In follow up to my June 19, 2017 post regarding the trials and tribulations of the workplace culture (among other issues) at Uber, it now appears that the previously announced leave of absence of CEO Travis Kalanick is permanent.  Kalanick, amid significant pressures from investors, has tendered his resignation.   The embattled executive, still a major shareholder, will remain on the board of directors.

Continue Reading Uber Update: Kalanick Resigns as CEO

As an attorney who counsels employers through difficult personnel issues, I am often asked, sometimes even in general conversation, what issues are the “hottest” and most frequent I see in my practice. For the past several years, the task of integrating and returning disabled employees to the workplace is at the top of the list; and of those, the most common and most challenging are the ones involving mental health issues. In addition to identifying when performance problems may be attributable to mental health diagnoses, employers also need to understand how to balance the employee’s rights under the Americans with Disabilities Act with safety and productivity concerns. An upcoming seminar at which one of my colleagues will be presenting features a panel of experts ready to help.

McLane Middleton attorney, Nick Casolaro, will be part of this panel discussion at the Business and Industry Association’s “Employer’s Guide to Mental Health in the Workplace” seminar on May 31, 2017 from 11:30 a.m. to 1:30 p.m. at the Radisson Hotel in Manchester, N.H.

During the presentation, the panelists will answer questions, such as: What can business owners do to encourage recognition and to provide opportunities for treatment? What are the appropriate accommodations? What mistakes must they avoid in handling employees dealing with short-term or chronic illnesses?

For additional information about this event, please click here.

Photo: Public Domain
Photo: Public Domain

Typically with an incoming administration there is a waiting period of sorts before changes in pending and certainly existing regulations kick in.  The current administration, however, appears to be working at an accelerated pace toward upending the status quo.  So, it appears time for a quick check-in on where we are and what to expect.

On Inauguration day, White House Chief of Staff Reince Priebus Jan. 20 instructed federal agencies to freeze all pending regulations, a move that seems to include a number of labor and employment initiatives that were in the works under the Obama administration.

This type of freeze is not unusual when a new president takes office.  An action of this nature does not necessarily mean that significant changes are coming, but given candidate Trump’s campaign promise to roll back regulation on business, we can at least predict that the administration will be in no rush to move on the pending matters. Continue Reading Two Weeks Into the Trump Administration: Where are we with Labor and Employment Regulations?

Photo: William Brawley via Flickr (CC by 2.0)
Photo: William Brawley via Flickr (CC by 2.0)

Last week, a three-judge panel of the U.S. Court of Appeals for the First Circuit upheld the dismissal of a suit filed by construction-industry employers and their trade associations seeking to block enforcement of the Massachusetts Earned Sick Time Law in settings where collective bargaining agreements are in place.

The employers claimed that Section 301 of the Federal Labor-Management Relations Act, 29 U.S.C. § 185(a), preempts any claim that might be brought by an employee or the Massachusetts Attorney General under the Massachusetts Earned Sick Time Law.  The employers argued that, since the Labor-Management Relations Act preempts state-law suits alleging violations of CBAs, it would bar claims brought under the Massachusetts Earned Sick Time Law in union settings because the determination of any such suit would require analysis and interpretation of the applicable CBA.

The trial court dismissed the employers’ suit, finding that it was not ripe because no earned sick time claim had yet been filed by any union employee or by the Massachusetts Attorney General on behalf of unionized workers.  Therefore, the trial court found that the employers’ claims were “at best hypothetical.”  On appeal, the First Circuit upheld the dismissal, agreeing that the employers’ request was not yet ripe because it was “too contingent,” and based on “as-yet-unknown features of as-yet-unspecified claims.”

While the First Circuit’s decision leaves open the question of whether the Labor-Management Relations Act preempts the Massachusetts Earned Sick Time Law, the opinion does provide some insight into how the issue might be resolved when it arises again.  The First Circuit noted that the Labor-Management Relations Act does not necessarily preempt state laws that establish rights and obligations independent of a labor contract.  Moreover, the fact that a court might need to refer to a CBA to determine an employee’s damages in a state-law claim (such as to calculate the employee’s hourly rate of pay), does not mean that the claim arises under the CBA and should therefore be preempted.

Employers with unionized workforces will want to keep a close eye on this issue as it continues to develop.

The case is Labor Relations Division of Construction Industries of Massachusetts, Inc., et al. v. Healey, No. 15-1906 (Dec. 16, 2016).

