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Management Update Newsletter Volume 11, Issue 10

03 Oct 2022 00:00:00 -0800

Management Update Newsletter Volume 11, Issue 10

Tying Federal Contractor Hands: DOL to Require Public Identification of Employer Lawyers During Union Organizing

28 Sep 2022 00:00:00 -0800

The Federal Department of Labor (“DOL”) has issued a proposed form revision that would require Federal contractors to publicly identify whether they use attorneys to inform their workforce about the realities of union organizing. Making no effort to hide the pro-union and anti-employer impact of this proposed revision, the DOL goes so far as to label an employer’s counsel as “persuaders” and called it an “unethical employer activity.” Such public identification can have a chilling effect on Federal contractors’ use of attorneys because it can reduce the Federal funding provided to the contractor; can be used by unions to spread division between employers and employees; and can increase the likelihood of union organizing efforts in Federal contracting industries where unions are already widespread.

Despite the DOL’s mischaracterization, an employer’s counsel before and during union organizing efforts is absolutely necessary and can be extremely beneficial for the employees as well as the employer by developing effective employee-relation programs that make union organizing efforts unnecessary for employees. With counsel as a guide, the employer can implement policies and practices that work in the best interest of employees and provide the best legal defense plan in the event of union organizing efforts.

Vulnerability to Union Organizing

Even before union organizing begins, legal counsel for a Federal contractor is crucial. The most important aspect to ensure that your employees do not want a union is consistent, positive employee relations. Companies vulnerable to organizing efforts are those with high turnover due to poor work conditions or compensation issues and higher numbers of complaints from employees regarding treatment by supervisors. Company management should regularly communicate with supervisors and managers who work directly with first-level employees to determine what complaints employees have and how the company can address them. Employers should also periodically conduct compensation reviews to determine whether their compensation and benefits are competitive in the industry and internally consistent and defensible.

Implementing Policies and Practices

Employees often turn to a union for representation when they feel as though the employer provides no avenue to be heard, and no procedure for how to address employee complaints. To ensure that employees are heard and complaints resolved, employers need to implement written policies and procedures in a company handbook that spells out the expectations of employment, the company’s open-door philosophy, and provides practical steps that employees can take to have workplace complaints resolved. Employers should then provide training to its supervisors and managers, as well as the employees, explaining the company’s handbook, how employees can relay complaints to management, and how management will resolve those complaints promptly and thoroughly. After these foundational policies and practices are implemented, the company then needs to periodically review its employee relations to determine that the policies and practices are properly executed by its supervisors and managers and resolve any issues that arise.

Developing a Legal Defense Plan

Just as employers have contingencies in the event of a catastrophic storm, plans need to be made to deal with the advent of union organizing. There are specific issues that need to be explored before a union drive including which employees might be part of any bargaining unit, what will be done to protect its confidential information, and how the supervisors will be trained to communicate and act in a legal fashion. The plan should be developed as much as possible with attorney-client privilege.

As union organizing efforts continue to spread across the country and the Federal government continues in its pro-union activity, every employer (especially Federal contractors) should pay attention and ask whether employees are being heard and are satisfied with their work conditions—because unions are continuing to receive encouragement to increase organizing efforts and employers must be prepared.

Take Advantage of Louisiana Law to Protect Your Practice

20 Sep 2022 00:00:00 -0800

Non-compete agreements in Louisiana are enforceable if drafted correctly. These agreements prohibit an employee or independent contractor from learning your practice, and then leaving in order to compete with you. As 2023 quickly approaches, will this be the year that you protect your practice by utilizing non-compete agreements? If so, drafting them carefully is critical to their enforcement.

La. R.S. 23:921, Louisiana's controlling statute, begins with a general prohibition against any agreement whereby anyone is restrained from exercising a lawful profession, trade, or business, unless one of the narrow exceptions to the general prohibition contained therein has been satisfied. It provides:

Every contract or agreement, or provision thereof, above which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this section, shall be null and void.

This opening paragraph of La. R.S. 23:921 reflects Louisiana's strong public policy against these agreements. The exceptions to the general prohibition, for the most part, are based upon relationships. They include the employer/employee relationship, the sale of the goodwill of the business, the dissolution of a partnership, the Franchisor/Franchisee relationship and Employer/Computer Employee relationship. Additional exceptions added by the Louisiana Legislature in recent years are again based upon relationships. They include the Corporation/Shareholder relationship, the Partner/Partnership relationship, without consideration of any possible dissolution, and the Limited Liability Company/Member relationship.

Because these agreements are in derogation of the common right to earn a living, Louisiana jurisprudence has strictly construed these exceptions to the general prohibition. To fall within these exceptions, most Louisiana courts have required both non-compete and non-solicitation agreements to list the area of prohibition by parishes, municipalities, or parts thereof, together with a term of no longer than two (2) years from the date of termination of the relationship.

