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The American Bar Association is working on its annual list of the 100 best legal blogs. If you enjoy this blog, we would sincerely appreciate your support by completing a very short “Friend-of-the-Blawg” form found here.   Deadline is this Friday, August 8 at 5:00 p.m. ET.

Thanks so much for your support! We hope you continue to find our articles informative and insightful.

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Are Your Workplace Policies Too Upbeat for the NLRB?

Many employers know that keeping an upbeat and positive workforce is crucial to any successful business; however, recent NLRB rulings penalize certain policies that encourage such an environment, including policies that encourage or promote workplace civility.

The National Labor Relations Board’s (“NLRB”) rulings regarding employers’ social media polices are addressed in this blog (see here, here, and here). The NLRB’s focus, however, is not limited to social media policies, nor to unionized companies. Now, the NLRB is taking an interest in reviewing nonunion companies’ employee handbooks. Employers have found it increasingly difficult to set even the most basic standard employee and workplace policies in light of the NLRB’s rulings and memos that are critical of such policies.

The Employee Handbook

Under Section 7 of the National Labor Relations Act (“NLRA”), employees have the right to self-organization; specifically, to form, join or assist labor organizations, and to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, any business rules or policies that may reasonably tend to chill employees’ exercise of their Section 7 right are unlawful under the NLRA.

In a recent case, Hills and Dales General Hospital, 360 NLRB No. 70 (April 1, 2014), the NLRB found that workplace polices banning “negativity” and “negative comments” are illegal. The case involved Hills and Dales General Hospital in Michigan, which had an employee policy titled, “Values and Standards of Behavior.” The provisions at issue stated:

  • “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
  • “We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.”
  • “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”

All hospital employees signed a copy of the policy, which was then included in their personnel file. After an employee violation arose, the policy came under attack.

The NLRB found all three provisions to be unlawful because employees could reasonably believe the polices “proscribe them from engaging in any public activity or making any public statements that are not perceived as ‘positive’” towards the hospital. The policies–by the NLRB’s reasoning– could prevent employees from making statements about their terms and conditions of employment, which is protected speech by the NLRA. As a result, the hospital was ordered to retract these sections of the Values Policy and delete them from all sources.

Employers must carefully review employee conduct policies in the face of continued NLRB scrutiny. Policies should be narrowly tailored to avoid restricting protected Section 7 activity and language that might be considered too broad or ambiguous should be avoided. If you have questions regarding your employee handbooks, contact the labor and employment law attorneys at McBrayer.

B. Koch

 

 

 

 

Brittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

 

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The Five P’s of an Unannounced DOL Visit

Department of Labor (“DOL”) inspections are on the rise. Sometimes, advance notice is given as to when an investigator will be arriving; other times, the investigator may decide to make an unannounced visit. When an investigator shows up unannounced and ready to conduct an immediate wage and hour investigation, it can be a nerve-racking experience for any employer. The first thing to do is remain calm and approachable – you do not want to get off on the wrong foot with any federal investigator. The next thing to do? Keep in mind the 5 P’s!

Office Life

  1. Plan

Okay…this should have occurred before the investigator’s arrival. If there is not a plan in place, then, at minimum, find a point-person (hey, that starts with a “P”, too). Preferably, the point-person will be an executive or high-level supervisor or manager who can make note of the investigator’s requests, show him or her around the work site, and arrange for a private workspace for him or her until firmer plans are in place. After this, move quickly to step #2.

  1. Phone

After the investigator has been greeted and introduced to the point-person, immediately contact legal counsel and the human resources department. Time is of the essence!

  1. Personnel

If an investigator is making rounds on the worksite, chances are he or she will want to speak with employees. You may need to notify personnel of the investigator’s presence in order to keep distractions or inquiries at a minimum. It is important to note that an investigator may demand privacy for hourly employees’ interviews, but the right to privacy belongs to the employee – not the investigator. Employees exempt from wage and hour regulations (“exempt employees”) do not have a corresponding right to privacy. You, as an employer, may insist that counsel or another high-level management employee be present for these interviews.

