Employers should be paying close attention to several new developments from the National Labor Relations Board, as these changes impact many more employers than people realize, says Lynn Outwater, managing partner with Jackson Lewis LLP.

“These new developments at the NLRB impact both nonunion and unionized employers,” Outwater says. “But a lot of employers are oblivious to the changes. Whether you are a small, medium or large employer, there are a lot of new developments you need to focus on and be prepared for.”

Smart Business spoke with Outwater about how the changes will affect employers and what steps you can take to ensure compliance.

What are the changes that employers need to be aware of?

There are four main developments. The first, which has gathered some media attention, is a new mandatory posting notifying employees of their right to unionize, which has to go up in the workplace on Jan. 1, 2012. Ignorance of the law is no excuse. It would be considered a violation of the law if there is no posting, with other legal implications.

In terms of what this may mean to employers, it is likely to increase the potential of union activity and/or increase protected concerted activity in the workplace, such as employees talking among themselves about their terms and conditions of employment in ways that may be protected under the National Labor Relations Act. This certainly can provide more exposure to possible unfair labor practice charges for employers.

Why is this posting such a big deal?

This is a significant development because since the statute went into effect in 1935, there has been no requirement for a posting. There is some pending litigation regarding whether the NLRB has the authority to do this, but employers can’t count on that litigation to protect them. They need to get up to speed on what they need to do, where they need to do it and how they need to do it. It’s not just a matter of putting up a poster.

Employers should be considering strategies and proactive compliance programs to deal with this subject. I would suggest that employers look at their whole labor relations plan. They need to decide how, when and where to post and if they are going to explain it to their employees in advance of the posting or in conjunction with the posting. They certainly need to train all their managers and supervisors about the legal meaning and requirements of the posting and make sure they have employment policies in place that ensure best practices prior to the posting.

What other developments should employers be aware of?

The NLRB has focused on the exploding area of social media issues and policies. The NLRB has more than 100 cases pending involving Facebook, Twitter, YouTube, or other forms of social media and electronic communications.

Because of this heightened scrutiny, it is very important for employers to make sure they have updated social media policies that are both lawful and effective in relation to their company culture. Also, they should ensure their policies are lawful based on recent or anticipated NLRB actions. Employers should avoid overly broad provisions that could be reasonably construed to prohibit protected concerted activity as currently interpreted by the labor board.

They should also look at other policies that can be implicated by these board decisions, such as employee access rules, communications with outside media rules, corporate codes of conduct, dress codes, confidentiality of investigations, nondisparagement and gossip policies, computer policies, etc. It’s a wide swath.

The third development is that the NLRB is seriously considering accelerating the timetables for union elections in the event that a petition would be filed at any employer’s work site. They are looking at reducing the amount of time from petition to election to within 10 to 21 days. They are also looking at requiring expedited disclosure to unions of employees’ contact information, including phone numbers and e-mail addresses. The significance of that is to make employers aware that these developments can result in either legal pitfalls or employers caught unaware by these fast-paced NLRB developments and find themselves not realizing how accelerated things are today.

The last thing employers should be aware of is a new case which would allow, in most industries, a union to seek an election in only one job title. For example, in one case, a union was allowed to go forward with an election with just certified nursing assistants, as opposed to an overall service and maintenance unit, or some larger group which otherwise shared a community of interest among various jobs.

What effect will these changes have, and how should employers handle them?

Essentially, this means unions can be more successful, more quickly and more easily. In view of all these new developments, employers need to review their comprehensive labor relations plan. Do you do things differently, or continue to do things the same way? Should you train management and supervisors? These developments are so significant that if your management team is caught unawares, you are more likely to have legal and practical difficulties.

How can employers ensure they aren’t caught unawares?

Part of it is having policies and practices that ensure lawful best practices in today’s environment. That includes reviewing handbooks and social media policies to comply with rapidly changing legal requirements. Also, employers must keep up to date on legal developments, so they can comply proactively instead of finding out later that they have committed an unfair labor practice.

Lynn Outwater is managing partner of Jackson Lewis LLP. Reach her at (412) 232-0232.

Published in Pittsburgh

The process of discovery — when the parties involved in litigation exchange information relevant to the case — has adapted to fit the way business is done today. Is your company ready for e-discovery?

