We have been talking about the National Labor Relations Board’s assault on Employee Handbooks, policies and rules for years now.  Frankly, precious few of these posts have contained good news for employers.  See for yourself!

Then, yesterday, in a 3-2 vote (split along party lines) a Republican majority overturned the NLRB’s 2004 Lutheran Heritage standard governing facially-neutral workplace rules, policies and handbooks.  Under the old standard, the Board could find that an employer violated the National Labor Relations Act simply by maintaining a policy that could be “reasonably construed” by an employee to prohibit the exercise of rights protected by the Act – even if the employer never applied it to restrict employee rights!  What the Board put in that “reasonably construed” category did not seem reasonable to many, many employers and, in my opinion, was extremely one-sided.

In announcing the new standard, in a decision involving the Boeing Company the majority announced that it was providing greater clarity and criticized the prior Board for invalidating “common sense rules and requirements” under the Lutheran Heritage standard.

Not only is there more clarity, there is balance.  Rather than considering only how the facially-neutral policy, rule or handbook provision could be “reasonably construed” the Board will consider two things:

  1. The nature and extent of the potential impact on employee rights protected by the NLRA and
  2. The employer’s legitimate justifications associated with the rule

The Board also categorized the rules:

  1. Category 1. Lawful rules, where the rule does not expressly prohibit or interfere with NLRA rights or the potential adverse impact on protected rights is outweighed by the employer’s justifications for the rule.  Examples offered by the Board in this category are the no-cameras in the workplace rules and the civility rules.  Remember this one on courtesy?  Please and thank you (you can say that now)!
  2. Category 2. Rules which require individualized scrutiny to determine whether any adverse impact on NLRA rights is outweighed by the employer’s legitimate justifications.
  3. Category 3. Unlawful rules that prohibit protected conduct and the impact on those employee rights is not outweighed by employer justification.  Here, is where the policies prohibiting employees from discussing wages and benefits would fall.

This is good news, for union and non-union employers alike.  Seems that the NLRB will be focusing less on policing innocuous handbook policies and, perhaps, the pendulum will begin swinging back.

The National Labor Relations Board’s Office of General Counsel recently released a Report of the General Counsel Concerning Employer Rules, which is apparently designed to offer guidance to employers regarding workplace rules. We can summarize the 30 page memo as follows: the GC does not like your rules.

The memorandum contains several examples of rules that the GC had deemed unlawful in the past and then several examples of policies deemed lawful in the areas of confidentiality, employee conduct toward the company, employee conduct toward other employees, employee conduct toward third parties (i.e. the media), rules restricting the use of company logos and trademarks, rules restricting photographs and recordings in the workplace, rules restricting employees from leaving the workplace without permission (which could impact striking workers), and employer conflict of interest rules. The GC provides an explanation regarding the distinctions between the lawful and the unlawful rules.

The GC also uses a recent settlement with a large fast food chain to provide examples of several policies it would view as lawful under the National Labor Relations Act.

The Report is confusing at times and appears to be contradictory, particularly when the sections regarding conduct toward the employer and conduct towards other employees are read together. When you boil those two sections down, there isn’t much that is off limits in the GC’s view.

That view is certainly eye-opening. For example, the Report notes GC’s conclusion that employees have the right to publicly criticize employers, and that protected conduct does not lose the protection of the Act even if it is abusive and inaccurate. To be fair, the Report is helpful to the extent you are seeking to craft policies that will withstand the rigorous review of the Board’s current GC. Whether the Board and the courts will ultimately sustain that aggressive approach remains to be seen. However, we do recommend reviewing the Report and adjusting your policies appropriately.

The year 2011 saw a number of employee-friendly changes to the laws governing the workplace. The U.S. Supreme Court expanded the scope of retaliation claims under Title VII and under the Fair Labor Standards Act. The Equal Employment Opportunity Commission (EEOC) implemented regulations further broadening the definition of “disability” under the ADA. The National Labor Relations Board actively protected employee social media use. And the EEOC has cracked down on inflexible leave of absence and attendance policies.

