Labor & Employment Developments Blog

On December 24, 2015, the NLRB ruled that an employer’s policy prohibiting employees from recording images or verbal exchanges in the workplace was unlawful.    

New Rules for Federal Contractors:

On December 3, 2014, the Department of Labor announced a Final Rule changing OFCCP’s regulations so that they prohibit discrimination based on, and require treatment of applicants and employees without regard to, sexual orientation or gender identity.  These final rules were issued as a result of President Obama signing an executive order in July, 2014, extending workplace protections to lesbian, gay, bisexual and transgender (LGBT) Americans in the federal contracting workforce. 

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

While the rest of us have been cheering on our favorite teams or sulking due to our busted March Madness brackets, Northwestern University has been fighting a different battle before the National Labor Relations Board (“NLRB”).  On March 26, 2014, a regional director for the NLRB ruled that football players at Northwestern qualify as “employees” and have the right to unionize, paving the way for athletes at private educational institutions throughout the country to unionize. 

Determining how to reasonably accommodate an employee with a disability can be difficult for employers.  The Sixth Circuit’s decision in Kempter v. Michigan Bell Telephone Co., et al. affirms common-sense law – namely, that in reasonably accommodating a disabled employee, employers are not required to convert temporary light-duty work into a full-time position, reassign a disabled employee to a position he/she is not qualified for, or which would displace another employee’s rights, or create a new position. 

In a ruling that bolsters employers’ established FMLA leave notice requirements, the Sixth Circuit affirmed the district court’s decision granting summary judgment in favor of the employer and upheld a former employee’s discharge for failure to follow the call-in requirements of his employer’s attendance policy in White v. Dana Light Axle Manufacturing, LLC.  The decision is assuring to employers who have established and adhere to FMLA leave policies that require employees follow specific procedures to notify their employers of their intent to take protected FMLA leave.

For employers, compliance with wage-hour laws, including the Fair Labor Standards Act (“FLSA”) is more important than ever.  A top lawyer at the Department of Labor (“DOL”) stated earlier this month during a conference that the DOL has a new emphasis on investigations of potential FLSA violations. 

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit struck down a National Labor Relations Board (“NLRB”) rule requiring both union and non-union employers to display posters informing employees of their right to form a union and engage in other concerted activity.

Demonstrating the NLRB’s increased focus on limiting employer confidentiality rules, a three member panel of the NLRB recently ruled in DirecTV U.S. DirecTV Holdings LLC, 359 NLRB No. 4 (January 25, 2013) that four work rules maintained by DirecTV were unlawful restrictions on employees’ Section 7 rights and that the employer did not repudiate the rules. 

The D.C. Circuit holds that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional, arguably undermining the precedential value of controversial decisions  of 2012. (Noel Canning v. NLRB, January 25, 2013.)