Archive for the ‘Labor & Employment’ Category

The Seventh Circuit Court of Appeals has rejected the EEOC’s position that Title VII prohibits discrimination on the basis of sexual orientation. The July 28th decision, Hively v. Ivy Tech Community College, is a blow to the EEOC’s recent efforts to stretch Title VII to encompass sexual orientation, a classification that the statute does not mention. The Seventh Circuit based its ruling on the twin columns of statutory interpretation and judicial precedent: the language of Title VII does not explicitly prohibit sexual orientation discrimination and the case law of the Seventh Circuit has repeatedly denied that Title VII implicitly prohibits it either.

But perhaps the better indicator of the future of Title VII is what the court chose to do after briefly explaining its ruling. Rather than criticizing the EEOC for overreaching, it spent the rest of its lengthy opinion performing an extensive, mostly positive analysis of the EEOC’s justification for its position.

This analysis places a large, unofficial asterisk next to the decision, as the court described the very precedent it relied on to reach its decision as, among other things, “inconsistent.” The main source of the court’s consternation is the difficult task of squaring the Supreme Court’s approval of prohibiting gender non-conformity discrimination with its silence in regard to prohibiting sexual orientation discrimination. Gender non-conformity discrimination is discrimination based on a person’s failure to conform to gender stereotypes about how men and women should act. Many, including the EEOC, have argued that failing to be romantically interested in the opposite gender should just be considered a failure to conform to the gender stereotype that men date women and women date men. But because of Title VII and the Supreme Court’s silence in regard to sexual orientation discrimination, federal courts have consistently refused to extend gender non-conformity discrimination to cover sexual orientation discrimination.

The result is, as the court called it, an “odd state of affairs,” in which heterosexual plaintiffs who suffer gender non-conformity discrimination can more easily bring a discrimination claim than homosexual plaintiffs alleging the exact same discrimination, because the homosexual plaintiffs have the extra burden of proving the discrimination is not based on their sexual orientation. The court also found inconsistency in how the law currently would protect a woman from discrimination on the basis of the superficial way she talks or dresses, but not from discrimination on the basis of her (now legal) marriage to a woman. “We are left,” in the Seventh Circuit’s opinion, “with a body of law that values the wearing of pants and earrings over marriage.”

Such a conclusion makes it clear that as much as the Seventh Circuit felt bound by law and precedent to find Title VII does not prohibit sexual orientation, it also felt that the law and precedent should change. It concluded its opinion with a not-so-subtle call for either a change in legislation or a Supreme Court decision on the issue. The Seventh Circuit may not have endorsed the EEOC’s stance, but it certainly urged an institution with more authority to do so. Employers should be aware that it is likely only a matter of time before such an institution does.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Posted in Labor & Employment, Sexual orientation discrimination | No Comments »

The National Labor Relations Board (“NLRB”) has changed the way that it will determine whether a mixed group made up of employees from a supplier employer and employees from a host employer may constitute an appropriate bargaining unit. In its July 11th Miller & Anderson, Inc. decision, the Board determined that the consent of both employers is no longer necessary. Instead, the Board will apply its standard community of interest test to determine if such a bargaining unit is appropriate.

In other words, temps employed by a personnel supplier company who work for a business and employees working only for that business will be able to vote on representation together if the two groups perform a similar kind work under similar conditions and have common supervision. Employers hiring temps should be aware that if temps make up a high enough percentage of the bargaining unit, the unit could unionize without any support from the permanent employees working directly for the host employer.

According to the Board, each employer will have an obligation to bargain only over the employees with whom it has an employment relationship and only in regard to the terms and conditions that the business has the authority to control. This means that the host business will have an obligation to bargain concerning the terms and conditions of employment for both the temps and its own regular employees in the bargaining unit, while the temp agency will only have an obligation to bargain with its temps, not the regular employees working alongside them. The business and the temp agency would then need to bargain with employees over the terms and conditions of employment that each employer could control.

This ruling overturns a 2004 decision by the Bush Board, known as Oakwood, and returns to the 2000 decision by the Clinton Board in M.B. Sturgis, which Oakwood had overturned. In Sturgis, the Board had reversed almost thirty years of clear precedent requiring mutual consent of both employers before employees of separate companies could be combined into a single bargaining unit.