“Times have changed,” says Melissa Evans, an attorney with Jackson Lewis LLP.  “We are not living in a paper world any longer. Instead of office memos, you have e-mail. External communications that once would have been sent by U.S. mail are transmitted by e-mail. Even the fax has taken a backseat to e-mail.”

Traditionally, discovery in litigation entailed consulting paper documents that typically were segregated into labeled folders and file drawers. With electronic information, particularly e-mail communications, that level of file organization is rarely found. The combination of an increased volume of data with a failure to establish an organized system for file maintenance can potentially lead to problems if a company is faced with litigation.

Smart Business spoke with Evans about the challenges of e-discovery and what employers can do to prepare themselves for a potential lawsuit.

How is e-discovery different from traditional discovery?

The critical difference between traditional and e-discovery is volume. We retain information electronically in far greater volume than we ever would dream of doing with paper. This includes a substantial amount of information that is of no value to the business or to any litigation involving the business, such as e-mails announcing employee birthdays.

These files often continue to linger on your system. Electronic information is not like a piece of paper that you can toss in the trash. Just because you hit ‘delete’ on your keyboard doesn’t mean the file is gone. Another difference is the ease with which electronically stored information can be altered, which makes it difficult to maintain its integrity.

What can an employer do to prepare for e-discovery?

Every organization should have a standing document retention policy that governs how long documents are maintained and how they are maintained. Most policies address the former, but not always the latter. How the documents are maintained can become critical if the organization is taken to court.

Organizations keep information for their own purposes. But when you hold on to information longer than required by law or necessary to business functions, you create an ongoing ordeal for yourself if you should ever be sued. The costs of e-discovery can overwhelm litigation budgets. The best way to streamline the process is by having a document retention policy and enforcing it. Depending on which federal, state and local laws it must comply with, every organization faces certain obligations with respect to the preservation and retention of information. There are statutes of limitations on how long certain documents have to be retained, and those should form the basis upon which a company implements a document retention or document preservation and destruction process.

How can employers determine what information should be retained?

In an ideal world, electronically stored information (ESI) would be labeled and stored with the same precision traditionally applied to paper records. So if you send an e-mail, the subject line should be used not only to notify the recipient but also as a label for that information so it can be sorted and stored appropriately, creating a virtual filing cabinet.

ESI is a big problem because it is not until you are served with a complaint that you know with certainty that litigation is coming. The obligation to preserve potentially relevant information, both ESI and paper, is triggered when litigation is ‘reasonably foreseeable.’ This creates a subjective assessment of when the duty to preserve arises. For example, if your business manufactures a mechanical pump and you receive calls from people saying your pumps are exploding, a court might say it was reasonably foreseeable at that point that a products liability claim was coming. However, it is more likely that the duty would be triggered after a formal complaint is filed, but not necessarily a court complaint.   Once you get notice from a federal or state agency that a claim has been made, your duty to preserve is likely triggered.

What consequences do employers face if potentially important evidence is unavailable for e-discovery?

While a reasonable document retention policy will protect an organization from sanctions for spoliation — the term for destruction of evidence — the failure to suspend document destruction after litigation commences can lead to a host of issues, including entry of judgment against the defendant. Thus, if the defendant is found to have willfully spoliated evidence, the courts can decide the case without the presentation of evidence by the defendant and an adverse judgment may be entered.

How can employers avoid that outcome?

When an organization receives notification it has been sued, the first step is to notify the IT department so that attempts can be made to avoid loss of information. Many organizations have set up an automatic purge of e-mails. The computer designates information for destruction based on the date it was received. There is no human eye assessing the value of the data, or if it is very important for the business or for potential litigation. As a result, you need to suspend those automatic purge functions if you receive a lawsuit, or even just the threat of a lawsuit.

Simply receiving a letter can be sufficient to trigger that ‘reasonably foreseeable’ clause. Waiting too long to suspend the policy allows documents to be lost because you didn’t take the appropriate steps to preserve them for e-discovery. The ultimate sanction is triggered by willful violation, but courts have given severe sanctions in several cases in which the loss of information was due to simple negligence.

Melissa Evans is an attorney with Jackson Lewis LLP. Reach her at (412) 232-0135 or Melissa.Evans@jacksonlewis.com.

