Blog Archives

Maryland Is First State To Ban Employers From Asking For Social Media Passwords
Thursday, 17 May 2012 18:29

On May 2, 2012, the Maryland Governor approved a measure that makes it illegal for Maryland employers from requiring or asking an employee or job applicant to disclose any user names, passwords, or any other means of accessing personal internet sites (such as Facebook) as a condition of employment.  In addition, this new law also prohibits Maryland employers from disciplining an employee or refusing to hire a job applicant who declines to disclose such information.  Maryland is now the first state to pass such a law.  This law is known as the “User Name and Password Privacy and Exclusions” law, and takes effect on October 1, 2012.  You can read a copy of the bill here.

Several other states – including New Jersey, California, Illinois, and Washington – are also considering similar legislation.

Congress is also getting in on the action:  the U.S. House of Representatives has introduced the Social Networking Online Protection Act (“SNOPA”) and the U.S. Senate has introduced the Password Protection Act of 2012, both of which prohibit employers from requiring employees or job applicants to disclose their social media user names and passwords.  In addition, some U.S. Senators have also asked the U.S. Department of Justice and the Equal Employment Opportunity Commission to investigate employers’ practices of asking job applicants for social media passwords during job interviews.

For further discussion on this topic, please see my prior blog post here.

 
D.C. Court Strikes Down NLRB’s New “Quickie Election” Procedures
Wednesday, 16 May 2012 06:40

On May 14, 2012, a federal district court in Washington, D.C. struck down the NLRB’s new Quickie Election (or “Ambush Election”) procedures based on the conclusion that the the NLRB failed to assemble a quorum of members when it made its “final vote” on the proposed new rules.

Under the National Labor Relations Act and a Supreme Court case called New Process Steele, three (or more) members of the Board are required to constitute a quorum for Board action.  In this case, only two Board members participated in the final vote to approve the new Quickie Election procedures.  Therefore, the D.C. court concluded, the final vote on the new Quickie Election procedures was made without a quorum.

In creating the “Woody Allen Rule,” the D.C. court noted:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to satisfying a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters – even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal quote in question, the Court must hold that the challenged rule is invalid.

Following the court’s decision, the NLRB issued a press release stating that it will temporarily suspend the new Quickie Election procedures.  The Acting General Counsel has also instructed regional directors to revert to the old representation election procedures.

It will be interesting to see whether the NLRB appeals the court’s decision, or just tries to establish a quorum now that it has five sitting members, and vote again on the new representation election procedures.  Either way, the legal battles are sure to continue.

You can read the D.C. court’s decision here and the NLRB’s press release here.

 
Ninth Circuit Rules Attendance Is Essential Function for NICU Nurse
Monday, 14 May 2012 18:45

In Samper v. Providence St. Vincent Medical Center (9th Cir., April 16, 2012), the Ninth Circuit ruled that an employer did not violate the Americans with Disabilities Act (“ADA”) when it denied the request of an employee who had fibromyalgia to exempt herself from the employer’s attendance policy.

In that case, the plaintiff worked as a nurse in the neo-natal intensive care unit (“NICU”) unit of a medial care center.  The plaintiff also had a medical condition called fibromyalgia, which limited her ability to sleep and caused her chronic pain.  Due to her fibromyalgia, the plaintiff was often absent from work.

The employer had an attendance policy that allowed employees to take up to five unplanned absences during a 12-month rolling period.  The employer also took the position that regular attendance was an essential function of an NICU nurse.  Specifically, absences from NICU staff can jeopardize patient care because NICU nurses require special training , and therefore, the universe of nurses that can be called in a the last minute is limited.  Thus, being understaffed is highly undesirable, and can potentially compromise patient care.

Over the course of several years, the employer provided the plaintiff with several accommodations, including allowing her to call in on bad days, various scheduling adjustments, readjusting her schedule so that she did not work consecutive days, and granting her numerous extended leave of absences.  None of the accommodations, however, were sufficient.  Finally, due to the plaintiff’s repeated violations of the attendance policy, the employer decided to terminate the plaintiff’s employment.

The plaintiff sued and argued that she had been denied a reasonable accommodation for her disability.  In her lawsuit, the plaintiff argued she should have been exempted from the company’s attendance policy.  The District Court disagreed, and dismissed her lawsuit.  The Ninth Circuit upheld the dismissal.

In issuing its decision, the Ninth Circuit noted that regular attendance was indeed an essential function of an NICU nurse.  The court also added that, where performance of a job requires attendance at the job, irregular attendance compromises essential job functions.  With these concepts in mind, the court stated that the “common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.”

