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How to properly handle references for terminated employees

Editors — Tue, 07 Feb 2012 08:11:24 +0000

Handling references for former employees is becoming increasingly complicated.

[via: Labor: How to properly handle references for terminated employees at InsideCounsel]

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NLRB in the News – What it Means for the Senate to Be In “Recess”

Guest Contributor — Fri, 03 Feb 2012 15:12:32 +0000

by Joseph Leonoro, Esq.
Steptoe & Johnson PLLC

The National Labor Relations Board is no stranger to headlines, and it is once again at the center of a political and constitutional showdown in Washington.

At the end of 2011, with the recess appointment of Board member Craig Becker expiring, the NLRB was down to only two members – less than the quorum (3 of 5 members) it needed to conduct official business. Therefore, on January 4, President Obama made three appointments to the NLRB – Sharon Block, Richard Griffin, and Terence Flynn. Making those appointments seemed simple enough, but at the Board, things are almost never uncontroversial these days.

According to President Obama, the appointments he made were recess appointments and, therefore, did not require Senate confirmation. That matters because – probably not surprisingly – the Senate had previously blocked confirmation of each of the three appointed Board members.

Now, every President since George Washington has exercised his constitutional power to make appointments when the Senate is in recess. This authority stems from a provision in the United States Constitution about that process, dating back to when such appointments were more frequently necessary in the early days of the Republic because the Senate was only in session for short periods and positions needed to be filled. Although the Senate is now in session for a majority of the year, presidents from both political parties have continued to use recess appointments over the years to appoint controversial figures who otherwise would not be confirmed by the Senate – such as in this case.

Not surprisingly, Republicans and pro-business groups have argued that President Obama’s “recess” appointments in January were invalid because the Senate was not in recess when the appointments were made and, in fact, held pro-forma sessions every three days during the Senate’s usual holiday break in order to keep session open. Therefore, according to these groups, the President’s Board appointments must be subject to Senate confirmation before they can be valid. The key question then is whether the Senate was in recess within the meaning of the U.S. Constitution when the appointments were made?

This issue will likely be decided by the courts, inasmuch as the first lawsuit has been filed by the National Federation of Independent Business (and others) to block the appointments. While the issue will not be resolved soon and will likely be determined ultimately by the United States Supreme Court, the matter is significant because if the appointments are later found to be invalid, then the decisions and regulations passed by the NLRB in the interim may be null and void.

Of course, with the Supreme Court already smacking the Board once about 18 months ago in the New Process Steel case for issuing a number of decisions unlawfully without having a proper quorum of members to act, it should be used to going through that process. No matter how you look at it, though, every new dispute at the Board seems stained with an even greater layer of politics than the last one. It is no wonder that there is so much dissatisfaction with the way Washington does business these days.

Joseph Leonoro, Esq. concentrates his practice in matters involving labor and employment law. He practices in the Charleston, WV office of Steptoe & Johnson PLLC.

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Managing a down economy: Individual terminations

Editors — Fri, 03 Feb 2012 10:36:20 +0000

Human resource managers and the legal counsel working with them likely know who the worst performers are at the company.

[via: Labor: Managing a down economy: Individual terminations at InsideCounsel]

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Are your independent contractors really employees? The IRS wants to know.

Editors — Tue, 31 Jan 2012 10:18:38 +0000

The IRS wants to know if your independent contractors are really employees.

[via: Regulatory: The IRS wants to know if your independent contractors are really employees at InsideCounsel]

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Report reveals highest number of EEOC discrimination charges ever

Editors — Mon, 30 Jan 2012 12:15:13 +0000

Littler Mendelson released a report tracking the highest number of EEOC discrimination charges ever in 2011.

[via: Report reveals highest number of EEOC discrimination charges ever at InsideCounsel]

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5 ways to protect your company in the event of a key employee departure

Editors — Wed, 25 Jan 2012 09:30:48 +0000

How does your company protect itself in the event of a key employee departure? A recent InsideCounsel article discusses the topic.

