With the Recent Passage of the NLRB’s “Ambush Election Rules,” Employers Must Be Pro-Active in Their Union-Free Message

On December 12, 2014, the National Labor Relations Board took the long-anticipated step of finalizing its new “ambush election” rules, which will make it easier for unions to organize employers. The driving force behind the new rules is clear: unionization in the private sector is, and has been, steadily declining. Today, only 6.7% of America’s private-sector workforce is unionized, down from rates in excess of 20% in the 1980’s.  Looking to turn the tide, organized labor has spent billions in lobbying efforts in recent years, seeking labor-friendly rule-making and legislation.  The most recent attempt at pro-union legislation – 2009’s so-called “Employee Free Choice Act” – never passed Congress. Continue reading

Guns In The Workplace Versus Employer’s Property Rights

There is a growing trend of state laws prohibiting employers from banning firearms on employers’ property.  These laws are otherwise known as “parking lot laws.”  At the state level, more and more states appear prepared to enact laws that would ban an employers right to prohibit firearms on their property.  Some of these laws provide employer’s with immunity from liability if those employees cause harm with those firearms on the property.  Other proposed laws provide no such protection from liability.  In either case, the extent of an employer’s liability and what they should do to minimize it is not clear. Continue reading

Breaking News: NLRB Overrules Register Guard and Holds that Employees Have Statutory Right to Use Their Work Email for Union Organizing

The National Labor Relations Board (“NLRB”) ruled on December 11, 2014, in a 3-2 split, that employees who have been given access to their employer’s e-mail system for work purposes must be allowed to use their work email during  nonworking time to engage in communications  protected by the National Labor Relations Act (“NLRA”), such as communications regarding union organizing.  Employers that maintain any policy restricting that use are now in violation of Section 8(a)(1) of the NLRA.  This decision expressly overrules the NLRB’s 2007 Register Guard[1] decision, which had held precisely the opposite—that an outright ban on employee use of work email was lawful so long as it was indiscriminately applied because, among other reasons, the employer has a property right to control the use of its own equipment and property.   Through its new decision, in Purple Communications, Inc., 361 N.L.R.B. No. 126, the NLRB has severely constrained that right and made it much easier for employees to engage in union activity at work.  Continue reading

What Employers Need to Know about President Obama’s New Immigration Executive Order

President Barack Obama’s new immigration policy contains a number of measures designed to make it easier for U.S. businesses to hire and retain highly skilled foreign-born workers while also permitting those workers to advance their careers.

On Nov. 20, President Obama issued a number of executive actions to revise U.S. immigration policies that he said are important steps to fixing the country’s broken immigration system.  Continue reading

Franchise arrangements pose legal problem for NLRB’s proposed joint-employer standard

The National Labor Relations Board’s general counsel, who is recommending that the Board dramatically alter the joint-employer doctrine, admitted that his proposal may run into “a problem legally” when it comes to franchisor-franchisee arrangements.

But franchisors shouldn’t get too excited. General Counsel Richard F. Griffin said that he thinks there may be a way around it, at least in certain cases. Continue reading

OSHA Revises Its Recordkeeping Rule

Employers must report to the federal Occupational Safety and Health Administration all work-related deaths within eight hours and all in-patient hospitalizations, amputations and losses of an eye within 24 hours under a newly revised record-keeping requirement that is effective January 1.

The new OSHA rule applies to all covered employers, even if the employer is exempt from maintaining injury and illness records.  The agency said the revision was needed to get a better understanding of the scope of work-related injuries in the United States.  Under the prior rule, employers were only required to notify OSHA of work-related fatalities and in-patient hospitalizations of three or more employees.

Court: USCIS should consider ‘life experience’ for specialized knowledge L-1B visa

In holding that cultural traditions and life experience can be considered “specialized knowledge” for purposes of obtaining an L-1B intracompany transferee visa, a United States appeals court rejected the proposition that a company must have an “ownership claim” in the worker’s knowledge before it may qualify as “specialized.” Continue reading

Employers Should Not Just Be Bold, But Smart, When Dealing With Ebola

Watch as Benesch attorney Joseph N. Gross discusses the implications of Ebola in the workplace in thisBenesch B-Cast.

Tensions are high concerning the potential spread of the Ebola virus disease in the U.S., fueled by the confirmation of new infections, around-the-clock news reports on potential calamities and our natural, and seemingly universal, fear of the unknown.

In light of the heightened threat of Ebola, employers must ensure that they are providing a healthy and safe environment for all employees. However, employers also need to be aware of their responsibilities under several employment-related laws, which may seem, at first, to be roadblocks. We believe the following laws are the most obvious: Continue reading

Ohio Supreme Court Rules On Applicability of Dual Intent Doctrine When Determining Eligibility For Workers’ Compensation Benefits

On October 21, 2014, the Supreme Court of Ohio in Friebel v. Visiting Nurse Assn. of Mid-Ohio addressed whether the doctrine of dual intent or dual purpose is applicable when determining eligibility for workers’ compensation benefits in Ohio. The Court reversed the Fifth District Court of Appeals and held that the dual intent doctrine is not recognizable when determining eligibility, and remanded the case to the trial court. Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion No. 2014-Ohio-4531. Continue reading

Employers Who Prohibit Use of Company Technology for Non-Business Purposes Have Dodged a Bullet—For Now.

The NLRB marked the end of summer by issuing its highly anticipated decision in Purple Communications, which many believed would address whether employers can continue to ban use of company equipment and technology, especially e-mail, for non-business purposes without violating federal labor law. To find such a ban unlawful would require the Board to overturn its 2007 Register Guard ruling, which held that employees have “no statutory right” to use an employer’s electronic communication system for organizing purposes. However, the Board kicked the proverbial can down the road—opting instead to sever the issue and hold it for further consideration on a later date—despite inviting parties and amicus curiae in April to submit briefs addressing whether the Board should overturn its decision in Register-Guard. Continue reading