Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Employers may not like NLRB General Counsel report on handbook rules

Posted in Labor Relations, Protected Concerted Activity

Thanks very much to David Phippen from our Metro D.C. Office for letting me get some depositions taken this week and allowing me to republish his analysis here.

As we have previously reported, the National Labor Relations Board in recent years has put employee handbooks and policy manuals under a magnifying glass, searching for any provision that might, in its view, violate the NationalDavid-Phippen.jpeg Labor Relations Act. Last week, apparently after hearing from labor law practitioners that guidance was needed, NLRB General Counsel Richard F. Griffin, Jr., issued a report attempting to explain several years of Board decisions and positions taken by his office. His stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”

Unfortunately, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow to ensure that their rules are lawful. But, perhaps worst of all, the General Counsel’s guidance follows the current Board majority view and, at least implicitly, largely rejects a balanced interpretation of the NLRA that gives sufficient weight to employers’ interests in managing their workplaces, protecting employees, and protecting confidential information and intellectual property.

Prudent employers will have their handbooks and policies reviewed by an experienced labor lawyer who understands Section 7 and has developed a keen appreciation for the direction in which the Board and the General Counsel are moving.

All employers, especially non-union employers not used to dealing day-to-day with the NLRA, should take note and get their employee handbook rules and policies in line with the GC’s expressed views. Employers found to be in violation can be ordered to rescind any unlawful rules and rescind and remedy any disciplinary action based on the rules. An unlawful rule can also be ground for the Board to set aside an NLRB election vote against union representation and direct a re-run election, thus giving the union another chance to win.

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BREAKING: FMLA “spousal” rule on hold for now

Posted in Family and Medical Leave Act, Same-sex marriage

The new rule defining “spouse” for purposes of leave under the Family and Medical Leave Act was set to take effect today. But a federal judge in Texas yesterday temporarily blocked the rule from going into effect after attorneys general in several states that do not recognize same-sex marriage challenged it.


Secretary Perez: “I am not a happy camper.”

The plaintiffs were the states of Texas, Louisiana, Arkansas, and Nebraska. They contended that the new rule violated the federal Full Faith and Credit Statute (Section 2 of the Defense of Marriage Act, which was not the part of the DOMA that was struck down by the Supreme Court in United States v. Windsor). The statute, which is still in effect, says that “No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State . . ..” By requiring the states to recognize same-sex marriages entered into in other states, the FMLA rule violated Section 2 of the DOMA, the plaintiffs said.

The plaintiffs also argued that the FMLA rule, by requiring state agencies to recognize employees’ same-sex marriages for FMLA purposes, violated those states’ own laws and constitutional provisions, which require that marriage be between one man and one woman.

Judge Reed O’Connor’s ruling in favor of the plaintiffs was temporary, not final. He ruled that the plaintiffs had shown a substantial likelihood that they would prevail and that they would be irreparably harmed if the rule were allowed to go into effect. He agreed to hold a hearing “[i]f requested by a party,” on April 13.

Assuming Judge O’Connor’s ruling does not change, the issue may become moot once the Supreme Court renders a decision in the four same-sex marriage cases it has agreed to decide this term.

Image credit: Flickr, Creative Commons license, photo by U.S. Department of Labor.

Today’s SCOTUS pregnancy decision in 1:14

Posted in Discrimination, Pregnancy

Today’s majority opinion of the Supreme Court in the Young pregnancy accommodation case reminded me of this scene:

Employers are Jennifer Anniston, and Justice Breyer is Mike Judge.

I’ll be back with some real information about what this decision means for employers.

Hang tight, employers — EEOC’s proposed Wellness Rule is at the OMB

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA

The EEOC’s much-awaited proposed rule on employer wellness programs, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may finally be on its way. According to Law360, a proposed rule has been approved 4-1 by the Commission, and is being reviewed by the Office of Management and Budget as we speak.

Once approved by the OMB, the proposed rule will be published, and there will be a 60-day period for interested parties to comment.

The Affordable Care Act provides significant latitude to employers — including the ability to provide rewards for employees who participate in wellness programs and achieve results, and penalties for employees who decline to participate in the programs.

However, the ADA does not allow employers to request employee medical information unless the information is either “job-related and consistent with business necessity” or requested in connection with a voluntary wellness program. Thus, the question arises whether a wellness program is truly “voluntary” if the employer is rewarding employees who participate and penalizing employees who don’t.

I’ve written about this subject a few times in the past:

EEOC promises guidance on wellness programs in February

BREAKING: EEOC seeks court order to halt Honeywell’s biometric testing

Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so.