Pennsylvania courts have not shied away from the action. In 2011, the Pennsylvania Superior Court upheld one of the largest awards in a wage and hour class action in the state’s history. In Braun v. Wal-Mart, the court awarded $187.6 million in back wages, damages, and fees to employees of Wal-Mart stores throughout Pennsylvania for paid rest breaks they were not permitted to take. Approximately 187,000 current and former hourly Wal-Mart employees claimed that the employee handbook promised paid rest breaks, but they were forced to work during those breaks and were not compensated for the missed breaks.

The employees brought their claims under Pennsylvania’s Wage Payment and Collection Law (WPCL). The WPCL does not entitle employees to wages or fringe benefits, but rather provides a remedy when an employer fails to pay for wages or benefits due under the terms of a contract or agreement. According to the court in Braun, payment associated with paid rest breaks pursuant to a contractual agreement between an employer and employee constitutes wages as that term is broadly defined in the WPCL. And the court ultimately found such a contractual agreement for paid rest breaks under the facts before it.

Continue Reading Pennsylvania Court Finds Employee Handbook Creates Contract, Upholds $187.6 Million Award

As businesses scramble to develop their plan for the weeks ahead, it’s important to identify aspects of the Families First Coronavirus Response Act (“Response Act”) and related laws that are unclear at this point. Professional advisors may offer educated opinions on these questions – but, at the end of the day, we won’t know some of the answers with certainty until the U.S. Department of Labor (“DOL”) and other government authorities issue regulations or further guidance. The following is intended to assist businesses with identifying some of the gray areas in the law – and hopefully direct regulators to points where further guidance could be helpful:

Effective Date – The expanded FMLA and paid sick leave provisions of the Response Act are to take effect “not later than 15 days after the date of enactment of this Act.” The DOL is directed in the Act to issue regulations within the same time frame. Although the 15th day following enactment would be April 2, 2020 – it is possible the new requirements may take effect sooner – possibly upon issuance of DOL regulations, or shortly thereafter.

Counting Employees – The expanded FMLA and paid sick leave provisions both apply to private employers with “fewer than 500 employees.” Such statutory language always raises questions of how to count employees. May related companies be aggregated for purposes of determining the total employee head count? How closely related must the companies be to do so? Do temporary employees who have been engaged for a sustained period count? Do part-timers count – or may they count as a partial full-time equivalent? The DOL will presumably rely upon existing FMLA regulations and case law when interpreting the paid FMLA provisions in the Response Act. However, whether or not those regulations will apply to the paid sick leave provisions is unknown at this point. Hopefully, for the sanity of all employers, the same legal standards will apply to both benefits.

Eligibility – The expanded FMLA benefits apply to any employee who “has been employed for at least 30 calendar days by the employer” from whom leave is requested. Must those days be consecutive? Would an employee who was rehired yesterday be eligible based on 30 days of employment in 2017?

Unable to Work (or Telework) – The Act’s paid FMLA and sick leave benefits are available to an eligible employee who is “unable to work (or telework)” due to a need to care for a son or daughter under 18 years of age if the child’s school or child care arrangement is closed or unavailable due to a public health emergency. What if the employee has already used 11.5 weeks of FMLA week this year? What if both spouses are sent home by their respective employers due to the closure order. Spouse A has the ability to telework, but Spouse B does not. However, Spouse A claims that he/she is unable to telework because his/her 17-year old child’s school is closed. Must employers ignore the fact that the employee’s spouse is also at home – and is not teleworking? Must employers ignore the fact that most 17-year old children are capable of occupying themselves for several consecutive hours at a time? What if the child’s school building is closed, but continues to provide classes online? May employers inquire about the status of an employee’s spouse or child during the closure period?

Exempted Employees and Small Businesses – The DOL has been authorized to issue regulations exempting certain health care providers and emergency responders from the paid FMLA and sick leave requirements. Also, regulations may be forthcoming exempting small businesses with fewer than 50 employees, if the benefits would “jeopardize the viability of the business as a going concern.” The scope of these exemptions is not yet clear but hopefully will be soon.

Effect of Business Closure and Layoffs – The paid sick leave benefits are available when an employee is unable to work (or telework) for several reasons related to Covid-19.   One qualifying reason for taking paid sick leave is “the employee is subject to a Federal, State, or local quarantine or isolation order related to Covid-19.” Does Governor Wolf’s recent business closure order qualify as an isolation order? Would an employee who has been laid off due to the closure order be eligible for the expanded FMLA and paid sick leave benefits once they take effect? What if the employee was receiving statutory paid sick leave or paid FMLA at the time of the layoff – do the benefits continue? We have strong opinions on these issues, but official guidance is needed to bring certainty.