  1. Papers

An investigator is going to want to review documents – everything from time sheets to employee handbooks to personnel files. It is important to clarify the scope of the investigation early on so that you do not provide more to the investigator than what is asked for. All documents that are produced should be labeled as “confidential and proprietary.” Record what is turned over and keep a duplicate copy.

  1. Protect

It is important to be polite and cooperative with an investigator, but you must also be vigilant about protecting your own interests. While rarely (if ever) the best option, it is possible to demand a subpoena instead of consenting to an investigation. Remember that an on-site investigation must be conducted at reasonable times, in a reasonable manner, and within reasonable limits. When an investigation is unannounced, the records sought may not be immediately available. Employers can request additional time to gather documentation; generally, they are given up to 72 hours to respond to an investigative demand. Keep in mind that an attorney can be present for the entire investigation, help you understand your rights, protect your interests, and work with the investigator to minimize work disruptions. That is why that step #2, phone, cannot happen quickly enough!

If a DOL investigator shows up at your door, give the employment law attorneys at McBrayer a call. We are here to help. Learn more about our services here.

B. Johnson

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Changes on the Horizon for Federal Job Training Programs

Federal job training programs can expect a big overhaul, thanks to President Obama who signed legislation on July 22 that is intended to streamline a tangled web of programs. In 1998, Congress passed the Workforce Development Act. The law provided money to states and cities for job retraining. In 2011, in an investigation by the Government Accountability Office, it was discovered that the federal government spent $18 billion a year on 47 separate job training programs run by nine different agencies, many of which were overlapping or duplicative.

The new law, entitled The Workforce Innovation and Opportunity Act, aims to reduce the bureaucracy of the 1998 law and provide state and regional officials with more flexibility in how they use the job training money. In addition, the new law requires a “job-driven checklist” to ensure money is used effectively and will provide workers with “data-driven tools” to give them better information about career prospects. The bill received overwhelming bipartisan support in both the House and Senate.

In signing the law, President Obama stated, “They [workers] enroll, they get trained for something. They’re not even sure whether the job is out there, and if the job isn’t out there, all they’re doing is saddling themselves with debt, oftentimes putting themselves in a worse position. Every job seeker should have all the tools they need to take their career into their own hands.”

President Obama Rally

 

According to the White House, more than 21 million people make use of federal training programs annually, including veterans, the unemployed, people with disabilities and young workers. If you are an employer and have questions about any of the numerous federal laws affecting your workforce, such as the Americans with Disabilities Act or Title VII, consider contacting the

B. Johnson

 

 

 

 

 

Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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US Supreme Court Will Review Important Case Affecting Pregnant Workers, Part II

On Monday, details about the case Young v. UPS were discussed. Young was a part-time UPS driver who, after becoming unable to lift heavy packages due to her pregnancy, was denied her request for light duty. She alleges that UPS violated the law by failing to provide her the same accommodations as it provided to nonpregnant employees with physical disabilities who were similar in their ability to work. After the District Court and Fourth Circuit Court of Appeals both found for UPS, Young petitioned filed a petition for certiorari with the Supreme Court. UPS, however, responded to the petition with an argument that the 2008 amendments to the Americans with Disabilities Act (“ADA”) could render the case moot.  The actions that led to the suit occurred in 2006 – before the amendments to the ADA were made.

The regulations under the Americans with Disabilities Act Amendments Act (“ADAAA”) broadens the definition of “disability” to include afflictions of limited duration, which could serve to make the issue raised in Young’s challenge under the Pregnancy Discrimination Act irrelevant. According to UPS, “If courts construe the ADA (as amended) to cover pregnant workers subject to lifting restrictions like petitioner’s, that statute, unlike the PDA, would expressly require accommodation.” That may be the case, but we will have to see how the Supreme Court weighs in, when it considers it later this later.

