Monday, January 30, 2012

To do for Monday: Check FMLA policy

Under the FMLA, there are four methods which an employer can use to determine whether an employee is eligible for 12 weeks leave in a 12 month period. Once the determination is made, it is critical that employees be informed of the chosen method.  In Thom v. American Standard, the 6th Circuit Court of Appeals awarded liquidated damages in a case involving the discharge of an employee for unexcused absences where the method of determination was not communicated to the employee.  

At issue was whether the company used a "rolling" method or a calendar method.  The court found that at no time did the company advise the employee during the FMLA process that his leave time would be governed by the rolling method.  The court noted that the first time Thom had actual notice of the use by the company of the "rolling" method was when the company's lawyers raised it as a defense to his lawsuit.

Thom serves as reminder that an employer must be able to document the communication of it choice of method to determine eligibility to its employees for FMLA leave.  Certainly, any employee discussing use of FMLA leave should be notified in writing of the method, and the employer should obtain a written acknowledgment from the employee of notification.  Ben Franklin was right--a ounce of prevention is worth a pound of cure.

Sunday, January 22, 2012

Face off in 2012: regulation of off duty conduct and wellness

A recent article in the Seattle Times discussed how employers are testing new applicants for nicotine use.  The ban is a continuation of the ongoing attempts that some employers have to prohibit smoking or smokeless tobacco use at any time, including off duty time.  Health care and insurance companies are stepping up efforts to have current employees quit.

Roughly 30 states have some form of legislation protecting lawful off duty conduct, although there is no uniform coverage.  Michigan does not have a law protecting lawful off duty conduct although there have been attempts in light of one employer's ban on smoking and termination of employees who refuse to quit.

As employers and employees struggle with rising health costs, similar efforts in other areas are likely to be explored.  Can an employer discourage fast food eating?  No bacon double cheeseburgers? What about alcohol?  What will be the event that triggers serious discussion of protecting lawful off duty conduct in Michigan?  If bad facts make bad law, will a sympathetic employee who is fired trigger more serious discussion in Michigan?  There is no clear answer, but this is an area for employers to watch.

Saturday, January 21, 2012

Carnival of employment law blogs--January, 2012

Be sure to check out this month's carnival!!

Monday, January 16, 2012

Email and overtime: the Brazilian connection

Saturday can be a very slow news day locally so a teaser for the evening news about a new law that requires the payment of overtime to employees who use it outside of the work place caught my attention.  I was wondering how I could have missed something on that topic.  Of course, it pulled me in, and I watched the newscast.  As it turns out, the story was about a new law in Brazil ( a fitting topic for a slow news day.)

Over the years, I have found that stories like that get the viewer thinking about their individual situations.  What about me?  Am I entitled to overtime here?  The story highlights an issue for employers:  what is or is not required of employees with respect to activities like checking email after hours or working at lunch.

There is a real risk for employers when employees decide to work on their own schedule.  The Department of Labor regulations refer to such work as work not requested "but suffered or permitted" and classifies such work as work time.  It is not enough for an employer to have a rule regulating or prohibiting such work.  The regulations state that having a rule is not enough; an employer must enforce it.

Enforcing such a rule is easier said than done; especially when it comes to personal email and smart devices.  Use of company issued phones or smart devices is easier to monitor since the company will get the bills.  With the widespread use of personal equipment, monitoring is more difficult.

First of all, an employer needs to have a policy covering personal cell or smart phone used for company business.  Most employers recognize that employees are entitled to reimbursement for such use provided the copies of the bills are submitted with the business numbers highlighted.  Employees should be advised that the employer will do audits on call and an abuse will be considered dishonesty.  As is true with similar policies, the employer should have the employees sign an acknowledgement of receipt and understanding of the policy.

Secondly, the employer needs to follow through with its monitoring and enforcement.  Failure to do so will cause the employer its own kind of "suffering" with the Department of Labor.

