Our colleague, Alyson Palmer, noted on our Food Liability Law Blog that the U.S. Occupational Safety and Health Administration (OSHA) published an interim final rule on February 13, 2014 creating the process for handling retaliation complaints brought by whistleblowers under Section 402 of the Food Safety Modernization Act (FSMA). Under the new rule, any employee who submits a complaint indicating a violation of FSMA or any FDA regulation or order is protected from any form of adverse employment action or harassment based in whole or in part on such a complaint. Businesses and employers within the food industry should strongly consider putting an adequate whistleblower protection policy in place, if they have not already done so. The interim final rule will be available for public comment until April 14, 2014.
In an unapologetic rejection of a decades-old legal fiction hatched by the federal Occupational Safety and Health Administration ("OSHA") and embraced by Utah Division of Occupational Safety and Health ("UOSH"), on January 31, 2014, the Utah Supreme Court repudiated the multi-employer worksite doctrine. Hughes General Contractors v. Utah Labor Commission, 2014 UT 3. The Court based its repudiation on the doctrine’s “incompatibility with the governing Utah statute.”
The so-called multi-employer worksite doctrine makes a general contractor responsible for the occupational safety of all workers on a worksite, including those who are not even the general contractor’s actual employees. In rejecting that doctrine, the Supreme Court reaffirmed that the responsibility for ensuring occupational safety in Utah is limited to an employer’s actual employees.
Hughes was a general contractor overseeing a construction project involving multiple subcontractors, including a masonry subcontractor. UOSH invoked the multi-employer worksite doctrine and cited Hughes for improper erection of scaffolding in connection with the masonry subcontractor’s work, concluding that Hughes was responsible as a “controlling employer” under Section 34A-6-201 of the Utah Occupational Safety and Health Act (UOSH Act) given Hughes’ “general supervisory authority over the worksite.” Hughes challenged the legal viability of the doctrine before the Administrative Law Judge, who upheld the citation; and then the Labor Commission’s Appeals Board affirmed the ALJ’s decision. The Board based its decision on the notion that Section 34A-6-201 “mirrors its federal counterpart, which was interpreted [by the 10th Circuit] to endorse” the doctrine. Id., ¶5.Continue Reading...
On February 5, 2014, the National Labor Relations Board ("NLRB") re-issued its controversial “quickie” election rule. As you may recall, that rule, which was opposed by employer groups, the U.S. Chamber of Commerce and others, was invalidated by the D.C. District Court in May 2012. The reissued "quickie" election rule would substantially shorten the time between the filing of a petition and the election to determine whether the union will represent employees--from approximately 42 days to as little as 10 to 14 days.
The D.C. District court struck down the rule in 2012 for procedural reasons. The Board initially issued the rule in 2011, but its implementation was stayed as a result of a decision of the United States District Court for the District of Columbia, which held that the rule had been improperly adopted with only two Board member votes, rather than statutorily required three Board member votes, under the U.S. Supreme Court's landmark 2010 decision in New Process Steel. Since July 2013, however, when the U.S. Senate confirmed President Obama's new appointees, the Board has operated with a full five members for the first time since 2007.
How The "Quickie" Election Rule Would Change Union Elections
Under the current approach, unions must gather authorization cards from at least 30 percent of employees in the unit sought to be represented in order to file a petition for an election with the NLRB. Sometimes employers know about the organizing drive before the petition is filed, but sometimes, they do not. During the pendency of the election (which is currently about 40 days), employers have an opportunity to “campaign” against unionization by providing employees with information about the union, its tactics, and the costs and disadvantages of joining a union. Once the employees vote in the election and the union is certified, the employees may not seek to decertify the union for at least a year, or until after the expiration of the first collective bargaining agreement, whichever is longer.Continue Reading...
Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees
The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.
Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).
The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.Continue Reading...
David Nosal, Employee Data Theft, and Why Employment Lawyers Should Understand Their Clients' IT Infrastructure
Earlier this month, a federal judge in San Francisco sentenced David Nosal to a year in prison, three years’ supervised release, 400 hours of community service, and $60,000 in fines. His crime? Nosal violated the Computer Fraud and Abuse Act (“CFAA”), among other federal statutes, when he departed from his former employer with a stash of its most sensitive business data.
