When Seemingly Indefinite Leave and Non-Cooperation Makes a Leave of Absence Unreasonable

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A recent decision from the Court of Appeals for the District of Columbia provides a result that employers may often think they do not see enough in labor and employment law: a common sense solution to a situation that confronts them often – what to do under federal (and potentially state) statutes requiring reasonable accommodation for an employee on what becomes a virtually indefinite leave of absence. The decision shows that there are indeed limits to what may be required of an employer under these laws in terms of having to provide a limitless leave of absence. Continue reading this entry

Five Suggestions to Create a Transgender-Inclusive Workplace

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To get ahead of the curve, employers should start adopting more inclusive policies aimed at accommodating transgender employees. To date, 19 states and the District of Columbia have adopted laws prohibiting discrimination in employment and public accommodations based on both gender identity and sexual orientation (another three states only prohibit discrimination based on sexual orientation). As we have previously reported, federal contractors are prohibited from discriminating against employers based on gender identity or sexual orientation. The EEOC has also sued private employers for Title VII discrimination based on sex when an employer fired a transgender employee. Even Congress has recently considered Title VII-like protections for employees based on their gender identity or expression. The trend toward protecting workers and others based on their gender identity is gaining momentum, and employers should be paying close attention. Continue reading this entry

Tell Me How Much My Coworkers Make… Or I’ll Sue You

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The Office of Federal Contract Compliance Programs (OFCCP) – an agency of the Department of Labor – has enacted a rule requiring federal contractors and subcontractors to disclose information regarding pay practices and compensation to any inquiring employee or applicant. The rule does not require employers to directly inform individuals about pay practices or data, but it does permit the inquiring individual to question or consult with other employees, and the employer may not discriminate or take any adverse action against the him or her for doing so. Continue reading this entry

Purple Haze Remains Over Employees' Personal Rights on Employer Email Networks

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More than a year after the National Labor Relations Board’s (NLRB) momentous Purple Communications, Inc. decision, determining that employers must allow off-duty employees to use the company email system to engage in activities like union organizing, we reflect on the continued haze and lack of clarity in this critical area.  The sharply divided 3-2 decision, in which the majority concluded that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” represents a major shift from a long-standing principle that an employer’s property rights must, on occasion, take precedence over employees’ Section 7 rights to communicate on matters relating to terms and conditions of employment, such as union organizing. Continue reading this entry

Employers Should Take Care When Prohibiting Workplace Recordings

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A number of years ago, one of the nation’s largest grocery stores banned its employees from recording workplace conversations, images, or meetings without prior management approval or consent by all parties to a conversation. Sounds reasonable, right? Not to the NLRB, which recently ruled that the employer’s recording restrictions violate the National Labor Relations Act. The ruling serves as guidance (and a warning) to employers that would like to prohibit recording in the workplace, and indicates that before instituting a recording restriction, an employer should first carefully consider whether such a restriction is really necessary in its workplace. If the employer concludes that it is, the employer should:

  • Expressly identify the compelling concerns that make the restriction necessary. For example, in a health care setting, explain that the restriction is necessary to protect patient privacy. Keep in mind that protecting sensitive employee or confidential business information may not be adequate.
  • Draft the restriction as narrowly as possible to address those compelling concerns.
  • Explain what is not covered by the restriction, including explaining that the restriction does not bar employees from engaging in protected concerted conduct.
  • Consider state law. Some states have laws that prohibit recording conversations unless all participants in the conversation consent to being recorded. You may be safer in restricting recording, if you specifically tie the restriction to an applicable state law.

Continue reading this entry