ACC Employment and Labor Committee January Newsletter
IN THIS ISSUE...
Message from the ELLC Chair  
Upcoming Events  
Recent Presentations and Webcasts  
Policy Subcomittee  
Safety and Health Subcommittee  
Networks
Virtual Library
Renew Your Membership
Update Your Records
Upcoming ACC Programs
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Webcasts
Updates From ACC Committees

Message from the ELLC Chair

I hope that each of you had a great holiday season, and have returned refreshed and ready for the New Year.  This is my first message as the ELLC’s chair, and I want to thank David Stringer for doing a great job of laying the groundwork for another successful year.  As you may have heard, we were named Large Committee of the Year at the October Annual Meeting, in large part due to David’s leadership.  He and Kevin Chapman, our new Vice Chair, worked tirelessly over the past year to improve many aspects of the Committee experience.  Also, please welcome Ellen Dunkin as the Committee’s new Secretary.  She has been doing a great job of working with subcommittee leaders and getting meeting minutes out in a timely manner.

Our subcommittee co-chairs also deserve a big thank you.  They are the lifeblood of the Committee.  They devote a significant amount of time to bring programming and other resources to you, including policy updates during the monthly calls, webcasts, InfoPAKs, newsletters and joint programs with other committees and chapters, among others.

Finally, I also want to thank Jackson Lewis for signing on to be our sponsor this year.  They have been a terrific sponsor for several years, and always go above and beyond what is expected of sponsors.  Make sure to dial in for our monthly calls, where Jackson Lewis attorneys provide informative Quick Hits on significant and timely topics.

Our goal is to bring you “best in class” resources, including monthly calls (the first Wednesday of each month) where you can learn about timely developments; an active eGroups message board, where you can ask questions and share best practices; regular webcasts on significant topics so that you can get up to speed on cutting edge topics; and other resources such as forms and Top 10 summaries.  We will update you on recently-added resources during each monthly call.

I encourage you to join the Committee’s leadership team.  We still have one or two openings on subcommittees.  It is a great way to get to know some great people and expand your knowledge base.  If you prefer something a little less time-intensive, you can volunteer to moderate a webcast, provide a form or participate in eGroups.

The ELLC provides something for everyone, regardless of your level of expertise or time available.  Take advantage and get involved!
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Upcoming Events

Wednesday, January 4, 2017 at 8:00 PM GMT/UTC. Legal Quick Hit: Employment and Labor Year in Review: Top Topics Looking Back and Ahead.

Join us on our monthly committee call as Jackson Lewis reviews the five most notable labor and employment developments in 2016 and look ahead to the five anticipated trends for 2017, including key developments regarding severance agreements, paid sick leave, as well as what to expect from the National Labor Relations Board, Equal Employment Opportunity Commission and the U.S. Department of Labor, and the impact of the presidential election on workplace law. This Legal Quick Hit will be presented by Tracie Maurer, a principal in Jackson Lewis’ Atlanta office. Tracie’s practice focuses on employment litigation, training and providing practical advice and counsel. 

To participate on the call:

Toll free dial-in: 1-877-647-3411
Code: 2771634930

All members are welcome on the ELLC’s monthly committee calls.  Come join us!

The ELLC’s monthly committee calls are open to everyone and we welcome your participation. We often discuss hot topics in employment and labor law and provide the latest in legal developments, allowing you to get an in-depth look at what’s happening at the local, national and international levels, and offering valuable dialogue on managing business and legal issues that we often face in our roles as employment and labor counsel. For more information about the ELLC’s monthly committee calls, go to https://www.acc.com/committees/ellc/index.cfm
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Recent Presentations and Webcasts

Wednesday, December 7, 2016 Legal Quick Hit -- Practical Tips for Employers in Addressing SEC and other Government Agency Concerns Regarding Chilling of Potential Whistleblowers. 

Presented by Rich Cino and David Jimenez, heads of Jackson Lewis’ Corporate Governance and Internal Investigations Practice Group, this Legal Quick Hit focuses on the SEC’s increased scrutiny of confidentiality agreements in connection with its stepped-up enforcement of whistleblower laws.  The speakers provide excellent practical tips on drafting and interpreting confidentiality clauses in light of efforts to regulate confidentiality clauses which the SEC perceives to chill or prohibit an individual from coming forward with information about securities fraud or other wrongdoing. 

