The Care and Feeding Of Counsel

My Las Vegas partner, Mark Ricciardi, recently posted the Fourth Part of his Blog on “Ten Reasons to Find a New Labor Employment Attorney.” I respect Mark’s opinions because he maintains some of our most enthusiastic clients.

Over the next few days, I will share 20 suggestions from classes I have presented on how to manage legal matters and effectively work with one’s counsel. Consider these points in conjunction with Mark’s fine article.  Other attorneys may have different suggestions.

1.  Tell your counsel your expectations on billing, communications, updates, staffing, and anything else that helps you better manage your legal matters. Experienced counsel appreciate you telling them upfront about anything that makes your job easier.

2.  Expect your attorneys to learn your business and to not simply take the approach of the litigator who focuses only on the case at hand. Your counsel should learn your industry and “vocabulary,” how your company works, and “all” of your goals.

3.  “Good” labor lawyers  consider other issues related to your question or claim, such as the effects on operations, morale and culture; wage-hour or discrimination exposure; safety processes; government contractor considerations; and protecting your reputation and “brand.”

4.  Most management labor attorneys claim to offer “practical solutions,” but many do not do so. When you interview counsel, ask them about their business experience and how they have assisted clients to reach practical business goals.  Can they communicate with a construction site superintendent as well as with a CFO?

5.  Pick lawyers who know when not to act like a lawyer. Showing up at an OSHA inspection in a power suit and formally “objecting” to questions is the wrong way to “manage” OSHA inspection and shows that one is a neophyte. Administrative Law Judges may laugh at attorneys who cannot be flexible with procedures and with hearings in general.

6.  Your attorney should know how to manage government investigations by “Finesse,” and with courtesy and professionalism. Being a jerk is not the same thing as maintaining control or practicing tough advocacy.

7.  Conversely, the attorney must know when to bring down the hammer, how to create respect in an adversary, and how to bring pressure from unexpected directions.

8.  Most labor and employment law systems are either Federal or are based on Federal models. A local lawyer familiar with “home town cooking” is less important than counsel who works regularly with OSHA, the NLRB, U.S. DOL and other State and Federal entities.

9.  Relationships matter.  My “rolodex” may be my most important asset. A client will not obtain preferential treatment from the government because of an attorney’s professional relationships, but it is far easier to handle cases with civil servants who have heard of you and trust your word.

10.  Always try to approach the government with “clean hands,” especially in environmental and safety matters. As an example, we try to position cases with OSHA where the employer has already demonstrated commitment to its workers by abatement actions. Then one can fight hard on the legal issues without harming the company’s reputation.

Posted in acqusition and mergers, combustible dust, concerted protected activity, construction, discipline and discharge, EEOC, employer benefit plans, employer policies, food processing, government contracting, government inspections, harassment, hospitality, litigation, managing legal matters, manufacturing, NLRB, OSHA, plant openings and closures, plastics, retail, social media, union organizing, unions, wage hour, workplace violence | Tagged , , , , , , , , , , , , , , | Leave a comment

Employers Should Take the EEOC More Seriously In 2013

Some executives and managers consider EEOC charges to be a cost of doing business.   Based on past experience, they do not treat Discrimination Charges with the same concern as other legal matters.  The EEOC’s current focus on Systemic Discrimination and the newly released  EEOC 2013 Strategic Plan suggest that employers ought to become much more concerned about the EEOC’s actions.

 

Today, as the tumultuous 2012 staggers to a weary close, I read the following list of articles on BNA’s excellent EEO Compliance Newsletter, which set out some potentially costly trends….

 

 

EEOC Approves Final Strategic Plan Setting Enforcement Priorities for Next Four Years

The Equal Employment Opportunity Commission has approved a strategic plan to establish the agency’s national enforcement priorities for fiscal years 2013 to 2016 and to better integrate enforcement responsibilities among the agency’s national and field offices.