[via: Labor: 5 ways to protect your company when a key employee departs at InsideCounsel]

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In-House Counsel’s Guide to Breast-Feeding Policies

Editors — Wed, 25 Jan 2012 08:26:06 +0000

Need to read up on corporate breast-feeding policies? CorpCounsel has a recent piece on the topic:

“Nurse-ins” have been in the news recently, as mothers stage peaceful protests aimed at promoting women’s rights to breast-feed their children in public. These events should prompt in-house counsel to examine their companies’ breast-feeding policies, including how their companies handle employees who need time to attend to breast-feeding responsibilities while at work and how employees interact with customers who are nursing.

[via: In-House Counsel's Guide to Breast-Feeding Policies at CorpCounsel]

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Ring in the New Year with an employee classification audit

Editors — Tue, 17 Jan 2012 12:16:07 +0000

Appropriately classifying workers can prevent your company from being negatively affected by a federal action. Is it time for an employee classification audit at your company?

[via: Labor: Ring in the New Year with an employee classification audit at InsideCounsel]

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7 ways to protect your company when hiring from a competitor

Editors — Tue, 10 Jan 2012 09:48:29 +0000

Hiring is no easy task, especially when hiring from a competitor.

[via: Labor: 7 ways to protect your company when hiring from a competitor at InsideCounsel]

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Developing formal new employee orientation programs

Editors — Thu, 05 Jan 2012 09:30:04 +0000

New employee orientation programs help to maximize employees’ commitment to the company.

[via: Labor: Developing formal orientation programs for new employees at InsideCounsel]

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The legal implications of social networks in the workplace

Editors — Tue, 03 Jan 2012 12:03:41 +0000

Social networks are not only causing major reverberations in the workplace, it is increasing corporate exposure to employment-related claims.

[via: Labor: The legal implications of social networks in the workplace at InsideCounsel]

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5 considerations for evaluating restrictive covenant enforceability

Editors — Tue, 06 Dec 2011 09:44:29 +0000

Companies often seek to protect confidential, proprietary business information, customer and employee relationships and restrict unfair competition by requiring employees to sign restrictive covenants prohibiting certain activities after their employment ends.

[via: Labor: 5 considerations for evaluating restrictive covenant enforceability at InsideCounsel]

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Labor: 8 tips on how to keep your company out of the sexual harassment spotlight

Editors — Tue, 22 Nov 2011 10:31:50 +0000

As sexual harassment scandals top recent headlines, companies should ensure proper policies are in place.

[via: Labor: 8 tips on how to keep your company out of the sexual harassment spotlight at InsideCounsel]

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In fiscal 2011, EEOC wins record-breaking $365M for discrimination victims

Law.com — Thu, 17 Nov 2011 15:43:58 +0000

It’s been a record-breaking year at the U.S. Equal Employment Opportunity Commission, which received more discrimination charges than ever before and EEOC wins hit an all-time high $365 million for victims of workplace discrimination, while simultaneously managing to reduce its huge backlog of cases.

[via: In fiscal 2011, EEOC won record-breaking $365M for discrimination victims at Law.com]

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What if Penn State had in-house counsel in 2002?