The Samper decision was certainly a good result for employers.  It was also, however, very fact specific.  In the Samper case, regular attendance was certainly a mandatory component of the NICU nurses’ jobs.  In other situations, however, where employees are more “fungible” or regular physical attendance is not as essential as it would be for an NICU nurse, employers should be cautious in how they handle employees who require leave due to disabilities.  On that note, employers should be aware of a prior Ninth Circuit decision in Humphrey v. Memorial Hosps. Ass’n, (9th Cir. 2001), where the court ruled that a medical transcriptionist who had OCD should have been granted an accommodation to (occasionally) work from home, as opposed to requiring her to physically show up for work for her scheduled shifts.  In that case, the employer did not dispute that it would have been possible for a transcriptionist to work from home; in fact, several were already doing so.  Accordingly, the court ruled that the employer violated the ADA when it terminated the employment of the transcriptionist, because physical attendance was not an essential job function for that employee.

You can read the Samper case here and the Humphrey case here.

 
2012 Legislative Update
Tuesday, 08 May 2012 15:05

The 2012 Legislative Session is done.  All we have left to do is wait and see what bills the Governor signs, vetoes, or allows to become law without his signature.

This year, the legislature appeared to be focused on unemployment insurance as one of the hot topics.  In fact, two bills regarding Hawaii’s unemployment insurance laws have already been signed into law by the Governor, and a third is on its way.  In addition, several other bills (on both employment and non-employment issues) are also still alive, and have been sent to the Governor for his signature or veto.

Hawaii Employers Council* (“HEC”) tracks legislation affecting Hawaii’s employers, and a copy of the Legislative Digest and Legislative Update articles can be found on HEC’s website here.

In addition, I will be presenting a seminar on the 2012 Legislative Session at the Hawaii Employers Council on June 6, 2012 at 9 am.  This briefing is FREE for HEC Members.  Also presenting with me will be Lowell Kalapa, President of the Tax Foundation of Hawaii.

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*My employer.  See blog post here for more details.

 
NLRB General Counsel Issues Guidance Memo On “Quickie Election” Procedures
Friday, 27 April 2012 18:11

On April 26, 2012, the General Counsel (“GC”) of the National Labor Relations Board issued a Guidance Memorandum on the NLRB’s new “Quickie Election” procedures, which are set to take effect on April 30, 2012.  In the memorandum, the GC first “justified” the NLRB’s need to make changes to the way representation elections are conducted, and then outlined the major changes to the process.

In a nutshell, the changes will speed up the way representation elections are conducted, which in turn, will hinder employers’ abilities to oppose union representation campaigns.  Some people – including the U.S. Chamber of Commerce – have referred to these new procedures as “ambush” elections, because of the way that employers could be prevented from effectively challenging a union representation campaign.

For instance, the new rules eliminate the current restriction that elections cannot be held until at least 25 days after a direction of election.  In addition, the NLRB has amended – or should I say, taken away – the ways that employers can challenge whether representation elections are even appropriate or whether certain individuals should even be voting in the elections.  The NLRB has also amended – or again, should I say, taken away – employers’ rights to appeal decisions by hearing officers on pre-election rulings.  Finally, the NLRB has eliminated the practice of giving parties the right to file post-hearing briefs for pre-election hearings, and instead, has given the hearing officer discretion on whether the parties should be filing briefs.

In addition to the GC’s memo, the NLRB has also issued a set of FAQs regarding the new election procedures.

Overall, these changes are certainly bad for employers.  The U.S. Chamber has lodged a legal challenge to the new representation election procedures, but has not yet received a ruling from the court.

You can read the GC’s memo here, and the NLRB’s FAQs here.  Also, prior blog posts on this topic can be seen here and here.

 
Employers Don’t Need To Post NLRB Notice, For Now
Tuesday, 17 April 2012 18:02

Great news for employers!  The NLRB has issued a press release stating that it will not be implementing the rule requiring employers to post the new NLRB notice in the workplace as scheduled.  The new rule was scheduled to take effect on April 30, 2012.

In other words, employers don’t need to post the new NLRB notice in the workplace.  So, you can put those posters away in drawer someplace.  At least for now…

This announcement by the NLRB came as a result of an order issued by the D.C. Circuit Court of Appeals against the NLRB, which temporarily enjoined the NLRB’s rule requiring the posting of the employee rights poster.  The D.C. Appeals Court has set a briefing schedule for May and June 2012, and will schedule oral arguments for September 2012.  Therefore, employers don’t need to worry about the NLRB poster until September 2012 at the earliest.

You can read the D.C. Appeals Court’s order here, and the NLRB press release here.