Recently, the Employers Counsel Network (ECN) met in Alexandria, Virginia, where several notable speakers stopped by to provide their insights on current developments in the employment arena at the national level and to share their predictions for President Barack Obama’s second term. This is the second post in a three-part series detailing the information provided in those sessions. The first post looked at the personnel turnover at federal agencies, the extensive reach of the Occupational Safety and Health Administration’s Directorate of Whistleblower Protection Programs (DWPP), and enhanced enforcement efforts from the Office of Federal Contract Compliance Programs. This post will focus on how the National Labor Relations Board (NLRB) keeps pushing forward with its agenda despite questions about the legitimacy of the current Board as well as recent operational changes at the Equal Employment Opportunity Commission (EEOC).
Undaunted, NLRB moves forward
Earlier this year, in the Noel Canning case, the U.S. Court of Appeals for the D.C. Circuit invalidated President Obama’s January 2012 recess appointments to the NLRB. The decision threw into question not only the validity of the NLRB’s recent decisions but also decisions issued under previous administrations in which the Board included recess appointment members as well as actions by its regional directors. The issue is pending before other federal circuit courts of appeals, some of which have already heard oral arguments on the issue. On April 25, the DOJ filed a petition asking the U.S. Supreme Court to review the D.C. Circuit’s decision. The appeal isn’t expected to be heard this term.
Despite the uncertainty, acting General Counsel Lafe Solomon has affirmed the Board’s intent to move forward aggressively with its agenda. All cases involving NLRB members with recess appointments have been put on hold by the D.C. Circuit, but the Board continues to work to resolve employment disputes. To deal with sequestration, the NLRB has curtailed its discretionary spending on training, awards, and travel. Obama has put up five nominations for the NLRB, which the U.S. Senate is expected to consider soon.
Who owns employee e-mails? At the ECN meeting, Solomon touched on the NLRB’s Register Guard decision, in which it upheld the validity of an employer’s policy prohibiting the use of e-mail for “non-job-related solicitations.” The Board acknowledged that an employer could make distinctions in its rules that might adversely affect employees’ National Labor Relations Act (NLRA) Section 7 rights—such as allowing charitable, but not noncharitable, e-mail solicitations—as long as such policies (or enforcement of them) don’t discriminate along Section 7 or union-related lines. Solomon noted that these cases involve balancing employers’ property rights in their e-mail systems and the employees’ rights to talk with each other.
Revoking deferrals. Currently, some cases that have been deferred pending arbitration have been awaiting resolution for up to seven years. Solomon favors issuing a “Notice to Show Cause” why a deferral shouldn’t be revoked if a case hasn’t been arbitrated within a year. He intends to move forward in revoking deferrals in a number of cases.
At-will disclaimers and confidentiality of investigations. As you are likely aware, the NLRB has been very active recently in providing guidance on certain issues that apply to both nonunion and unionized workplaces such as social media policies. Solomon recently issued a memo on the legality of at-will disclaimers in which the following language was found to be lawful: “Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.” The NLRB reasoned that language is lawful because it provides that the at-will relationship can be modified in the future.
In another memo addressing the confidentiality of investigations, the Board approved of the inclusion of the following language in a code of conduct: “[The employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [the employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.” Solomon explained that employers shouldn’t have a blanket confidentiality provision, but specific and reasonable justifications for why an investigation should be kept confidential may pass muster. For example, a parallel criminal investigation would justify the need for confidentiality.
10(j) injunctions. Section 10(j) of the NLRA authorizes the NLRB to seek temporary injunctions against employers and unions in federal district courts to stop unfair labor practices while a case is being litigated before administrative law judges and the Board. Solomon stated that injunctions are most often sought in two particular types of cases: (1) “nip in the bud” cases in which employers fire employees engaged in union organizing and (2) “first contract” cases involving employers in the first year of a union contract.
Operational changes at the EEOC
The EEOC has been more operationally focused in the past year and has been working on its Strategic Enforcement Plan (SEP). At the ECN meeting, Victoria Lipnic, a Republican EEOC commissioner, discussed her concern that the agency has delegated too much of its authority to its general counsel in the past. To increase accountability, the general counsel now meets with the commission quarterly to discuss cases involving controversial issues, novel issues of law, amicus (friend of the court) briefs, and significant resources to litigate.
Alcohol- and drug-testing policies. In EEOC v. U.S. Steel Corp., a federal district court in Pittsburgh, Pennsylvania, rejected the EEOC’s challenge to an employer’s random alcohol-testing policy. The court upheld the validity of the policy for newer employees in safety-sensitive jobs under the Americans with Disabilities Act (ADA). The EEOC had alleged that the random alcohol-testing policy violated the ADA’s prohibition against medical exams that aren’t “job-related and consistent with business necessity.” The court disagreed, citing the workplace conditions. Lipnic expressed her hope that with better accountability, the EEOC can avoid such cases being filed without first being vetted by the commissioners.
Looking ahead. The EEOC is looking into improving the quality of its investigations and reducing its backlog. Lipnic noted that she has heard a lot of criticism about the conciliation program and it’s a matter of concern for the agency. The EEOC is also concerned about a developing split in the federal circuits over whether it must identify every member of a class before filing a class action suit.
The EEOC is currently focused on cases involving systemic issues. It’s preparing to hold hearings on the Genetic Information Nondiscrimination Act of 2008 (GINA), the ADA, and wellness plans. Lipnic also would like more attention to be paid to the difficulties of getting hired faced by applicants over the age of 50.
The next post in this three-part series will include a federal legislative roundup looking at issues from raising the federal minimum wage to immigration reform.
Sophie E. Zdatny is an attorney with Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont. She has a general litigation practice in both state and federal court, with a concentration in insurance coverage and employment law. She may be contacted at szdatny@dinse.com.