Among the key points of discussion are:

  • A review of SEC Rule 21F-17, which prohibits agreements that impede an individual from communicating with the SEC concerning possible securities law violations. 
  • Restrictions that the SEC considers a violation of Rule 21F-17, including confidentiality agreements or policies regarding internal investigations – e.g., directives to witnesses to not disclose information regarding the investigation without company approval.
  • Restrictions on the disclosure of “confidential” information that may also violate Rule 21F-17.
  • Severance agreements that purport to restrict an employee from recovering damages from any legal proceedings following an administrative filing (including the bounty program).
  • Similar efforts by other federal agencies, such as OSHA, which has issued guidance suggesting the invalidity of agreements that restrict employees and former employees from engaging in protected activity.
  • Offering practical tips for drafting policies and agreements that involve confidentiality clauses. All organizations should review standard agreements, policies, handbooks, and codes of conduct, and modify those clauses that would be viewed as violations of the SEC and OSHA rules.  Organizations should consider adding language such as: “it shall not be construed to limit an employee’s right, where applicable, to file or participate in an investigative proceeding of any federal, state, or local government agency.  An employee’s exercise of any such right shall not be considered a violation of this agreement [or policy].

Click here to view archived footage of the presentation.
Mr. Cino can be contacted at CinoR@Jacksonlewis.com (973) 451-6324; and Mr. Jiminez can be contacted at JimenezD@Jacksonlewis.com (860) 331-1556.



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Policy Subcomittee

  1. Texas District Court Blocks Fair Pay & Safe Workplaces Rule

A federal judge in Texas issued a preliminary injunction against the Department of Labor’s Fair Pay & Safe Workplaces final rule on October 24, the day before the rule was set to take effect. The rule would have required certain federal contractors to disclose labor and employment law violations when bidding on federal contracts. In addition, the rule prohibited mandatory pre-dispute arbitration agreements. Both of these provisions were enjoined. (Notably, the paycheck transparency and independent contractor notice requirements were not enjoined, and go into effect on January 1 for contracts of over $500,000.) In issuing the injunction, the court expressed concern that the rule exceeded the authority of the President and Department of Labor by providing for debarment as a remedy for employment and labor law violations that was not envisioned or provided for by the underlying statutes. The court was also troubled that the rule, by requiring the reporting of non-final determinations of employment & labor law violations, violated the due process rights of the federal contractor community. Associated Builders & Contractors of Southeast Texas v. Rung, No. 1:16-cv-425 (E.D. Texas Oct. 24, 2016). 

  1. A Second Texas District Court Blocks DOL’s Persuader Rules

On November 16, 2016 a federal judge in Texas issued a permanentinjunction against the U.S. Department of Labor’s persuader rules, which required companies, law firms and consultants to make extensive disclosures under the LMRDA regarding the provision of advice on union organizing efforts. 

The court held that the persuader rules ran afoul of the LMRDA provision exempting “advice” from the reporting requirements. The court also found that the rules violated employers’ constitutional free speech and association rights.  The court’s decision is not likely to be appealed by DOL under the Trump Administration. NFIB v. Perez, No. 16-cv-066 (N.D. Tex. Nov. 16, 2016).      

  1. A Third Texas District Court Blocks DOL’s Overtime Rule Changes

On November 22, 2016 a federal judge in Texas issued a nationwide preliminary injunction to prevent the U.S. Department of Labor’s overtime rule changes from taking effect as scheduled on December 1, 2016. The lawsuit was brought by 21 states. The injunction prevents the new salary thresholds for the administrative, professional, executive and highly compensated employee exemptions from taking effect. The automatic updating mechanism for the thresholds every three years is also enjoined.  The injunction was based in part on the court’s conclusion that the changes created a “de facto salary-only test”.  Congress didn’t intend to categorically make large segments of the workforce eligible or ineligible for overtime based solely on their income, the court reasoned.  The Department of Labor has appealed to the 5th Circuit, requesting expedited briefing.  Nevertheless, the Trump Administration is likely to take office before an appellate decision can be made. DOL may change its position in the litigation once the Trump Administration takes office.  Nevada v. DOL, No. 4:16-cv-00731 (E.D. Tex.).  

  1. USCIS Issues Revised I-9 Form

The Citizenship & Immigration Services Administration within DHS issued a revised I-9 Form on November 14, 2016.  Employers can start using the new form right away, but must be using it by January 22, 2017. The new form must be used for both new hires and reverifying employees when needed. The revised form has interactive form fields, drop down menus, and imbedded instructions.   

