ACC Employment and Labor Law November Newsletter
IN THIS ISSUE...
Message from the Chair  
ELLC Committee Leadership Roster 2017-2018  
QuickCounsel Primers on Key Issues Affecting Employment & Labor  
Upcoming Virtual Programs  
Recent Presentations & Webcasts  
Policy Subcommittee  
Traditional Labor Subcommittee  
New Resources  
Join Our Leadership Team!  
Networks
Virtual Library
Renew Your Membership
Update Your Records
Upcoming ACC Programs
Search Back Issues

Webcasts
Updates From ACC Committees

Message from the Chair
Kevin Chapman, Associate General Counsel, Dow Jones

To our Members:

   The Employment and Labor Law Committee’s primary mission is to serve ACC members by providing resources that help us all function better as in-house counsel.  Many companies have only one employment lawyer, and often employment and labor issues are only part of their job duties.  Even in companies like mine with multiple employment lawyers, we usually do not have the resources that large firms have, but we still face complex issues and need to be on the cutting edge of Employment law.  The ELLC is here to provide resources, to serve as a clearinghouse for our shared group wisdom, and sometimes just to give you someone to brainstorm with concerning a novel subject or a jurisdiction with which you are not familiar.

   The ELLC leaders are launching a concerted effort to do a better job of getting you, our members, more and better resources and making sure that they are accessible.  We are forming a “Library Task Force” to review the substantive materials, forms, templates, white papers, InfoPaks, webinar outlines, and other resources that we already have and find ways to help you find them when you need them.

   We are also committed to enhancing the value of the ACC eGroups, where our members share their expertise and experience, learn from others, and compare best practices.  When you have a question or a problem, we want you to be able to leverage your ACC membership into useful, practical advice and information before you have to consult outside counsel.

     We are also reviewing our Committee’s internal structures – our subcommittees – to find ways to make them more relevant to you and your daily practice, and to allow you as an ACC member to participate and interact with your peers in the employment and labor in-house bar.

    We know that we don’t have a monopoly on good ideas.  So, if you have one, please reach out and let me know.  How can we make our committee more valuable to you? Send your thoughts to me at kevin.chapman@dowjones.com or to our committee email address:  ELLC@ACCglobal.com.
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ELLC Committee Leadership Roster 2017-2018

Click here to view the full leadership 2017-2018 ELLC Leadership Roster.
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QuickCounsel Primers on Key Issues Affecting Employment & Labor

Telecommuting as a Disability Accommodation - Click here for full article and downloadable documents. Sponsored by Jackson Lewis P.C.

With the extensive use of computers and electronic communications in the workplace, many employees are asking to “work from home” as a disability accommodation. Such requests can challenge employers who seek to limit telework to certain positions or to high-performing employees. This primer suggests strategies for evaluating employee requests to telecommute as an accommodation, as well as factors to consider when allowing employees to work from home.

Primer on Withdrawal Liability - Click here for the full article and downloadable documents. Sponsored by Jackson Lewis P.C

Under the Employee Retirement Income Security Act (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act (“MPPAA”), an employer faces potential “withdrawal liability” upon the cessation or reduction of their obligation to contribute to jointly-administered pension plans (“multiemployer plans”). Withdrawal liability has become a particularly significant issue due to a confluence of factors, including the impact of the recession, historically low interest rates, and changing workforce demographics. This primer is intended to introduce the reader to the basic rules governing the assessment and collection of withdrawal liability and their application in certain situations.
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Upcoming Virtual Programs

Dealing with a Corporate Crisis

December 6, 2017 3:00 PM ET, 8:00 PM GMT

Sponsor: Jackson Lewis P.C.

Recent natural disasters throughout the country have made it difficult or impossible for some worksites to remain open. Jackson Lewis’ Susan Groff will discuss the host of issues this presents for employers and provide tips on how to help your workplace function during a natural disaster, including how to address disaster planning, employee leaves, telecommuting arrangements, timekeeping and payroll compliance. Susan will also address the need for inclement weather policies as we head into the winter season.

Register here
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Recent Presentations & Webcasts
Missed these recent presentations? Get the slides and useful resource materials below!

Webcast: Employment Class Actions and the Future: How Big Data, Social Media & Remote Workers Are Changing the Face of Employment Class Action Litigation.  

It is undeniable that technology continues to progress at a rapid pace while employers and courts scramble to keep up with the myriad of ever-evolving issues that this creates.  Stephanie Adler-Paindiris and Cary Palmer, Principals at Jackson Lewis P.C., offered key insights in a webcast sponsored by the ELLC on October 3, 2017.  Among the topics addressed were: 

  • the impact of big data on class action litigation and recommended best practices;
  • the integration of social media and class actions, with a focus on the dissemination of notice to class members; and
  • workplace implications of remote clocking in and out by employees; and
  • top recent employment class action settlement trends and the impact of the Trump Administration on labor and employment litigation.

