In March of 2020, the National Labor Relations Board (“NLRB” or “the Board”) finalized a rule that substantially overhauled certain parts of NLRB election procedures thereby providing additional protections to the rights of workers with respect to their ability to choose whether or not they wanted to be represented by a union.

More specifically, in 2020, the Board revamped three portions of its election procedure and weakened three historical doctrines that had protected unions from removal in certain circumstances:  1) with respect to “blocking charges,” whereby pending unfair labor practice charges filed by a union prior to a decertification election would delay an election, the Board in 2020 directed the regions in most situations to hold elections and count the ballots, but not certify the results until the unfair labor practice charge had been ruled upon (to see if the alleged conduct interfered with the vote), or to impound the ballots for up to 60 days before counting them; 2) with respect to the “voluntary recognition bar,” whereby challenges to a voluntarily recognized union were barred for a reasonable period of time (typically six months to a year), the Board in 2020 stated that unions were only insulated from removal if they notified the Board of their voluntary recognition and the employer had posted a notice alerting workers to their right to file for a decertification election within 45 days of the posting; and 3) with respect to certain collective bargaining relationships involving employers in the construction industry, whereby unions and employers can set terms and conditions of employment without the union having demonstrated majority support, the Board in 2020 reversed a long-standing rule that prevented employers from challenging a union’s removal more than six months after being recognized, and required a union invoking the removal bar to point to more than contract language to prove majority support.

On November 4, 2022, the National Labor Relations Board issued a proposal to roll back and rescind its 2020 rule and return to the pre-2020 status quo on the basis that the 2020 changes hampered the right of employees to choose their collective bargaining representative.  NLRB Chair Lauren McFerran stated, reversing these changes “will better protect workers’ ability to make a free choice regarding union representation, promote stability in labor relations, and more effectively encourage collective bargaining,”   Hence, under the current proposal, unions would be able to file an unfair labor practice charge to block a pending decertification election, employers would be prohibited for a reasonable period of time from attempting to have a union removed after the employer had voluntarily recognized the union, and employers in the construction industry would also have to wait at least six months before challenging the majority support of a union they may have voluntarily recognized.

Interested parties have until Jan. 3 to comment on the pending proposal.

If you have questions about the NLRB’s proposed new rule or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.

The Department of Justice has claimed its first victory in attacking “no-poach” agreements after a Nevada staffing company pled guilty and was sentenced to pay $134,000.  The case arose out of a concerted effort by the Federal Trade Commission and DOJ, first announced in 2016, to target companies who enter into agreements with competitors to fix wages or not hire each other’s workers.  The DOJ has taken the position that “no-poach” agreements constitute criminal conspiracies in restraint of trade, in violation of the Sherman Anti-Trust Act.

In the Nevada case, two nurse staffing companies providing nurses to a school district allegedly agreed to allocate nurse employees by not recruiting or hiring each other’s nurses assigned to that school district. They further allegedly agreed to refrain from raising the wages of those nurses.  As evidence of the conspiracy, the DOJ cited emails documenting the companies’ agreement:

  • The Branch Manager of the indicted company sent an email to Company A (not indicted) stating: “per our conversation, we will not recruit any of your active [school district] nurses.”
  • Company A employee responded with the following: “[a]greed on our end as well. I am glad we can work together through this[] and assure that we will not let the field employees run our business moving forward.”
  • In an email discussing refusing to negotiate further wage increases, the Branch Manager also stated “[i]f anyone threatens us for more money, we will tell them to kick rocks!”

The staffing company sought dismissal of the indictment on a number of grounds.  Factually, it highlighted that the company allegedly involved in the conspiracy (which the indicted company had acquired) ceased operations within a year of the alleged agreement, and that it no longer employed the offending Branch Manager.  Legally, the company argued that the DOJ was pursuing a novel and unsupported theory, because courts have not previously found “no-poach” agreements to be per se violations of the Sherman Act. Nevertheless, the court denied the company’s motion, leading to its guilty plea.