Credit for Voluntarily-Provided Paid Leave – We know that if an employer has always provided an amount of paid sick leave or PTO to employees, the existing leave will not be credited against the 80 hours of paid sick leave that will soon be available to full-time employees under the Response Act. What if an employer supplemented its regular sick leave benefits with additional “pandemic paid leave” time that was made available before the Act took effect. Would these additional benefits be credited toward the statutory sick leave requirement?  Will tax relief be available for such voluntarily-provided additional leave? (Note: Until the DOL says otherwise, cautious employers should assume the answer to these questions is no).

Notice of Rights – The DOL has been directed to promptly publish a Notice outlining employee rights under the Response Act. Employers must “keep [the Notice] posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted.” What if all employees are telecommuting? Is there a duty to distribute the Notice electronically?

Use of Paid Sick Leave – The Response Act makes 80 hours of paid sick leave available to full-time employees, and a pro-rated amount available to part-timers.  Since the leave entitlement is expressed in terms of “hours”, it may presumably be taken on an intermittent hourly basis and not just full-day blocks – but official clarification on this point would be helpful.  Similarly, one of the approved reasons for taking paid sick leave under the Act is to care “for an individual” subject to a local quarantine or isolation order. Does this right extend to caring for individuals outside of the employee’s family or household? Is paid sick leave available to care for friends? Neighbors?

Definition of Full-Time – The Response Act provides 80 hours of paid sick leave to “full-time employees”, and a prorated amount for part-timers. However, the Act doesn’t define “full-time.” Does the employer’s existing employee handbook govern who is “full-time” for purposes of eligibility for paid sick leave benefits? Is 40 hours per week the definition – or are we using the 30-hour standard utilized in the Affordable Care Act?

WARN Notices – Under the Worker Adjustment and Retraining Notification Act (“WARN”), employers with 100 or more employees may be required to provide 60 days’ advance notice to employees who are subject to a mass layoff that affects at least 50 employees and lasts more than six months in duration. Notices must also be given to the employees’ union and certain government authorities. Less advance notice is permitted if the layoff is due to “unforeseeable business conditions.” However, in those situations, the employer must give as much advance notice “as is practicable.” It’s unfathomable to believe that mandated closures will last anywhere near six months – however, some facilities may close permanently due to the business impact of Covid-19. How strict will WARN enforcement be in light of the fluidity of the current situation?  Relief for businesses on this issue would likely require an act of Congress and shouldn’t be assumed.

Life-Sustaining Businesses – Most Pennsylvania employers already know that Governor Wolf’s closure order for “non-life sustaining” businesses took effect at 8:00 p.m. on March 19, 2020. An announcement was made on Friday that enforcement of the closure order has been delayed until Monday, March 23, 2020 at 8 a.m. Updated Business Guidance, a Waiver Process and an email address (ra-dcedcs@pa.gov) for seeking clarifications are available on the Governor’s website at www.governor.pa.gov. In addition, multiple clarifications as to which businesses are permitted to remain open have been added to the list. Here, the questions are unlimited. Perhaps the most pressing question is – “We are closed per the order, but I really need to retrieve that client file from my office – will I be fined and shackled if caught sneaking into my office under the cover of darkness on Monday night?” And, trust me, this is a purely a hypothetical question….

It’s important to “know what we don’t know” as we navigate these uncharted waters. We hope this outline of some of the gray areas in the law is helpful to you as you plan for the next few weeks. If we may assist in any way, please contact any member of our Labor and Employment Law Practice Group.

As a follow up to its Notice of Proposed Rulemaking issued in April 2019, the US Department of Labor (DOL) announced on January 12, 2020, the issuance of a Final Rule to revise and clarify the standard for joint employment status under the Fair Labor Standards Act (FLSA). The DOL explained that the Final Rule was necessary because the circuit courts were using a variety of tests to determine joint employer status which has resulted in inconsistent findings, confusion for employers and employees and increased litigation costs for employers.

The Final Rule adopts the four-factor balancing test from Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) for determining joint employer status in situations where another individual benefits from an employee’s work. The DOL is of the opinion that the Bonnette test follows the “any person acting directly or indirectly in the interest of an employer in relation to an employee” language included in the FLSA’s definition of “employer.”

