Recent Developments in Labor & Employment Law: What Every Executive Needs to Know

1. Recent Developments in Labor & Employment Law:What Every Executive Needs to Know Executive Roundtable – September 13, 2013 Presented by Attorneys Erik Eisenmann and Emily Constantine

2. Overview • Occupational Safety and Health Administration (“OSHA”) • Expanded Enforcement Efforts/General Duty Citations • National Labor Relations Board (“NLRB”) • New Social Media Rules • Equal Employment Opportunity Commission (“EEOC”) • Strategic Enforcement Plan

3. OSHA • What OSHA does • Recent Inspection and Enforcement Data • Inspections have remained relatively constant over the past 5 years • “Violations Issued” have fluctuated; same general range over past 5 years • Number of “Significant Cases” has skyrocketed

4. OSHA • “Significant Cases” • Proposed penalties exceeding $100,000 • From 120 in FY 2009 to 219 in FY 2012 • Although number of inspections is remaining constant, consequences of inspection are rising

5. OSHA • General Industry – Most Cited Standards • Hazard Communication • Electrical/Wiring methods • Lockout/Tagout • Respiratory Protection • Lift/fork truck operation

6. OSHA • Construction Industry – Most Cited Standards • Fall Protection/Training • Scaffolding • Ladders • Hazard Communication • Head Protection

7. OSHA • General Duty Clause • Section 5(a)(1) of the Occupational Safety and Health Act • “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” (Emphasis added)

8. OSHA • General Duty Clause • What is a “recognized hazard”? • How does employer know of hazard is “likely to cause death or serious physical harm” • Cited by OSHA when there isn’t a standard on point

9. OSHA • General Duty Clause • Cited by OSHA with increasing frequency • Combustible dust example • No standard in place • OSHA National Emphasis Program (NEP) regarding Combustible Dust

10. OSHA • Recent OSHA Decisions • SeaWorld Case • What’s next for Shamu? • American Engineering & Development Corp. • OSH Review Commission will impute knowledge to the employer if the supervisory employee is aware of the violation

11. OSHA • Administrative/Enforcement Agenda • Non-Union Workforces • Guidance letter from Deputy Asst. Secretary • Workers w/out a CBA may elect a union rep or “community org rep” to act on their behalf • Come into the facility during an OSHA investigation • Can discussion unionization?

12. OSHA • Administrative/Enforcement Agenda • Enhanced Settlement Provisions • Used in “severe” cases • Require employers to provide safety training • Require employers to inform OSHA of current and future worksites • Regularly conduct safety and health audits

13. OSHA • Administrative/Enforcement Agenda • Emphasis on whistleblower protections (Anti-retaliation) • Particular focus in MSHA cases • Temporary Reinstatement process – lower burden of proof for Solicitor • No refund wages paid during reinstatement period – even if employer ultimately prevails

14. NLRB • Social media use is constantly growing • New social media platforms • Between 2011 and 2012, the NLRB’s Acting General Counsel issued three reports analyzing potential social media cases. • The NLRB applies the same legal framework to social media cases as other cases

15. Sections 7 and 8 of the National Labor Relations Act • Section 7 of the NLRA protects employees’ rights to “engage in…concerted activities for the purpose of mutual aid or protection.” • Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights.

16. What does this have to do with Social Media? • A policy may be unlawful even if there is no explicit restriction on Section 7 rights. • Discipline against an employee for violating a social media policy may be unlawful if the employee was engaging in rights protected by the NLRA • Example: Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012).

17. Facebook firings • Hispanics United of Buffalo, Inc. 359 NLRB No. 37 (2012) • Triple Play Sports Bar & Grille, NLRB No. 34-CA-12915 (Div. of Judges Jan. 3, 2012). • Arizona Daily Star, No. 28-CA-23267 (Advice Memorandum, April 21, 2011). • Children’s National Medical Center, No. 05-cA-36658 (Advice Memorandum, Nov. 14, 2011).

18. Social Media Policies • Overbroad social media policies will be considered unlawful, even if they do not explicitly restrict Section 7 activities. • Test: will the social media policy “reasonably tend to chill employees in the exercise of their Section 7 rights.” • Even if a rule does not explicitly restrict Section 7 rights, the rule violates the NLRA if (1) employees would reasonably construe the rule to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

19. Giant Food LLC, Advice Memorandum • "You have an obligation to protect confidential, nonpublic information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized associate, any confidential information about the company or any related companies.. .or about other associates, customers, suppliers or business partners. If you have questions about what is confidential, ask your manager.” • "Do not use any company logo, trademark or graphics, which are proprietary to the company, or photographs or video of the company’s premises, processes, operations or products, which includes confidential information owned by the company, unless you have received the company’s prior written approval.” • "Do not defame or otherwise discredit the company’s products or services.” • "Speak up if you believe that anyone is violating these guidelines or misusing a company-sponsored site. Please submit such reports to your manager, and provide as much specific information as possible.” • “Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.”

20. Drafting a Social Media Policy • Include specific examples of unacceptable conduct. • “[C]ases in which rules could not reasonably be construed to cover protected activity involved situations in which the rules clarified their scope by including examples of clearly illegal or unprotected conduct and/or there was no evidence that the rules were applied against protected activity.” Flagler Hosp. Adv. Mem., No. 12-CA-27031 (May 10, 2011). • To the extent possible, avoid rules requiring employees to obtain employer authorization or approval before posting online • “Savings” clauses are ineffective.

21. EEOC • What does EEOC do? • Title VII (Race discrimination, gender discrimination, sexual harassment) • Age Discrimination in Employment Act (“ADEA”) – 40 and over • Americans with Disabilities Act (“ADA”)

22. EEOC • Statistics for FY 2012 • Race/Color: 35% • Gender: 30% • National Origin: 10% • Disability: 25% (Highest Ever) • Retaliation: 40% (Highest Ever)

23. EEOC • Strategic Enforcement Plan • Hiring/Employment Screening • Harassment in the Workplace • Protection of immigrant, migrant, and other “vulnerable” workers • Preserving access to the legal system • “Systemic Bias” Cases • Alleged discrimination has a broad impact on an industry, profession, company, or geographic area

24. EEOC • Hiring/Employment Screening • Arrest/Conviction Record • Title VII is silent, but disparate impact? • Must do individualized assessment • Must be “job related and consistent with business necessity” • Wisconsin law already addresses these issues

25. EEOC • Workplace Harassment • Many large settlements of sex and race harassment • Franchisees • $2 Million settlement - Sonic franchise in New Mexico • $1 Million settlement - McDonald’s franchise in Wisconsin

26. EEOC • ADA Issues • Coverage, reasonable accommodation, leave of absence, undue hardship • Fixed Leave Policies • Accommodation of pregnancy-related limitations under ADA and PDA

27. EEOC • Preserving Access to Legal System • Policies/Practices that discourage employees from “exercising rights” or impeding EEOC investigations • Confidentiality requirements • Overly broad waivers in settlement agreements

28. EEOC • EEOC Litigation Strategy • Taking more cases • Acting as Plaintiff • Taking hard line in settlement negotiations • Consent Decrees • Press Releases • Chicago Region – refusal to include separate waiver

29. Erik K. Eisenmann eeisenmann@whdlaw.com 414-978-5371 Emily A. Constantine econstantine@whdlaw.com 414-978-5434