The Court’s decision to take the case is timely, as President Obama is calling on Congress to act on the Pregnant Workers Fairness Act. Additionally, the EEOC has had its eye on pregnancy discrimination in the last couple of years. In 2012, the agency resolved a record number of pregnancy discrimination cases – recovering more than $14 million in settlements for victims. This is no surprise, as the EEOC’s Strategic Enforcement Plan for FY 2013-2016 cautioned that the commission would be ramping up its focus on pregnancy discrimination allegations.

If you are an employer and are presented with a request for accommodation by a pregnant worker, consider contacting counsel before acting for further information on federal and state laws. We will be following the Young v. UPS case and inform you of the Court’s ruling once an opinion is rendered.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

This article is intended as a summary of state and federal law and does not constitute legal advice.

 

 

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US Supreme Court Will Review Important Case Affecting Pregnant Workers

The U.S. Supreme Court has just agreed to review Young v. UPS, a decision that will determine whether and to what extent an employer must provide pregnant employees with work accommodations, such as light duty, that are given to other workers with disabilities.

The Plaintiff, Peggy Young, a part-time UPS driver, became pregnant in 2006 and was told by her doctor not to lift objects weighing more than 20 pounds for the first half of her pregnancy and more than 10 pounds thereafter. Young subsequently requested a light duty assignment from UPS, but the request was denied. Because lifting more than 20 pounds was an essential function of her job, UPS did not allow Young to continue working; instead, she took unpaid leave and returned after giving birth. She then sued UPS, claiming that UPS violated the Pregnancy Discrimination Act (“PDA”).

The PDA of 1978 is one sentence that amends Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on a number of factors including sex, by providing that “(1) The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and (2) women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” (emphasis added).

UPS’s workforce is unionized; thus, a collective bargaining agreement dictated terms of employment. This agreement specifically outlined to whom accommodations could be provided: people with disabilities covered by the Americans with Disabilities Act, workers who had experienced on-the-job injuries and those who had lost their Department of Transportation certification. In her suit, Young emphasized the second clause of the PDA, arguing that UPS violated the law by failing to provide her the same accommodations as it provided to nonpregnant employees with physical disabilities who were similar in their ability to work.

Both the U.S. District Court for the District of Maryland and the Fourth Circuit found the company policy to be lawful under the PDA because “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” The Fourth Circuit’s ruling in UPS’ favor is at odds with a 1996 Sixth Circuit decision that allowed a similar PDA claim to move forward. See Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996). The split makes the issue ready for Supreme Court review. For more on interesting information on this case, including why the Plaintiff’s argument might be already moot, check back on Wednesday.

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at ceffinger@mmlk.com or at (502) 327-5400, ext. 316.

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Don’t Get Burned With Teens Working During Summer Months

Ah, summer. Crowded pools, yards in need of tending, restaurants overflowing with customers – all present the perfect work opportunity for teenagers. For employers, hiring a seasonal or temporary workforce of teenagers comes with a few extra things to keep in mind. The federal law controlling child labor is the Fair Labor Standards Act, but Kentucky also has its own set of child labor laws with which employers must comply. As the summer heats up, remember these things to avoid getting burned with legal troubles:

  • Employers are required to verify that teens are above the age of 14. This can be done through the request of birth certificates or drivers licenses.
  • Some occupations are prohibited for anyone under 18, such as mining, logging or roofing. In addition, operating certain machinery (such as a forklift, a deli meat slicer, or a power-driven circular saw) may be prohibited by state or federal law.
  • Teens ages 16 and 17 may work as many hours as they wish during the summer, but 14 and 15 year-olds may only work 8 hours per day and 40 hours per week while school is not in session.

If you are an employer and have questions about teenagers working for your business, contact a McBrayer employment law attorney.

Amy Cubbage

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

 

 

 

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