This month we report on two recent developments of note that affect the power and authority of the National Labor Relations Board. On April 25, 2013 the NLRB asked the U.S. Supreme Court to review a lower court ruling that held President Obama’s January 4, 2012 recess appointments to the NLRB were unconstitutional. As it now stands, the lower court’s decision calls into question every decision issued by the NLRB since January 4, 2012.
On another issue, the U.S. Court of Appeals for the D.C. Circuit held on May 7, 2013 that the NLRB’s August, 2011 regulation requiring private businesses to post Notices of Workers’ Rights violated the free speech of employers under federal labor law and is therefore invalid. This will not be the last word on this issue and currently the NLRB is considering whether to appeal this decision, too.
EEOC FILES FIRST CLASS ACTION LAWSUIT UNDER GINA
On May 16, 2013 the Equal Employment Opportunity Commission alleged in a lawsuit filed in New York that a nursing home violated the Genetic Information Non-Discrimination Act by asking prospective and current employees for their family medical histories during pre-employment and annual medical exams. This lawsuit marks the first class action lawsuit under GINA which was enacted in 2008 and took effect for employment purposes on November 21, 2009. GINA makes it an unlawful employment practice for an employer to “request, require or purchase an individual’s genetic information,” which includes the medical history of an employee’s family members. Although the suit has just been filed, we will continue to monitor its progress and report on any significant developments.
Carolyn Davis is presenting on Internal Investigations at the National Business Institute’s Seminar “Employment Laws Made Simple” on June 12, 2013 at The Hotel at UTMC. The seminar will begin at 8:30 A.M. If you would like additional information, please contact us at 419-244-6788.
NLRB UPHOLDS EMPLOYEE TERMINATION AFTER DEROGATORY COMMENTS ON FACEBOOK
On May 17, 2013 the NLRB, Division of Advice, released an Advice Memorandum to the regional offices deciding that an employee who posted critical or derogatory comments about her employer and supervisor during a Facebook conversation with other employees was not protected against discharge. The employee, who performed general office work, participated, along with nine other individuals, in a Facebook group message. The employee used profanity in reference to her current supervisor and the company. No one else participated in this part of the conversation, but later another employee commented that it is “getting bad there”. After the conversation, another employee showed the exchange to the employer. The employer then fired the office worker who made the derogatory comments. The discharged employee then filed an Unfair Labor Practice charge against the employer. The Advice Memorandum noted the NLRB does not protect “griping” by individual employees that does not look toward any collective, or group action at all. Finding there was no thread connecting the employee’s comments to those of any coworkers pertaining to shared concerns about the working conditions, it was concluded that the employee did not engage in a “protected activity” and her discharge did not violate the Act. Although this is a positive outcome for employers, this Memorandum demonstrates how imperative it is that employers use caution before terminating employees who discuss their employment on the internet.
OSHA DIRECTS ITS ATTENTION TO “TEMPORARY EMPLOYEES”
Recently, OSHA directed its Regional Administrators to include, in future workplace inspections, an inquiry into the status of temporary workers that might be employed at the workplace. In particular, OSHA officers are to determine whether temporary employees have in fact received required training concerning the workplace hazards that may exist at the workplace. In addition, the training must be conducted in a language and vocabulary that will be understood by the temporary workers. A number of additional specific steps an OSHA officer must take during this inspection are also detailed in this directive, but the sum of those directives is to ensure that the employer in charge of the workplace has instructed temporary employees on safety and health issues and to instruct them in their “native language”. This is one more example of OSHA’s continuing expansion of influence and control over private workplaces. Although we will continue to monitor and report on developments in this area, be advised that even though you may not be the “payroll employer,” your compliance with OSHA responsibilities towards temporary employees will now be part of any OSHA inspection conducted at your work site.If you have any questions concerning any of the topics in this issue of The Employer, please contact a member of our Labor and Employment Law practice group at (419) 244-6788. Tybo Alan Wilhelms (firstname.lastname@example.org) Carl E. Habekost (email@example.com) Carolyn A. Davis (firstname.lastname@example.org)
THE EMPLOYER is not intended to provide legal advice, but is intended as a service to the clients of Bugbee & Conkle, LLP and to alert them to recent developments affecting the employment relationship, with a particular emphasis on the perspective of the employer.