Labor & Employment Digest: June 2014

InsideCounsel brings together the voices of firms active in the space to get their take on the issues shaping the policies of workplace compliance and regulation

This year has already provided the legal world with a number of labor decisions and developments to consider, and it doesn't seem that this trend is likely to slow down any time soon. From the National Labor Relation Board's decision to allow student athletes to unionize at Northwestern University to allegations of wage fixing at some of the largest technology companies in the world, labor and employment law has seen no shortage of shake ups. Here we bring you voices from legal professionals with boots on the ground, to get their take on up-and-coming issues that are likely to impact the law of the workplace going forward.

Whistleblower prevention

“In Florida, former employees have sued an iconic restaurant claiming the restaurant hired undocumented workers, reversed bills to prominent politicians and other headline grabbing allegations. Increasingly, employees are attacking employers’ alleged business practices through whistleblower claims instead of more traditional employment claims. To mitigate these actions, employers should examine their internal policies and hotlines to make sure they are effective in allowing employees to air their grievances about business practices prior to filing suit.”

—Mark Cheskin, partner (Miami), Hogan Lovells LLP

Telecommuting and the modern workplace

“Although courts vary with respect to telecommuting as a reasonable accommodation under the Americans with Disabilities Act, courts are recognizing that technological advances have expanded the class of jobs for which working from home may be reasonable. Recently, in EEOC v. Ford Motor Co., the 6th Circuit held that attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location, even when the position requires a great deal of teamwork. The court explained that when considering an employee's accommodation request for a work-from-home arrangement, the vital question is not whether ‘attendance’ is an essential job function, but whether ‘physical presence’ at the employer's facility is truly essential.”

—Tiffani L. McDonough, associate (Philadelphia), Obermayer Rebmann Maxwell & Hippel LLP

Inconsistent inspection handling

“The acting Assistant Inspector General for Audits (DHS Office of Inspector General) Mark Bell recently completed a review and determined that ICE I-9 inspections result in inconsistent handling, with some offices issuing more warnings than others and some offices negotiating fines. Bell's report indicated that HQ should monitor field operations more closely to ensure greater consistency of warnings/fines, so employers should expect less variance in terms of fine reduction.”

—Sean G. Hanagan, shareholder (New York), Jackson Lewis P.C.

No incentive for no gossip policy?

“If an employer does not already have a no gossip policy, there is little incentive to adopt one, given the National Labor Relations Board's scrutiny of policies restricting employees’ rights to discuss wages and working conditions. An employer who has such a policy should definitely consider scrapping it or, at the very least, review the language to make sure it is not overly broad or vague and potentially in violation of sections 7 and 8(a)(1).”

—Kate Gold, partner (Los Angeles), Drinker Biddle & Reath LLP

6th Circuit questions physical presence in the workplace

“Is telecommuting a reasonable accommodation? A recent 6th Circuit decision now seemingly puts an employer's right to require attendance at issue in the ever-changing debate of what may be a reasonable accommodation. In reversing summary judgment for Ford Motor Co., the court opined that, given the advancements in technology, an employee's request to work from home to accommodate a disability may very well be a reasonable request, permitting them to perform the essential functions of their job. The decision is important for its break from established precedent confirming attendance at the job was an essential job function. While we wait to see whether this decision gets traction in other circuits, or whether Ford decides to appeal, employers should factor this ruling into their accommodation discussions.”

Aimee Delaney, partner (Chicago), Hinshaw & Culbertson LLP

Businesses need to make voices heard on DOL changes

“President Obama is directing the U.S. Department of Labor (DOL) to revise the regulations that exempt ‘white-collar’ employees from the overtime requirements of the Fair Labor Standards Act. We anticipate the DOL will propose a significant increase to minimum salary requirements and will toughen the job duties tests for the executive, administrative and professional exemptions. The business community needs to be proactive in opposing any changes that make it more difficult to hire and retain workers.”

—Steven F. Pockrass, shareholder (Indianapolis), co-chair of Wage-Hour Practice Group, Ogletree Deakins

Growing trend in pregnancy accommodation laws

“Laws expanding the rights of pregnant women in the workplace are on the rise. Several states and cities, including New Jersey, New York City and Philadelphia, now expressly require employers to provide reasonable workplace accommodations to pregnant employees (and those who suffer medical conditions related to pregnancy and childbirth) unless such accommodations would pose an undue hardship on the employer's business. Examples of reasonable accommodations include: bathroom breaks; leave for a period of disability arising from childbirth; breaks to facilitate increased water intake; periodic rest for those who stand for long periods of time; and assistance with manual labor.”

—Joseph J. Centeno, partner (Philadelphia), Obermayer Rebmann Maxwell & Hippel LLP

Decision awaits in class action waivers

“In 2012, the National Labor Relations Board (NLRB) infamously ruled that class action waivers in arbitration agreements violate employees’ right under the National Labor Relations Act to engage in concerted action. On appeal, in a 2-1 opinion issued in December 2013, a panel of the 5th Circuit rejected the NLRB's ruling. On March 13, 2014, the NLRB filed a petition for panel and/or en banc rehearing. The entire business community will continue to anxiously await the ultimate outcome of this extremely important case.”

Ron Chapman, Jr., shareholder (Dallas), Ogletree Deakins

Managing Editor

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Chris DiMarco

Chris DiMarco, Managing Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content for...

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