Employment law doesn’t normally develop in criminal courtrooms, but Nosal’s case is an important exception. The outcome of his pending appeal to the 9th Circuit will almost certainly offer important guidance for employers on how best to prevent and, where necessary, remedy employee data theft. It’ll likely reinforce a familiar lesson: employers should craft their employee technology policies with an eye toward the law of data security. A well-developed IT infrastructure can give an employer substantial legal advantages and lead to better outcomes when employee data theft occurs.
What Is The CFAA?
To understand the practical importance of Nosal’s case, employers should first understand how the CFAA can apply to departing employees who steal company data. Congress passed the CFAA in 1986 – before the advent of most modern information technology – to combat computer hacking. The CFAA makes it a federal offense to obtain information or perpetrate a fraud either by (a) accessing a computer “without authorization,” or (b) by “exceed[ing] authorized access” on any such computer. In addition to its criminal penalties, the CFAA creates a parallel civil cause of action for hacking victims.Continue Reading...
In a time when California courts are busier than ever, the California Court of Appeal recently did double duty by issuing an opinion that both decided an issue of first impression in California and implicitly approved Senate Bill ("SB") 292, a relatively new law (and one that we blogged about last year) clarifying that sexual harassment under California’s Fair Employment and Housing Act (“FEHA”) does not require proof of sexual desire towards plaintiff.
The Court's opinion in Max Taylor v. Nabors Drilling USA, LP can be found here. (Warning: this one is not family friendly!) The case involved an employee working as a “floorhand” on an oil rig. For anyone who has never worked on an oil rig before (myself included), a floorhand is usually the lowest member of a drilling crew and is given the dirtiest and most physically demanding jobs. During the course of plaintiff’s employment, his male supervisor subjected him to serious and extreme harassment. For example (and this is where it gets bad, although we're only giving you the PG version), his supervisors called him multiple derogatory terms for gay men, made several offensive comments when he had an infection on his face, posted his photograph in the restroom with offensive graphics, urinated on him, spanked him, and aroused themselves in his presence and then asked him to sit on his lap.Continue Reading...
NLRB Effectively Scraps Plans (For Now) To Pursue Notice Posting Rule By Deciding Not To Seek Review By U.S. Supreme Court
The National Labor Relations Board (NLRB) has suffered a series of setbacks recently at the hands of federal judges. In December, the Fifth Circuit Court of Appeals largely struck down the NLRB's prohibition on class action waivers in arbitration agreements. Now, on January 6, 2014, the NLRB announced that it won’t seek Supreme Court review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule, which would have required most private sector employers to post a notice informing employees of their right to organize. The deadline for seeking Supreme Court review passed January 2.
The legal effect of this “non-event” is that it allows to stand two appellate court decisions that invalidated NLRB's 2011 adoption of a rule. In May 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in National Ass'n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) that requiring employers to post the statement of rights under the National Labor Relations Act (NLRA) would be inconsistent with Section 8(c) of the act, which essentially gives employers the right to speak freely to their employees so long as the communications aren’t coercive. The Court also held that NLRB lacked authority to promulgate the regulation, because it would have effectively modified the federal statutory time limit for filing unfair labor practice charges. A month later, the Fourth Circuit ruled against the NLRB and sustained a second challenge to the regulation in Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013).Continue Reading...
Today we continue with our recent New Years theme. Not to be outdone by their neighbors to the south, the Oregon Legislature was also busy in 2013. And now that 2014 is upon us so too are a slew of new Oregon employment laws. In areas ranging from social media to sick leave, Oregon employers should carefully review their policies and practices to ensure current compliance with these new laws. Here is a round up of the major changes to employment laws enacted by the Oregon Legislature (and the City of Portland) that employers should be aware of in 2014:
- Employers may not demand access to employees’ social media accounts. Beginning on January 1, 2014, employers may not demand access to employees’ or applicants’ personal social media accounts. House Bill 2654, which Governor Kitzhaber signed into law on May 22, 2013, prohibits employers from requiring an employee or applicant to disclose her username, password, or “other means of authentication that provides access to a personal social media account.” It further prohibits employers from requiring that an employee “friend” or otherwise connect with an employer via a social media account, and from compelling the employee to access the account in the employer’s presence such that the employer can view it. A number of other states have passed or are considering similar legislation.