Published in Pittsburgh

New rules under the Americans with Disabilities Act Amendments Act (ADAAA) have significantly changed the workplace for dealing with individuals with disabilities.

The Amendments Act was enacted in 2008 to adopt a broader interpretation of the definition of ‘disability.’ Then, on March 25, 2011, the U.S. Equal Employment Opportunity Commission issued final regulations to the Amendments Act that expanded the definition even further.

“Employers should prepare for more ADA agency charges and complaints, as well as more complicated and costly litigation,” says Donna Geary, partner with Jackson Lewis LLP. “Employers must be ready to defend that their employment actions were legitimate and nondiscriminatory.”

Smart Business spoke with Geary about how the new regulations will affect employers and what litigation to expect in the future.

How will the changes impact ADA litigation?

The EEOC anticipates that the ADAAA, including its broader interpretation of ‘disability’ under the act, will result in an increase in the number of EEOC charges and lawsuits filed. In particular, the commission anticipates that more individuals with disabilities might file charges.

More employees are going to be covered by the Amendments Act than were previously covered by the old ADA. Before, if an employee went to human resources and said, ‘I have a back problem today,’ the HR people might think, ‘That does not sound like a disability to me.’ That was usually the end of it, because it was somewhat difficult to qualify as an individual with a disability under the ADA.

Now, it is much easier. Congress did not change the definition of disability; the definition is exactly the same. The way it is interpreted has changed.

How has the interpretation changed?

Previously, to consider if an individual was disabled, the individual was viewed in his or her corrected state. For example, if an employee has a leg amputation below the knee and has a prosthesis permitting him or her to easily walk, then that person was not substantially limited in a major life activity and was not considered disabled.

Under the amended ADA, Congress requires that the individual is now viewed in an uncorrected state. So if you take away the prosthesis, that person cannot walk and has a substantial limitation of a major life activity — walking — and is most likely considered disabled under the law.

As a result, many more employees will now be considered as disabled. Before, those people could not get past the initial part of the definition of disability. Now, most individuals with a medical, physical, or mental impairment will get past it. As a result, most claims will hinge on the ‘reasonable accommodation’ part of the ADA. Employers have to determine if there is a reasonable accommodation or job modification that permits the employee to do the job without causing the employer an undue hardship. Employers rarely got to that before, because most employees could not meet the definition of disability.

How will these regulations impact employers?

Employers should prepare for a large number of ‘reasonable accommodation’ cases, in which an employee must have an actual disability or record of a disability that substantially limits one or more major life activities.

If an employee has a doctor’s note saying he or she cannot lift heavy weight and lifting is part of the job, you might think the employee cannot do the job anymore. That is not true.

The employer needs to engage in what is termed the ‘interactive process.’ It is a legal requirement to engage in this process with the employee and the employee’s physician to determine if there is anything that can be done to modify the job so the employee can do it. If the employer cannot modify that job, are there other jobs the employee is qualified for where lifting heavy weight is not necessary?

It does not mean we have to do what the employee wants. What it means is the employer needs to review the situation and determine if there is something that can be done that does not cause the employer an ‘undue hardship.’

If employers do not engage in the interactive process, they will be found in violation of the statute. But as an employer, you do not have to lower quality or quantity standards.

For example, if a salesperson who sold 1,000 units last year only sold 500 units this year because of multiple sclerosis, and you do not want to set 500 units as the new standard, you do not have to make that accommodation. But you do have to look for a way to help that salesperson get to 1,000 units.

Where is the line between reasonable accommodations and undue hardship?

A reasonable accommodation can include changing the work schedule. If an employee has trouble coming in at 7 a.m. because he or she is groggy or stiff because of a medication, that person could come in at 9 a.m. instead. The employee still works eight hours; he or she just starts later. However, if the employee who wants to start at 9 a.m. works on a manufacturing line and wants the entire line to start at 9 a.m., that is most likely an undue hardship.

How do the final regulations impact day-to-day management of employees with injuries and illnesses?

Anyone with an impairment should be presumed to be protected by the new ADA. Every adverse employment action related to an individual’s physical or mental condition should be presumed to be a potential ADA case. As the new regulations have made it easier to qualify an employee as disabled, employers should focus their efforts on showing that they made the proper employment decisions, which will typically require that they engage in the interactive process.

