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SHRM Newsletter: Broad Confidentiality Clauses May Be Risk For Employers
Posted on May. 16, 2014

This is Utah SHRM Legal-mail no. 2014-9 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).








BROAD CONFIDENTIALITY CLAUSES MAY BE RISK FOR EMPLOYERS: A federal appeals court in Louisiana recently sustained a decision by the National Labor Relations Board (NLRB) which had ruled that an employer’s broad confidentiality provision violated the National Labor Relations Act (NLRA). The clause at issue mandated confidentiality for “personnel information” and “financial information,” among other things. Its policy did not expressly refer to wages or compensation. However, the court and the NLRB both ruled that such a broad mandate could be understood by employees to prohibit them from discussing their wages with persons outside the company, such as union organizers, and thus violated the NLRA. Employers should review their current confidentiality policies and, if they use similar language, make them more narrow, or indicate that the policy does not prohibit employees from discussions protected by law, such as a discussion of wages protected by the NLRA.

VARIED EMPLOYER RESPONSES TO EEOC BACKGROUND CHECK ADVICE: In recent guidance for employers using background check information (notably re: past criminal convictions) in employment decisions, the Equal Employment Opportunity Commission (EEOC) has recommended that employers analyze each situation individually and determine if the offense is truly disqualifying for the job at hand.  The EEOC suggests using these factors: (1) The facts and circumstances surrounding the offense or conduct; (2) The number of offenses for which the individual was convicted; (3) The age at the time of conviction and/or release from prison; (4) Evidence that the individual performed the same type of work post-conviction with the same or a different employer with no known incidents of criminal conduct; (5) The length and consistency of employment history before and after the offense or conduct; (6) Rehabilitation efforts (e.g., education/training); (7) Employment or character references and any other information regarding fitness for the particular position; and (8) Whether the person is bonded under a federal, state or local bonding program. In a survey recently highlighted by national SHRM, it appears most employers follow this advice although 50% of employers surveyed said the EEOC’s guidance had no impact on their hiring procedures. The article notes that most employers looked at offenses more than seven years old. The offenses most often found by employers to be disqualifying were felony convictions for violence, theft/dishonesty and drugs. National SHRM members can read the full article here:

COURT SAYS ATTENDANCE MAY NOT MEAN PHYSICAL PRESENCE: A federal appeals court has ruled that for purposes of assessing/providing accommodations under the Americans With Disabilities Act, employers must consider that attendance at the job may not mean physical presence at a specific place. The case involved an employee who asked to work from home when needed to accommodate her irritable bowel syndrome. The employer had allowed others to work at home, but not as frequently as was anticipated for the plaintiff/employee. The employer said that due to teamwork needs, physical attendance was an essential job function. The trial court agreed with the employer. The appeals court disagreed, however, and sent the case back for a jury trial. The appeals court said there was evidence that the plaintiff’s job could be adequately done from home and use of technology (e.g. Skype) could satisfy teamwork needs. The lesson? Employers who plan to insist on physical presence when denying an employee’s work-from-home accommodation request will have to prove that presence at work by technology will not work just as well.

OVERTIME EXEMPTION MUST BE SET ON ACTUAL, NOT POSSIBLE, DUTIES: A recent ruling from a federal appeals court indicates that employers can only classify employees as exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) based on actual job duties and not on work an employee potentially may perform. The case involved employees who were hired to eventually be supervisors and managers of a lumber company, but who actually only spent their time doing such nonexempt duties as stocking merchandise.

NFL CHEERLEADERS GET NO OVERTIME: Speaking of FLSA, the United States Department of Labor (DOL) has ruled that the Oakland Raider cheerleaders are only seasonal employees and thus are not eligible for minimum wage or overtime payments. The ruling is a potential blow to a class action suit filed by past and present Raiderettes alleging they were not paid for all their hours, they were denied breaks and they were not paid in a timely manner. The Raiders finished 4-12 last season, last in their division and had one of the worst records in the National Football League (NFL). I have nothing against the Raiders, but given all these circumstances, one could perhaps conclude that even the people paid to cheer for the Raiders are having trouble doing so right now.

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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.

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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