4. NLRB

A. Employee Use of Company E-mail: In December, the NLRB, in a 3 to 2 decision, overturned the Board’s seven year old precedent which previously held that in light of the fact that a corporate e-mail system belongs to the employer, the employer could ban all non-business e-mail communications, including those communications protected by Section 7. Section 7 of the National Labor Relations Act provides that employees have the right to engage in protected concerted activity, which includes discussing the terms and conditions of employment. Employers must know that Section 7 applies to all employers, not just unionized workplaces.  In the Purple Communications decision, issued by the Board in December 2014, the Board found that the NLRA, except in a very limited number of circumstances, allows the use of corporate e-mail accounts by employees for the purposes of union organizing and discussing terms and conditions of employment during non-work time.  In light of this decision, employers should review their e-mail policy to ensure that it is in compliance with this new decision.

B. Quickie Elections for Unions: In another 3 to 2 vote, the Board has implemented its “quickie election” rules, slated to take effect on April 14, 2015. In an attempt to summarize the 733 page rule, some of the highlights (or lowlights) include the following:

  1. Employers will be required to provide available personal e-mail addresses and telephone numbers for all eligible voters.
  2. Pre-election hearings will be limited only to determine whether an election should take place. In the past, common disputes over voter eligibility and inclusion in the voting unit were heard prior to elections. Now, they will usually be deferred until after the election when they will only be considered if they would have had an impact on the election results.  This change will reduce the time for elections from the approximate 6 week time frame to less than 3 weeks.
  3. Post-Hearing Briefs: Although all parties will be allowed to present their arguments at the hearing, the NLRB will have the ultimate discretion to decide whether post-hearing briefs will even be allowed.

Practice Pointer:  The NLRB, as with other governmental agencies, is divided along political lines.  With a Democratic President, and his appointees holding the majority of the Board seats, I expect more aggressive enforcement of the laws over which the NLRB has jurisdiction.  I also anticipate a big push for unionization in Alabama, especially in the automotive industry.

5. ADA

On October 15, 2014, the Wall Street Journal published an article confirming something I already knew:  The number of ADA public access lawsuits increased by almost 55% in the first half of 2014 compared to the same period in 2013.  Although these cases have been filed for years, in 2013, the Eleventh Circuit, in Houston v. Marod Supermarkets, Inc., found that “testers” who are not patrons may bring claims under the ADA.  I continue to see these lawsuits being filed on a weekly basis.

Practice Pointer:  Often times, as I personally visit various stores, restaurants, gas stations, etc., I am surprised at how many businesses are not in compliance with the ADA.  Employers should evaluate their physical locations to determine if they are in compliance with the ADA before they are sued.

6. EEOC

A. Harassment and Accommodation: The EEOC continues to broadly interpret various laws, and create liberal regulations. In 2014, the EEOC concluded that pregnancy and related conditions must be reasonably accommodated. This position is being litigated in various courts.  The EEOC also believes that “gender identity” is a protected category under the law, and discrimination based on sexual orientation or gender identity violates Title VII.  Again, these positions are being litigated in court.

B. New EEOC Commissioner: Jenny Yang was recently appointed commissioner of the EEOC and presided over her first meeting on January 14, 2015. One of the areas addressed during this meeting was the EEOC’s perceived continued problem with harassment at work. Approximately 30% of all charges filed with the EEOC contain allegations of harassment.  Yang announced a task force was formed to “convene experts from the employer’s community, workers advocates, human resources experts, academics, and others in a broad effort to identify effective strategies that would work to prevent and remedy harassment in the workplace.”  Employers can expect increased scrutiny from the EEOC in 2015.

C. $296 Million Secured by EEOC: July 2, 2015 marks the 50th Anniversary of the EEOC. Expect a big celebration. It should be noted that in fiscal year 2014, the EEOC secured more than $296,000,000.00 in benefits for individuals claiming violations of the law.  I believe this amount will increase in fiscal year 2015.

Practice Pointers:  The EEOC will continue its aggressive targeting of what it perceives as workplace harassment and discrimination.  Any time an employer is made aware of the EEOC’s involvement, through a charge or otherwise, it must be taken very seriously.  I also expect, light of same sex marriage becoming legal in Alabama, the EEOC to aggressively protect the rights of the LGBT community, including those who are married.