NLRB provides employers a roadmap to a legally compliant off-duty access policy

Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?

In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.

An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.

Any employee who violates this Policy will be subject to disciplinary action up to and including termination.

Did it pass NLRB-muster?

An injury without an injury? #SCOTUS, standing, and the Fair Credit Reporting Act.

Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. This case should answer a very important question for employers: Does a plaintiff have standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm? The implications of this case are huge.

EEOC proposed new rules for GINA to encompass employer wellness plans

Last week, the EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.

Earlier this year, the EEOC published proposed ADA regulations, which would permit financial incentives for employee participation in employer wellness programs so long as they remain at or below 30% of the total cost of employee-only coverage. As long as financial incentive remains at or below the 30% threshold, the wellness program is considered a lawful, voluntary medical exam under the ADA.

WIRTW #388 (the “queen of all the world” edition)

I’ve decided that when I grow up, I want to be Norah. She has a pretty good life.

Guess who’s added “new guitar” to the top of her Christmas list?

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Please check out the latest post on Meyers Roman’s new Ohio OSHA Law Blog — Federal court slaps down OSHA’s broad interpretation of its machine-guarding standard. And, while you’re there, take a minute to subscribe to receive updates via RSS or email.

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Here’s the rest of what I read this week:

It’s not illegal to give a negative job reference, but…

When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

Illustrating the importance of training your employees on the ADA

By now you’ve likely heard the story about the blind college student denied service by a Cleveland-area bakery because she was accompanied by her seeing-eye dog. Rather than vilify this establishment (which, god knows, has been done enough on Facebook, and Yelp, and just about everywhere else on the Internet), we should instead use this mistake as a teachable moment for all employers everywhere.

NLRB updates its policy memo on e-signatures for union petitions

Earlier this year, the NLRB began accepting electronic signatures in support of an employee’s showing of interesting in support of a labor union. The Board has begun accepting e-signed documents, provided that they meet the following four criteria.

Employers might not “like” this protected concerted activity decision

Does the National Labor Relations Act protect the mere act of an employee clicking the “Like” button on Facebook? According to Triple D, LLC v. NLRB (2nd Cir. 10/21/15) [pdf], the answer is yes.

WIRTW #387 (the “most messed up” edition)

If all of my musings of he past couple of year about the Old 97’s has piqued your interest, you can check them out in person, tomorrow (Saturday) night at the Beachland Ballroom.

If you’re there, look for my family and me up front, by the stage, singing and dancing the night away.

Here’s the rest of what I read this week:

More on marijuana and off-duty conduct laws

The Browns still can’t beat the Broncos, and, it appears that Ohio’s proposed off-duty conduct law is a whole lot worse for employers than Colorado’s similar (but very different) statute.

I received an email from a long-standing reader, asking if I could reconcile my opinion that Ohio’s proposed off-duty conduct law would prohibit an Ohio employer from terminating an employee for off-duty marijuana use if Issue 3 [pdf] passes, with the decision of the Colorado Supreme Court in Coates v Dish Network [pdf], which held that Colorado’s off-duty conduct law did not prohibit such a termination despite that state’s legalization of pot.

It all comes down to statutory language.

Don’t call the whole thing off when negotiating IP rights with employees

Tomaydo-Tomahhdo is a local sandwich shop, and a purveyor of damn fine paninis and wraps. As for litigation, let’s say its lunches are way better. It sued one of its former chefs, claiming that he stole its book of recipes to open a competing catering business. Ultimately, the restaurant lost its lawsuit, which it had framed as a copyright infringement claim. The court concluded [pdf] that there is nothing original in a compilation of sandwich recipes that copyright law protects.

What could this employer have done differently to protect its intellectual property. It could have gotten in it in writing from the employee.

Ohio’s attempt at an off-duty conduct law creates many more problems than it solves

It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.

Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.

The other side of the coin on the appropriate response to harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

WIRTW #386 (the “onion” edition)

I’ve the reading the Onion for years. It’s consistently funny, often offensive, and seldom disappoints. Here’s some quick hits (all, surprisingly, SFW) published by the Onion over the past year.

• Impressive New Hire Figures Out Bare Minimum Of Work Job Requires On First Day
• Boss Able To Seamlessly Blend Constructive Criticism With Personal Attacks
• Company Flat-Out Asks Female Candidate How Much Mileage They Can Get Out Of Her Before She Has Baby
• Jeff Bezos Assures Amazon Employees That HR Working 100 Hours A Week To Address Their Complaints
• HR Director Reminds Employees That Any Crying Done At Office Must Be Work-Related
• HR Sends Out Reminder Email About Not Scrawling ‘Revenge’ In Blood In Conference Room

Here’s the rest of what I read this week:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?

Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

What does this mean (and how dare I make you think about your SATs for the first time in forever)?

John Oliver on OSHA (and a not-so-subtle shout-out to my firm’s new OSHA blog)

On this week’s Last Week Tonight, John Oliver gives OSHA a pass on its slack investigations of North Dakota oil field accidents. He blames OSHA’s inactivity on its lack of resources coupled with the oil companies’ use of subcontracted employees.

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

WIRTW #385 (the “there’s no such thing as a free lunch…” edition)

Retailer Urban Outfitters is trying to new strategy to staff its fulfillment centers for the holiday season. It’s asking its salaried employees to work weekends. And, since they are already paid a salary, the work comes with the added bonus of no extra pay, but with a free lunch, and transportation (if needed).

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.