Get the presentation materials here 


Webcast: So You Have Employees Conducting Business in Canada….What Do You Need to Know?

Are you counsel for a U.S. or foreign company with employees traveling to Canada for business?  If so, this webcast presented by Borden Ladner Gervais LLP will walk you through the potential situations that may arise if you are not prepared. 

Using a hypothetical situation of a U.S.-based employee crossing the border to visit customers or sales leads, this webcast covered the following:

1) Legal implications for the U.S. company: do you have a “presence” or are you “carrying on business” in Canada?  If so, what does it mean?

2) Legal implications for the employee, such as:

  • Income Taxation
  • Immigration: what is involved for business immigration including temporary entry to Canada as Business Visitors, an overview of the Canadian Work Permit application process and common exemption categories, visas and other admissibility issues.
3) Legal implications for customers: Is there a withholding obligation on payments to U.S. company? 

Get the presentation materials here.


Legal Quick Hit - Conducting an Internal Wage & Hour Audit

On our regularly-scheduled ELLC call, November 1, 2017, Jon Kozak, Principal at Jackson Lewis PC, discussed the benefits of properly identifying and addressing wage-hour issues, and steps to strengthen time recording and recordkeeping practices to substantially reduce potential exposure.  He talked about how to structure your internal audit to maximize the potential for protected communications regarding issues that may be uncovered and the development of strategies to address those issues.

Get the presentation materials here.
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Policy Subcommittee

  1. Trump OMB Stays EEOC’s EEO-1 Pay Data Requirements

On August 30, 2017, the Trump OMB stayed the EEOC’s EEO-1 Pay Data Revisions over concerns about the burden imposed on businesses and the utility of the data the agency would be obtaining from employers.  The OMB asked EEOC to submit a new information collection package.  Based on comments from Acting EEOC Chair Vicki Lipnic, the agency may not propose a new pay data collection effort. Instead, the agency may focus on other ways of addressing the pay equity gap. 

  1. Federal Judge Invalidates Overtime Pay Rule Changes

A federal judge in Texas has ruled that the Labor Department exceeded its authority by issuing proposed revisions to the FLSA’s overtime pay rules that doubled the minimum salary thresholds for exempt employees.  The court also rejected the AFL-CIO’s effort to intervene in the case to defend the original rule.  The Trump Administration has already said that it would reconsider the rule, and it may drop its appeal of the judge’s earlier ruling on the use of a salary test.  Nevada v. DOL, No. 4:16-CV-731 (E.D. Tex. 8/31/17).

  1. Fifth Circuit Upholds Class Action Waiver Even Without Arbitration Agreement 

The Fifth Circuit has upheld a class action waiver provision that was not imbedded in an arbitration agreement.  The case is significant because the Federal Arbitration Act – and the federal policy favoring arbitration -- were not at issue.  Convergys Corp. v. NLRB (8/7/17). 

  1. Ninth Circuit to Rehear Pay Equity/Salary History Case En Banc

In April, a 3-judge Ninth Circuit panel held that reliance on prior salary history can by itself justify pay differences for similar work if it effectuates a business policy and is reasonable. Rizo v. Yovino (4/27/17).  On August 29, 2017, the full Ninth Circuit vacated the ruling and agreed to en banc review.   

  1. D.C. Circuit Rejects NLRB’s Joint Employer Standard on Technical Grounds

In Browning Ferris (2015), the NLRB overturned the “direct and immediate control” standard for assessing joint employer status, in favor of the lower threshold “share or codetermine” standard (requiring only indirect control).  An appeal is pending at the D.C. Circuit.

In the meantime, the D.C. Circuit rejected the “share or codetermine” standard in another case involving CNN, because the NLRB failed to explain its changed interpretation. NLRB v. CNN America, No. 15-1112 (8/4/17).   Notably, the court in CNNdistinguished the Browning-Ferris decision because the NLRB did offer in that case an explanation of its rationale for rejecting precedent and adopting a new standard. 

  1. New York Appellate Court Says The “Hot” May Be Protected After All

The owner of a New York chiropractic practice terminated a female yoga instructor and massage therapist at the direction of his wife, after telling the employee she was “too cute.”  The employee sued for gender discrimination, arguing that “attractiveness is directly tied to gender.”  A Manhattan judge concluded that Title VII does not provide a remedy for a termination based on spousal jealousy.  The appellate court reversed, saying that an employment decision that is based on sexual attraction is gender discrimination.   Edwards v. Nicolai, N.Y. App. Div. No. 160830/13 (8/22/17).