  1. EEOC Wins “Onionhead” Religious Discrimination Case

A couple of years ago the EEOC sued a Long Island employer for requiring its employees to practice a religion in the workplace. The only problem:  the alleged religion – known as “Onionhead” -- was really just an adorable onion-shaped cartoon character who encouraged employees to get in touch with their feelings.  “Peel it – feel it – heal it,” Onionhead chanted. The company argued strenuously that Onionhead was not a religion at all. But recently, a federal judge disagreed, holding that Onionhead was a religion for purposes of the EEOC’s religious discrimination claim. Perhaps part of the problem was that company supervisors told employees not to turn on the overhead lights, because demons would emerge.  Following the decision, company management is reportedly “sad”.  But at least they are in touch with their feelings.

Special thanks to Gregory Watchman who presented these recent legal developments at the ELLC December conference call. 

For more information or to get involved with the Policy Committee, contact Alice Conway at alice.e.conway@monsanto.com, Gregory Watchman at Gregory.watchman@freddiemac.com, or Colleen Higgins Schultz at cschultz@ti.com.

 


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Safety and Health Subcommittee

Portions of OSHA Final Rule Issued to “Improve Tracking of Workplace Injuries and Illnesses” effective December 1.  Anti-Retaliation Provisions and Impact to Post-Accident Drug Testing Policies.

On November 28, 2016, The U.S. District Court for the Northern District of Texas denied a preliminary injunction motion that has the effect to allow OSHA to implement portions of an enforcement rule to “Improve Tracking of Workplace Injuries and Illnesses” related to mandatory post-accident drug testing programs. 

29 C.F.R. § 1904.35(b) requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately” and prohibits discharging or discriminating against employees for reporting work-related injuries or illnesses.  OSHA may cite an employer which maintains policies that are deemed to have a retaliatory effect (i.e. for not timely reporting) or impact (i.e. by requiring mandatory post-accident drug and alcohol testing for all workplace accidents).  OSHA’s recently published guidance concludes that certain testing policies can have the effect to discourage injury reporting, and thus are not reasonable.  Drug and alcohol testing policies implemented pursuant to federal or state law (such as for workers compensation premium discounting) should not be affected.

OSHA’s final rule is available at https://www.osha.gov/recordkeeping/finalrule and lists several examples of drug testing programs and how the new rule may apply:

Scenario 1: Employer required Employee X to take a drug test after Employee X reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers' compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.

Question: Did Employer violate section 1904.35(b)(1)(iv) by subjecting Employee X to a drug test simply because she reported a work-related injury?

Answer: Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury. If drug use could not reasonably have contributed to a particular injury and the employer has no other reasonable basis for requiring a drug test, section 1904.35(b)(1)(iv) prohibits the employer from drug testing employees simply because they report injuries unless the drug test is conducted pursuant to a state workers' compensation law or other state or federal law.

Scenario 2: Employee X was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee X to take a drug test.

Question: Did Employer violate section 1904.35(b)(1)(iv) for drug testing Employee X?

Answer: No. Because Employee X's conduct—the manner in which he operated the forklift—contributed to his injury, and because drug use can affect conduct, it was objectively reasonable to require Employee X to take a drug test after Employer learned of his injury. Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.

Scenario 3: Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers' compensation premiums under the state's voluntary Drug-Free Workplace program. Employer drug tests Employee X when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X?

Answer: No. Drug testing conducted pursuant to a state workers' compensation law, whether voluntary or mandatory, is not affected by section 1904.35(b)(1)(iv).

Scenario 4: Employer requires all employees who report lost-time injuries to take a drug test because the employer's private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers' compensation law. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

Question: Would OSHA cite Employer for violating section 1904.35(b)(1)(iv) in these circumstances by drug testing Employee X to secure lower private insurance premiums?

Answer: No. To maintain consistency between public and private worker's compensation coverage in the same state, OSHA will not cite employers under section 1904.35(b)(1)(iv) who conduct post-accident drug testing under private party policies that mirror the applicable state workers' compensation law.

Scenario 5: Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee X (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

Question: Did Employer violate section 1904.35(b)(1)(iv) by drug testing Employee X pursuant to a collective bargaining agreement?

Answer: Yes. Section 1904.35(b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries absent a reasonable belief that drug use could have contributed to the injury or another reasonable basis for requiring a drug test. Although OSHA does not intend for section 1904.35(b)(1)(iv) to supersede other state or federal programs addressing post-injury drug testing of employees, collective bargaining agreements may not supersede section 1904.35(b)(1)(iv). 

Special thanks to Alexander Giftos and Linda Jo Carron who presented the latest in OSHA developments at the ELLC December conference call.  For more information or to join the Safety & Health Subcommittee contact: Alex Giftos at Giftos_alexander_c@CAT.com or Linda Jo Carron at lindajo.carron@hyster-yale.com.
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