Editors — Thu, 17 Nov 2011 09:18:33 +0000

If there had been a general counsel at Penn State in 2002, would Joe Paterno still be its head football coach? We will never know for sure, but I have to think that events might have turned out differently and better for everyone involved . Missing from media reports is the fact that Penn State had no in-house general counsel’s office when the key events of 2002 occurred . Instead, the general counsel role was performed by a local outside law firm for more than five decades. The scandal. As has been widely reported : "In 2002 , a graduate assistant allegedly saw [former Penn State football coach Jerry] Sandusky raping a boy in the showers of a campus athletics facility . The graduate student . . . informed Joe Paterno . . . . Paterno then alerted his boss, the school's athletic director [who in turn informed the University's president] ." See CNN report . No one at the University reported the incident to the police as required by law . Last week, upon learning of the events as reported by a grand jury , the University’s board of trustees fired legendary head football coach Paterno and the University’s president . See Penn State announcement . What if there had been an embedded general counsel at Penn State? It wasn’t until January 2010 that Penn State appointed a former Pennsylvania Supreme Court Justice, Cynthia Baldwin , to serve as the University's first employed general counsel and chief legal officer . Her appointment included a mandate to help establish and organize the University's Office of General Counsel . As stated in a January 2010 press release , when the University announced the hiring of Baldwin as its general counsel: “The University's decision to create an in-house legal counsel is based on a recommendation from an external peer review conducted last year . The conventional model used now by peer institutions is to have in-house counsel oversee legal work and to perform core activities such as reviewing contracts and policies, establishing procedures, and advising the Board of Trustees and senior management . A painful leadership lesson . Most leadership lapses don’t hurt outside of the pocketbook . This one does, painfully . Additional children may have been abused after the 2002 incident (if allegations are true) . Reputations have been severely tarnished or destroyed . And, as to the pocketbook, there is speculation that Penn State stands to lose sizable millions of dollars in booster contributions and other revenues . There are some parallels to the Ohio State University football scandal exposed earlier this year, which resulted in the firing of OSU’s revered football coach Jim Tressel . See Jim Tressel - I'd hate to be your compliance officer . Both coaches (Paterno and Tressel) had stellar reputations for their ethical conduct and as positive role models . Their dismissals suggest, unfortunately, that both were participants in significant leadership lapses . No guarantees, but still the better practice to have in-house counsel. A key benefit of having in-house counsel is that they are embedded in the organization . As such, they are closer to the information loop, and they are better positioned to prevent or mitigate legal compliance gaps . The flip-side of these benefits is that the status of in-house counsel as employees of the organization sometimes impacts the perception of their “independence” (or their actual independence) . Occasionally, this e mployee status will weaken the influence that in-house counsel have in getting the organization to take the more difficult (but better) path within a range of arguably permissible conduct . In those most challenging of circumstances, in-house counsel might engage an outside law firm to provide a supplemental or independent legal review, as Penn State has just announced it might do to investigate the current scandal. See Statement by Pennsylvania State Board of Trustees . There is no guarantee that the presence of an in-house general counsel at Penn State would have prevented more harm . Ohio State had a general counsel and it didn’t prevent Jim Tressel from losing his job . And more recently, it has been reported that T he Citadel had its general counsel involved in a 2007 investigation of alleged abuse, and yet The Citadel still failed to report the incident to law enforcement officials. See ReVille Citadel accusations detailed in documents . Notwithstanding these disappointing outcomes, the optimist in me believes that in-house general counsel are in the best position of anyone in senior management to provide the type of leadership needed to take unpopular but better courses of action. This summary was prepared by Perry Cone and posted at www.LeadingInHouse.com/ Legal Notice and Disclaimer

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Misclassifying Employees as Independent Contractors

Editors — Thu, 10 Nov 2011 11:30:30 +0000

Joining forces, the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) recently announced a Memorandum of Understanding (MOU) to coordinate efforts to resolve employer practices of misclassifying employees as independent contractors.

[via: Labor: Independent contractors and your business model at InsideCounsel]

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Is your employee handbook ready for 2012?

Editors — Wed, 09 Nov 2011 07:49:30 +0000

Companies should look at three employee handbook policies in particular as they head into the new year.

[via: Labor: Is your handbook ready for 2012? at InsideCounsel]

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Small mistakes mean large potential California labor law liability

Editors — Wed, 26 Oct 2011 13:45:59 +0000

As it does with almost every other aspect of employment law, California labor law has unique requirements for payroll recordkeeping.

[via: Labor: Small mistakes mean large potential liability at InsideCounsel]

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Technology: Combatting employee misconduct

Editors — Mon, 03 Oct 2011 14:33:01 +0000

The Computer Fraud and Abuse Act is a popular, yet controversial mechanism to seek recovery.

[via: Technology: Combatting employee misconduct at InsideCounsel]

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Suit By EEOC Not Covered Under EPLI Policy

Editors — Thu, 29 Sep 2011 08:59:57 +0000

Time to dust off your EPLI policy and give it a close read – as an EEOC suit may not be covered under the policy language.

[via EEOC suit may not be covered by EPLI policy at Jottings by an Employment Lawyer.]

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Calif. Seeks $17M re Alleged Misclassified Workers

Editors — Wed, 28 Sep 2011 09:57:12 +0000

In the largest misclassified workers enforcement action in California history, the state labor commissioner has filed suit seeking $17 million in back wages, overtime pay and penalties from ZipRealty on behalf of hundreds of agents.

