December 2013

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.

 Continue Reading Stoel Rives World of Employment’s Top Predictions for 2014

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

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 Foiled Again: DR Horton Overturned (But Be Careful How You Phrase Your Arbitration Agreement)

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 No Harassment, No Problem: Idaho Court Holds Harassing Comments May Still Support Liability for Negligent Infliction of Emotional Distress