Labor and Employment Planning For 2012

by Michael R. Lied
Howard and Howard Attorneys, PLLC

There are always developments in the area of labor and employment law. Here are a handful of considerations for the New Year.

Employee Handbooks
It may not be necessary to review an employee handbook annually, but it certainly makes sense to periodically consider whether there should be any changes or additions. What might you consider adding to your employee handbook?

Has it been updated to take into account the changes to the Family and Medical Leave Act? Amendments may be appropriate to reflect the provisions for leave relating to a call to military duty status, or an employee’s need to care for a covered service member. You might also want to modify your policy to change your FMLA leave year so as to use a rolling year measured “backward.” The policy can clarify that if an employee is taking leave based on more than three consecutive calendar days of incapacity, with two visits to a healthcare provider, then the two visits must occur within 30 days of the period of incapacity. The first visit must occur within seven days of the onset of the incapacity. The policy might also state that “periodic visits to a healthcare provider” for chronic serious health conditions must include at least two visits to the healthcare provider per year.

Also, make sure you are using the most recent FMLA form, which can be found at dol.gov/whd/forms/WH-380-E.pdf. You should use up-to-date forms to maximize the likelihood of gathering relevant information.

You might consider adding a provision to the employee handbook to deal with labor law, discussed in greater detail below. In particular, the handbook could contain a statement indicating management’s preference that its employees not be unionized.

Is there anything to take out of an employee handbook?

Employers sometimes think that the National Labor Relations Act (NLRA) is not relevant unless the employer has a union. This is not true, and the National Labor Relations Board (NLRB) has struck down a number of employment policies under the NLRA. Recently, in Jurys Boston Hotel, 356 NLRB No. 114 (2011), the NLRB overturned an election decertifying a union in part based on three provisions in its employee handbook: (1) prohibiting solicitation or distribution “on hotel property,” (2) prohibiting “being in an unauthorized area and/or loitering inside or around the hotel without permission”, and (3) a rule prohibiting the wearing of emblems, badges and buttons. Note that there was no evidence these policies were actually enforced.

The NLRB has also found unlawful policies limiting employees’ ability to speak to the press and “confidentiality” policies. It is a per se violation of the National Labor Relations Act to maintain a policy that prohibits employees from discussing their wages with each other.

Employers are required to post a notice of rights under the NLRA as of April 30, 2012 (nlrb.gov/poster). While litigation is pending challenging this requirement, the NLRB takes the position that failure to put up the poster is itself an unfair labor practice. Many believe that the employee rights poster is tilted in favor of suggesting to employees that they become unionized. This is one reason for the recommendation to clarify the employer’s view on unions in the employee handbook and perhaps in employee orientation meetings.

At least two other labor law developments are significant. First, in a case called Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), the NLRB made it significantly easier for a union to seek to represent smaller groups of employees. While the employer may challenge the makeup of a small bargaining unit, the NLRB will now require the employer to prove that the bargaining unit is inappropriate by evidence that employees in a larger unit share an “overwhelming community of interest” with the employees in the petitioned-for unit. The significance of this decision is that rather than seeking to organize all of an employer’s hourly employees, the union can pick and choose, for example, department by department, based on its best estimate of where it has garnered support.

In addition, the NLRB just voted, 2-1, on changes in procedure which would speed up union representation elections and make it more difficult for employers to get out the anti-union message in a timely manner. This change has not yet been enacted and will undoubtedly be subject to legal challenge. Nevertheless, it poses a trap for the unprepared or unwary employer which may be oblivious to union organizing or think “it can’t happen here.”

The Americans with Disabilities Act
The Americans with Disabilities Act Amendments Act (ADAAA) resulted in the issuance of new regulations. Significantly, both the amended statute and regulations try to shift the legal inquiry from whether a condition constitutes a disability to whether or not the employer has properly accommodated the disability.

It is not much of an exaggeration to state that under the ADAAA, almost everybody has a disability. Indeed, even relatively short-term conditions and conditions in which the employee is not currently disabled may be found to constitute disabilities. It is important to train managers to stay attuned to these changes. In fact, it may be worthwhile to review and update job descriptions since they may be relevant both to the ADAAA and the FMLA. An employer that needs more information about whether an employee is suffering from a condition justifying FMLA leave may want to provide a job description to the healthcare provider.

Arbitration
The U.S. Supreme Court has repeatedly emphasized that arbitration is a valid method of settling a variety of disputes, including employment disputes. Arbitration results in a private resolution and avoids a jury trial. Most recently, in Sonic-Calabasas A. Inc. v. Moreno, the employee submitted an administrative wage claim to a California agency. The employer petitioned state court for an order compelling arbitration, arguing the employee had waived his right to proceed judicially by signing an arbitration agreement. A California appellate court disagreed, but the U.S. Supreme Court vacated the decision in view of the arbitration agreement. In earlier cases, the Supreme Court has also found that employees may waive the statutory claims, such as claims for discrimination in an arbitration agreement as well. Even if an employer chooses to forego an arbitration agreement, it might nevertheless consider entering into an agreement with its employees in which they waive a jury trial.

A Good Start
As suggested at the outset, there are many more developments which could be discussed beyond these points. However, these suggestions provide a good starting point for management’s attention in the upcoming year. iBi

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