[via: Calif. Seeks $17M in Back Wages, OT and Penalties from ZipRealty re Alleged Misclassified Workers at the ABA Journal]

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7 questions about the new ADAAA regulations

Editors — Tue, 27 Sep 2011 08:49:33 +0000

Employers are struggling to understand their obligation to provide reasonable accommodation under the new ADAAA regulations.

[via: Labor: 7 questions about the new ADAAA regulations at InsideCounsel]

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Those Things Raised Up on Your Back: Those Are Hackles (NLRB Issues Final Regulations)

Guest Contributor — Sat, 24 Sep 2011 14:32:55 +0000

by Rodney L. Bean, Steptoe & Johnson PLLC, Guest Contributor

We all have known for years that the leadership of federal and state agencies are packed with appointees from the political party in power. But never have those agencies seemed so philosophically bent or brazen as they do now. We have all read about or experienced first-hand the ramped up regulatory agenda and enforcement of the current EPA, OSHA, and DOL.

Now, in an unprecedented move, the National Labor Relations Board issued final regulations on August 30 requiring most private employers in the United States to post a notice in their workplaces informing workers in detail about their right to join a union, strike and picket, and discuss wages, benefits, and other terms of employment with co-workers.

The required notice contains detailed information about employee rights to organize and join a union and prohibited employer activities, such as forbidding workers from discussing or soliciting for unions and distributing union literature, questioning employees about union support, spying on or videotaping peaceful union activities, and making threats or promises connected to union support.

Employers must post the required notices in “conspicuous places where they are readily seen by employees” by November 14. The content, size, and form of the required posting are prescribed by the regulations and employers cannot alter its language or even the size or style of its typeface. Employers who publish workplace policies electronically must also post the new notice in the same manner. Employers “must take reasonable steps to ensure that the notice is not altered, defaced, covered by any other material, or otherwise rendered unreadable.”

The posting requirement is controversial. Although the NLRB has rulemaking power, it lacks specific statutory authority to require employers to post information. Late last week, the National Association of Manufacturers (“NAM”) filed a lawsuit seeking to bar the posting rule for that reason. In a press release, NAM President and CEO Jay Timmons called the posting requirement “just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have.”

In comments to the NLRB, employers contended that the posting requirement violates employers’ First Amendment rights by forcing them to communicate to employees about the right to unionize without expressing contrary viewpoints. Employers also criticized the content of the required posting as unfairly pro-union, arguing that the notice promotes unionization instead of employee freedom of association. Although federal labor law protects employees’ right to refrain from union activity, that right is given scant attention in comparison to other rights in the proposed notice.

The notice never mentions employees’ rights to seek decertification of a union, to abstain from union membership in right-to-work states, and to refuse to pay the portion of union dues used for activities other than those related to collective bargaining. Also unmentioned are employers’ rights to distribute union-free literature and discuss their opinions about unions.

The NLRB rejected these criticisms, finding that they were outweighed by the need to educate workers about their rights under federal labor law. The NLRB attributed workers’ alleged ignorance of their rights to, among other things, “the low percentage of employees who are represented by unions, and thus lack an important source of information about” federal labor rights.

The sole Republican member of the NLRB, Brian Hayes, wrote a strong dissent to the new regulations, labeling them “arbitrary and capricious, and therefore invalid,” “not based on substantial evidence,” and lacking “a reasoned analysis.” He wrote that the real reason for the new regulations is “to reverse the steady downward trend in union density among private sector employees.” Hayes predicted “a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.”

Coupled with the NLRB’s recent complaint against the Boeing Company, its decision in the Specialty Healthcare case that overturned 20 years of precedent and allowed unions to organize a minority share of an employer’s workforce, and the recently proposed rules by the NLRB designed to speed up the union campaign and election process and discourage the use of consultants or other professionals to aid employers in the thicket of esoteric labor law rules that are prevalent in union campaigns, the NLRB’s recent actions look more like a payback to organized labor than a reasoned approach to labor law.

As labor lawyers who work with unionized employers as well as non-union employers who would prefer to stay that way, we know all too well the strength of emotion this issue will spark in the employer community. We’re reminded of Peter Finch’s famous line from the movie “Network”: “I’m mad as hell and I’m not going to take this anymore.” We share those emotions and worry about the practical effect of the NLRB’s new course on the employer community.

