Brace yourselves, employers: March Madness is upon us. The 2013 National Collegiate Athletic Association (NCAA) Men’s Division I Basketball Championship Tournament will start with play-in games on Tuesday, March 19, 2013, and conclude with the Championship Game on Monday, April 8, 2013 in Atlanta, Georgia. During the tournament’s three weeks, the United States economy will lose an estimated $1.8 billion in productivity as employees watch early round games, participate in office pools, and discuss the outcomes with co-workers. (Fantasy sports activity in the work place has become an even more widespread issue, as Goldberg Segalla’s Seth L. Laver and Michael P. Luongo explained in an article titled “Fantasy Sports: A Real Game-Changer for Employers.”)
A bill was recently introduced in the New Jersey Senate that would significantly restrict an employer’s ability to ask about and consider a current or future employee’s criminal history in the employment process. Bill No. S.2586, also known as the Opportunity to Compete Act (OCA) or “Ban the Box” bill, would prohibit private and public New Jersey employers from directly or indirectly inquiring about a candidate’s criminal history until after a “conditional offer of employment” has been made.
With 2013 in full swing, now is an excellent time to begin preparing for the changes that will take place as a result of the Affordable Care Act. Although most of these changes are set to take place in 2014, there is one important change that is right around the corner. Beginning on March 1, 2013, all employers with 50 or more full-time employees will be required to provide each employee at the time of hiring ‘ or, with respect to current employees, not later than March 1, 2013’ with written notice, in plain language, of certain provisions of the Affordable Care Act, including
In a rare twist, New York Governor Andrew Cuomo’s recent proposed changes to workers’ compensation in New York have earned praise from both the business side and the labor side.
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.