Photo: Barry Richmond via Flickr (CC by SA 2.0)
Photo: Barry Richmond via Flickr (CC by SA 2.0)

Yesterday, with the approval of Question 4 by a 53.6% to 46.4% vote, Massachusetts joined a growing number of states that have legalized marijuana for recreational purposes. What does this change in the law mean for Massachusetts employers?

The new law, which goes into effect on December 15, 2016, allows Massachusetts residents over the age of 21 to possess up to one ounce of marijuana outside their home and up to ten ounces at home, and to grow a limited number of marijuana plants at home. The law also allows Massachusetts adults to give (but not sell) up to one ounce of marijuana to another adult. The law provides for the establishment of a Cannabis Control Commission to be responsible for regulating and licensing the commercial sale of marijuana, something that won’t begin until at least January 2018. It will still be illegal in Massachusetts to consume marijuana in public, to smoke it anywhere that smoking tobacco is prohibited, or to operate a motor vehicle under the influence of marijuana. The possession and sale of marijuana remains illegal under federal law.

For Massachusetts employers, however, this new statute doesn’t represent a significant change in the law. The text of the statute provides that employers are not required to permit or accommodate any of the conduct allowed by the statute in the workplace, and the law specifically provides that it does not affect employers’ authority to enact and enforce workplace policies restricting the consumption of marijuana by employees.

The use of marijuana for medical purposes is already legal in Massachusetts following a 2012 voter initiative. Many employers took that change in the law as an opportunity to establish or update policies and procedures relating to drugs in the workplace. For employers that don’t already have comprehensive drug and alcohol polices in place, now is a good time to address those issues with employment counsel to ensure that they comply with the law and achieve the employers’ objectives for a drug-free workplace.

Former Fox News Anchor and commentator Gretchen Carlson filed a sexual harassment suit against CEO Roger Ailes alleging that her contract was not renewed because she refused Ailes’ sexual advances.  Carlson also alleged that the harassment she endured was severe and “very pervasive”, that Ailes repeatedly “injected sexual and/or sexist comments” into conversations and made “sexual advances.” Finally, when she told him  last fall to stop, a preventative measure women are often urged to take, Ailes is alleged to have responded, “ I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better.”

Carlson’s lawsuit contains the following additional allegations:

  • She tried to complain unsuccessfully about how male colleagues, including Fox & Friends co-host Steve Doocy treated her.
  • Doocy “engaged in a practice of severe and pervasive sexual harassment of Carlson, including, but not limited to, mocking her between commercial breaks, shunning her off air, refusing to engage with her on air, belittling her contributions to the show, and generally attempting to put her in her place by refusing to accept and treat her as an intelligent and insightful journalist rather than a blond female prop.”
  • Following her complaint about Doocy, she was removed from the popular morning show Fox & Friends and relegated to a less desirable 2:00 p.m. time slot.
  • Ailes referred to her as a “man hater” and told her to “get along with the boys.”

This is not a story from the 1970’s; this is a story from this week. It also comes on the heels of a June 2016 report issued by an EEOC task force which concluded that workplace sexual harassment training initiatives are often ineffective in stopping misconduct.  “Much of the training done over the last 30 years has not worked as a prevention tool,” the EEOC commissioners wrote, adding that “ineffective training can be unhelpful or even counterproductive”. The clear message of the report is that the most common trainings are designed to minimize legal risk to companies rather than change behavior in supervisors or employees.  “Sexual harassment training protects organizations, not employees” according to Berkeley Law Professor Lauren Edelman.

Carlson is not a young innocent ingénue; she is a 50 year old professional woman, a graduate of Stanford University and someone who has reached a coveted spot in her chosen field by hosting a program on a national news network.  Even though she is constantly referred to in the media as a former Miss America, she has done quite a few things with her life since.

What do Carlson’s suit and the EEOC’s report tell us about today’s workplace for women?   Maybe that we haven’t come as far as we thought we had.  Assuming Carlson’s allegations to be true, and it should be noted that they are currently being vigorously disputed, it signals the need for careful reexamination of workplace culture, expectations and action. Those of us who devote a large percentage of our professional work lives to risk management and training, need to take the initiative to develop programs which will help to shift workplace culture and truly influence the way people treat each other.  Perhaps even more important, employers must not only invest in training, they must “walk the walk.”  Employees need to feel that they can trust management to act when they report that bad things happen to them, rather than to stand in fear of retaliation.  Supervisors who protect employees who breach policy need to held accountable for what they are doing (or not doing).

What does Gretchen Carlson say about her lawsuit?

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”  You’ve come a long way baby, but you still have a long way to go.

