set up an online site, populate it with forms, and set up applicant tracking and background check processes. Employers should be wary, though, of adopting stock background check forms provided by vendors. However well-intentioned, vendors do not always provide stock forms that comply with the federal Fair Credit Reporting Act (FCRA) or other applicable laws.

A recent proposed class action against Whole Foods Market Group, Inc. highlights the risks of blindly relying on vendor forms or not carefully checking forms that you create. Earlier this month, a former Whole Foods employee filed a federal lawsuit in Florida, alleging that the company violated FCRA, the federal background check law, by using non-compliant background check consent forms in its online application process.

Under FCRA, an employer that intends to conduct a background check must first provide the applicant with an advance disclosure notice and consent form. This form must be in writing and contain designated information in a stand-alone format, separate from the employment application.  An employer must also use the form to obtain the individual’s written consent to the background check. The disclosure and consent form may not, however, contain any extraneous information, such as disclaimers, releases of liability, or other acknowledgements.

The recent suit against Whole Foods alleges that the company impermissibly used a background check disclosure form that contained extraneous release of liability language in violation of FCRA. The named plaintiff, Colin Speer, seeks to represent a nationwide class of Whole Foods employees or job applicants who were given the incorrect form in the last five years. The case is Colin Speer v. Whole Foods Group Market Inc., case number 8:14-cv-03035, pending in the U.S. District Court for the Central District of Florida.
This is not the first time Whole Foods has faced FCRA violation claims. In February 2014, a similar lawsuit was filed against the company in California. The Whole Foods lawsuits are part of a growing trend of class action lawsuits alleging FCRA violations against large national employers. In the last month, Dollar General and Publix Super Markets Inc. have settled FCRA-related class actions, each for millions of dollars. In addition, Home Depot, Uber, Disney, Domino’s Pizza, CVS, and K-Mart, among others, have all been hit with FCRA-related background screening lawsuits in recent years. As further evidence of this trend, just last month, the Federal Trade Commission (responsible for enforcement of the FCRA) issued a document called "Background Checks: Tips for Job Applicants and Employers."
Employers should be mindful of this trend and take preventive steps to ensure their application process is compliant with FCRA and other laws. If you conduct background checks, make sure the forms that you use are FCRA compliant and that you have considered any unique state or local laws.

Wednesday, December 17, 2014

Lost in the Cloud: Dropbox, Data “Insecurity,” and Employee Shenanigans

For the uninitiated, Dropbox and other similar tools—such as SkyDrive, Google Drive, or Cubby—allow a user to log in to an account, upload documents or files to the cloud, and then access or download them from any device, anywhere at any time. Users can sync folders across devices and share or sync files with others.
Chances are, more than a few of your employees have discovered the ease and utility of cloud-based storage and file sharing tools. They are incredibly useful. But, along with the upsides that these tools offer–like increased efficiency and team collaboration – they also can cause serious data “insecurity” headaches for employers.
Here’s a run-down of some of those risks:
1) Data Hackers:

While Dropbox disputes the allegation that it was “hacked,” usernames and passwords for over 7 million Dropbox users were compromised this past October. Employees using cloud storage to perform work tasks could leave company information vulnerable to the nefarious activities of others.
2) Employee Malfeasance:

Another data “insecurity” risk is employee malfeasance. There are a number of pending lawsuits alleging that employees used Dropbox or other cloud-based storage applications to misappropriate confidential company information. Unfortunately, sophisticated and savvy users of cloud-based tools sometimes help themselves to company information and documents and leave little trace behind. While a tell-tale sign of misappropriation is a flurry of email or downloading activity in the final days before an employee’s departure, what if the employee regularly synced work files to a cloud-based application over a much longer period of time? Or, what if an employee routinely printed sensitive documents to a home computer? These are real risks to consider and try to prevent.
3) eDiscovery Nightmare:

Have you ever had to subpoena Google, or Facebook, or any other online provider to obtain data? It’s not fun, easy, or quick. In addition, the process gives the person in control of the account at issue plenty of notice and time to cover up his or her tracks. And even if you do get your hands on some data, you may never be able to receive or recover the user access data that could reveal important details about when files were taken and what happened to them after that.
All of these potential scenarios leave an employer vulnerable to losing control of important records, potential trade secrets, and evidence to prove wrongdoing. In addition, to be able to establish a misappropriation claim against a wrongdoer, a company must demonstrate that it took sufficient, reasonable steps to protect its trade secrets and confidential information. If cloud storage and access is a free-for-all with no employer attention paid to what employees are uploading, accessing or sharing with others, an employer may face credible arguments that it has not taken sufficient steps to protect its information.