Monday, January 9, 2012

Individual arbitration agreements and the NLRB: There will be class actions

If the Obama Board were to run an advertising campaign concerning its work, it might well use the slogan Not just for unions anymore!  In its recent decision in D. R. Horton, Inc., a two member panel found that the employer could not force its employees to waive their NLRA rights to collectively pursue litigation of employment claims in all forums, arbitral and judicial.  The panel stated that as long as the employer leaves open a judicial forum, it can insist that arbitral proceedings be conducted on an individual basis.  The panel stated nothing in its decision was obligating employers to permit or to participate in class -wide or collective arbitration proceedings.  The panel also upheld the judge's finding that the procedure would causes employees to believe that they could not file charges with the Board and therefore was a violation of the Act.

The impact on employers?  Choose the forum that you want your employees to use when they process class or collective actions against you.  The focus of the decision is on employment claims, i.e wage/hour, discrimination, and anything that can be done by employees, which is far broader than day to day work place disputes.  The panel's holding is a cause for celebration with plaintiff's attorneys.

Activity which is covered  under the National Labor Relations Act is activity which is both concerted and protected.  The decision here finds concerted activity by relying upon the prior decision in Meyer Industries, 281 NLRB 882(1986).  The panel noted that concerted activity occurs when a single employee seeks to initiate or to prepare for group action.  As a result, an individual who files a collective or class action regarding wages, hours, or working conditions is engaged in protected conduct.

As it now stands, and it is almost certain the panel's decision will be challenged, employers cannot totally foreclose their employees from pursuing class or collective actions involving employment law.  The Obama Board has continued its broadening of the meaning of protected, concerted activity in the non union setting.  The decision is likely only the beginning of a much more expansive reading of the Act's coverage which will occur under the newly constituted Board.

Thursday, January 5, 2012

The NLRB recess appointments--politics as usual

The White House announced yesterday that President Obama had appointed three individuals to the vacant positions at the National Labor Relations Board.  The appointments bring the Board to a full complement of five members.  Of course, the issue of whether the Senate was in recess to allow the appointments is far from a settled issue and will likely result in another round of litigation with the NLRB.

The anticipated mass reversal of Bush Board precedent expected by the administration's union supporters has not yet occurred.  The Democratic majority of the three member Board did approve a number of amendments to the election process which will speed up the election process and limit employer challenges during the election process until after the voting has occurred.  Employers had expected that the shift in Board case law would occur early in the Obama administration.  Indeed, the US Chamber of Commerce had published a white paper detailing the anticipated changes.  The degree to which the trickle of cases becomes a flood before the election bears watching.

Once again the battle lines are drawn between the Obama Board and acting General Counsel with its union support and employers.  The intense debate over the General Counsel's action in the Boeing unfair labor practice litigation is likely to be repeated with these appointments.

When the National Labor Relations Act was enacted in the '30s, it was not intended to be balanced.  Congress perceived an imbalance and abuses that needed to be corrected with protections for those attempting to form and to join unions.  When the statute was amended in the '40s after the war, Congress saw a need to bring the statute back into somewhat more balance.  The statute has not been amended to reflect changes in the last sixty plus years.  The changes have come as a result of philosophy of the party controlling the White House.  Democratic presidents tend to favor unions; Republican presidents tend to back employers.  Their Boards reflect the preference.

Employers, especially smaller employers, want to know what the rules are; what can they do and what can't they do.  There is a frustration in seeing that what was allowed when done suddenly becomes illegal after a presidential election. In the union election setting, the union can control when to file a petition for representation.  It does so when it views the timing as most advantageous to its position.  Once a petition is filed, the union can do the things that an employer can't--promise changes in wages, benefits, and working conditions.  Employers want to know that their statutory right to free speech and the expression of opinions will be honored.

The recess appointments and the anticipated changes to come are a reminder to employers that how they treat their employees and whether they effectively communicate with employees about matters which concern and impact them is a daily exercise.  Successfully done, employers will prepared when the union representation petition comes.  After all, in most instances, unions don't organize employers; employers do.