Under the four-factor test, where an employee performs work for an employer and another individual benefits from that work, the other individual will be considered a joint employer when found to be directly or indirectly controlling the employee. Direct or indirect control is established when the potential joint employer applies one or more of the following “control” factors, the ability to:

  • Hire or fire the employee;
  • Supervise and control the employee’s work schedule or conditions of employment to a substantial degree;
  • Determine the employee’s rate and method of payment; and
  • Maintain the employee’s employment records.

The Final Rule establishes that no single factor will be determinative in the joint employer analysis and the weight given to any single factor will depend on the specific factual scenario. Additionally, an employee’s economic dependence on a potential joint employer alone will not determine the existence of joint employer status. The Final Rule also acknowledges that other factors may come into play when determining a joint employer relationship but only if they establish that the potential joint employer exercises significant control over the employee. The DOL specifically discussed several factual scenarios that will not be controlling in the joint employer analysis, including the following:

  • The potential joint employer’s practice of sharing resources and/or benefits such as handbooks or other policy forms, allowing the employer to operate a business on its premises, offering an association health plan or retirement plan to the employer or participating in such plan with the employer, jointly participating in an apprenticeship program with the employer, or any other similar business practice.
  • Operating as a franchisor, entering into a brand and supply agreement, or using a similar business model;
  • The potential joint employer’s requirement that the employer comply with all legal, health and safety obligations;
  • The potential joint employer’s agreement with the employer regarding quality control standards to ensure the consistent quality of the work product, brand, and/or business reputation.

Finally, to assist employers in understanding the new analysis, the Final Rule provides a number of illustrative examples which apply the new analysis to various factual scenarios. The Final Rule is expected to be effective on March 6, 2020. We recommend that employers use this time to review any relationships with individuals who are not directly employed by them but from whom they receive beneficial services to determine if a potential joint employer relationship exists.

If you have any questions regarding the Final Rule from the US DOL on Joint Employer status, please contact any member of the McNees Labor and Employment Group.

The flurry of activity from National Labor Relations Board in late 2019 was a fairly consistent drum beat of good news for employers.  In many cases, the Board restored decades of precedent that had been upended by the Board during the Obama administration.  Some would say the Board restored order and sanity in the world of labor relations.  That is certainly the case with the recent Board decision holding that employers can, in fact, require that employees maintain confidentiality during an internal investigation.

As you may recall, the Obama Board issued a highly controversial decision that essentially prohibited employers from requiring employees to maintain the secrecy of information related to an ongoing investigation.  Instead, in Banner Estrella Medical Center, the Obama Board held that whether an employer could enforce such a confidentiality obligation would be determined on a case by case basis, and an employer was required to justify any confidentiality requirement.   This approach was a problem for a whole host of reasons, including that it contradicted guidance from the Equal Employment Opportunity Commission, jeopardized the integrity of workplace investigations (including harassment investigations) and increased the risk of retaliation.  Employers struggled with the confounding contradictions presented by the decision.

Enter the Trump Board.  On December 16, 2019, the Board overturned Banner Estrella Medical Center, and its case-by-case analysis requirement.  In Apogee Retail, the Board held that confidentiality policies, like all workplace policies, should be evaluated in accordance with the Board’s policy rubric announced in Boeing Co.  The Board went on to provide bright line, clear guidance to employers by holding that “investigative confidentiality rules are lawful and fall within Boeing Category 1—types of rules that are lawful to maintain—where, by their terms, the rules apply for the duration of any investigation.”  In other words, a confidentiality obligation that lasts only during the term of the investigation is lawful.

The Board also held that where confidentiality rules extend beyond the duration of the investigation, the rules would be considered Category 2 rules under Boeing.  As such, a determination of their legality requires determination as to whether the employer “has one or more legitimate justifications for requiring confidentiality even after an investigation is over, and if so, whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their rights under Section 7 of the National Labor Relations Act.”  The Board remanded the Apogee Retail case for further proceedings on this issue.

We are hopeful that following remand, the employer is able to successfully assert that retaliation and other concerns are sufficient justifications to require post-investigation confidentiality.  We are also hopeful for more clear guidance from the Board on this issue.