Retail Chain to Pay $2 Million to Settle ADA Claims

Dillard’s Inc. has agreed to pay $2 million and institute sweeping internal policy changes to settle a long-standing class action filed by the Equal Employment Opportunity Commission over the national retail chain’s alleged practice of requiring employees to disclose confidential medical information before being approved for sick leave. …

EEOC’s Systemic Program Set to Fill Gap in Private Class Actions, Attorneys Predict

Management attorneys participating in a webinar predicted that the Equal Employment Opportunity Commission’s systemic program attorneys will pursue more cases and partnerships with the plaintiffs’ bar because of a 2011 decision by the U.S. Supreme Court.

Civil Rights Agency Reviews EEOC Guidance on Employers’ Use of Criminal Histories

An Equal Employment Opportunity Commission enforcement guidance under Title VII of the 1964 Civil Rights Act regarding potential discrimination resulting from employers’ use of arrest and conviction records in employment decisions drew both praise and derision at a U.S. Commission on Civil Rights briefing. …

 

Takeaways….

 

  • Employers may not be especially concerned about individual EEOC charges, but they should be downright scared by the disruption,  corporate wide exposure,  and enormous legal fees threatened by EEOC Systemic Investigations, which scrutinize corporate wide POLICIES, not just a claim or two of individual discrimination.  Defending agisnt such an investigation is a mess.  

 

  • The U.S. Supreme Court Dukes decision  made it harder for Plaintiff lawyers to shotgun employers with multi-thousand member class actions based on a handful of discrimination claims.  Many attorneys expect the EEOC to try to use the Agency’s ability to carry out far-ranging systematic investigations of leave, criminal background check, hiring practices and other procedures.

 

  • As an example, consider the just-announced Companywide EEOC Settlement based on an employer’s requirement for certain confidential medical information before providing sick leave.  Does this practice sound familiar?

 

 

  • The EEOC also challenged caps on sick leave, alleging that the Company’s policies violated the ADA’s requirement of an “interactive process.”

 

 

 Employers would be well advised to take at least the following actions:

 

  1. Review policies involving: recruiting, hiring, sick leave and other leave, background checks (especially Criminal Background Checks), return-to-duty,  and Job Descriptions/Essential Functions/Functional Evaluations/Physical Exams.

 

  1. Take EEOC Charges more seriously, even claims that are frivolous on their face, if they involve “policy” issues.

 

 Happy New Year.

 

Posted in aging workforce, cultural changes, EEOC, employer policies, food processing, generational differences, government contracting, government inspections, harassment, hospitality, manufacturing, plastics, recruiting, retail | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

OSHA’s Latest Regulatory Agenda Suggests Few New Regulations In 2013

OSHA tardily published its Fall Regulatory Agenda on December 21.  The Administration did not even publish the Spring Agenda, and commentators for management and labor have described the dates as bearing little relationship with temporal reality as we know it.

While the proposed Combustible Dust and Beryllium Standards made the list for further action, they are still placed in the system a long way from completion. 

The Administration has caused concern among employers with its proposed I2P2 Standard requiring every employer to prepare an Injury and Illness Prevention Program.  This is a sound idea but there is concern that such a standard would allow wide-ranging citations against employers who would in essence be responsible to develop their own OSHA standards. 

The program has long been earmarked as the Obama administration’s top priority for new workplace safety regulations.

Under the latest agenda, a small business review panel on I2P2 was to be initiated Jan. 6, 2012, with the panel set to complete its work in January 2013. A notice of proposed rulemaking is set for December 2013. But OSHA has not even started the small business review.

What do we learn from the newly released Agenda?  Well, for starters, we can conclude that the Agenda itself is not a realistic guide to when new standards appear and has little relevance.  Perhaps it will be easier for a newly emboldened administration to force through new standards in 2013; however, no administration in the last 20 years has been able to consistently overcome the challenges to producing new OSHA standards.  An obvious question is whether OSHA will increasingly follow the NLRB’s example and make new law through Directives, Interpretations and other executive actions.  seems likely….