It has become an annual New Year’s tradition in California -- employers getting up to speed on a host of new employment laws that will affect them in the coming year. The California Legislature was busy in 2013 imposing new burdens on employers for 2014 and beyond. We previously blogged about an increase in the state minimum wage and a statutory clarification of the definition of sexual harassment, but those new laws are only the tip of the iceberg. Here’s our annual summary of the most important new laws affecting California employers.
- Expanded Whistleblower Protection (SB 496): California law already prohibits employers from retaliating against employees who report the employer’s violation of state or federal law to a government or law enforcement agency. SB 496 expands whistleblower protection in several ways. First, it prohibits retaliation against internal whistleblowers, so an employee who reports suspected violations within the company is entitled to whistleblower protection to the same extent as an employee who reports violations to a government agency or law enforcement. Second, SB 496 provides whistleblower protection for reports of violations of local ordinances and regulations, as well as state and federal statutes. Third, SB 496 provides whistleblower protection to employees whose duties include the disclosure of legal compliance issues, which overturns case law excluding such employees from whistleblower protection.
As 2013 draws to a close, our Labor and Employment group put its collective head together to come up with our top predictions, from the cautious to the audacious, for what the new year will bring. Stay tuned in 2014 to see how we do! In the meantime, happy holidays! Here goes:
1. Cost and morale pressures will lead more and more employers to adopt policies that allow (or require!) employees to use their own cell phones, tablets, and other mobile devices at work (i.e., Bring Your Own Device, or “BYOD,” policies). Implementation of these policies will require close coordination between HR and IT functions, as well as revision of policies on confidential information, time keeping, discrimination/harassment, and other policies to ensure compliance in various legal areas.
2. Employers will increase their use of mobile applications to engage with employees, track their attendance, manage their benefits, monitor their productivity, and help them do their jobs. Employers will need to be sure that use of these apps complies with various laws, including the Fair Labor Standards Act (“FLSA”), the National Labor Relations Act (“NLRA”), the Genetic Information Non-Discrimination Act (“GINA”), and others.
3. Our Seattle office predicts the Seahawks will win the Super Bowl! Employers in the Pacific Northwest will struggle with record levels of absenteeism the following day.
Earlier this week, a three judge panel of the Fifth Circuit Court of Appeals issued its long-awaited decision in DR Horton Inc. v. NLRB. As expected by most labor lawyers, including us, the Fifth Circuit (with one judge dissenting) overruled the National Labor Relations Board’s dramatic extension of the law, that employers could not require employees to enter into agreements to individually arbitrate employment disputes, precluding collective or class action litigation. In DR Horton the NLRB had concluded that such agreements conflicted with employees’ rights to engage in concerted activity under the National Labor Relations Act (the “NLRA”) -- a conclusion that had since been rejected by almost every court to face the issue. The Fifth Circuit’s decision does contain a cautionary note for employers: an arbitration agreement may not appear to bar an employee from filing charges with the NLRB.
DR Horton is a home builder with operations throughout the United States. Beginning in 2006, DR Horton required all its employees to enter into a “Mutual Arbitration Agreement.” The agreement precluded civil litigation between the parties, requiring that all disputes be submitted to arbitration. Most critically, the agreement also barred any form of collective or class action proceeding. In 2008 the underlying plaintiff filed a putative class action lawsuit, contending that he had been misclassified as an exempt managerial employee in violation of the Fair Labor Standards Act. When DR Horton responded by insisting on individual arbitration pursuant to the agreement’s bar of collective actions, the plaintiff filed unfair labor practice charges with the Board.Continue Reading...
No Harassment, No Problem: Idaho Court Holds Harassing Comments May Still Support Liability for Negligent Infliction of Emotional Distress
A November 27, 2013 opinion from the Idaho Supreme Court reinstated a former Assistant Vice Principal’s claim seeking damages for negligent infliction of emotional distress. This decision highlights that allegedly harassing workplace comments may subject employers to liability even though e the complaining employee cannot make out a traditional sexual harassment claim.