In the meantime, employers now have some clarity regarding confidentiality requirements tied to workplace investigations.  To the extent that such requirements last only through the duration of the investigation, such policies/rules are lawful.  If there is a justification to require confidentiality to remain in place beyond the duration of the investigation, then the rule may also be lawful.  While there does remain some uncertainty with respect to rules that last beyond the term of an investigation, there is also now some much needed clarity for employers.

If you have any questions as you modify your policies in light of Apogee Retail, please contact any member of our Labor & Employment Group.

Winter is coming…still.  Some parts of the state are expected to receive possible snow squalls as well as a potential rain/snow storm in the weeks to come.  Weather conditions such as these often create challenges with business closures and employee absences.  With that in mind, employers should consider the following issues that may arise due to inclement weather:

Are employers required to pay employees when the business is closed because of inclement weather?

If weather conditions cause an employer to shut down operations and close, non-exempt employees need not be paid for time they did not work because of the closing. On the other hand, exempt employees must be paid their salary for the week regardless of the business closure.  An employer may require that exempt employees use accrued paid time off (PTO).

Must employees be paid if they do not report to work due to inclement weather when the business is open?

Non-exempt employees need not be paid for the time they are absent from work.  An employer may, however, at its discretion, allow non-exempt employees to use PTO for the absence. Additionally, exempt employees need not be paid for a whole day’s absence due to inclement weather. An exempt employee absent for part of a day may be required to use accrued paid time off.  If the exempt employee has no accrued paid time off, however, his or her salary may not be docked for a partial day absence.

May an employee be disciplined or discharged for failing to report to work due to weather conditions when the business is open?

Generally, an employer may apply its normal attendance policy to weather related absences. However, there is one major exception. Under Pennsylvania law, an employer may not discipline or discharge an employee who fails to report to work due to the closure of the roads in the county of the employer’s place of business or the county of the employee’s residence, if the road closure is the result of a state of emergency. The law does not apply to the following jobs: drivers of emergency vehicles, essential corrections personnel, police, emergency service personnel, hospital and nursing home staffs, pharmacists, essential health care professionals, public utility personnel, employees of radio or television stations engaged in the gathering and dissemination of news, road crews and oil and milk delivery personnel.

Ultimately, to avoid confusion about how weather-related closures and absences will be handled, employers should have a written inclement weather policy in their employee handbooks.  The policy should be clear that employee safety is the main concern.  The policy should also be clear as to the employees’ responsibility to give notice if they cannot make it to work due to bad weather.

Please feel free to contact any member of the McNees Wallace & Nurick Labor and Employment Practice Group for assistance with labor and employment law issues and/or if you have any questions regarding this article.

That sound you just heard was employers everywhere breathing a sigh of relief, and maybe even high-fiving.  That’s because the newly constituted National Labor Relations Board fired off several pro-employer decisions in the last week. The decisions were released in rapid succession in the days prior the expiration of the term of Board Chairman Phil Miscimarra.

As we reported just this week, the Board decided to modify the standard by which it determines whether employer policies are unlawful under the National Labor Relations Act.  That decision will provide some very welcome relief to employers who saw the Obama-era Board find just about every employer policy unlawful.  We also reported that we anticipate that the Board’s approach to social media will similarly become more fair and predictable.

The Trump-Board also made quick work of one of the Obama-Board’s most controversial decisions, Browning-Ferris, which created a new “joint employer” test.  We reported on the new expansive joint employer test adopted by the Board in Browning-Ferris, and expressed our concern regarding increased liability for employers under the new standard.  Browning-Ferris allowed for a joint employer finding, and increased liability, based on theoretical or “reserved” power/control, even if such control was never exercised.  In Hy-Brand Industrial Contractors, the Board abandoned the Browning-Ferris standard and declared that joint-employer status requires proof that the putative joint employer has actually exercised joint control over essential employment terms, rather than merely having reserved the right to exercise control.

The Board also reversed the Obama-Board’s Specialty Healthcare decision, which allowed unions to form “micro-units.”  That decision essentially required the Board to rubber stamp the union’s definition of the appropriate bargaining unit for purposes of a union election and bargaining.  This approach exposed employers to an increased risk of organizing campaigns, and the possibility of having to negotiate with several different unions.  On December 15, 2017, in PCC Structurals, Inc., the Board abandoned the Specialty Healthcare standard and returned to its prior framework for determining the scope of a bargaining unit.