Posted in combustible dust, construction, food processing, government inspections, manufacturing, OSHA, plastics, retail | Tagged , , , , , , , , , , , | Leave a comment

NLRB Again Shows No Concern For Employee Privacy In New Ruling

Following its recent rejection of 50-year-old precedent, the NLRB today announced that it reversed 34-year old precedent and eliminated the categorical exemption of employee Witness Statements from being provided to a Union in disciplinary cases.  The decision, American Baptist Homes of the West d/b/a Piedmont Gardens, will make it even harder for unionized employers to obtain cooperative witnesses and to thoroughly investigate and document disciplinary decisions.

Posted in discipline and discharge, NLRB, Uncategorized, union organizing, unions | Tagged , , , , , , , , , , , , , , , | Leave a comment

New Service Contracts With the Federal Government Require Employers to Offer Jobs to Displaced Employees of the Previous Employer.

 

It was already difficult to understand and comply with Federal Government Contracting Laws, such as Davis-Bacon, Walsh-Healey and the Service Contract Act (SCA).  As of January 18, 2013, employers obtaining service contracts with the Federal Government will be required to offer employees of the predecessor contractor and its subcontractors a right of first refusal of employment for positions for which they are qualified.

 The final FAR Regulation also states that the offer of employment qualifies even if it is not for a position similar to the one previously held. The position only needs to be one for which the employee is qualified, and it can have different employment terms and conditions, including pay and benefits.

 

Predecessor contractors do not appear to have to include contact information for their employees who worked on the contract. Successors still will be required to reach out to the employees. Successors must also presume that all employees working on the contract in its last month of performance did suitable work.

Posted in construction, government contracting, government inspections, hospitality, Uncategorized, unions, wage hour | Tagged , , , , , , , , | Leave a comment

NLRB Continues to Rewrite the Law Through Decisions – Overrules 50-Year Precedent

Most of my readers may manage Non-Union facilities and not have a great deal of interest in the details of today’s NLRB decision allowing “Checkoff” to survive the expiration of a collective bargaining agreement.  Yould should be interested.  Employer should note that the NLRB overruled another major precedent; this one over 50 years old.  We have never seen so many major changes by the NLRB, or so aggresive an enforcement approach.

 

NLRB Rules that Union Dues Checkoff Survives Contract Expiration, Overruling 50-Year Policy

In a decision released today in WKYC-TV Inc., 359 N.L.R.B. No. 30, the NLRB ruled that an employer’s obligation to check off union dues continues after expiration of the collective bargaining agreement that establishes Checkoff.  The NLRB did say that the new policy will be applied prospectively and not in pending cases.  The NLRB simply rejected the longstanding Bethlehem Steel decision.  End of story….

Posted in hospitality, manufacturing, NLRB, plastics, union organizing, unions | Tagged , , , , , , , , , , | Leave a comment

The Hidden Safety Hazard – Domestic Violence

 

The Hidden Safety Hazard – Domestic Violence

Date: November 1, 2012

By Betsy Weintraub (Former Prosecutor)

 

As the holidays are approaching, you notice that Susan, one of your longtime employees with a near perfect attendance record, has missed several consecutive days of work due to an unspecified illness. When she returns to work, Susan looks like she has spent the past several days in the tanning bed. It seems unusual because Susan is so health conscious, but you shrug it off. Susan calls in sick again the next day.

When she returns to work this time, her face is plastered with heavy makeup. Even though it is warm in the office, Susan leaves her winter scarf snug around her neck for the next several days. Susan’s department manager reports to you that Susan’s work performance is sliding – she is not nearly as productive and efficient as she used to be. The manager also expresses concern over Susan’s behavior. She seems withdrawn and edgy, sometimes overly emotional when the manager asks her about her work performance. You assure the manager that you will talk to Susan after the holidays.

A few weeks later, you invite Susan to your office for an informal meeting. She sits down in the chair across from you. That is when you notice the bruises. Her arms are covered with them, in various colors and sizes. Her fake tan is starting to fade. You try not to stare as you chat with Susan about her work. She assures you that she will do better; she has just had trouble concentrating lately.