The Miller & Anderson decision compounds the existing hazards of outsourcing labor to a temp agency created by the Board’s ruling in Browning-Ferris. In that case, the Board found that the presence of “indirect control” is enough to determine the existence of a joint employer relationship, a significant change from the previous requirement that an employer had to directly exercise its power over employees to establish a joint relationship. As Board member Philip Miscimarra noted in his Miller & Anderson dissent, “the majority’s expansion of Browning-Ferris here will only make it more difficult for parties to anticipate whether, when or where this new type of multi-employer/non-employer bargaining will be required by the Board, nor can anyone reasonably predict what it will mean in practice.” As a final note, given the Board’s predilection for reversing itself, both Browning Ferris and Miller & Anderson will have a short shelf life if the Board’s composition changes as a result of the November elections.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Posted in Labor & Employment, NLRB, Uncategorized | No Comments »

DOL Sues Employer for Unpaid Pre- and Post-Shift Work

The Department of Labor (DOL) filed a lawsuit against Five Star Automatic Fire Protection in the Western District of Texas on July 7th, alleging the company failed to properly compensate its workers for labor they performed prior to and following their standard shifts. The DOL is seeking $321,000 in back pay and damages—a sharp reminder that the Fair Labor Standards Act (FLSA) requires employers to fully compensate their employees for all the work they do, including work done before and after they are on the job site.

The DOL’s attempted application of the rule is not new or even surprising, but it should grab employers’ attention, because it is a prime example of the type of wage and hour practices that put an employer on the wrong end of a costly lawsuit.

According to the DOL complaint, Five Star required its workers to begin their day at its office, where they loaded materials into a company vehicle before driving to the job site. After they were done at the jobsite for the day, Five Star required them to return the company vehicle to the office. The DOL has filed a complaint because it alleges Five Star did not compensate employees for this pre-shift and post-shift work.

FLSA requires employers to pay employees for all hours worked. Generally, any activity performed for an employer, whether it is done on the job site, at the office, or even off work premises, counts as time worked if the employer knows or has reason to believe work is being done. Activities such as preparing materials integral for work—the kind of pre-shift and post-shift work performed in this case—must be compensated as work. Even if Five Star did not intend to purposefully shortchange its workers, that fact alone will not shield it from liability. Remember: An employer must pay workers for all hours the employer knew or “should have known” the employee worked, and for hours that exceed 40 in a workweek, the employer must pay time-and –a-half. The unpaid pre-shift and post-shift hours, if properly counted, most likely cause the employees’ hours worked to exceed 40, and therefore the failure to pay for both the hours and overtime hours worked may be deemed a significant violation.

Employers can avoid placing themselves in Five Star’s position by ensuring that all hours are recorded accurately and that employees are not performing work outside of the time they are clocked in. Contractors can give their employees an option of riding to the jobsite in a company vehicle but employees cannot be allowed to perform any work before they arrive at the jobsite—or they will be in the same position as Fivestar is in this case.  If you have any questions about travel policies or any other FLSA issues, please contact us at Harmon & Davies, P.C.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Litigation | No Comments »

SCOTUS Denies DOL Deference: Will it do the same for EEOC?

On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.

As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.

The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.

While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.

Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.

The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.

For more information, contact an attorney at Harmon & Davies, P.C.

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Posted in FLSA, Labor & Employment, Sex discrimination, Sexual orientation discrimination | Comments Off on SCOTUS Denies DOL Deference: Will it do the same for EEOC?

On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII.  To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.

To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.)  Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity.  Each of these versions of the bill included a religious exemption provision.  It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar.  ENDA was not introduced in the current session of Congress.  Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas.  Given the current makeup of Congress, its prospects of passage are not favorable.

Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII.  Persons on both sides of the issue will be carefully following the actions at the district court level.

The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge.  The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama.  The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.”  She was terminated a few days after registering complaints about this behavior to management and on an employee hotline.  The EEOC alleges that this termination was unlawful.  This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003.  In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants.  It will be very interesting to watch how the courts handle these cases.

From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.

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Posted in Labor & Employment | Comments Off on EEOC Sues 2 Private Employers in Unprecedented Sexual Orientation Discrimination Lawsuits

Proposed Rule Would Require Employers to Submit Pay Data

On January 29, 2016, the seventh anniversary of the Lilly Ledbetter Fair Pay Act, President Obama and the U.S. Equal Employment Opportunity Commission (EEOC) announced proposed changes to the EEO-1 Report which all employers with 100 or more employees and federal contractors with 50 or more employees are currently required to file. The current EEO-1 Report requires employers to submit data on the race/ethnicity and sex of their employees within 10 separate job categories such as senior-level officials and managers, professionals, technicians, office and clerical, and craft workers.