So, take a good look at your technology use and social media policies. Do they address employee use of  cloud-based storage? Do you have good systems in place to detect or block activity that could lead to a breach of information security? Is your company data vulnerable without you even realizing it? Depending on what you find, it may be time to roll up your sleeves and revise your employment policies and practices.

Wednesday, December 10, 2014

The Supreme Court May Soon Have the Final Say on an Employer’s Duty to Accommodate Pregnancy

2014 has been a big year for pregnancy protections in employment law. In May, Minnesota enacted a new pregnancy accommodation law, and in July the federal Equal Employment Opportunity Commission (EEOC) issued an updated pregnancy discrimination guidance document. Developments in this area are set to continue in the upcoming year. Last week, the U.S. Supreme Court heard oral arguments in the Young  v. UPS case–a highly watched case involving an employer’s potential duty to accommodate pregnant workers under the federal Pregnancy Discrimination Act (PDA). It is well-settled that pregnancy discrimination violates the PDA and other employment discrimination laws, but the question pending before the Supreme Court in the Young case is whether–similar to disability discrimination laws–employers have an affirmative duty to grant pregnancy accommodations.
Ms. Young was working for UPS in 2006 when she became pregnant. Her job description required her to haul 70 pounds. On her midwife’s recommendation that Ms. Young not lift more than 20 pounds during her pregnancy, Ms. Young requested a temporary lightened load. At the time of her request, UPS had a “light duty” policy for three groups of employees:  (1) those injured on the job; (2) those with a disability under the Americans with Disabilities Act, or (3) those who had lost their driving credentials. Because Ms. Young’s situation did not fall into any of the identified light duty groups, her request was denied, and she was placed on an unpaid leave.

The Young case focuses on the meaning of the PDA’s language prohibiting discrimination “because of” pregnancy. UPS maintains that its light duty policy is “pregnancy neutral” and not discriminatory, because it excludes both pregnant employees and non-pregnant employees–such as non-pregnant employees injured off the job. Ms. Young argues, however, that the PDA requires more than neutrality and mandates the availability of benefits to pregnant employees that are available to other employees. Both the trial court and the U.S. Court of Appeals for the Fourth Circuit ruled in UPS’ favor, finding that UPS’ policy did not treat pregnant women differently given that they could receive a light duty assignment for the same reason as other employees (i.e. an on the job injury) and given that Ms. Young was not similar in her work abilities as compared to others given light duty assignments.

The Supreme Court agreed to hear the Young case before the EEEOC issued its July 2014 pregnancy guidance. In that guidance, the EEOC maintains, like Ms. Young, that the PDA does require an employer to provide light duty work for a pregnant worker if it does so for other employees. The EEOC guidance does not, however, have the force or effect of law. As such, employers should be watching for the Supreme Court’s Young decision in 2015 to see the Court adopts the EEOC’s position or a different approach. Based on the oral arguments before the Court last week, legal analysts are saying that the case is too close to call. So stay tuned…the Supreme Court’s decision is expected by June of 2015.

Wednesday, December 3, 2014

Be Prepared - Watch for the Following in the New Year:

Believe it or not, 2014 is drawing to a close and a new year is around the corner. As you prepare for 2015, here are some items on the U.S. Department of Labor’s regulatory agenda that you will want to track:

·       We’ve been on the look-out for proposed revisions to the Fair Labor Standard Act’s (FLSA) “white collar” exemptions from overtime and minimum wage requirements since March of 2014. That was when President Obama issued a directive for the Labor Secretary to “modernize and streamline” the existing regulations and increase the minimum salary for the “white collar” exemptions. The Department of Labor has now indicated that the proposed revisions will not be released until at least February of 2015. The final rule adopting any revisions will not be issued until sometime after the legally required notice and comment period is completed.

·       We expect the Department of Labor to issue a final rule revising the definition of “spouse” under the Family and Medical Leave Act (FMLA) by March of 2015. This definition change is necessary following the U.S. Supreme Court’s decision in United States v. Whiting. In Whiting, the Supreme Court held that restricting the federal definition of “marriage” and “spouse” to heterosexual couples is unconstitutional. In response to Whiting, the Department of Labor issued a Notice of Proposed Rulemaking proposing a final rule that would provide that eligible employees in legal same-sex marriages may take FMLA leave to care for their spouse, regardless of whether their state of residence recognizes their marriage.

·       The Office of Federal Contract Compliance Programs, a division of the Department of Labor, intends to issue a final rule in the near future to implement Executive Order 13672. This Executive Order prohibits federal government contractors from engaging in employment discrimination based on sexual orientation or gender identity. It appears that the OFCCP will be publishing its final regulations without a public notice and comment period. In that event, the regulations will likely be effective when issued.

Employers should stay tuned in the New Year and will need to adjust their policies and practices when the Department of Labor’s final rules appear.