As Susan returns to her desk, you flip through the employee handbook, even though you know that there is not a policy to guide you through this situation. You call your supervisor and tell him that you think one of the employees is a victim of domestic violence. “Are you sure?” he asks. You admit that you do not have any proof, but you have a strong feeling that something is going on at home. After a moment of silence, your supervisor tells you the best thing to do is just let it go. “It’s a personal matter,” he says, “we would not want to embarrass her or invade her privacy. Just let her be.”

You try to ignore it. When Susan shows up at work one day with her arm in a cast, you accept her story that she fell in her driveway. When two of Susan’s co-workers tell you that Susan came to work with a swollen lip and discolored cheek, you tell them to respect her privacy. When the receptionist mentions that Susan’s husband has been calling ten to fifteen times a day, you send Susan an email reminding her of the company policy on personal calls at work. Susan’s husband stops calling, but starts showing up at the office.

The first time, Susan seems a little nervous, but she smiles when her husband produces a bouquet of flowers from behind his back. When he shows up the next time, however, he doesn’t have flowers. He takes Susan outside to the parking lot. When she returns to her desk fifteen minutes later, Susan seems upset, but you don’t say anything. You would not want to embarrass her.

His visits become more and more frequent, and he always takes Susan outside the office to talk to her. Sometimes, when you leave work, you notice him sitting in his car, waiting in the parking lot. This goes on for weeks until, suddenly, one day, it stops. Susan’s husband seems to have disappeared. He doesn’t call or come by the office, and Susan seems to be returning to her old self. Her work and attendance improves and she stops wearing so much makeup. You feel a sense of relief, thinking that she must have finally left him. Your supervisor was right: the problem took care of itself.

A month or so later, your heart stops when you pull into the company parking lot. There are police cars everywhere. An ambulance. You run up to the EMTs

just as they are loading Susan inside. There is so much blood on her face and hair that you hardly recognize her. She is unconscious. You turn around and see her husband as the police load him into the back of a car. Another officer carefully picks up a hammer off the ground and places it in a plastic evidence bag. His latex gloves are covered in blood.

Please read the entire Article at the Fisher & Phillips LLP Website.

Posted in cultural changes, discipline and discharge, employer policies, harassment, OSHA, plastics, retail, social media, workplace violence | Tagged , , , , , , | 1 Comment

Top Ten Ways To Hold A Company Party – Without Getting Sued

Top Ten Ways To Hold A Company Party – Without Getting Sued

Date: December 3, 2012

By Michael Mitchell

(Labor Letter, December 2012)

With the Holiday Season in full swing, many employers ask us about the wisdom of holding company parties where alcohol will be served.  They generally want to know about the risk involved if an employee drinks too much at the party and misbehaves, or worse, injures or kills someone on the way home.  It’s become something of a tradition for us to run this article annually in December.  So with the usual tip of the hat to David Letterman, here is our “holiday party top ten” list.

Please find the entire article at the Fisher & Phillips LLP Website.

Posted in construction, discipline and discharge, EEOC, employer policies, food processing, generational differences, government inspections, harassment, hospitality, manufacturing, plastics, recruiting, retail, social media, Uncategorized, workplace violence | Tagged , , , , , , , , | Leave a comment

What Should I Think About TV Coverage This Week and the New Congressional Report On the NLRB

A number of people asked me about Fox News and other discussions this week about an “out of control” NLRB. I have linked to a Fox story yesterday on a new Congressional Report that calls the NLRB a “rogue” agency. ( http://www.foxnews.com/politics/2012/12/13/congressional-report-accuses-nlrb-advocating-for-big-labor/ ) I have also linked to the Staff Report. (http://oversight.house.gov/wp-content/uploads/2012/12/NLRB-Report-FINAL-12.13.12.pdf ).

I have not going to comment about whether the NLRB is a “rogue agency,” but this Report and the Fox coverage did not cover much new ground for labor law professionals. The NLRB is structurally designed to support unions and unfair labor practice charge resolutions tend to favor union complainants… in a big way. Consider the NLRB Boeing case. Need I say more?