Donna Geary is a partner with Jackson Lewis LLP. Reach her at (412) 232-0154 or gearyd@jacksonlewis.com.

Published in Pittsburgh

The Genetic Information and Nondiscrimination Act (GINA) was signed into law on May 21, 2008.

“The primary aim of GINA is preventing discrimination on the basis of ‘genetic information,”’ says Lauren N. Diulus, an associate with Jackson Lewis LLP.

Employers need to ensure they adhere to GINA’s regulations, or they could find themselves the target of costly litigation.

Smart Business spoke with Diulus about GINA and how employers can use best practices to avoid liability.

What exactly is GINA?

GINA makes it unlawful for employers and other covered entities to request or require an individual’s genetic information, which includes their family medical history, unless it is inadvertent. GINA also prohibits the use of, access to and disclosure of genetic information based upon the idea that doing so will reduce discrimination.

What is genetic information?

Genetic information means information about an individual’s genetic tests; the genetic tests of that individual’s family members; family medical history; an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services; the genetic information of a fetus; and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

What are some common situations in which an employer has the greatest potential to inadvertently obtain genetic information?

The following list is obviously not exhaustive, but the most common situations are:

When requesting documentation to support an employee’s request for a reasonable accommodation.

When legally requesting medical information from an individual, such as where an employee requests leave under the Family and Medical Leave Act (FMLA).

When reviewing an applicant’s or employee’s Internet or social media activity.

When requiring employees to submit to employment-related medical examinations such as Post-Offer or Fitness for Duty.

When obtaining information from employees as part of a wellness program.

When participating in casual conversations with their employees, i.e. ‘water-cooler’ talk, or overhearing a conversation among co-workers regarding health.

What should employers do to increase the likelihood that potential receipt of genetic information is deemed inadvertent under GINA, and otherwise avoid liability?

The Equal Employment Opportunity Commission (EEOC) sets forth a ‘safe harbor’ notice, which, if provided by the employer along with its request for medical information from the employee’s health care provider or its own third-party medical examiners, will deem the employer’s receipt of any genetic information as a result of the request to be inadvertent and, thus, not in violation of GINA.

GINA recognizes that individuals requesting leave under the FMLA, or other applicable state or local law, to care for a covered family member with a serious health condition will be required to provide family medical history. Therefore, GINA provides a separate exception permitting an employer to request family medical history to support a request for FMLA leave. Accordingly, there is no need for an employer to include the ‘safe harbor’ notice with a request for such medical information about a family member.

If it becomes apparent to the employer that its third-party medical examiners are requesting genetic information, the employer should take appropriate remedial measures to ensure that such requests cease, which includes no longer using that examiner.

While the employer may set forth casual expressions of concern regarding the health of an employee who has been diagnosed with a serious condition (‘How are you’ or ‘Did they catch it early enough?’), the employer must avoid questions that are more probative in nature, such as whether other family members have the condition.

While an exception to liability under GINA will apply in circumstances where an employer learns genetic information about an employee by overhearing a conversation between the employee and others, i.e., ‘water cooler talk,’ the employer must not actively listen to, or act on, that conversation.

Increasingly, employers are using social media as a way of verifying applicant/employee information and investigating potential candidates. HR professionals and managers supervising employees, specifically, should be trained about how they should be using social media, and the limitations on their use to avoid violations of GINA.

What should an employer do if it inadvertently acquires genetic information regarding one of its employees?

If an employer inadvertently obtains written genetic information, it must maintain such information separate from the personnel files and must treat the information as a confidential medical record as it would for records covered by the Americans with Disabilities Act. If an employer obtains verbal genetic information, it need not reduce the information to writing but must not disclose the information unless legally permitted to do so. Also, the employer may not discriminate or retaliate against the employee based upon such genetic information in any way.

What else should an employer do to shield itself from potential liability under GINA?

Determine if there are ways the company is getting genetic information that it should not be getting, and put a stop to it. Post the required DOL poster, which is on the DOL website. Also, broaden the EEO statement in the employee handbook to include non-discrimination based on genetic information. Finally, add GINA to agendas for EEO training for supervisors and managers.