Guidance on employer incentives for wellness participation is on the way, says the EEOC

“Voluntary” wellness programs – seeking answers from the EEOC

Wellness “sticks” as well as “carrots” are legal, court says

Employers, don’t be overzealous with your wellness

Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you

Needless to say, we’ll have a full report on the proposed rule as soon as it is issued.

A conversation about race: The Exciting Conclusion

Posted in Corporate Culture, Discrimination

March 22, 2015

Dear Diary:

Well, I got to Starbucks this morning, and Xander told me I didn’t have to worry about that #RaceTogether stuff any more. I was super-excited and super-relieved! Then he told me our new topic to talk about with customers this week – the war on women. #NotanImprovement!      :-(

A conversation about race

Posted in Discrimination, Labor Relations, Retaliation, Social media

March 1

Dear Diary:

I start my new job as a Starbucks barista tomorrow. I am super-excited!!!!! I just hope I can handle the fast pace!



“Dear Diary . . .”

March 2

Dear Diary:

Wow! This job is hard! There is a lot to learn! But my supervisor, Xander, is super-nice (and cute, too!). When I accidentally gave a customer an Espresso Macchiato instead of a Cinnamon Dolce Latte, he said I shouldn’t worry, because I would be a barista-supreme before long. I hope he asks me out!  ♥♥♥


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Posted in Americans with Disabilities Act, Discrimination, eLaw, Employment Law Blog Carnival, ERISA, Family and Medical Leave Act, Gender Identity Discrimination, Labor Relations, Lactation, Protected Concerted Activity, Retaliation, Safety, Same-sex marriage, Social media, Wage-Hour

(St. Patrick’s Day is sooooo nine hours ago!)

Ever looking to the future, we celebrate the coming April Fools’ Day with this month’s greatest employment law Apr.Fool.ELBC.Foolblog posts. Some of my summaries are accurate, and others are “fools’ editions” – you’ll have to read the actual posts to know which is which. There are so many excellent posts that I’m listing them in alphabetical order by blogger’s last name. Enjoy!

Donna Ballman of Screw You Guys, I’m Going Home says that we wouldn’t have so many people in jail if prisons were required to pay the minimum wage for inmate labor. Check out “Is Incarceration the New Slavery? Does Cheap Labor Explain the U.S.’s High Incarceration Rates?”

Heather Bussing of HR Examiner asks, “Is There Recovery After Workplace Drama?” No, Heather answers. Heather recommends that employers adopt and communicate to employees a strong, clearly worded no-histrionics policy prohibiting thespianism during working time and in working areas. Violations should result in disciplinary action, up to and including discharge. Which means no more reenactments of this scene in the break room:

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What’s your workplace retaliation IQ?

Posted in Retaliation

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee.

1. What is retaliation?

A. Getting even with somebody because he did something you don’t like.


“You’ll never work in this town again.”

B. Denying somebody a reward (such as a pay raise) because he did something you don’t like.

C. Working in a retail establishment, such as a Walmart (“retailiation”).

D. Taking action against somebody (such as refusing to hire) because he did something you don’t like.

E. A, B, and D.

F. None of the above.

ANSWER: E. The requirements for unlawful retaliation are more specific, but A, B, and D are examples of “generic” retaliation.

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“State of the Union” on substance abuse and the workplace

Posted in Americans with Disabilities Act, Drug Testing, Family and Medical Leave Act, Safety, Transportation Industry

Where are we these days with respect to mind-altering substances and the workplace? Here’s the latest, with the “substances” discussed in alphabetical order. This blog post is guaranteed accurate™ for at least the next five minutes.


Three amigos!

ALCOHOL. Alcohol is legal, which means that it is generally recognized as the most abused of substances. Employers can prohibit its use in the workplace and can prohibit employees from coming to work under the influence. That’s the easy part.

Under the Americans with Disabilities Act, it’s more complicated. Alcohol is not an “illegal drug,” meaning that alcoholics who are “current users” do have some legal protections, but alcoholism is not as protected as, say, cancer.

It would violate the ADA for an employer to take action against an employee just because she was an alcoholic. (As an example, you wouldn’t want to fire the alcoholic employee for getting drunk at the office holiday party unless you fired everybody else who got drunk at the party, too.)

An employer may have to provide reasonable accommodations to an alcoholic employee, such as allowing time off for AA meetings or medical leave for the employee to enter a detox facility. (AA meeting time and detox time may also be covered under the Family and Medical Leave Act.)

On the other hand, it’s legal for the employer to take action against an employee whose alcohol abuse causes her to fail to meet attendance, performance, or behavior standards, even if the employee is an alcoholic. And there’s no duty to “accommodate” an alcoholic employee by letting her drink on the job or sleep at her desk because she’s too hung over to work.

If the employee just likes to drink and isn’t an alcoholic, then she’s not “disabled” within the meaning of the ADA and has no protection.

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