Though the case contains some unique facts, it is telling for several reasons. First, it demonstrates the DOJ’s increasing focus on prosecuting “no-poach” agreements.  The DOJ pursued this case even though the offending company no longer existed and the offending Branch Manager was no longer employed. Second, the criminal fine levied ($62,000) was higher than the federal guidelines would customarily recommend. Fines issued in these circumstances are based upon the volume of commerce (amount of business affected). While federal guidelines recommend a 20% ratio, modified by a company’s culpability, here the ratio was approximately 28%.  The fine could significantly increase for a larger company.  Third, all involved parties may face indictment, whether actively participating in the conduct or not. While the Branch Manager may have been the primary offending party, the DOJ prosecuted both him and his employer.

Companies should always carefully consider any agreements – formal or informal – they might enter with competitors, so as to avoid drawing antitrust scrutiny from the DOJ.  Similar to the government’s recent actions limiting non-compete restrictions, its recent focus on “no-poach” agreements reflects its attempt to shift power from the employer to the employee.   If you have questions about this or other Staffing, Labor and Employment, or Litigation issues, please contact Andrew Cleves, Chris Koehler, or a member of the Frantz Ward Staffing, Labor and Employment, or Litigation Practice Groups.

On October 21, 2022, the Equal Employment Opportunity Commission (“EEOC”) published an updated version of its “EEO is the Law” workplace poster with a new poster entitled “Know Your Rights:  Workplace Discrimination is Illegal”.  The new poster is simplified in that it uses plain language and bullet points which summarize the rights of employees and union members under laws enforced by the EEOC including:

  • Americans with Disabilities Act
  • Title VII of the Civil Rights Act
  • Equal Pay Act
  • Age Discrimination in Employment Act
  • Genetic Information and Nondiscrimination Act

The new poster differs from the previously mandated poster by:

  • Noting harassment is a prohibited form of discrimination.
  • Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation and gender identity.
  • Adds a QR Code for fast digital access to the EEOC’s webpage explaining how to file a Charge.

Covered employers (generally those with more than 15 employees) are required to display the poster in a conspicuous location at their worksites.  Additionally, while not required, the EEOC encourages employers to display the poster on the company’s website for employees who work remotely.

If you have questions about the new poster or a general employment question, feel free to contact Doug Schnee or any member of Frantz Ward’s Labor & Employment Group.

Employers should be preparing to take a close look at the current status of individuals they classify as independent contractors – especially those in the Construction industry.

On October 13, 2022, the Department of Labor (“DOL”) will publish a Notice of Proposed Rulemaking to help employers and workers determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. The DOL’s proposed rule will seek to clarify the current independent contractor standard by repealing the Trump Administrations “core factors” test and replacing it with the previously utilized economic realities/totality of the circumstances test. The DOL’s proposed rule will result in a significant change to the independent contractor analysis, and could have a major impact on how many construction employers classify employees. Even more so, employee misclassification issues can have potentially drastic consequences, resulting in DOL audits and wage and hour lawsuits, each of which can incur costly damages.

The prior rule placed particular emphasis on two core factors: the nature and degree of workers’ control over their work, and the opportunity for profit or loss based on initiative, investment or both. Without question, the prior “core factor” analysis allowed for a more lenient standard when identifying independent contractors. The new rule, however, places equal weight on all factors reviewed, analyzing (1) Opportunity for profit or loss depending on managerial skill; (2) Investments by the worker and the employer; (3) Degree of permanence of the work relationship; (4) Nature and degree of control; (5) Extent to which the work performed is an integral part of the employer’s business, and (6) Skill and initiative.

Going forward, the DOL’s proposed rule will have a significant impact on how construction employers classify employees, because they will no longer be able to rely solely upon control and financial investment as part of the determination. Rather, employers will need to review all six factors outlined above, which can be difficult in an industry where employees are generally businesses in and of themselves. How the new test will play out in relation to subcontractors and other vendors working on jobs sites is something construction employers will need to monitor closely in the future.

The DOL’s October 13 notice is still subject to a comment period, which will run until November 28, 2022. The comment period could result in some modifications to the proposed rule; however, employers should still prepare for some change to the current independent contract standard, and begin to make any necessary changes to their current workforce.