In Frogley v. Meridian Joint School Dist., 2013 opinion No. 124, the employee claimed that he had been the victim of sexual harassment based upon sexually-charged comments to and about him. Mr. Frogley claimed that the behavior continued despite making known that the behavior was offensive. The complaints came at approximately the same time his superiors began to question his work performance.
All of the claims, including sexual harassment under federal and state law, were dismissed before they were allowed to proceed to trial. The Supreme Court’s opinion does not detail the reason for the lower court’s decision in that regard and the employee chose not to appeal dismissal of the sexual harassment theories; pursuing instead his claims for retaliation and negligent infliction of emotional distress.Continue Reading...
Top 25 FAQs Employers May Have About Implementing the New Portland Paid Sick Leave Ordinance in 2014
In March 2013, the Portland City Council passed the new Portland Paid Sick Leave Ordinance requiring all but the smallest employers to provide paid sick leave (“PSL”) for employees who work within city limits. On November 1, the city released final regulations interpreting the Ordinance and fleshing out some of the requirements in more detail. Also, the original Ordinance was amended in early October while the regulations were being finalized. The law becomes effective January 1, 2014, so employers with employees in Portland need to review relevant policies to confirm they comply with the new ordinance.
Many of the Ordinance’s requirements will look familiar to employers used to dealing with other leave laws, particularly the Oregon Family Leave Act (“OFLA”). But this Ordinance has its own twists, many of which result from the fact that it’s not a state-wide law like OFLA but instead only applies to employees within Portland. This list of 25 frequently asked questions (“FAQ”) covers many of the the questions employers might have as they work through understanding the Ordinance and update their policies to ensure compliance. Yes, there are really 25 of them.
1. What does the Ordinance require in 20 words or less?
Employers with six or more employees must allow employees in Portland at least 40 hours of PSL per year. That’s 19 words! But of course, there’s a lot more to it than that, so read on.
Seattle employers are about to become much more restricted in their ability to inquire into or act upon the criminal records of applicants and employees. On November 1st, the Seattle Job Assistance Ordinance, SMC 14.17, takes effect and will apply to positions that are based in Seattle at least half of the time. The Ordinance does not apply to governmental employers (with the exception of the City of Seattle) or to positions involving law enforcement, crime prevention, security, criminal justice, private investigation, or unsupervised access to children under the age of sixteen or to vulnerable or developmentally disabled adults.
The Ordinance imposes the following new restrictions on the hiring process:
- Advertisements for positions cannot state that applicants with criminal records will not be considered or otherwise categorically exclude such applicants;
- The employer cannot implement any policy or practice that automatically excludes all applicants with criminal histories;
- The employer must complete an initial screening process to weed out any unqualified candidates before the employer can question applicants about their criminal histories or run criminal background checks on applicants;
- The employer cannot refuse to hire an applicant solely because he or she has an arrest record (as opposed to a conviction record); and
- The employer cannot refuse to hire an applicant solely because of his or her conviction record, conduct underlying his or her arrest record, or pending criminal charges unless the employer has a legitimate business reason to do so.
California Governor Jerry Brown recently signed into law an increase in the state’s minimum wage, from the current rate of $8.00 per hour up to $9.00 per hour beginning on July 1, 2014. The minimum wage will increase again to $10.00 per hour, effective January 1, 2016.
In addition to ensuring that all non-exempt employees are paid the increased minimum wage, employers with operations in California should also evaluate how the increase to the minimum wage affects salaries of exempt employees. California law requires that exempt employees be paid a salary of at least twice the minimum wage for full time employment on a monthly basis. Under the existing minimum wage of $8.00, exempt employees must be paid an annual salary of at least $33,280. With the increase to the minimum wage, the minimum salary for an exempt employee will increase to $37,440 per year by July 2014, and then to $41,600 by January 1, 2016. Employers who do not ensure that their exempt employees are receiving at least these amounts will be exposed to misclassification claims.
Companies with employees in California should review their compensation practices to ensure they are fully in compliance with applicable law before the increased minimum wage takes effect.