Employers May Restrict Use of Organization’s E-mail

Reversing prior, if contentious, law, the National Labor Relations Board held this week that an employer’s property interest in its e-mail system would allow it to restrict employees from using the system for communications unrelated to their jobs, as long as (a) alternative means are available for employees to communicate effectively with each other concerning the terms and conditions of their employment, and (b) the rules do not discriminate against the exercise of employees’ protected rights to concerted action.

We recognize that there may be some cases in which an employer’s email system furnishes the only reasonable means for employees to communicate with one another. Consistent with the principles stated above, an employer’s property rights may be required to yield in such circumstances to ensure that employees have adequate avenues of communication. Because, in the typical workplace, employees do have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment, we expect such cases to be rare.

We hold … that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.

Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 N.L.R.B. No. 143 (2019) , slip op. at 8. The decision can be found at this link.

Employers May Require Confidentiality During Investigations

In a decision released today, the National Labor Relations Board reversed prior law concerning confidentiality during open workplace investigations. Commenting on the employer rules in the case, the majority wrote:

The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline. Rather, they narrowly require that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation. Employees not involved in an investigation are free to discuss such incidents without limitation, and employees who are involved may also discuss them, provided they do not disclose information they either learned or provided in the course of the investigation. Further, the rules do not restrict employees from discussing workplace issues generally or limit the employees’ ability to discuss disciplinary policies and procedures. Finally, we note that the rules do not prohibit a union-represented employee from requesting the help of a union representative during such an investigation (if the Respondent’s employees were to unionize), pursuant to NLRB v. J. Weingarten, 420 U.S. 251, 267 (1975).

Apogee Retail LLC d/b/a Unique Thrift Store, 368 N.L.R.B. No. 144 (2019), slip op. at 8. The full decision can be found at this link.

E.E.O.C. Announces September 30, 2019, Deadline for 2018 EEO-1 Submissions Including Component 2 Data

Brief History

Annual EEO-1 survey data must be reported (a) by employers that are covered by Title VII and have more than 99 employees and (2) by federal contractors and their immediate subcontractors that are covered by E.O. 11246 and have more than 49 employees and a relevant contract of at least $50,000.

In 2016, the E.E.O.C. expanded the kinds of data that  should be reported in the EEO-1. The expanded data, “Component 2 data,” included compensation data analyzed by pay tier, category, age, race, sex, and ethnicity.  

In 2017, the O.M.B. revoked its Paperwork Reduction Act approval of the E.E.O.C.’s 2016 expansion of required EEO-1 data. The National Women’s Law Center and others challenged the validity of O.M.B.’s action. The court sided in part with the plaintiffs, and invalidated O.M.B.’s stay. E.E.O.C. suggested that employers and the agency itself might need substantial time to prepare their procedures to submit and to accept the Component 2 data. The Court required an accelerated response.

Recent Development

On April 3, E.E.O.C. filed its response to the Court’s efforts to move the process along more expeditiously. The Agency has rescheduled the EEO-1 submission deadline for 2018 data, including Component 2 data, to September 30, 2019.

The EEO-1 reporting portal is not yet capable of receiving the Component 2 data. Presumably, E.E.O.C. will issue instructions over the coming months, as the reporting enhancements come on line.

Court Vacates Wellness Program Incentives

A federal district court has vacated parts of the E.E.O.C.’s 2016 rules on employer wellness programs. Prior to the court’s action, wellness programs that were part of a group health plan and that included inquiries into an employee’s health or included medical examinations were permitted to offer discounts to the cost of self-only and spousal coverage. The court’s order vacates those incentive provisions. For detailed information, see the judge’s memorandum.

Note that wellness programs can lawfully report the employees’ health information only in an aggregated form that does not include personally identifiable information.

Revised F.M.L.A. Forms Now Available

The U.S. Department of Labor has revised its approved forms for various stages of the F.M.L.A. process. The new forms, which are valid for the next three years, can be found here.

Go Beyond Compliance To Minimize Claims

Joe Nierenberg recently presented at the 2017 Minnesota Society for Human Resource Professionals state conference. The title of the presentation was, “Two (Relatively) Simple Ways to Reduce Risk.” The slide deck is presented here. Speaker notes are provided for each slide that has a comment icon in the upper left corner; just hover your cursor over the icon. (Note that the comments layer may not be visible on mobile browsers.)

Although there are notes, this was an hour-long presentation, and the discussion and robust Q&A session were not recorded. If your organization would like to host or attend a presentation on this subject, please contact us.

Using the Uber Report
To Improve Your Organization

There is probably no plaque hanging in the headquarters of Uber Technologies Inc. with P.T. Barnum’s adage, “There’s no such thing as bad publicity.”  The upstart ride sharing service has come into its own share of disruption following allegations of law avoidance software, a culture of sexual harassment, wage-related lawsuits, and regulatory scrutiny of its core business model. Recent allegations about its frat-house culture resulted in its Board of Directors hiring former Attorney-General Eric Holder to engage in a sweeping review of its workplace culture and complaint-handling systems. 

The Uber Report

Holder’s full report is not publicly available as of this writing, but Uber has released a twelve page set of recommendations. Although they derive from interviews and focus groups with the company’s employees, the recommendations follow best practices for organizational effectiveness, respectful workplaces, and a diverse workforce.