Lauren N. Diulus is an associate with Jackson Lewis LLP. Reach her at (412) 232-0231 or diulusl@jacksonlewis.com.

Published in Pittsburgh

When most people think of bullying, their minds drift to schoolyard battles long past. However, bullying in the workplace is a real problem that can make your employees feel as awful as those teenagers getting slammed into lockers. If you allow bullying to occur in your company, it can destroy your company’s culture as well as employee morale.

“A bullied employee is not a happy employee,” says Craig W. Snethen, attorney at law with Jackson Lewis LLP.

Legislation has been introduced in some states that would make it unlawful to subject an employee to an abusive work environment. For instance, if an employee resigns and claims that he or she was constructively discharged due to an intolerably abusive working environment, evidence of bullying can help support the employee’s claim.

Smart Business spoke with Snethen about how employers can curb bullying in the workplace and some of the potential liabilities involved.

What is considered bullying in the workplace?

Bullying has been defined as a systematic campaign of interpersonal destruction that jeopardizes a target’s health and/or career. It’s not mere incivility or rudeness. Bullying is a non-physical, non-homicidal form of violence.

Behaviors that may count as bullying, if they occur repeatedly for more than six months, include: (1) giving the ‘silent treatment;’ (2) refusal of requests for assistance; (3) receiving little or no feedback on performance; (4) subjection to pranks; (5) taking/destroying resources needed by the target to perform his/her job; and/or (6) the target doesn’t get praise to which he or she is entitled.

Why should employers be concerned about bullying in the workplace?

Generally, employers are and should be concerned about harassment and discrimination in the workplace. To be illegal and actionable in court, harassment or discrimination must violate the target’s civil rights. Therefore, the target must be in a ‘protected status’ group, such as race, gender, ethnicity, religion, national origin, age, disability, or sexual orientation.

By contrast, bullying is much broader than harassment or discrimination. Indeed, only 20 percent of bullying cases could potentially qualify as discrimination. In other words, bullying is ‘status blind.’ From a purely practical standpoint, however, a bullied employee is not a happy employee. Irrespective of whether the employee might have an actionable claim of harassment or discrimination, the employee may act out against the bullying in other ways, such as engaging in workplace violence and/or sabotage.

What are the legal dangers of allowing bullying in the workplace?

Currently, there are no laws in the United States that prohibit bullying. However, each time bullying laws are proposed, legislators become more sensitive to the issue and future legislation becomes more likely. When one state passes legislation, it’s going to make the argument all the stronger. In New York, for instance, proposed legislation has been introduced in the House that would make it unlawful to subject an employee to an abusive work environment (S 1823 § 762). The legislation would create civil liability for employers for the existence of an abusive workplace (S 1823 § 763).

Bullying heightens the likelihood that an employee may resign and claim that he or she was constructively discharged due to an intolerably abusive working environment. So, if the employee can articulate a harassment or discrimination claim based on some protected characteristic, the presence of bullying can enhance an employee’s evidence in support of such a claim.  Further, bullying can form the basis of common law claims such as intentional infliction of emotional distress, assault, battery, false imprisonment, defamation and/or tortuous interference with a contractual relationship.

How are employees handling the issue?

Unions are becoming more sensitized to bullying. In Massachusetts, a new collective bargaining agreement covering 21,000 state employees includes protections against workplace bullying, defined as behaviors that contribute to a hostile, humiliating or intimidating work environment, including abusive language or behavior. Under that agreement, an employee has 90 days to report a bullying incident and may be subject to grievance procedure, but no arbitration.

How can employers reduce their liability in regards to workplace bullying?

Obviously, employers should take reasonable means to prevent bullying in the workplace. At a minimum, employers should adopt and distribute widely an articulated policy, which provides for a prompt response including an evaluation of facts and investigation, as well as providing for prompt and effective remedial action.

In assessing a potential bullying situation, the employer should ask itself whether the conduct, if it occurred as alleged, would violate any significant rule or expectation of employee conduct. If the answer is yes, the employer should engage in a prompt investigation and the accused employee should be removed from the workplace if allegations are sufficiently serious and/or more harm could occur.

Action taken as a result of a good faith, thorough investigation that came to a reasoned conclusion can insulate a company from liability for wrongful termination and/or defamation.

