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Utah SHRM Newsletter - The NLRB and Employee Handbooks - An Update
Posted on Feb. 4, 2013

This is Utah SHRM Legal-mail no. 2013-2 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). 

CONTENTS:

-  THE NLRB AND EMPLOYEE HANDBOOKS--AN UPDATE

-  NLRB APPOINTMENTS UNCONSTITUTIONAL?

-  EEOC STATS SHOW ANOTHER BIG YEAR FOR CLAIMS

-  EEOC ANNOUNCES SOME NEW BIG SETTLEMENTS

-  OSHA SAYS WHISTLEBLOWER CLAIMS INCREASING

THE NLRB AND EMPLOYEE HANDBOOKS: Recently I have discussed in these updates the issue of the National Labor Relations Board (NLRB) and employee handbooks. Specifically, I discussed at-will employment and contract disclaimer sections of handbooks and noted a recommendation about adding language that indicated contracts could also be created by collective bargaining agreements (CBA). This recommendation resulted from NLRB decisions indicating that National Labor Relations Act (NLRA) would be violated if employees were required to agree that at-will status could never be changed (even, implicitly, by a CBA). I also have noted this is an evolving area of law. And it has now evolved. The NLRB General Counsel recently clarified this ruling and approved handbook language like those options below. According to another legal commentator who has published on this point, “The NLRB found that while the [employers’] disclaimers reaffirmed the at-will relationship, neither provision extracted a personal promise from employees to refrain from seeking to change their at-will status or to agree that their at-will status could not be changed in any way...[these} provisions simply prohibited the employer's own representatives from entering into employment agreements that provide for other than at-will employment.” Here are the NLRB-approved options:

Option 1: "Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor or employee of the Company has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing."

Option 2: "The relationship between you and the Company is referred to as 'employment at will.' This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing 'employment at will' relationship. Nothing contained in this handbook creates an express or implied contract of employment."

NLRB APPOINTMENTS UNCONSTITUTIONAL? The courts are currently wrestling with (and have not yet finally resolved) the question of whether the current majority of the NLRB was appointed in a constitutional manner. They were recess appointments, meaning President Obama appointed them during a time he says Congress was in recess and thus they need not be confirmed by Congress. However, some say Congress was not actually in recess (the Senate was technically in session during a recess period although no one was there). One court has agreed that the appointments were unconstitutional. The NLRB says it will continue to function while the ruling is appealed. NLRB rulings issued during these times in question may not be valid, but they might be, and future appointments (if done correctly) might rectify the problem and reaffirm those decisions. So, we have to live with the uncertainty for now, at least until resolved by the United States Supreme Court.

EEOC STATS SHOW ANOTHER BIG YEAR FOR CLAIMS: Well, it was not a record year, but it was close, and it was still a lot of charges. Just under 100,000 new charges (not the record level of over 100,000 filed the year before) were filed with the Equal Employment Opportunity Commission (EEOC) in its most recent fiscal year. As in past years, the most frequently-filed charges involved race and sex bias/harassment and retaliation (the top charge at 38%). You can read the full charge statistical breakdown here:  http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm  The EEOC also won over $365 million in damages/settlements for employees during the same year.

EEOC ANNOUNCES TWO NEW BIG SETTLEMENTS: The EEOC recently announced two new settlements with employers in large cases. A fast food franchisee has agreed to pay $2.5 million to resolve claims of sexual harassment and retaliation. The female plaintiffs alleged they were subjected to obscene comments, jokes, propositions, unwanted touching, lewd exposure, strip searches, stalking and even rape, as well as unwarranted discipline, reduced hours and termination when they complained about this behavior. In the other major case, a national retailer agreed to pay $2 million to settle a class action disability bias lawsuit. This case focused on a company requirement that employees disclose confidential medical information (i.e. the specifics of their medical condition) to get approved for sick leave.

OSHA SAYS WHISTLEBLOWER CLAIMS INCREASING: You probably know of the the Occupational Safety and Health Administration (OSHA), a part of the United States Department of Labor (DOL) that enforces safety laws. OSHA also administers a number of anti-retaliation provisions in over twenty various other federal statutes. Recent statistics from OSHA indicate it handled almost 1,000 more whistleblower claims than it did the year before. OSHA says the statutes with the greatest increase of claims were the Occupational Safety and Health Act, the federal law regarding commercial vehicles and the federal law regulating railroads.

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Author

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

OBrienAV

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