Also on December 15, 2017, the Board reversed another Obama-era decision, E.I. DuPont de Nemours, Louisville Works, which had overturned 50 years of precedent.  In DuPont, the Obama-Board dramatically expanded the definition of “change” for purposes of determining whether an employer made an unlawful unilateral change to the terms and conditions of employment.  Under DuPont, an employer was found to have engaged in an unfair labor practice charge for simply continuing to do what it had done many times previously—for years or even decades. Last week, in Raytheon Network Centric Systems, the Trump-Board reversed DuPont, and announced the return to the prior standard for determining whether an employer is authorized to make changes to the terms and conditions of employment after the expiration of a collective bargaining agreement.

These decisions are certainly indicative of a return to a more employer-friendly Board.  These decisions reversed some of the more controversial, and problematic, decisions of the Obama-Board.  We are certainly hopeful these are a sign of things to come from the Board.  However, with the expiration of the term of Chairman Miscimarra, we may need to wait some time before we receive another batch of pro-employer decisions.

In days past employees discussed and debated workplace issues around the water cooler. That sentimental past-time has long since been replaced by online social media networking and the reach of social media is stunning.

There are more than 2 billion monthly active Facebook users as of June 2017.  65% of these users on average log into Facebook daily and are considered active users. Five new profiles are created every second. The highest traffic occurs mid-week between 1-3pm. There are 328 million monthly active Twitter users, 100 million daily active tweeters and 500 million Tweets sent every day.

Disgruntled employees now use social media to speak out about employers and co-workers, using Facebook, Twitter, blogs and the like. An on-line attack has the potential to cause harm to the good-will of companies, and negatively impact the morale and reputation of employees.

The National Labor Relations Board (NLRB) regulates the employer-employee relations of private union and non-union workplaces.  In recent years the Board has consistently acted to protect from discipline unhappy employees who resort to social media and has waged an active war with employers to expand the rights of employees to use their employers’ private email systems.

As a result, many employers are asking fundamental questions. Do employees have a right to use social media sites while at work? Can I monitor employees’ social media activity? Do I need a social media policy?

The statistics vary but somewhere between 25% to 50% of companies have a social media policy in place. About 30% have policies that delineate how employees must present themselves when posting on the internet; nonetheless, 75% of the employees of these companies use social media regardless of the company’s policy.

The National Labor Relations Act gives employees the right to act together to address wages, hours and terms and conditions of employment. This is referred to as “protected, concerted activity.” When an employee posts a complaint on Facebook or Twitter about a company policy, such as vacation or flexible work hours, or complains about a work unit’s supervision, the employee may be engaging in protected activity that the NLRB considers to be beyond the reach of disciplinary action.

What are some of the factors that employers need to consider?

  1. Was the post for purely personal reasons?
  2. Did other employees join in or “like” the post?
  3. Did the post concern work-related issues?
  4. Was the post so disloyal or egregious so as to lose protected status?

While an employee may post a comment or observation a company considers disrespectful or objectionable that may qualify as protected, concerted activity, there are recognized limitations.  One such area includes proprietary and confidential information, and trade secrets.  Another area that is off limits includes comments about co-workers that are based on race, age, religion and other unlawful activity, such as sexual harassment.

However, in the absence of evidence of these off-limits areas, comments that companies have considered disrespectful, damaging to the company’s reputation, inappropriate in violation of company policies, or even as flat out false have been found lawful and protected.  And, to add insult to injury, the NLRB also has held the underlying company handbook personnel policies to be illegal.  As a result, employee discipline has been overturned, the employee reinstated with back pay and other lost benefits, and the company ordered to revise the underlying policy.

Now, some relief may be on the horizon for 2018 and beyond.  On December 1, 2017, the new NLRB General Counsel issued a memorandum to field offices directing them to submit cases involving several of these contentious social media, handbook policy and use of company email issues to the Division of Advice for further guidance.  This action acts to essentially freeze regional offices from moving new cases forward.

In the meantime, how does an employer navigate the murky social media waters?

