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NLRB Holds Employees May Use Employer Email for Union Organizing and Other Non-Business Purposes

December 11, 2014

By Scott J. Wenner

The National Labor Relations Board this morning released its aptly-named Purple Communications decision, 361 NLRB No. 126, available here.  Last May, the Board announced that in connection with its review of the administrative law judge’s decision in Purple Communications, it would re-examine whether employers may bar employee use of company email for union organizing and other collective purposes. In its 2007 Register Guard decision, the NLRB permitted employers to bar such communications, holding that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 [i.e., collective] purposes.”  According to the Board in today’s decision, the Register Guard decision was “clearly incorrect.”

Summarizing its ruling, the three-member Democratic majority, which includes Member Nancy J. Schiffer, whose term expires on December 16th, declared:

“We decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems…”

In reaching its conclusion the majority brushed aside a host of employer objections advanced by Purple Communications and in amicus briefs, including the inconsistency of the new rule with the established body of case law permitting restrictions on use of employer-owned equipment, such as telephones; the certain loss of productivity the new rule will engender; the difficulty this will create in permitting employers to lawfully monitor email use without risk of surveillance claims by employees; the threat to informational security; and the strains the free use of employer email systems will place on those systems.

Careful review and analysis of the Purple Communications decision will be required before employers can chart a way forward.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation

Voters in 4 States Elect to Raise Minimum Wage January 1, 2015

November 6, 2014

By Scott J. Wenner

Initiatives and ballot measures to raise the minimum wage in four states were approved by voters in four states on Election Day. By wide margins voters in Alaska, Arkansas, Nebraska and South Dakota approved measures that will increase the minimum wage in those states beginning January 1.  The Alaska, Arkansas and Nebraska measures will hike the minimum wage in those states in two or three stages over consecutive years.  The South Dakota initiative is a single year hike, but it also doubles the tip credit in that state from $2.13 to $4.25 per hour.

In addition to direct voting in the above states on minimum wage increases, the Illinois legislature included a referendum measure on that state’s ballot asking Illinois voters whether they would support the legislature’s increasing the minimum wage in Illinois from $8.25 to $10.00 per hour by January 1, 2015.  The voters approved the proposed increase by a two-to-one margin in Tuesday’s vote.

At the municipal level, voters in San Francisco approved Proposition J, to increase the present $10.74 minimum wage, already the highest in California, to $15.00 per hour in four steps from May 1, 2015 to July 1, 2018.  At $15.00 per hour, which annualizes at around $31,000 per year, San Francisco’s minimum wage would equal Seattle’s as the nation’s highest.  Undaunted by that distinction, San Francisco voters approved Proposition J by more than a three-to-one margin according to election website Ballotpedia.

Minimum Wage Increases Approved by Voters on Election Day

      Jurisdiction Effective Dates New Minimum Wage Current Minimum
Alaska 1/1/2015
1/1/2016
$8.75
$9.75 
$7.75
Arkansas 1/1/2015
1/1/2016
1/1/2017
$7.50
$8.00
$8.50 
$6.25
Nebraska 1/1/2015
1/1/2016
$8.00
$9.00 
$7.25
South Dakota 1/1/2015 $8.50  $7.25
San Francisco 5/1/2015
7/1/2016
7/1/2017
7/1/2018
$12.25
$13.00
$14.00
$15.00 
$10.74
Illinois
(Not yet law)
1/1/2015 $10.00 $8.25

A comprehensive report on 2015 increases will appear on this blog next month.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation

Mandatory Paid Sick Leave Approved in New Jersey’s Trenton, Montclair

November 5, 2014

By Harris Neal Feldman

Residents of both Trenton and Montclair voted to approve mandatory paid sick leave by employers in their respective municipalities, bringing the total number of municipalities in New Jersey that now have mandatory paid sick leave laws to eight.  The other six municipalities are East Orange, Irvington, Jersey City, Newark, Passaic, and Paterson.  

Currently, no New Jersey or federal law requires employers to provide paid sick leave. The New Jersey legislature has been working on a statewide analogue, but no such law is imminent.  Currently in the United States, only California and Connecticut have passed statewide mandatory paid sick leave laws.

These new municipal laws, generally modeled after the Newark law that went into effect earlier this year, will require employers with 10 or more employees to provide up to 40 hours of paid sick leave per calendar year (effectively up to one week of sick leave); while employers having fewer than 10 employees, must provide up to 24 hours of paid sick leave (effectively up to 3 days of sick leave). 

There are exceptions, employer posting, and recordkeeping requirements, and fines; and these laws only set a floor for paid leave, meaning that employers remain free to provide better benefits for their employees.