For more information or to get involved with the Policy Subcommittee, we encourage you to contact Committee Chairs Gregory Watchman at Gregory.watchman@freddiemac.com, Colleen Higgins Schultz at cschultz@ti.com, Michelle Walters at michelle_walters@uhaul.com, or Ryan Brown at rbrown@rosettastone.com
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Traditional Labor Subcommittee

NLRB Scorecard

Marvin E. Kaplan was confirmed by the Senate on August 2 and sworn in Thursday, August 10, 2017, as a NLRB member for a term ending on August 27, 2020.

The Senate approved on a 49-47 party line vote Littler Mendelson's William Emanuel to sit on the NLRB.  Mr. Emanual’s confirmation helps put Republicans in control of the Board for the first time in nearly a decade. All five seats on the Board have been filled, with the new composition to look like this:

NLRB Composition as of October 2017

Current

Term Expiration

Status

Future

Chair Phillip Miscimiarra (R)

December 13, 2017

Will leave the Board when term expires December 2017

Trump opportunity to nominate replacement in 2017

Member Mark Gaston Pearce (D)

August 27, 2018

In current majority

Likely will serve term until August 2018

Member Lauren McFerren (D)

December 16, 2019

In current majority

Likely will serve term until December 2019

Open

NA

Marvin Kaplan (R) sworn in 8/10/17

Likely will serve term until August 27, 2020

Open

NA

William Emmanuel (R) confirmed

If approved and sworn in, would likely serve until fall 2020

General Counsel, Richard F. Griffin, Jr.

November 2017

Peter Robb (R) nominated

If confirmed, would likely take office after November 2017

Philip Miscimarra, the Republican Chairman of the NLRB, said he will leave the Board when his term expires in December instead of seeking a second term.  Mr. Miscimarra, who was named Chair by President Trump in April, cited personal reasons for the decision. His frequent dissents have laid the groundwork for legal arguments later made by employers and business groups who opposed what they said were union-friendly rulings by the board.

Peter B. Robb, a management-side labor law attorney, was nominated by President Trump to serve as the NLRB’s next General Counsel. The four-year term for the current NLRB General Counsel, Democrat Richard F. Griffin, Jr., expires this November.  Mr. Robb previously worked as an NLRB field attorney and as chief counsel to Republican NLRB Member Robert P. Hunter.  

Recent Legal Developments

D.C. Circuit Rules No Weingarten Right to Representation if Meeting is Voluntary

The D.C. Circuit set aside a NLRB ruling that an employer improperly denied the request of two nurses for union representation in peer-review-committee hearings. The appeals court observed that when employees are not obligated to take part in an investigatory hearing, there is no requirement that they be permitted to bring a union representative if they elect to participate. However, the court did uphold the Board's decision in all other respects, including that the employer unlawfully denied the union's request for information about the peer-review committee, and in maintaining a confidentiality rule barring employees from discussing incidents subject to the committee's oversight. Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, August 18, 2017, Srinivasan, S.).

Eighth Circuit Approves Offensive Picket Line Behavior

Noting that impulsive behavior on the picket line is expected, and termination for picket line conduct violates the NLRA unless the conduct tends to coerce or intimidate employees in the exercise of rights protected under the Act, a divided Eighth Circuit enforced an NLRB order finding that Cooper Tire unlawfully fired an employee who yelled racist remarks at a van carrying African-American replacement workers, but who did not behave threateningly. One of the locked-out picketers yelled “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” The comments were directed at a van carrying replacement workers but there is no evidence they heard him (though dozens in the crowd did). While he was yelling, the employee kept his hands in his pockets and made no overt gestures. Nonetheless, instead of recalling the employee when it recalled others who were locked out, Cooper fired him for the statements.  Judge Beam dissented, finding this decision tantamount to requiring Cooper to violate Title VII and other discrimination laws. Cooper Tire & Rubber Co. v. NLRB, August 8, 2017, Benton, W.

Did Google Violate Section 7?

Former Google Engineer James Damore, who was fired over a memo criticizing the company’s diversity efforts, has filed an unfair labor practice charge with the NLRB.  Mr. Damore alleges that he was terminated for engaging in “protected concerted activity” under Section 7 of the NLRA and in retaliation for exercising his rights. Section 7 protects employees’ right to engage in speech or make complaints about how an employer is doing things that could have an effect on more than just the one employee complaining or speaking.  Employee speech about an employer’s handling of diversity in the workplace could also be protected concerted activity. Google has asserted or implied that Mr. Damore violated its corporate code of conduct and that his memorandum was disruptive. Similar defenses have generally been rejected by the Board in recent years on the theory that protected concerted activity is often inherently disruptive.