Regardless of the standard in place, employers should also remember that the test as to whether an individual is an employee or an independent contractor is heavily dependent upon the duties they actually perform while on the job. Construction employers should be especially sensitive to this understanding given the varying jobs and responsibilities individuals complete on and at the job site. An independent contractor agreement alone is not enough to justify an individual’s classification.  If you have questions about independent contractors currently working on your job sites, or general employment questions, feel free to contact Michael J. Frantz Jr., Jon Scandling or any of Frantz Ward’s Construction or Labor & Employment Attorneys.

On October 3, 2022, the National Labor Relations Board (NLRB) ruled that employers must continue deducting union dues from employees’ paychecks, pursuant to their labor contracts, even after the contracts expire. The case is Valley Hospital Medical Center, Inc., N.L.R.B. Case 28-CA-213783 (Valley Hospital II).

Dues checkoff previously served as an exception to the National Labor Relations Act’s unilateral change rule, which prohibits employers from changing mandatory subjects of bargaining, such as wages and hours, without giving unions the opportunity to negotiate over their terms. The Board first implemented the dues check-off exception in 1962, in Bethlehem Steel. That rule lasted until  2015, when the Obama-era Board reversed it in its Lincoln Lutheran of Racine decision.

The Trump-era Board then resurrected Bethlehem Steel in Valley Hospital in 2019 (Valley Hospital I), but on appeal, the Ninth Circuit remanded that case for further review.  And on remand, in Valley Hospital II, the NLRB’s new Democratic-majority Board concluded that dues check-off is indeed a mandatory subject that cannot be changed upon contract expiration.

In its dissent, the NLRB’s Republican Board minority criticized Valley Hospital II  as contrary to the Bethlehem Steel rule that was consistently applied for over 50 years. The Republican minority also criticized the decision as inconsistent with Section 302 of the LMRA. Not only does that statute prohibit employers from deducting dues absent the employee’s written consent, but also, it  expressly states that such consent must be revocable once the “applicable collective bargaining agreement” expires. According to the Republican minority, this language gives dues check-off a special status apart from other terms and conditions. The majority disagreed, however, and Valley Hospital II is now the law.

Valley Hospital II  is a meaningful victory for unions, as it boosts their leverage in labor negotiations. Previously, employers had the option to cancel dues deductions, weakening the union’s revenue stream  and thereby incentivizing the union to reach a new agreement more expeditiously.  Under Valley Hospital II, those deductions will continue while the union leverages its other economic weapons, such as striking. To be sure, the employer can still deploy its own weapons in these situations, but Valley Hospital II does help shift the leverage in favor of the union.

It can be a disheartening fact of life for employers that, even when they do everything right and follow all applicable safety rules and regulations to the letter, employee injuries can still happen. It is also often frustrating that those injuries, even in the absence of any wrongdoing by the employer, will result in workers’ compensation claims that can adversely impact the employer in a variety of ways. Is there anything employers can do to defend themselves against those claims involving injuries that seem to have just happened with no apparent explanation or associated hazard as the cause? Yes, actually—if the injury was the result of an idiopathic cause.

Under Ohio Workers’ Compensation law, idiopathic injuries are generally not compensable. The Ohio Supreme Court defines the term, “idiopathic,” in the context of on-the-job injuries as “an employee’s pre-existing physical weakness or disease which contributes to the accident.” Waller v. Mayfield, 37 Ohio St.3d 118, 524 N.E.2d 458 (1988). Essentially, an idiopathic injury is one that was caused by some circumstances personal to the particular employee rather than caused by any risk associated with the employment. Perhaps the most common example of an idiopathic injury would be an employee getting hurt due to a fainting episode or a seizure at work. If an otherwise idiopathic injury is somehow worsened by a risk or hazard of the employment, however, it is still compensable; so, if an employee suffers a seizure at work but then hits their head on some piece of work equipment during their fall, the employer may not be able to avail themselves of the idiopathic injury defense.

