Labor & Employment Digest: October 2015

Cybersecurity issues are a hot topic in legal and compliance circles, but, even as companies turn their attention to addressing these genuine concerns, other problems crop up like a game of whack-a-mole. The labor and employment legal landscape changes almost as fast as the privacy and data security space, so L&E attorneys must keep up with matters ranging from whistleblowing to the FCRA. Here are some thoughts about current labor and employment trends from outside experts.

Disney World unfair labor practice charge

According to news reports, on June 5, a labor union representing Disney World character performers filed an unfair labor practice charge protesting the alleged chilling effect of a company policy forbidding performers from publicly disclosing which characters they portray. The irony is unavoidable, especially to any employer who has been targeted by the National Labor Relations Board's (NLRB) highly imaginative campaign to rid the working world of dormant unfair labor practices lurking in the wording of handbooks and policies. A Mickey Mouse ruling is inevitable.

—Keith H. McCown, partner (Boston), Morgan, Brown & Joy LLP

Employers would be wise to consider a change in approach to whistleblower risk-management

In recent years, Congress has enacted or expanded whistleblower protections under more than 30 statutory schemes affecting employers of all sizes and in various industries. As a result, many employers have dramatically changed their whistleblower risk-management approach. Best practices now include using multi-disciplinary management teams composed of legal, HR, compliance and risk management personnel to respond to and resolve whistleblower complaints; providing ombudsman support services to whistleblowers; and conducting independent review of all proposed adverse employment actions against known whistleblowers prior to implementation. Such practices can significantly reduce the number of whistleblower retaliation claims.

—Mary E. Pivec, partner (Washington, DC), FordHarrison LLP

On joint employers

The NRLB's recent decision in Browning-Ferris Industries of California v. Sanitary Truck Drivers has fundamentally altered the standard for determining whether businesses are “joint employers” of the same employees. The previous standard focused on whether Business A exercised direct control over Business B's employees. Now, “joint employer” status may exist where Business A has authority to control essential terms and conditions of Business B employees’ employment — even if Business A exercises this authority only indirectly or not at all. Many business relationships — including lessor-lessee, franchisor-franchisee and contractor-subcontractor — could be impacted by the new standard. Therefore, companies should evaluate their relationships to identify what control, direct or indirect, they may possess over the terms and conditions of other businesses’ employees.

—Elizabeth F. Mason, Esq. partner (Boston) Bernkopf Goodman LLP

FCRA violations

The surge of class actions against employers for Fair Credit Reporting Act (FCRA) violations is largely due to the availability of statutory damages that can reach up to $1,000 per class member where “willfulness” is shown, even where no injury exists. At the same time, district courts are beginning to provide guidance on the nuanced issues these lawsuits raise, with a number of recent decisions treating FCRA willfulness as a question of law in class actions against employers. An understanding of these decisions will aid employers in reviewing their compliance with FCRA obligations and in forming their litigation strategy.

—Galit Knotz, counsel (Los Angeles) Akin Gump

Senior Editor and Community Manager

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Rich Steeves

Richard P. Steeves is Senior Editor and Community Manager of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A....

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