UAW Loses at Nissan in Mississippi

The UAW racked up another big loss in its attempt to organize the workers at large manufacturing facilities of foreign car makers in the South.  Instead of withdrawing its election petition in the face of a near certain loss, the UAW went ahead and voters at Nissan’s plant in Canton, Mississippi voted 2,244 – 1, 307 against UAW representation on August 2 and 3.  The UAW leadership has filed objections and unfair labor practice charges with the NLRB, alleging that Nissan engaged in a campaign of corporate threats and intimidation.

NLRB Finds Minnesota Timberwolves’ Video Workers are Employees

On August 18, the NLRB found that workers producing electronic video display content for the NBA’s Minnesota Timberwolves were misclassified as independent contractors and are actually employees.  In the case of In re Minnesota Timberwolves Basketball LP, the Board’s 2-1 decision, represents a setback for businesses seeking certainty in their classification decisions, and is a reminder that the current roster of Labor Board members remains decidedly pro-worker and pro-union. Until the Board changes composition, and possibly its policy position, businesses should be cautious in their approach to classification situations.

The Unicorn of Current Labor Law:  A Lawful Policy

On August 14, 2017, the NLRB found that a Macy’s policy prohibiting employees from using or disclosing customer information did not violate Section 8(a)(1) of the National Labor Relations Act.  The NLRB stated:

“While employees generally have a Section 7 right to appeal to their employer’s customers for support in a labor dispute, the disputed rules do not restrict such appeals. Instead, they prohibit the disclosure of information about customers obtained from the Respondent’s confidential records.”

“The ‘Use and Protection of Personal Data’ and ‘Confidentiality and Acceptable Use of Company Systems’ rules are similarly lawful to the extent they prohibit the use or disclosure of social security numbers or account numbers. We recognize that those rules also limit the use or disclosure of customer names and contact information, which employees could use for the purpose of appealing to customers regarding a labor dispute or their terms and conditions of employment. But both rules, by their terms, only apply to customer names and contact information obtained from the Respondent’s own confidential records. The Act does not protect employees who divulge information that their employer lawfully may conceal.”

Macy’s, Inc. and United Food and Commercial Workers Union, Local 1445. Case 01-CA-123640, 365 NLRB No. 116.

For more information or to get involved with the Traditional Labor Subcommittee, we encourage you to contact Committee Chairs Micah Heilbrun at micah.s.heilbrun@exxonmobil.com or Darryl Uffelmann at darryl.uffelmann@anheuser-busch.com, Douglas Hass at douglasH@lifeway.net, or Gregg Formella at gregg.formella@gmail.com

 
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New Resources

Active Shooters in the Workplace: Key Strategies

Form & Policy Download documents. Sponsored by Jackson Lewis P.C. This sample outlines strategies to take should you have an active shooter in the workplace.

Checklist:  Ransomware Attacks: Prevention and Preparedness

Form & Policy Download documents. Sponsored by Jackson Lewis P.C. This is a checklist of steps organizations could take to minimize the chance and impact of a successful Ransomware attack, and to be prepared to respond. 

Employee  Performance Documentation Checklist

Form & Policy Download documents. Sponsored by Jackson Lewis P.C.  These are general best practices to follow with respect to employee performance evaluations and disciplinary documents. 

Conducting Workplace Investigations:  A Pre-Investigation Checklist for Employers

Form & Policy Download documents. Sponsored by Jackson Lewis P.C. This sample shows how employers must conduct workplace investigations regarding alleged misconduct – from harassment or discrimination allegations to wage-hour or whistleblower complaints.

Conducting Workplace Investigations: Post-Interview Investigation Checklist for Employers

Form & Policy Download documents. Sponsored by Jackson Lewis P.C. This sample addresses how when conducting internal investigations the steps that should be taken to ensure the investigation is properly concluded and that the investigation file is in order.

Managing Demographic Changes and Workforce Diversity Best Practices

Form & Policy Download documents. Sponsored by Jackson Lewis P.C. This is a sample of how the workforce of the future will likely see focus on innovative diversity-related management and best practices.

NEED MORE?  Search the ELLC’s Resource Library for forms, policies, and primers on just about any employment and labor law topic.  Didn’t see what you needed?  We’re here to help!  Send us a message at ELLC@accglobal.com and tell us your thoughts on important topics you think the Committee should cover.  We’ll try to add useful resources to the library for you.
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Join Our Leadership Team!

ELLC is looking for members interested in serving as Committee Secretary as well as leadership positions for various subcommittees.  This is a great way to meet your colleagues and help shape the future of the Employment and Labor Law Committee. If you would like to volunteer or learn more about what’s available, please get in touch with the ELLC Chair, Kevin Chapman, at kevin.chapman@dowjones.com.
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