Like many other areas of workers’ compensation law, whether an injury is due to an idiopathic cause and whether the employment worsened the injury are fact-specific inquiries. Moreover, in some cases, there is no apparent or even alleged explanation for how the injury happened whatsoever. In cases of unexplained falls, in particular, the burden shifts to the employee to eliminate idiopathic causes for the fall in order to establish the compensability of their claim.

In sum, even in Ohio’s no-fault workers’ compensation system, employers are not always fully defenseless when it comes to unexplained injuries. Careful accident investigation and review of the medical evidence can sometimes reveal idiopathic causes for previously unexplained accidents and provide a defense against the claim. And even in cases of fully unexplained employee falls, employers can take advantage of the burden shift and force the employee to eliminate possible idiopathic causes of their injuries.

According to recent reports from the Bureau of Labor Statistics, women make up roughly 10% of jobs in the construction industry, 30% in manufacturing, and as of 2021, and 75% of healthcare and social assistance jobs.[1]  Although those numbers may have dropped during the COVID-19 pandemic, women are beginning to return to the workforce in what continues to be a very tight labor market.  In addition to being great tools for recruitment and retention, PPE fit issues in these three vital segments of a precarious US economy are also emerging as areas for potential legal pitfalls and additional cost that employers should examine carefully.

According to a 2019 report from the American Society of Safety Professionals, getting properly fitting PPE is still a challenge for female workers, and can lead to several adverse workplace events, the most obvious of which are safety-related.  Ill-fitting PPE can pose a range of safety risks to workers in any industry, some which by example may include: loose clothing snagging on ladders or pulling workers into production equipment, too-large gloves exposing the skin to chemical and cut hazards; sprains from trips, falls and prolonged use of too-wide steel-toed boots; and repetitive strains, motion disorders, and nerve conditions in wrists and forearms from use of hand tools with “standard” grip sizes – all of which may increase an employer’s OSHA recordable and reportables, including DART rates, and discourage employees from using PPE at all.

And as experienced EHS professionals know, where OSHA injuries and illness go, so too do workers’ compensation claims, creating additional cost and disruption to the business.

Lastly, and in addition to the risk of losing valuable, experienced talent employers are working hard to retain, PPE can also be the basis for various gender discrimination claims alleging disparate treatment and loss of job opportunities (think NASA cancelling its first attempt at a history-making all-female spacewalk in early 2019 because there weren’t enough medium-sized spacesuits).  Making sure women can perform work safely not only reduces these risks, but also serves as an important tool for inclusion and making women feel welcome on the job.

By considering the legal and non-legal implications of gender-specific PPE, employers can avoid the lose-lose situation likely to affect employees and employers alike.

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Recently, a staffing company agreed to, among other things, pay Massachusetts $230,000 to settle a lawsuit related to a data breach.  In December 2020, the staffing company learned that its network had been compromised.  It received communication from a third-party who encrypted files in the staffing company’s network and threatened to publicly release sensitive data.  Upon investigation, the staffing company learned that a manager’s improper handling of a phishing email caused the data breach.  From the breach, the third-party obtained names and social security numbers of the staffing company’s employees and job placement service users.

The Commonwealth of Massachusetts became involved because the personal information compromised included that of over 3,000 Massachusetts residents. Through its investigation, the Massachusetts’ Attorney General learned that the staffing company did not have a written information security program as required by state law.  In addition, the staffing company failed to implement appropriate safeguards to protect the personal information of its employees and job placement service users.

In settlement of the lawsuit filed by the Massachusetts’ Attorney General, the staffing company agreed to monetary compensation and to take numerous steps. Those steps included: create a written information security program and have annual tests conducted; develop and maintain appropriate data security policies, procedures, and programs; conduct annual assessments, for three years, of its systems, policies, and procedures; designate a specific employee as being responsible for implementing and maintaining the company’s data security policies, procedures, and programs; and conduct annual employee trainings concerning the importance of personal information security and the company’s data security policies, procedures, and programs.