While not specifically contained within the statute, various Louisiana courts have also required that a valid non-compete agreement accurately define the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition should be narrow and accurate.

As demonstrated herein, non-compete agreements in Louisiana can be enforceable. Complying with Louisiana’s controlling statute is the most important aspect of preparing valid and enforceable agreements in Louisiana. Preparing non-compete agreements that comply with Louisiana law is critical to both their enforceability and protection of your practice in 2023 and beyond.

What Law Applies to Your Louisiana Non-Compete Agreement?

16 Sep 2022 00:00:00 -0800

The validity of non-compete agreements in Louisiana is controlled by a single statute. La. R.S. 23:921, Louisiana's controlling statute, begins with a general prohibition against any agreement whereby anyone is restrained from exercising a lawful profession, trade, or business, unless one of the narrow exceptions to the general prohibition contained therein has been satisfied. It provides:

Because these agreements are in derogation of the common right to earn a living, Louisiana jurisprudence has strictly construed these exceptions to the general prohibition. To fall within these exceptions, most Louisiana courts have required non-compete agreements to list the area of prohibition by parishes, municipalities, or parts thereof, together with a term of no longer than two (2) years from the date of termination of the relationship.

Because of Louisiana’s restrictive law on non-compete agreements, employers often attempt, with a choice of law provision, to apply another state’s law to govern their Louisiana non-compete agreements. Will that work? Will Louisiana law allow an employer to utilize another state’s law to govern its non-compete agreement? No --- for the reasons explained herein.

Choice of law provisions in an employment agreement containing non-compete provisions are unenforceable, unless the employee knowingly and voluntarily agrees to and ratifies the choice of law provision after the occurrence of the incident which is the subject of a civil action. In other words, once an issue arises under the non-compete agreement, the employee has to ratify the employer’s choice of law again. If the employee refuses to do so, the choice of law provision is unenforceable, with Louisiana law instead applying to the agreement.

La. R.S. 23:921 A(2) provides:

The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

Attempting to use another state’s law for Louisiana non-compete agreements with employees is not a good strategy. The better approach is to meet all requirements of La. R.S. 23:921, Louisiana’s single statute governing the enforceability and validity of non-compete agreements in Louisiana.

Management Update Newsletter Volume 11, Issue 9

01 Sep 2022 00:00:00 -0800

Creating a Respectful and Open World for Natural Hair Act of 2022 or CROWN Act

29 Aug 2022 00:00:00 -0800

Healthcare Litigation & Risk Management
Creating a Respectful and Open World for Natural Hair Act of 2022 or CROWN Act
The Crown Act of 2022 was introduced in March 2021. It was passed in the House of Representatives and referred to the Senate in March 2022. Read more.

Contributor: Candace Ford, Breazeale, Sachse & Wilson, L.L.P

The OFCCP May Be Planning to Release Your 2016-2020 EEO-1 Reports. What Can You Do?

24 Aug 2022 00:00:00 -0800

On August 19, the OFCCP published a notice advising employers that it is planning to produce confidential information that is protected from disclosure under a statutory exemption (Type 2 EEO-1 report data) in response to a Freedom of Information Act (FOIA) request by Mr. Will Evans of the Center for Investigative Reporting. Employers have until September 19, 2022, to file written objections to this disclosure.

The FOIA request technically covers only federal contractors and their first-tier subcontractors. However, it is not unusual for employers to mistakenly identify themselves as a federal contractor or subcontractor when filling out section 3 of the report, or for the OFCCP to list non-federal contractors as federal contractors on its Corporate Scheduling announcements. It looks like the OFCCP is preparing to produce the confidential Reports of well over 15,000 employers. Employers should not assume that their data will not be produced simply because they are not federal contractors or subcontractors.

If you do not want your confidential EEO-1 Report data produced, there are a couple of steps that you can take. First, you can contact the OFCCP and ask if your information is among the list that the OFCCP intends to produce, and if so, request a copy of the data. Second, you can file an objection to the production of your data in response to this FOIA request. Written objections and requests for information should be submitted to the OFCCP via U.S. Mail or email and must be received by the OFCCP by September 19, 2022.

For further information, you can contact Candice Spalding, Deputy Director, Division of Management and Administrative Programs, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C-3325, Washington, DC 20210. Telephone: 1-855-680-0971 (voice) or 1-877 -889-5627 (TTY).

Federal Appeals Court Affirms NLRB Decision Reinstating Employee Who Defaced Company Overtime Sign-Up Sheet

16 Aug 2022 00:00:00 -0800

What seemed to be a straightforward termination went sideways for Constellium Rolled Products, a maker of extruded aluminum products with over 13,000 employees worldwide. In 2020 Constellium implemented a new policy by which it started to discipline employees who voluntarily signed up to work an overtime shift and then failed to show up. (Sounds reasonable to me.) The company’s unionized employees preferred the company’s prior overtime system by which the company solicited employees individually about working overtime and did not discipline those who failed to show up.

