Posts Tagged ‘Policy’

NLRB Notice Poster Requirement Struck Down

by HDlawblog Posted: Tuesday, 4/17/2012

The District Court of South Carolina struck down the NLRB requirement that employer’s post the “employee rights” notice poster in US Chamber of Commerce v. NLRB. The Chamber argue that the NLRB could not require employers to post the notice because it is not authorized by the National Labor Relations Act. The NLRB argued that Section 6 of the Act, which allows it to promulgate rules that are necessary to carry out its mission, provided the required authority.

The district judge ruled that Section 6 requires rules promulgated by the NLRB be necessary to carry out other provisions of the Act, and the NLRB failed to prove that the notice-posting rule was necessary. The judge noted in his opinion that with computers and the Internet, information is freely available to employees, further weakening the NLRB’s claim that the poster was necessary.

While this was certainly a step back for the NLRB, this will not be the last we hear of the “employee rights” notice poster. The NLRB will likely appeal the district court’s ruling, and both sides will argue their case before the court of appeals. However, the rules effective date will almost certainly be pushed back yet again, so stay tuned.

UPDATE: The District of Columbia Circuit Court has enjoined the NLRB from enforcing the regulation that would have required employers to post the employee rights notice poster.

This article is authored by attorney Casey L. Sipe 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 Labor & Employment, NLRB | No Comments »

Vigilant Against Violence

by HDlawblog Posted: Monday, 4/9/2012

Workplace violence is a subject that most people do not like to discuss. After all, most times when workplace incidents make the news, they are shocking and frightening, and it’s simply easier to say “That will never happen here.” Unfortunately, that’s not always true, as nearly 2 million workers reported having been victims of workplace violence each year, with even more going unreported.

Federal laws only provide general guidance, in the form of the Occupational Safety and Health Act of 1970, which requires employers to provide a safe workplace. While workplace violence is not always preventable, there are proactive steps you can take to reduce the risks and hopefully prevent a situation before it becomes dangerous, including:

  • Training managers and supervisors on the early warning signs of potential violence and how to address them
  • Implementing a comprehensive workplace violence prevention program
  • Clearly communicating to employees that the company wants to know when there are threats or incidents, and how serious the company is about handling issues
  • Making a good faith effort to investigate complaints where there is a reasonable concern that the employee’s behavior may cause harm to themselves or others
  • Considering additional security measures (sign-in desk, key-card systems, increased lighting, and video surveillance)
  • Identifying to all employees the contact person for communicating safety concerns or incidents

It is important to note, when preparing preventative measures, that workplace violence is not limited to employees; it also includes customers, clients and visitors.

Of course, while all of these measures will raise costs, it will likely be less expensive than the costs of a workplace violence incident. A 2006 study by Liberty Mutual reported assaults and violent acts as the 10th leading cost of non-fatal occupation injuries, at a cost of $400 million. Indirect costs, though difficult to quantify can include diverted attention and resources, loss of public trust, and reputational damage. Workplace violence can result in a number of legal actions against employers, including civil litigation, OSHA citations or fines and workers’ compensation. The key, as always, is finding a balanced approach that works for your particular business.

This article is authored by attorney Casey L. Sipe 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 Labor & Employment, Uncategorized | No Comments »

Background Checks Aren’t For Everyone

by HDlawblog Posted: Monday, 4/2/2012

Employers routinely use background checks when hiring new employees, without considering the consequences of using them on every applicant. The EEOC’s current standing policy provides that criminal background checks should be limited to only those positions where such information is “job-related and of business necessity,” and should only seek information about convictions, not arrests.

The Fair Credit Reporting Act, in addition to providing rules regarding credit checks, imposes a number of requirements on employers seeking to obtain a criminal background check.  Before obtaining a criminal background check, an employer must disclose in writing to an individual that the report may include in-depth information about his or her character, general reputation, personal characteristics, mode of living, criminal, driving and work history.  The disclosure must be delivered no later than three days after the report was first requested and include a statement informing the individual of their right to request additional disclosures and receive a written summary of legal rights. If an individual requests additional information about the investigation, the employer must mail or otherwise provide the information within five days of receipt of the written request, or the request date of the report, whichever is later. Employers must take “reasonable measures” to protect against unauthorized access to or use of information in connection with the disposal of consumer information.

In order to prevent legal trouble, employers can take a few easy steps. Employers should have a clear reason for requiring a criminal background check, relating to the open position. For example, a position where the applicant will have access to the employer’s or customer’s money could require a background check to ensure that the applicant does not have any fraud convictions. In addition, employers should discuss the information they are allowed to consider with legal counsel, and then limit the background check to that information, so that no improper information is included in the background check, which ensures that there is no chance that improper information would be considered during the hiring process. Finally, blanket policies, where every applicant is given a background check, should be avoided. A discussion with legal counsel can provide specific guidance on when criminal background checks are appropriate, and what information can be sought.

This article is authored by attorney Casey L. Sipe 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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The Cost of Curiosity

by HDlawblog Posted: Thursday, 3/29/2012

In a growing trend, employers are asking job applicants and employees to provide login information to their Facebook pages and other social networking accounts. Many are questioning the propriety of asking for login information, particularly because an applicant or employee may believe refusing will cost them a job. However, even reviewing social media profiles, or utilizing a third-party application, to obtain information about applicants and employees may expose employers to legal liability.

Facebook has already confirmed that password sharing is prohibited under its Terms of Service. Facebook’s “Statement of Rights and Responsibilities” Section 4(8) explicitly prohibits password sharing:   “You will not share your password, (or in case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.” While violating the letter or spirit of the Facebook Rights and Responsibilities can lead to deletion of the user’s Facebook account, there are few real legal consequences for such violations. The Department of Justice regards entering a social networking site in violation of the terms of service to be a federal crime, but admitted that they would not prosecute offenders.

There are real legal dangers in asking an applicant or employee for login information, or even reviewing their social media accounts.  Many people post information on social media sites that may show a protected status (age, sex, religion, disability, genetic information, race, national origin and pregnancy), lawful off-duty conduct (alcohol or smoking), or criminal history.  Such information may be, albeit unintentionally, factored into hiring or workplace decisions. It could be particularly damaging if an employer requested access to social media accounts, and then makes a decision that detrimentally affects the applicant or employee. It simply creates more fodder for a potential lawsuit.

Employers that insist on reviewing applicant or employee social media profiles should take steps to maintain objectivity. Assigning a non-decision-maker to review the social media profiles, before passing on relevant information onto the hiring personnel, can help to prevent those making the hiring decision from relying on improper information. Employers may also want to limit their social media search to LinkedIn, because it is a professional site, which is much less likely to display improper information.

In the end, employers are generally better off not trying to obtain information about applicants and employees via Facebook and other social networks. The possibility that important information may be unearthed is greatly outweighed by the potential legal pitfalls and lawsuits a search may create.

This article is authored by attorney Casey L. Sipe 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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