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SHRM Newsletter- The Elections and Employment Law
Posted on Nov. 12, 2012

This is Utah SHRM Legal-mail no. 2012-21 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







THE ELECTIONS AND EMPLOYMENT LAW: With the local, state and national elections now over (thankfully- not sure we all could have endured another few days of election TV ads), the future world of employment law has more clarity. For example, the national health care reform law passed in 2010 (discussed in previous updates) will not be repealed. Instead, it will be explained and enforced with more regulatory guidance and interpretation and employers should continue (or begin) implementing steps. It seems possible that Congress might reach some kind of an agreement on immigration reform, which clearly will impact employers. Federal employment law enforcement agencies like the Equal Employment Opportunity (EEOC) Commission, the Department of Labor (DOL) and the National Labor Relations Board (NLRB) will continue to be well-funded and probably act more aggressively in favor of employees than you might expect under a Republican president. Because voters in several states recognized the legality of same sex marriage, this likely will impact employee benefits plans in terms of who can be qualified dependents, etc. This trend may also provide momentum for Congressional enactment of the national Employment Non-discrimination Act (ENDA), a law that would add sexual orientation to the list of federal protected classes. The fact that Congress is divided between the two major political parties suggests there will not likely be as much chance of legislative action on various other initiatives such as an expansion of the Family and Medical Leave Act (FMLA) or an increase in the minimum wage. Finally, certain states also legalized the use of marijuana.  While federal law still criminalizes this drug use, state law in these states (that have legalized marijuana use) can no longer be used to justify employment decisions.

THE NLRB AND EMPLOYEE HANDBOOK AT WILL STATEMENTS: Here is a recent example of what an active, employee-friendly NLRB can do. Some recent decisions interpreting the National Labor Relations Act (NLRA) have indicated that statements in employee handbooks saying at-will employment status can never be modified in any way may well violate the NLRA. The reason? Such a message could chill employee discussions aimed at improving their working conditions and/or creating a union and thus changing at-will status through a collective bargaining agreement. The NLRB’s acting general counsel has issued an interpretive memorandum about these decisions, indicating that at-will statements will not automatically run afoul of the NLRA, but the particular wording matters. Thus, the NLRB likely will not overturn at-will statements that merely disclaim a contract, proclaim the at-will status and indicate that individual supervisors do not have the power to change this status (something must be done by the president of the company). However, a statement that suggests an at-will status can never be changed will be problematic. The NLRB’s acting general counsel also has suggested that employees make it clear that employee rights to engage in concerted activity are not waived by the at-will statement. Here is a good article describing some of the NLRB’s related activities:

EEOC LITIGATION PRIORITIES: And here is an example of what an active, employee-friendly EEOC can do. The EEOC’s announced litigation priorities (designed to address the most pressing enforcement issues) include the following: (1) cases alleging systemic discrimination, notably in recruitment and hiring; (2) cases involving immigrant, migrant or other vulnerable workers; (3) cases involving emerging legal issues such as disability, sexual orientation and pregnancy; (4) cases involving barriers to access to the legal system, such as overbroad waivers and releases; and (5) sexual harassment. If your case/claim involves one of these issues, the chances the EEOC will sue you increase significantly.

EMPLOYER SETTLES DISABILITY CLASS ACTION CLAIM FOR $5 MILLION: A Denver- based company has settled a class action disability discrimination case for a payment of just under $5 million. The EEOC’s lawsuit contended that the employer used a “maximum leave” policy to deny accommodations and discriminate against disabled workers. According to the EEOC’s press release about the settlement, “under the challenged leave policy, if an employee needed more than 12 weeks of leave, [the employer] automatically terminated them rather than determining if it would be reasonable to provide additional leave as an accommodation.” The EEOC also claimed the employer refused to make exceptions to a policy under which if an employee had restrictions, the employer refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work despite such restrictions. This settlement is a timely reminder that accommodation issues must be decided on the basis of specific circumstances in each case, rather than based on blanket rules that certain people can only have a certain amount of leave or assistance.

PERFORMANCE REVIEWS FOR HIGH LEVEL EMPLOYEES? YES! In the last couple of years, I have reviewed a startlingly- large number of cases and client questions involving the discharge or possible termination of a high level executive employee but where there was little or no evidence of any sort of performance review of that employee.  This does not make sense to me. These types of employees, usually the highest paid in your company, can be the most attractive to plaintiff-side employment lawyers anyway, but the failure to have any documented track record of discipline or performance review to support a discharge makes them even more attractive as plaintiffs. Employers need to effectively assess, review and document the performance of their top managers, just as much as they need to do so for other employees. Failure to do so exposes an employer to a potentially-significant risk of liability when a fired executive employee chooses not to depart amicably.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012