For more information regarding this or other labor and employment issues, please contact Harris Neal Feldman of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

NYC Dep’t of Consumer Affairs Updates FAQs about Paid Sick Leave Law

October 27, 2014

By Scott J. Wenner

New York City’s Department of Consumer Affairs quietly published in late August an updated set of Frequently Asked Questions (FAQs) concerning the complicated paid sick leave ordinance that became effective on April 1 of this year.

The City’s publication, available here, provides some sorely needed clarification for New York City employers that are subject to the requirements of the ordinance.  It is a testament to the complexity of the new paid sick leave law that the recently-published FAQs consume 25 pages of text.

To refresh, subject to narrow exceptions, New York City law now requires all employers with five or more employees in New York City who worked 80 or more hours per calendar year to provide paid sick leave to their employees.  Further, employers with fewer than five employees in New York City still must provide sick leave to their New York City-based employees, but the leave may be unpaid.  The amount of the paid leave entitlement depends on the number of hours an employee works in a calendar year, and accrues at the rate of one hour of leave for every 30 hours worked. An employee must work 120 hours before he or she can use accrued paid sick leave.  Within these broad outlines lies a substantial amount of detail, much of which is covered by the FAQs.  For further information contact your Schnader relationship partner or the author.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation

Federal Court Dismisses Complaint Against EEOC for Unauthorized Use of Employer’s E-Mail System

October 23, 2014

By Scott J. Wenner

Late last year we reported that Case New Holland, Inc. (CNH) had sued the EEOC after learning that the agency, in the course of investigating a claim of age discrimination, had sent a blast email. This email was linked to a questionnaire and sent to 1300 employees at their work email addresses at the beginning of their workday. See our article on the subject here.

In Case New Holland Inc. v. EEOC, No. 1:13-cv-01176 (D.D.C.), CNH contended that the EEOC’s tactic violated its rights under the Administrative Procedure Act and the Fourth and Fifth Amendments of the United States Constitution. It cited,

  1. the EEOC’s failure to publish a regulation sanctioning the practice and putting employers on notice that the agency might invade their email networks;
  2. the absence of consent which, it claimed, amounted to trespass violative of the Fourth Amendment’s limits on government searches;
  3. the unilateral commandeering of the CNH email network without authority or compensation amounted to a due process clause violation; and
  4. 23.6(c)(1) of the EEOC’s Compliance Manual, which confirms an employer’s right to have counsel present at interviews of management employees – a right that obviously was bypassed by sending questionnaires directly to employees, including managers.

The EEOC moved to dismiss the complaint on purely technical grounds, arguing that CNH lacked standing to sue, that the case was not ripe for review and that the district court lacked subject matter jurisdiction to hear CNH’s claim. While its motion failed to mount a legal defense on the merits of the claim, the agency’s brief did make the following sweeping assertion of authority: “Just as the EEOC can conduct in-person interviews pursuant to its statutory investigative authority, it can also communicate in writing and by e-mail with employees and witnesses to pose questions and gather information pursuant to its broad statutory authority to investigate discrimination claims. The e-mail communication was an efficient and appropriate investigatory method for determining the existence and scope of any potential ADEA violation and for identifying aggrieved individuals entitled to relief if an ADEA violation is found.”

Nearly one year after the EEOC moved to dismiss, the court finally ruled, granting the EEOC’s motion after finding that CNH lacked standing to bring the action. Standing to bring a claim requires an assertion of “injury-in-fact”: an invasion of a legally protected interest that is “concrete and particularized” as well as “actual or imminent, not conjectural or hypothetical.” The injuries CNH claimed to have suffered consisted in part of disrupted productivity at work and of the employer-employee relationship. The court found these claims of injuries to be “conclusory, consisting of generalities and speculation” and insufficient to establish that any actual harm in fact had occurred. It observed that the complaint failed to aver that employees actually diverted their attention from their work to answer questions in the linked survey, and had they done so, what specific injury CNH suffered as a result. A second claimed injury was said to be the potential cost of class action litigation that the EEOC was attempting to prompt by sending the emails to CNH’s employees. The court brushed this claim aside based on the understanding that predictions of future events are too speculative to satisfy the concrete injury requirement needed to confer standing.

Meaning

Despite the EEOC’s seeming suggestion that sending blast emails to employees on employer-maintained networks is an appropriate investigative technique, there are no indications at this time that the agency has made widespread use of this tactic. Whether the agency’s victory against CNH’s challenge to the practice might lead it to employ the tactic more frequently remains to be seen. It certainly is too soon for the agency to conclude on the strength of this dismissal that its blast emailing of employees on employer-owned networks during investigations is an unreviewable exercise of discretion as a matter of law. The fact that CNH adequately failed to plead a concrete injury hardly means that no concrete injury can be pled in these circumstances, and that the merits of a challenge to this practice never can be reached.