The current NLRB is extremely union friendly and has changed a great deal of precedent in a brief three and one-half years and probably plans to change more.

 Regulation of Social Media, including a wide range of Confidentiality policies, finding rules like these to be unlawful:

• Employees should not release confidential guest, team member or company information
• Employees should not “reveal non-public company information on public sites”
• Employees should not post photos, music, videos and personal information of others without obtaining the owner’s permission and must ensure that the content can be legally shared
• Employees should not use the employer’s logos and trademarks for non-commercial purposes
• Employees should not make “offensive, demeaning, abusive or inappropriate remarks online”
• Employees should not make “disparaging or defamatory” comments

 Officials of the NLRB declared key phrases in traditional Employment-at-Will policies to be unlawful in two cases with one ALJ holding that the employee’s at-will status “could not be amended, modified or altered in any way” was unlawful because “[c]learly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights [to engage in PCA].”

 The NLRB held a hotel chain’s “No Off-Duty Access” rule to be unlawful. Under the NLRB analysis, a No Access rule is now valid only if three enumerated conditions are met.

 In two cases, the NLRB addressed the lawfulness of employer rules requiring Courtesy and Decorum on the part of employees, and came to opposite conclusions. Employers may still issue basic employee conduct standards provided those standards are narrowly and carefully written. Policies must now be specific.

 The NLRB confirmed the Specialty Healthcare decision allowing “micro-units” in union representation elections.

 The NLRB watered down the presumption favoring on-site representation elections.

 Allowed Back pay eligibility for undocumented workers

 Found working leads to be non supervisors in an election setting.

A number of important NLRB precedents are considered in jeopardy, including:
• Right to deny union access to systems/property
• Prohibiting personal e-mails on electronic system
• Disqualifying disinterested “salt” applicants
• Confining Weingarten rights to union employees
• On-site manual balloting
• Excluding temporary employees from unit

So what do we suggest? Well, for a start….

1. Recognize that you will be much more likely to experience Objections and unfair labor practice charges in any election campaign. You simply do not enjoy as much freedom of communication as in the past. Retrain supervisors and get serious about improving communications and creating an environment where employees do not feel that they need a third-party advocate between them and management.

2. Review and Revise Confidentiality, Investigation, Electronic Communications, Professionalism, Conduct, No Solicitation/No Distribution and Property Access & Security policies and procedures.

3. Train supervisors about the burgeoning number of employee actions found to be “Protected Concerted Activity.” NLRB new Concerted Protected Activity Site: http://www.nlrb.gov/concerted-activity

Posted in concerted protected activity, construction, discipline and discharge, employer policies, food processing, government inspections, hospitality, manufacturing, NLRB, recruiting, retail, social media, union organizing, unions | Tagged , , , , , , | Leave a comment

Can I Get In Trouble “Rounding” Employee’s Time?

Is It OK To “Round” An Employee’s Worktime?
November 30, 2012 01:00

by John E. Thompson

For many years, some employers have chosen to “round” non-exempt employees’ time entries in computing their wages. News items in recent days have reported on a California appellate court’s ruling in See’s Candy Shops, Inc. v. Superior Court and Silva that a properly administered “rounding” practice does not violate California wage-hour law.

It is first necessary to attach a common understanding to the term “rounding”, because the word is used to describe a multitude of different practices. This can be done with reference to the U.S. Labor Department’s enforcement policy that played a central role in See’s Candy. USDOL says that, under the FLSA, it will not challenge an employer’s practice of rounding a worker’s starting and stopping times to the nearest 5 minutes or to the nearest tenth or quarter of an hour in calculating his or her pay, assuming that the practice “averages out over a period of time” such that employees are properly paid for all of their worktime. See, e.g., 29 C.F.R. § 785.48(b).

Read the remainder of the Article at my partner and wage-hour wizrd, John Thompson’s Blog (along with Lawrence McGoldrick and other F & P attorneys)

Posted in employer policies, hospitality, manufacturing, wage hour | Tagged , , , , | Leave a comment