6584474_1On May 11, 2016, President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA).   The DTSA had passed with overwhelming bipartisan support in the Senate and House.  It became effective upon its enactment.

In an area that has long been the province of state law, the DTSA now allows a company to bring a federal claim with federal remedies and federal jurisdiction for the misappropriation of trade secrets.   Nothing in the act is intended to preempt any other provision of law.  It is intended to supplement state law.

This new federal civil remedy will allow for a more uniform federal law on protecting a business’s trade secrets.  Previously, companies had to rely upon various state laws for protection or the contractual remedies set forth in their employment, confidentiality/nondisclosure, or noncompetition agreements.  With this uniformity also comes the ability for companies to file actions in federal court.

Remedies.  The DTSA sets forth federal remedies for the misappropriation of trade secrets, which include the following.

  1. Ex parte seizures of the property at issue in “extraordinary circumstances” to “prevent the propagation or dissemination of the trade secret.”  In any order for seizure issued, the court must set forth specific findings of fact and conclusions of law to justify the seizure.  Any order for seizure must also describe the property with reasonable particularity and provide for the narrowest seizure of property necessary to achieve the purpose of the act.  The court must also set a hearing no later than seven (7) days after an order issues.
  2. Monetary damages for actual loss and unjust enrichment caused by the misappropriation of the trade secret, or a reasonable royalty in exceptional circumstances that render an injunction inequitable.
  3. For willful and malicious misappropriation, a party may recover exemplary damages of up to two-times the amount of monetary damages and its attorney’s fees.
  4. If a claim is made in bad faith or a motion to terminate an injunction is made or opposed in bad faith, the prevailing party is entitled to its reasonable attorney’s fees.
  5. In an action brought for wrongful or excessive seizure of property, a party’s recovery of damages for such wrongful or excessive seizure will not be limited by the required security or bond posted with the court.

A federal court is prohibited from entering an order except where there is evidence of threatened misappropriation and not merely on the information the person knows.  Thus, the inevitable disclosure doctrine recognized by some states does not apply under this federal law.  The DTSA also prohibits entry of injunctions that “conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.”

Whistleblower Protections.  The DTSA specifically provides a person immunity from civil and criminal liability under both federal and state trade secret law.  This immunity extends to whistleblowers who disclose trade secrets “in confidence” to a federal, state or local government official, directly or indirectly, or to an attorney solely for the purpose of reporting or investigating a suspected of violation of the law.  Immunity also extends to persons who file a lawsuit where the filings are made under seal and the trade secret is not disclosed except pursuant to a court order.

Notice Requirements.  In addition to these whistleblower protections, the DTSA requires employers to provide notice of the immunity to an employee in any contract or agreement that governs the use of confidential or trade secret information.  Alternatively, an employer may fulfill this notice requirement by cross-referencing in the contract or agreement a policy document it provided to the employee that details the employer’s reporting policy.  This may include a provision in an employment handbook or some other policy document.

Of note, the DTSA broadly defines “employee” to include “any individual performing work as a contractor or consultant for an employer.”   This expands those persons who are covered by these whistleblower protections.  The notice requirement is prospective as it applies to “contracts and agreements that are entered into or updated after the date of enactment.”

In an effort to obtain compliance with this notice provision, the DTSA provides that if an employer fails to give the required notice to an employee, the employer may not be awarded exemplary monetary damages or attorney’s fees in an action brought against that employee.  The DTSA, however, provides no guidance on the required disclosure or cross-referenced policy language.

Statute of Limitations.  A private civil action under the DTSA must be brought within “three years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered.”

What should businesses do in the wake of this new federal law?  Companies should review their agreements that provide for confidentiality or similar trade secret provisions and amend them accordingly moving forward.  These may include employment agreements, noncompetition agreements, and business agreements with independent contractors or consultants.  To fully enjoy the federal remedies allowed, an immunity notice should be included in all new and updated employee agreements as well as contractor and consultant agreements with independent contractors.  Employers should also review their handbooks and policies relating to protection of confidential or trade secret information so that they may also rely on a policy document for compliance.

Photo: US map - states.ca (public domain)
Photo: US map – states.ca (public domain)

Now that the first in the nation primary is over and the politicians have headed to other states, New Hampshire employers might think they don’t have to worry about politics creeping into the workplace.  This presidential election cycle, however, continues to be like no other; and even though Trump and Cruz and Clinton and Sanders have moved on, the rhetoric is only escalating at dinner tables and in bars. People are being arrested outside political rallies, and candidates are accusing one another of inciting violence.  Now may be a good time to review the do’s and don’ts of campaign conversation at work.