Possible Action

The EEOC might well construe the CNH decision to be a green light to engage in blast emailing of employees on employer-owned networks as a more routine investigatory practice. Therefore, it would be sensible for employers to be alert to this possibility and to develop means of detecting the practice and responding. While care must be taken to avoid action that the EEOC could characterize as interference with its investigatory function, employers should, at a minimum, advise all management level employees to report to human resources and/or in-house legal staff any surveys or other communications from the EEOC that they may receive – unless, of course, the communication pertains to the employee’s own charge of discrimination. Management employees can be encouraged not to respond to such communications unless advised to do so by a company lawyer. In-house counsel may respond to such blast emails with objections insofar as they solicit information from management-level employees, who are agents of the company, which is represented by counsel. Citation to §23.6(c)(1) of the EEOC’s Compliance Manual, referred to above, also would be appropriate.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation

EEOC Challenge to CVS Severance Agreement Dismissed Due to Agency’s Failure to Engage in Conciliation

October 13, 2014

By Scott J. Wenner

Late last year the United States Equal Employment Opportunity Commission (EEOC) sued CVS in the Northern District of Illinois claiming that the retail pharmacy’s standard form severance agreement and release violated Title VII. More specifically, the agency claimed that the CVS agreement failed adequately to inform separating employees that they were not waiving their rights to file a charge of discrimination with the EEOC and/or a state or local agency, and that they could still support discrimination claims of others being investigated by the Commission.

Especially of concern to the agency appeared to be routine non-disclosure and non-disparagement clauses, and a cooperation clause that required the signatory to advise the company if he or she were subpoenaed or otherwise contacted about matters being released. Because CVS’s agreement resembled garden-variety separation agreements in common use, and as it indeed notified employees of their continued right to complain to and assist the EEOC, the case caused considerable concern among  employers.

In the CVS Severance Opinion filed last week, the court dismissed the EEOC’s action. Unfortunately, the ruling was not based on the merits of the claim. Thus, it fails to provide guidance to employers on how, if at all, their standard form severance agreements should be changed to withstand legal challenge. Because the EEOC has continued to maintain that the CVS agreement interfered unlawfully with its enforcement of Title VII by deterring employees from exercising their rights, it seems unlikely that the issue will go away until the courts bring clarity to what had been thought to be a reasonably clear set of rules embodied in guidance the agency provided years ago.  See, Enforcement Guidance on Non-Waivable Employee Rights, EEOC Notice No. 915.002 (Apr. 10, 1997).

The court’s dismissal of the EEOC’s complaint against CVS nevertheless had a silver lining for employers, however. CVS’s motion to dismiss was in part founded on the agency’s admitted failure to engage in conciliation before suing CVS. The EEOC contended that it was not required statutorily to conciliate before bringing an action under the section of Title VII on which it sued CVS – §707(a). The court roundly rejected the Commission’s position based on the Act’s legislative history and because “the EEOC’s own regulations require the agency to use informal methods of eliminating an unlawful employment practice where it has reasonable cause to believe that such a practice has occurred or is occurring. See 29 C.F.R. § 1601.24(a).” Declaring that “The EEOC may sue only after it has attempted to secure a conciliation agreement acceptable to the Commission,” and as the Commission admitted that it did not conciliate, the court granted the CVS motion to dismiss.

This dismissal will resonate with employers that have experienced high-handed tactics by the Commission in refusing to engage in good faith conciliation before bringing an action against an employer. The issue the court addressed was slightly different from the question presented in EEOC v. Mach Mining, LLC, which the Supreme Court agreed to review this term. In Mach Mining, the Court will decide whether inadequate conciliation efforts constitute an affirmative defense to an action brought by the agency. In CVS, there was no dispute over the EEOC’s failure to engage in conciliation. The court found as a matter of law that the Commission’s conceded failure to conciliate with the employer was grounds for dismissal of the action.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation

No Right to Jury Trial Under Pennsylvania’s Whistleblower Statute

August 21, 2014

 By Anne Kane

On August 19, 2014, the Pennsylvania Superior Court held that individuals bringing suit under the Pennsylvania Whistleblower Law have no right to a jury trial.  Writing for the court, Judge Judith Olson explains that “the plain language of the statute makes clear that Appellant did not possess a statutory right to a jury trial.”  Bensinger v. University of Pittsburgh Medical Center t/a/d/b/a Western Psychiatric Institute and Clinic, 2014 Pa. Super. LEXIS 2861 (August 19, 2014).  Because a whistleblower claim has no common law analogue that would give rise to a right to jury trial under the Pennsylvania Constitution, the court held that the trial court properly denied plaintiff John Bensinger’s jury demand.

The Bensinger decision is good news for Pennsylvania employers because it places decisions on liability and damages into the hands of judges who often are better qualified to decide complex employment cases, and who are usually less apt to be swayed by facts unrelated to the claims or defenses.

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For more information regarding this or other labor and employment issues, please contact Anne Kane, Co- Chair of Schnader’s Labor and Employment Practices Group. 

 The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

 

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