Many health care providers mandate certain types of shots or inoculations for their employees to reduce the risk of the spread of serious illnesses such as the flu. Hospitals and long-term care providers have increasingly taken a hard line when employees have refused to get vaccinated because some of their licensing standards require certain vaccinations. For other health care providers, it is viewed as a best practice to reduce the spread of illness and disease among the infirm and elderly. However, as some recent cases illustrate, employers need to exercise caution in taking an adverse employment action when an employee refuses to get vaccinated. For example, if an employee cannot have a flu shot or other inoculation due to a disability, this will likely preclude an employer from taking an adverse employment action against the employee.
This month represents the first anniversary of the controversial decision by the National Labor Relations Board (NLRB) in D.R. Horton, Inc. In D.R. Horton, the NLRB ruled that D.R. Horton, a nationwide homebuilder, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by requiring employees to sign agreements that: 1) contained a mandatory arbitration provision; and 2) required them to bring all employment-related claims to an arbitrator on an individual basis, as opposed to as a potential class action.
On December 17, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved its strategic enforcement plan for 2013-2016. That plan identified the EEOC’s priorities and intended focus over the next few years. Topping that list is the EEOC’s goal to eliminate barriers in recruitment and hiring.
On December 13, 2012, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a 33-page report accusing the National Labor Relations Board (NLRB or Board) of express pro-union bias, pursuing a program of aggressive tactics designed to promote union agendas, making substantive decisions without legal authority, violating its own ethical and procedural rules, and hostility to Congressional oversight. The report, titled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” can be accessed here. For employers that have been involved in cases brought before NLRB this year, the implications of this report could raise questions about those decisions or even cast them into doubt.
The United States Supreme Court recently heard oral argument in the matter of Vance v. Ball State University (Docket No. 11-556) on November 26, 2012, a case which is poised to resolve an important split among federal circuits and could reshape the scope of supervisor liability in sexual harassment and discrimination cases.
Approximately 17.5 percent of Michigan workers are dues-paying union members, making it the fifth most unionized state in the nation. Michigan is one of the least likely candidates to adopt right-to-work legislation. However, on Tuesday, December 11, 2012, the Republican Governor of Michigan, Rick Snyder, signed Public Acts 348 and 349 of 2012 into law, making Michigan the twenty-forth right-to-work state. This is a stunning development in the home state of the United Auto Workers (UAW), considered to be a strong, pro-labor state.
Employers that utilize a third party to obtain background information on applicants and employees, such as a criminal background check or a credit check, must provide applicants/employees with a new version of the Form Summary of Rights Notice prior to taking any adverse action based on the contents of that report. This notice requirement under the Fair Credit Reporting Act (FCRA) is not new: the contents of the form “Summary of Rights” has changed to reflect the fact that the Consumer Financial Protection Bureau (CFPB) has assumed rulemaking authority for the FCRA from the Federal Trade Commission (FTC). A copy of the new form is set forth in Appendix K of 12 C.F.R. Part 1022 (available here).
In case any employer that is sponsoring a holiday party for its employees needs a reminder of the potential liability that may arise from such an event, earlier this month, a decision from the U.S. District Court for the Western District of New York provided a sobering reminder of just some of the employment litigation risks attendant with such an event.
Earlier this year, non-union employers (approximately 93% of private industry in the United States) and many labor and employment attorneys were surprised to learn that the National Labor Relations Board (NLRB) might deem rudimentary employee handbook at-will disclaimer language to violate employees’ rights under the National Labor Relations Act (the Act). Employee handbook at-will disclaimers are particularly common in states, like New York, where courts have held that the absence of such provisions helped to create an implied contract that limited the employer’s right to terminate the employee at-will.
In a decision issued October 25, 2012, the New York Court of Appeals affirmed and extended one its most significant rulings in the recent past relative to public sector disciplinary proceedings for police officers.
The New York State Court of Appeals recently issued a decision holding that a written determination that a firefighter violated his fire department’s Code of Conduct and Equal Employment Opportunity (EEO) Policy, made after a lengthy internal investigation, may not be placed in the firefighter’s permanent employment file. In this ruling that impacts both public and private employers, the court held that the firefighter’s due process rights were violated, as the firefighter had no opportunity to examine any of the witnesses interviewed or to present any witnesses on his own behalf.
In New York Workers’ Compensation Case No. 00427749, the claimant, a driver, sustained injuries to her back, neck, right shoulder, face, and right thumb when she was rear-ended by a van in 2004. In addition to underscoring the requirements a claimant must meet to be classified with a permanent total disability, the proceedings that ensued in this case provide carriers and employers with an important defense against claimants’ physicians who do not properly investigate the true capabilities and daily lives of claimants.
New Jersey may soon join the ranks of other states that prohibit or seriously limit an employer’s right to request a current employee or applicant’s password, username, or similar information to social media websites such as Facebook. Unfortunately, the proposed New Jersey legislation as currently written will provide applicants and current employees with a potential new cause of action to assert against companies.
Governor Cuomo signed into law amendments to Article 193 of the New York Wage Deduction Law which will permit employers to take additional lawful deductions from employees’ paychecks. The law will take effect on November 8, 2012.