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SHRM Newsletter: Time to Revise Your Handbooks...for a Number of Reasons
Posted on Apr. 17, 2015

This is Utah SHRM Legal-mail no. 2015-7 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).







SHRM STAGES SUCCESSFUL NATIONAL LEGISLATIVE CONFERENCE: SHRM sponsored another successful legal and legislative conference in DC in late March. The conference included an opportunity to meet with the Utah Congressional delegation about pending HR law issues. I was fortunate to meet with representatives of Senator Orrin Hatch, Senator Mike Lee and Representative Chris Stewart. We discussed a variety of issues, including the new National Labor Relations Board (NLRB) rules on “ambush” union elections, legislation to re-define full time work as 40 hours a week for purposes of federal health care laws, the need to enact workable and national immigration reform and possible Congressional reaction to the Department of Labor’s (DOL) planned new Fair Labor Standards Act (FLSA) regulations that will make it more difficult to classify employees as exempt from overtime requirements. The Utah Delegation is very supportive of employers and the HR profession and they would love to hear from you on these issues or any other issues relevant to the profession.

DOL RE-DEFINES SPOUSE FOR FMLA PURPOSES: Speaking of DOL, the federal agency recently revised its definition of spouse for purposes of the Family and Medical Leave Act (FMLA) and in light of the increasing recognition of same sex marriage. The FMLA regulations used to define spouse depending on whether the involved marriage was recognized in the state where the spouses lived, regardless of whether it was recognized in the state where the marriage ceremony was performed. The new regulations revise this approach and provide that as long as a same sex (or other) marriage is valid in the state in which the marriage was performed (or celebrated), then the parties to that marriage are considered spouses for FMLA purposes even if they live in a state that does not recognize same sex marriage. This new rule was to take effect in late March, but a federal court in Texas has put it on hold for now pending a lawsuit brought by several states. In response to the lawsuit, DOL has represented that it will not enforce the rule in the four states of Texas, Arkansas, Louisiana and Nebraska, but will enforce the rule in every other state.

NEW STATISTICS SHOW INCREASES IN FLSA AND FMLA CLAIMS: Data recently released by the administrative arm of the federal court system indicates that both FMLA and FLSA lawsuits are increasing in number. There were almost 9% more FLSA lawsuits filed in 2014 than in the previous year. FMLA lawsuits increased by over 26% during the same time period, according to the data.

TIME TO REVISE YOUR HANDBOOKS…FOR A NUMBER OF REASONS: It probably is a good time for employers to consider revising their handbooks for a variety of reasons. The Utah Legislature recently passed a law prohibiting—statewide—any job bias based on sexual orientation or gender identity. The rules implementing a Presidential Executive Order (applicable to federal contractors) prohibiting the same sort of bias took effect on April 8, 2015. Finally, the NLRB has issued a new guidance for employers on handbook policy language and employee concerted activity rights. Section 7 of the National Labor Relations Act (NLRA) protects the rights of employees to act in concert regarding the terms and conditions of employment. The NLRB Memo begins with the premise that the mere maintenance of a work rule may violate the NLRA if it may have a “chilling effect” on Section 7 activity. A rule need not expressly prohibit or limit Section 7 activity to be unlawful. Rather, an employer’s rule may run afoul of the NLRA if it: (1) could reasonably be construed by employees to prohibit Section 7 activity; (2) was promulgated in response to union activity; or (3) it was actually applied to restrict the exercise of Section 7 rights. Most possible violations probably will fall under the first prong. Because that prong focuses on the reasonable interpretation of a rule, context is critical. The “Board will not read rules in isolation. Even when a rule includes words or phrases that, alone, reasonably would be interpreted to ban protected criticism of the employer, if the context makes plain that only serious misconduct is banned, the rule will be found lawful.” The NLRB guidance focuses on such handbook/policy statements as conflicts of interest, confidentiality, employee conduct, interactions with third parties, taking photos and video at work, and use of employer logos. NLRB Guidance

EEOC TO REVISE PREGNANCY ACCOMMODATION GUIDANCE: The Equal Employment Opportunity Commission (EEOC) will review its recent guidance on pregnancy accommodation issues in light of a recent United States Supreme Court decision. The court’s decision gave new life to a pregnant employee’s claim that her employer did not sufficiently act to accommodate her pregnancy-related lifting restriction at work. However, the Court’s decision also seemed to reject the EEOC’s stated position that pregnancy must be accommodated in the same manner as a disability covered by the Americans With Disabilities Act (ADA). In short, the Court did not provide a definitive answer to the question of whether and when employers must accommodate pregnant employees under the Pregnancy Discrimination Act (PDA). A national guidance on that point must await the EEOC’s revised guidance. Note that many state laws require affirmative employer accommodation of pregnancy at work.

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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