Craig W. Snethen is an attorney at law with Jackson Lewis LLP. Reach him at (412) 232-0196 or snethenc@jacksonlewis.com.

Published in Pittsburgh

There are two main ways to modify existing labor law: through legislation or through the National Labor Relations Board.

“The Employee Free Choice Act appears to be dead in the water,” says Mike Stief, a partner with Jackson Lewis LLP. “It is unable to be enacted in any form in the foreseeable future.”

Therefore, any change would have to come through the current NLRB.

Smart Business spoke with Stief about the new labor board and how it will impact union-free employers.

How can the makeup of the board affect labor law?

The current NLRB is made up of three Democratic appointees. There are supposed to be two appointees by the Republican Party, but there is one open seat. So you have a majority of the labor board who are very beholden to organized labor. The chairperson of the board, Wilma Liebman, was a minority member of the board during President Bush’s presidency. The most controversial member of the new labor board, Craig Becker, is a recess appointment. He is one of the more controversial figures on the labor board in recent memory.

Becker believes employers should be stripped of any legal cognizable interest in their employees’ election of representatives. He takes the position that we shouldn’t even have union elections anymore. He wants to restrict or eliminate an employer’s right to communicate with its employees during an election campaign. His views are very extreme; some even are in direct violation of the current National Labor Relations Act, which permits employers to communicate with their employees on this topic. Those rights have been in place since 1947.

Are any of those extreme changes realistically going to happen?

President Obama appointed the majority of the labor board. He owes a lot to organized labor, which helped get him elected. I’m not suggesting every one of Becker’s views will be adopted, but the board majority may take a close look at a lot of those issues.

How does the new labor board impact employers?

The board can affect change and impact non-union employers in two distinct ways: one is adjudication, which is developing a new body of case law.

The second way is rulemaking: the labor board can adopt rules that also could change the labor landscape. Just recently, the labor board proposed creation of a rule which would require every employer in this country to post in the workplace a notice of employees’ right to join a union. Right now, that only applies to certain federal contractors and subcontractors through an Executive Order signed by President Obama. If adopted, this proposed rule would require it for every employer. You may have to post it electronically, as well, if that is a way you customarily communicate with your employees.

This would be a constant reminder to the work force of the right to unionize, and therefore make it more likely that you will be the subject of organizing in the future.

Other potential rules that we might see deal with expedited elections, the more frequent use of mail ballots and/or e-voting.

Historically, people have voted in elections by elections being conducted at the worksite during work time. The NLRB does a very good job of running elections. Having an election on-site is beneficial to employers because it ensures the maximum number of employees vote. Statistics show in elections where the ballot is mailed to your home, voter turnout is less than elections that occur manually.

How may the board affect labor law through adjudication?

There are cases that are going to be decided by this labor board that will be very union-friendly. Among them: making it easier for temporary employees from a temp agency to vote in union elections along with the company’s regular employees.

This labor board will most likely overturn a decision issued by the previous labor board, which found it lawful for a company to prohibit the use of its computer systems for the purpose of organizing.

This labor board may also go back to a decision from the President Clinton-era board that provided non-union employees the right to have a co-worker witness present during an investigatory interview that could lead to discipline. Usually, those types of investigations involve highly sensitive matters. It might be a harassment, theft, or substance abuse issue, and an employer usually tries to keep those investigations as confidential as possible. That confidentiality could be compromised if there is a co-worker witness present.

What are some things union-free employers can do to minimize the impact of these potential changes?

They need to really examine their whole philosophy of remaining union-free. They need to make it an ongoing process. The best way to remain union-free is to eliminate or reduce the issues that cause people to look elsewhere for help.

The keys are a well-trained management staff, selecting supervisors with good people skills, not just good technical knowledge, training those supervisors, and regularly conducting vulnerability assessments to understand which issues exist in the workplace in an effort to correct them.

What should employers be doing now?

On February 17, 2011, from 8:30 to 10:30 a.m., Jackson Lewis LLP is conducting a complementary seminar titled: Surveying the New Labor Law Landscape: 11 Changes in 2011: Tips for Employers. Business owners that are interested should contact our offices to register.

Mike Stief is a partner with Jackson Lewis LLP. Reach him at (412) 232-0138 or stiefm@jacksonlewis.com.

Published in Pittsburgh