But like it or not, absent a court order to the contrary, the NLRB’s posting requirement will become the law of the land on November 14. Compliant notices will be available for download from the NLRB’s website by November 1. If something changes before then, we will let you know. Watch these updates and our Labor and Employment Blog “Employment Essentials” for the latest news on this and other topics of interest to employers.

This letter is for informational purposes only, is not intended as legal advice and is not a substitute for independent legal analysis and advice on a particular issue. Please contact an attorney in Steptoe & Johnson’s Labor Department if you would like further information on these matters.

About the Guest Author: Rodney L. Bean is a Member of Steptoe & Johnson PLLC and maintains a broad employment litigation and counseling practice. He has represented clients in various state and federal trial courts and the United States Courts of Appeals for the Third and Fourth Circuits. Mr. Bean is leader of the firm’s Labor & Employment Practice Group.

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Labor: Using class action waivers in employment arbitration agreements

Editors — Wed, 14 Sep 2011 08:14:24 +0000

Is your company using class action waivers in employment arbitration agreements? In some states, such as California, unsuspecting employers can find themselves facing millions of dollars in liability for technical violations of an obscure state labor code provision that is inconsistent with the laws of every other state in which the company may operate.

[via: Labor: Using class action waivers in employment arbitration agreements at InsideCounsel]

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If Secret Email Surfaces, ABA Opinion Says Opponent Alert Isn’t a Must—But Local Rules May Differ

Editors — Tue, 13 Sep 2011 08:17:54 +0000

If you represent an employer who turns out to have copies of an employee’s email to counsel on a workplace computer or smartphone, is an opponent alert required? Perhaps not under an ABA opinion, but local rules may vary.

[via: If Secret Email Surfaces, ABA Opinion Says Opponent Alert Isn’t a Must—But Local Rules May Differ at the ABA Journal]

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Employers Irate About New Union Rule

Editors — Sun, 28 Aug 2011 11:24:21 +0000

The National Labor Relations Board yesterday finalized a rule requiring private employers to post notice about employees right to unionize. The notice should state that â€œemployees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities,â€� according to a statement from the NLRB. The rule takes effect in November, but lawyers who represent employers are already voicing their discontent. Doreen Davis , co-chair of the labor practice at Morgan, Lewis & Bockius, told the Law Blog the new posting requirement is part of a broader recent effort by the Obama administration to create a more favorable environment for unionizing. In June, for example, the NLRB announced a proposed rule for union elections that would speed up the election process and limit employer participation in that process. The new posting requirement combined with the NLRBâ€™s proposed rule for â€œquickie elections,â€� Davis said, â€œwould substantially reduce employersâ€™ ability to educate their workers about unions.â€� NLRB member Bryan Hayes offered a dissenting view about the new positing requirement, saying that while it may be desirable to try to better inform workers about their rights, the NLRB does not have the authority to require employers to post notices

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When Law Departments are on the Business End of Labor Strikes

Editors — Thu, 18 Aug 2011 12:59:29 +0000

What should a company’s law department do in a strike situation similar to Verizon’s? CorpCounsel.com spoke with labor-negotiation expert W. Terrence Kilroy to discuss what in-house counsel should keep in mind when confronted with striking workers.

[via: When Law Departments are on the Business End of Labor Strikes at CorpCounsel]

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Labor: The nuts and bolts of a robust social media policy

Editors — Thu, 11 Aug 2011 21:22:01 +0000

The reasons for why every employer needs one are manifold.

[via: Labor: The nuts and bolts of a robust social media policy at InsideCounsel.]

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In a Down Economy, Heightened Scrutiny of Hiring Practices

Editors — Thu, 11 Aug 2011 09:23:16 +0000

As stubborn economic and unemployment figures show ongoing uncertainty for job seekers, debate over pre-employment screening is ramping up, indicating that even in a slack job market, hiring practices are not to be taken lightly.

[via: In a Down Economy, Heightened Scrutiny of Hiring Practices at CorpCounsel]

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Labor: Spotting Employment Law Concerns in “Non-Employment” Statutes

Editors — Fri, 29 Jul 2011 12:24:47 +0000

Four recent regulations with profound effects for employers.

[via: Labor: Spotting Employment Law Concerns in “Non-Employment” Statutes at InsideCounsel]

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