The union and several employees filed grievances under the company’s collective bargaining agreement and unfair labor practice charges with the NLRB over the change. Some employees began to refer to the sign-up sheet as the “whore board.” One employee, Mr. Williams, went so far as to write “whore board” on the top of each sign-up sheet, which meant that employees who wanted to sign up for overtime had to sign a sheet of paper that identified them as “whores.” Constellium suspended and then terminated Mr. Williams over the incident.

The NLRB initially ruled that Constellium violated Williams’ Section 7 rights by terminating him for the “whore board” incident because the phrase, while offensive, was not so egregious that Williams lost the protection of the NLRA. (Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity to effect change to the terms and conditions of employment. Employees’ Section 7 rights, in some circumstances, include the right to engage in vulgar or offensive speech without losing the protections of the law.) The D.C. Circuit remanded the matter back to the NLRB, finding that the NLRB failed to properly assess the potential conflict between Section 7 of the NLRA and Constellium’s obligations under state and federal anti-discrimination laws to maintain a harassment-free workplace.

On remand, the NLRB again concluded that Constellium violated Williams’ Section 7 rights by firing him. This time, the D.C. Circuit affirmed the NLRB’s ruling. The NLRB and the court analyzed Mr. Williams’ termination the second time around differently than they did in the first case. Instead of analyzing whether the use of the term “whore board” was sufficiently offensive to warrant termination, the NLRB and the court analyzed whether Constellium would have terminated Mr. Williams for writing “whore board” or a similarly offensive phrase on the overtime sign-up sheet absent any connection to Section 7 activity. (Remember, the union and employees had filed ULP’s and grievances over the change in policy.)

The NLRB and the D.C. Circuit explained that because Constellium had tolerated other employees verbally referring to the sign-in sheet as the “whore board,” as well as allowing them to generally use profanity in the workplace, Constellium could not show that it would have terminated Williams absent his complaints about the new overtime policy, which amounted to protected activity under Section 7.

The D.C. Circuit Court explained: “We recognize the difficulties that sometimes come with implementing new behavioral standards in the workplace…However, we find no evidence in the record that Constellium began enforcing any such standards before Williams. This is fatal.”

Employer takeaway: Now, more than ever, it is important to evaluate every decision resulting in discipline as if it will be challenged in court. The Constellium ruling was admittedly the result of an unusual series of events, but the principle holds true:

when facing a disciplinary decision, even one that initially looks like a slam dunk, take a breath, step away and look at the situation as an objective third-party would. Look for the weak points and the aspects of the decision that may be open to challenge, and do your best to address them before making the decision. As HR professionals, we know that pushing back on a supervisor who really wants to fire that employee right now is not the most pleasant part of our jobs, but often a little push back now can avoid a lot of headaches later.

Public Employer Medical Marijuana Law

05 Aug 2022 00:00:00 -0800

On August 1, 2022, Act No. 651, the new Public Employer Medical Marijuana Law, went into effect and provides more protections to employees and applicants with a proper recommendation for marijuana, but also creates more questions for public employers across the State. There are a number of issues that are not addressed in the law and will be left to Louisiana courts to resolve, including what employers are actually covered, how this law will impact worker’s compensation insurance agreements, how vicarious liability for injuries caused to others by protected employees will proceed, and the parameters around which covered employers can test employees and applicants and what results can come from any positive tests.

Regarding coverage under the law, the language of the new law specifically defines covered employers as "State employers," which supports coverage for only employees of Louisiana government. However, the section of the Revised Statutes in which the new law is added, "Public Employee Drug Testing," uses the term "public employer" to include both State employers and any local governmental subdivision that has adopted an ordinance providing that the subdivision is a public employer for purposes of the statute. So, although the language of the statute supports that the statute only applies to Louisiana State employees, the ordinances of local municipalities need to be checked to confirm that the municipality has not recognized itself as a "public employer" for purposes of this section of the law, because a court might interpret this new law broadly to be read in unison with the other statutes in the same section of the Revised Statutes. If that broad interpretation occurs, then any locality with such an ordinance may be covered depending on the language of the local ordinance.

Now that the law is effective, each municipality’s drug policy and drug testing provisions of their handbook need to be carefully reviewed to determine how this new law might impact those provisions. Because the law has been untested in the courts, any public employer facing an issue under this law will face complex legal issues that will require creative solutions to ensure it makes the best decision for the municipality and its constituents. Please feel free to call if you need assistance.

Management Update Newsletter Volume 11, Issue 8

01 Aug 2022 00:00:00 -0800