Some of the recommendations refer to particular circumstances within Uber, but most of them are nevertheless applicable to all other organizations. Even those portions of the recommendations that are most specific to Uber, such as recommended changes to its senior leadership, include core principles that should be considered by other organizations, such as holding senior leaders accountable with “metrics that are tied to improving diversity, responsiveness to employee complaints, employee satisfaction, and compliance.”

In addition to the section on senior leadership, there are multipart sections on Board oversight, internal controls, review of cultural values, training, improvements to the HR and complaint-handling process, diversity and inclusivity enhancements, changes in employee policies and practices, review of employee retention factors, and review of compensation practices.

Using Their Recommendations as Your Checklist

These areas should be viewed as a checklist by other organizations: areas to review in a deliberative way to ensure regulatory compliance, market relevance, and employee engagement. Organizations, whether public or private, large or small, can achieve sharper focus and manage their employment-related risks by having organizational values that are consistent and modeled by leadership; holding persons accountable for achieving, or failing to achieve, value-based objectives; designing effective systems for reaching organizational goals, and supporting them with sufficient skills and resources; and developing practices that promote and fulfill a sense of fairness.

The Holder-Uber recommendations provide a window into some of the granular steps necessary to accomplish those goals. We recommend that executive leadership review the report and assess their organization’s related strengths and deficiencies.

We are here to assist the effort. We have engaged in workplace climate assessments and strategic discussions around the same issues addressed in the report. If you would like to discuss your options, please call or contact us.

Minneapolis Minimum Wage Ordinance-Update

Here is an update, current as of June 14, on the Minneapolis City Council’s movement toward an increase in the minimum wage for employees working within the city of Minneapolis (Council File Number: 17-00723).

  • A draft ordinance has been presented to the City Council (technically to the Committee of the Whole). The draft is available here.
  • A slide presentation on the proposed ordinance is available here. Note that the ordinance will cover employees who normally work within the City for at least two hours in a given workweek.
  • A public hearing will be held on Thursday, June 22, 2017, at 3:30pm. Comments can be submitted before that time by e-mail to this address.
  • The final draft ordinance will go before the Council’s Committee of the Whole on Wednesday, June 28, 2017, at 10:00am. The Council is expected to act on the matter on Friday, June 30, at it’s 9:30am meeting.

The City’s staff has prepared a report on the issues, which is available here. Among its many important points is a comparison of buying power. See paragraph a on page 21.

Note also that there has been no traction to date on changing the State’s law that bars tip credits toward the minimum wage. (For mid-priced restaurants, which present relatively affordable options served by employees who receive customer gratuities, the increase in minimum wage without a tip credit is likely to result in cuts to already slim profit margins, and/or increased wage disparities between customer-facing staff (front of house) and those supporting the efforts behind the scenes (back of house), and/or higher prices for consumers.)

Information on Minnesota’s current minimum wage laws can be found here, here, and here.

If you have questions concerning this or other employment-related laws, please call or contact us.

Court Enjoins New Overtime Rule

The United States District Court for the Eastern District of Texas on November 22 issued a nationwide injunction against the implementation of the U.S. Department of Labor’s Final Rule on, among other things, increasing the minimum salary threshold for an employee to be exempt from overtime. State of Nevada vs. U.S. Dept. of Labor. The Rule had been scheduled to become effective on December 1, 2016.

There remain several ways the saga might continue to unfold. The appellate court could stay the injunction pending resolution of an appeal. The appellate court could also keep the injunction in place while the appeal proceeds. As of this writing, the chances appear unscientifically to be about fifty-fifty. (The appellant would be the Secretary of Labor, but note that the next Secretary would not be obligated to continue an appeal begun by the current Secretary.)

If you have already restructured your compensation and/or staffing in order to comply with the new rule, you have the choice between retaining the new structure, which most organizations are likely to do, or reverting to the previous structure, which carries the risk that you will have to change once again if the injunction is stayed or the rule is reinstated after appeal.

The District Court’s reasoning for issuing the injunction is sound. The Court decided that the new rule had the effect of making an employee’s salary as important as their duties when determining whether the person should be exempt. Raising the importance of an employee’s salary to the level of their duties was contrary, the Court ruled, to the intent of Congress.

Still Using Old F.M.L.A. Forms?

Many employers covered by the federal Family and Medical Leave Act are still using forms from the U.S. Department of Labor that expired in 2012. Newer forms, which are good through May 31, 2018, are available from Labor’s web site.

There are several reasons to use the current forms. Perhaps the most important reason is that the current F.M.L.A.-related forms include “safe harbor” text to avoid inadvertently violating the Genetic Information Nondisclosure Act (“GINA”). That law prohibits an employer’s discriminating against an employee “because of genetic information with respect to the employee….” The safe harbor text, incorporated into the newer F.M.L.A. forms, precludes liability under GINA from an employer’s unintential receipt of an employee’s genetic information during the interactive process or other F.M.L.A.-related activities.

If you’re not already using the current Department of Labor forms or other forms revised to include the GINA safe harbor provided at 29 C.F.R. §1635.8(b)(1)(i)(B), it would be prudent to update soon.

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