With what seems like a debate or a town hall meeting every other night and 24/7 news coverage it is likely that employees are engaged in a lot of “water cooler” conversation about the candidates either in person or through social media.  What can and should an employer do about regulating political discourse at work?

First, employees do not have so-called First Amendment rights to free speech in private workplaces.  The cry of “it’s a free country” and “you’re not the boss of me!” doesn’t quite ring true at work.  Employers may indeed restrict employee speech and activity during business hours and sometimes even when employees are off duty.

What follows is some general advice about what you can and can’t prohibit or require:

  • Employers may prohibit employees from using office equipment in support of political activity. That includes phones, computers and copiers.
  • It is also permissible to require employees to remove political buttons or take down posters. However, companies must be cautious that the material they are requesting be removed does not contain verbiage or logos related to unions as this speech is protected by the National Labor Relations Act. It is also wise to link such requests to a neutral policy or dress code which does not single out a particular type of speech or content.
  • It may also be appropriate to ask an employee who drives on company business to remove a political bumper sticker from a personal vehicle. Most businesses prefer to appear neutral regarding political matters so as not to alienate prospective customers so an employer may very well have a legitimate business interest in prohibiting political advertisements on vehicles being used for business.
  • Social media, as usual, presents unique challenges. If employers have a legitimate business interest in prohibiting political commentary by employees on social media, such a prohibition is usually acceptable. It would be easier for a business to justify telling an employee not to post political affiliations on LinkedIn, for example, which is often used for business.  It is more difficult to do so on purely personal social media such as a private Facebook page.  Again, any discussion about unions or conditions of work is protected, and must be allowed.
  • Companies may either allow or prohibit discussion of politics at work. Care must be taken, however, to make sure these conversations do not become conversations about protected classes or characteristics. In this election year it wouldn’t be hard to imagine campaign conversations including the mention of age, gender, religion or national origin.  Once that happens, a hostile work environment claim might follow.

A special word about non-profits:  501(c)(3) corporations must be very careful that political advocacy stays out of the workplace. The use of office equipment or advocacy by employees, for example, might compromise a non-profit’s tax exempt status.

As with most issues involving any potential controversy, an employer’s best defense is to have good policies: preferably policies which are neutral.  A dress code which prohibits logoed shirts or a non-solicitation policy which limits all forms of solicitation is much safer than one which targets political speech and solicitation only.  Likewise, the best way to enforce such policies is in a fair and evenhanded way.  In other words, don’t put Trump bumper stickers on all the company vans and tell those with the “Feel the Bern” bumper stickers to remove them from their personal vehicles.  Things might get even hotter than they are already.

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

Official White House Photo by Pete Souza
President Barack Obama (Official White House Photo by Pete Souza)

During a speech in Newark New Jersey, President Obama announced executive action aimed at “banning the box” in federal hiring.  This is the latest step in a national trend toward delaying inquiries into a job applicant’s criminal history until later in the hiring process.  The term “ban the box,” refers to the checkbox appearing on many employment applications asking job seekers to identify whether they have criminal history.  Advocates of “ban the box” measures believe that requiring prospective employees to report their criminal history at the initial application stage prevents many otherwise qualified people with criminal backgrounds from even getting the chance to land good jobs.

According to information provided by the White House, the President is ordering the Office of Personnel and Management (“OPM”) to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.”  It is unclear exactly what new policies and procedures will emerge from the President’s directive, and there is no specific timeline for when any changes in federal government hiring practices will take effect.

Thirteen states, including Massachusetts, already have “ban the box” laws.  The Massachusetts “ban the box” law, which went into effect in 2010, prohibits most employers from asking for criminal offender record information in an initial written job application.  Beyond that, Massachusetts law prohibits employers from asking—at any time—about: arrests not resulting conviction; first convictions for drunkenness, simple assault, speeding, minor traffic violations, and other minor offences; and most misdemeanor convictions that are more than five years old.

While the President praised Congress for considering bipartisan legislation that would “ban the box” in hiring by the federal government and federal contractors, his directive to OPM is aimed at making changes to federal hiring practices without the need to wait for Congressional action.  The President has gotten out in front of Congress on other employment-related issues.  In September, he issued an Executive Order mandating that federal contractors provide paid sick time to their employees, and last year, he issued an Executive Order increasing the minimum wage for employees of certain federal contractors.  Whether Congress will follow the President’s lead in making similar changes for all American workers remains to be seen.