As part of its efforts to eliminate the so-called gender pay gap, the EEOC issued a proposed rule that would expand the reporting requirement to include the numbers of employees, broken down by race and sex, in 12 pay bands within each of the 10 job categories. On a separate form, employers would also have to report the number of hours worked by employees by race and sex within each pay band in each job category.  The EEOC believes that the collection of this data will assist EEOC (and employers) to identify areas of potential pay discrimination.  The regulations leave open, for now, the question as to how to collect the information regarding hours worked.  This part of the report could also present some issues regarding the hours worked by salaried employees.

The proposed regulations state that employers would first be required to report this new information by September 30, 2017. Although the proposed regulations call for use of W-2 forms to report earnings, employers would be required to report actual earnings as of the time of filing of the EEO-1 Report in September.  EEOC assumes that because pay information is cumulative, employers (or their payroll vendors) should be able to efficiently generate pay data at that time.

Whenever a federal agency proposes new regulations, the Paperwork Reduction Act requires it to provide an estimate of the burden imposed by the new regulations on the public. As they frequently do, the EEOC provided what appears to be an unreasonably low estimate that the new report will only require an additional 6.6 hours per year for employers to complete.  The regulations are open for comment until April 1, 2016 but this deadline could get pushed back depending upon the volume of comments received.  It can be expected that virtually every group representing employers will submit comments opposing the new reporting requirement and making it clear that the submission of such detailed information will put an onerous burden on employers.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies attorneys Tom Davies, Esq. or Laura Gallagher, Esq. at 291-2236.

 

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“When you give extra, extraordinary things happen.”

Today each of our employees choose an organization that was close to their heart and our firm made a donation in their name. We are proud to be a part of Lancaster County and take part in this wonderful event. We encourage you to do the same! Share the love! ‪#‎ExtraGive‬ ‪#‎IGiveExtra

 

Extraordinary Give

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The U.S. District Court for the Eastern District of Virginia recently held that a laborer hired by a subcontractor cannot sue the construction project’s general contractor for same-sex harassment. In the lawsuit, Matthew Allen alleged that an unidentified man from another company made sexual advances towards him. After reporting the incident to the general contractor, D.A. Foster Company, Inc., the man who allegedly made the advances was ejected from the worksite. Allen alleged, however, that he was continually harassed by coworkers who had heard about the incident. Allen filed suit against the general contractor, and Barnes Excavating, the subcontractor, alleging, among other counts, discrimination, hostile work environment, retaliation, and retaliatory termination in violation of Title VII of the Civil Rights Act.

The court held that claims against an employer under Title VII may only be brought by an employee, not an independent contractor, against an employer. To determine whether the claimant is an employee or independent contractor, courts weigh several factors of the conventional master-servant relationship. While no one factor is determinative, several factors are considered, including: the workers skill required; who provides the tools required; location of the work; duration of the relationship; the hiring party’s right to assign additional projects to the hired party; the extent of the hired party’s discretion over working time and hours; the method of payment; and whether the work is part of the regular business activities of the hiring party.

In the case at hand, D.A. Foster was the general contractor who subcontracted excavating work to Barnes. Barnes directly hired Allen as a laborer and assigned Allen to work on the project supervised by D.A. Foster. Although D.A. Foster provided some guidance and training for the project, and the company does regularly perform work in this industry, the level of control over Allen did not rise to the extent necessary to establish an employee-employer relationship. The court held that, with respect to D.A. Foster, Allen was an independent contractor. Most tools were provided to Allen by Barnes Excavating, not Foster. Allen worked under the direct supervision of and was paid by Barnes. The court found that Allen could not reasonably believe that he was an employee of D.A. Foster. Thus, the court granted summary judgment in favor of D.A. Foster.

While in the case at hand the general contractor was not subject to liability on the claim, employers still need to be weary of the current trend to try towards expanding the definition of who is the “employer.” Particular attention should continue to be paid to the IRS independent contractor test and, in particular, the most recent movement of the NLRB to redefine joint-employer status. The consequences of misclassifying an employee as an independent contractor can be significant. The case should also serve as a reminder to all contractors that they need to take steps to make sure that their jobsites are free from any kind of harassment.

This article is authored by attorney Lori L. Buntman and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Construction, Disability Discrimination, Sex discrimination | Comments Off on Harassment on the Worksite; Can the General Contractor be Held Liable?

Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.

Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.

Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate.  Valley Health System 28-CA-123611

This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.

This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in NLRB, NLRB | Comments Off on Hospital’s English-Only Rule Declared Unlawful by NLRB – Y Porque ellos? (Who?)

The Color Purple: An Award Winning Film; A Scary NLRB Decision

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.

 

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