  1. Notify employees that internet use will be monitored and that there is no expectation of privacy in the use of the company’s email and internet system.
  2. Implement a social media policy and train employees on its content.
  3. Designate a person to be responsible for implementing and administering these steps, and monitoring compliance.
  4. Implement a procedure to report policy violations.
  5. Prohibit the use of social media networking during working time.
  6. Review underlying policies (confidentiality, non-disparagement, harassment, etc.) to assure the policies do not infringe on concerted, protected activity.

On November 3, 2016, the National Labor Relations Board issued a Decision and Order in Trump Ruffin Commercial, LLC, finding that the Trump International Hotel, Las Vegas unlawfully refused to bargain with UNITE HERE International Union after the union won a representation election among the Hotel’s housekeeping, food and beverage and guest service employees.

….In other news, just five days later, Donald Trump was elected President of the United States with the pledges to Make America Great Again, to cultivate more good paying jobs for Americans and to undo much of the agenda of the Obama administration.

Over the past several Presidential transitions, the Human Resources community has become accustomed to the swinging pendulum in the areas of labor and employment law.  We know change is coming.  We’re just not always sure what exactly it will involve.   Everyone remembers the threat of unions being certified on the basis of a card check, right?  That didn’t happen in 2009, but of course quickie elections did.  So making specific predictions on Inauguration Day can be dangerous.   But as the new Administration now has officially taken over, we have to at least try.

Here’s an easy one:  President Trump is unlikely to be appointing what we would call traditional candidates to run the departments and agencies that regulate the American workplace.    While he has nominated some people who have significant governmental service on their resumes, the current list includes a fair share of people with no such experience – – CEOs, philanthropists, investment bankers, a neurosurgeon, even the co-founder of World Wrestling Entertainment.   These appointments do not signal “business as usual” for the federal government, nor did the President who, in his inaugural address, pledged to transfer power from Washington back to the American people.

At first blush, this would portend wholesale rollback of workplace regulations.  Indeed, President Trump’s nominee for Secretary of Labor, fast-food executive Andrew Puzder, has been a critic of substantially increasing the minimum wage and a vocal opponent of the Obama administration’s efforts to make more workers eligible for overtime pay.  And critics have noted similar opposition by other nominees to what has been the recent mission or focus of the agency that they may be leading (See Governor Rick Perry and Betsy DeVos).

But here’s the rub:  a substantial portion of President Trump’s electoral base of support likely will not support the pendulum swinging back in ways that make their workplaces less safe or adversely impact their earnings.  So…this will be a bit more complicated.

What can we say now in January 2017 with confidence?

  • We’re not going to get back all of that time we spent learning the ever changing minutiae of the Affordable Care Act.  But we can certainly anticipate that there will be new regulation impacting employer provided health insurance.
  • We will see change in leadership at the Equal Employment Opportunity Commission.  The current EEOC Chair’s term will end in July 2017, and the new Chair will likely fill the now vacant EEOC General Counsel position.   That new leadership is less likely to retain the current EEOC’s focus upon pay equity issues and seeking to expand gender identity and sexual orientation protections through selective litigation.   And let’s not forget the agency’s proposed regulations that would require employers to provide compensation data and hours for all employees as part of the EEO-1 reporting process.  We think that it is unlikely that these requirements will become effective in March 2018, as currently planned.
  • The NLRB will be looking at the bureaucratic version of Extreme Home Makeover.  Readers of our Annual NLRB Year in Review will recall that the Obama Board has involved itself in everything from revising the representation election timeline, to creating rights to use your email system for organizing activity to uncovering the dastardly hidden meaning of the most innocuous provisions of your employee handbook.  They expanded the concept of joint employment to the point you might have to sit at the bargaining table to discuss wages, benefits and working conditions of people who are not even your employees.  And then when they were done with that, they even tried to get involved in college football!  The party’s soon over at the Board.  President Trump will have the opportunity to fill two current Member vacancies on the Board as soon as he gets down to work.  More critically, by November he will have the opportunity to replace NLRB General Counsel Richard Griffin Jr., an Obama appointee, former union lawyer and spearhead for most of the NLRB’s most aggressive initiatives.
  • OSHA recordkeeping requirements should be reduced.  We know how this has been an area of focus over the past 8 years and has caused more work for employers.  And the new silica rules and anti-retaliation rules that seek to effectively prohibit mandatory post-accident drug testing and safety incentive programs may soon be on the cutting room floor.

So, that’s enough prognostication on Day 1 of the Trump Administration.  Stay tuned!