In all, this incident provides several useful lessons. First, companies should take steps to ensure they know and comply with applicable state laws.  Here, it was a Rhode Island company, but Massachusetts law applied because its employees and job placement service users included Massachusetts residents. Second, companies should ensure that they have appropriate data security policies, procedures, and programs in place.  Last, but not least, companies should ensure that they adequately and routinely train employees on their data security programs, polices, and procedures. Had the staffing company manager not improperly handled the phishing email, this data breach would not have occurred.

If you have questions about this or other Data Privacy and Cybersecurity or Labor and Employment issues, please contact Andrew Cleves or another member of the Frantz Ward Data Privacy and Cybersecurity or Labor and Employment Practice Groups.

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic related guidance and Frequently Asked Questions page. The EEOC’s update addresses testing procedures, symptoms screenings, and the accommodation process under the Americans with Disabilities Act (“ADA”), among other things.

Two interesting changes distinguish what tests an employer can mandate when testing employees returning to work for COVID-19. The EEOC opines that an employer, as a mandatory screening measure, can administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) if the employer can show it is job-related and consistent with business necessity.

The EEOC further opines that possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19. Said differently, the EEOC recognizes that viral testing of employees might be appropriate if it is consistent with a “business necessity” as described above.

However, in the same update the EEOC opines that an employer cannot require COVID-19 antibody testing before permitting employees to re-enter the workplace. The EEOC reasons that such tests are not job-related and consistent with business necessity as they do not show whether an employee has a current infection, and do not establish that an employee is immune to infection. Therefore, the EEOC reasons that requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

We can reasonably expect that the EEOC will continue to update its pandemic related guidance and Frequently Asked Questions page. Employers should continue to periodically check that page for updated guidance especially as it relates to accommodations or medical inquires under the ADA.

The Covid-19 pandemic has resulted in a dramatic increase in the number of employees who work remotely. According to Forbes, pre-pandemic, roughly five percent of full-time employees with office jobs worked primarily from home.  According to projections, twenty- five percent of all professional jobs will be remote by the end of 2022. As such, employees working from home may be the new normal, with variation across occupations and industries. The increase in the number of remote employees has forced companies to revisit their telecommuting protocols, in addition to their risk management strategies to include remote workplace reviews, defining job duties to prevent claims or injuries arising from non-work related activities, and identifying specific business hours. The shift to remote work has also resulted in an increase in workers’ compensation claims filed by employees alleging work related injuries occurring at home.

In response to the various issues arising in connection with remote workers’ compensation claims, on June 24, 2022, Governor DeWine signed into law House Bill 447 (“H.B. 447”)  amending Ohio Revised Code §4123.01 (C) to EXCLUDE from the definition of an “injury” any “(i)njury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home and that is separate and distinct from the location of the employer(.)” H.B. 447 does permit, however, an injury or disability sustained at home to be compensable under workers’ compensation if ALL of the following three factors are met:

  1. The employee’s injury or disability arises out of the employee’s employment;
  2. The employee’s injury or disability was caused by a special hazard of the employee’s employment activity; and
  3. The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

Accordingly, H.B. 447 limits the compensability for work from home injuries. While the standard definition for “injury” requires the injury to occur “in the course of, and arising out of, the injured employee’s employment,” the work from home injury will only meet the statutory definition of an “injury” if it occurred “in the course of activity undertaken by the employee for the exclusive benefit of the employer” and was caused by a “special hazard” of the employee’s employment activity. The courts have defined a “special hazard” as a “risk, either distinctive in nature or quantitatively greater than the risk common to the public.”

H.B. 447 goes into effect on September 23, 2022.

Workers’ compensation claims are very fact specific and employers are encouraged to work with their legal counsel to thoroughly investigate claims filed by their remote employees to determine whether the statutory requirements have been met and to implement strategies to manage workers’ compensation risks specific to those employees. Employers should also implement practices that aim to limit workers’ compensation liability for home-based employees by creating a telecommuting policy which outline the employer’s expectations for employees who work from home and establish guidelines for a home office.

If you have any questions regarding the issues addressed in this article or other issues, please contact Maris McNamara or any of Frantz Ward’s other Workers’ Compensation attorneys.