Massachusetts Employment Law Letter

Insider information that you can (and should) use

In December, Skoler, Abbott & Presser hosted the Employers Counsel Network Regional Conference.  The conference featured presentations by Equal Employment Opportunity Commission (“EEOC”) Mediator Elizabeth Marcus, National Labor Relations Board Regional (“NLRB”) Director Jonathan Kreisberg, and Attorney David Fortnoy.  These individuals shared with us some inside information on current trends at the EEOC, NLRB, and U.S. Department of Labor (“DOL”).  The highlights are as follows:

EEOC

Recent nominations to the EEOC include Jenny Yang, who represented a class of two million individuals in the Dukes v. Wal-Mart pay discrimination case.  Yang was nominated to the EEOC for the specific purpose of increasing focus on pay discrimination based on gender, and employers can expect increased activity on that front.  In addition, Chai Feldblum, confirmed for a second term in December, is in line to become chair of the EEOC when current chair Jacqueline Berrien’s term ends in July of this year.  Feldblum is expected to take a much more proactive approach than her predecessor and further increase enforcement activity.

The EEOC also has been increasing focus on background checks and their disparate impact on minorities.  The agency has come out hard against the use of background checks in almost any context, which has created confusion among employers who, in some cases, are required by state law to conduct background checks on prospective employees.  The EEOC has not addressed the question of what happens when state law conflicts with the EEOC’s position on background checks, and there is no indication that the EEOC will excuse an employer’s failure to follow its guidance even if the employer was acting in accordance with state law requirements.

DOL

The Wage and Hour Division has been without an administrator for approximately six years, and President Obama’s most recent nominee, David Weil, faces an uphill confirmation battle.  Still, the DOL is committed to tougher enforcement of labor laws, and has stated an intent to end the “culture of noncompliance” with labor laws that it alleges existed under George W. Bush.

The DOL’s increased enforcement efforts have become apparent in the federal contractor realm, where the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) has become aggressive in classifying healthcare organizations as federal contractors due to their relationships with the federal government, even where contracts with the government specifically state that the organization is not a government contractor.  Healthcare organizations that do business with the federal government should evaluate whether they are subject to the OFCCP’s affirmative action requirements.

NLRB

It used to be that, for the most part, only unionized employers worried about the NLRB.  Not so anymore – over the past year or so, the NLRB has been very active in areas that apply to unionized and non-unionized employers alike.  Of particular note are the NLRB’s recent attacks on social media policies and at-will disclaimers, as well as cracking down on employers who discipline employees for activity on Facebook and other social media sites.  The National Labor Relations Act (“NLRA”) gives all employees the right to engage in protected concerted activity, and the NLRB has made clear that this includes the right to discuss (or complain about) wages and other terms and conditions of employment on the Internet.

The NLRB also has attacked certain handbook rules of non-unionized employers, including rules that prohibited employees from (1) walking off the job or leaving the work area without permission or approval; and (2) willfully restricting production, impairing or damaging product equipment, interfering with others in the performance of their jobs, or engaging or participating in any interruption or work.  The NLRB found these rules to be unlawful because employees could interpret those rules to prohibit striking, which is considered protected activity under the NLRA.

One of the most disconcerting things about the NLRB’s recent activity is that it reflects a significant change from its previous interpretation and application of the NLRA, meaning that, in some cases, policies that were fine just a couple years ago are now unlawful.  With all indications that the NLRB and other federal agencies will continue these types of aggressive enforcement efforts, employers need to be vigilant.  It’s always a good idea to conduct regular reviews and updates of employee handbooks and other policies and periodic employment practices audits to ensure compliance with current laws.

Article By: Kimberly A. Klimczuk
Reprinted from the February 2014 issue of the  Massachusetts Employment Law Letter.