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.

A federal judge in New York recently ruled that a FedEx driver’s claims for failure to accommodate under the Americans With Disabilities Act can proceed to trial. The court’s opinion provides helpful guidance for employers seeking to navigate the difficult issues that can arise when an employee is unable to immediately return to work after a medical leave of absence.

In Cayetano v. Federal Express Corp., a FedEx driver took leave under the Family Medical Leave Act for shoulder surgery. Near the end of his twelve weeks of FMLA leave, the driver’s doctor informed FedEx that the driver could return to work with a 20-lb. lifting restriction. His position required the ability to lift 75 lbs., however.

After receiving the driver’s lifting restrictions, FedEx informed him there were no light duty positions available that met his lifting restrictions. The company engaged in no other discussions with the driver regarding other potential accommodations, including additional job-protected leave. When the driver was released to work with no restrictions approximately three months later, FedEx informed him that no positions were available. The driver later sued FedEx alleging, among other claims, that the company had failed to reasonably accommodate him under the ADA.

FedEx argued to the court that the driver had never specifically requested additional job-protected leave beyond his initial 12-weeks of FMLA entitlement, but the court rejected this argument. While generally employees are required to request an accommodation, here FedEx was on notice of the driver’s need for additional leave once it received the physician’s note describing his job restrictions. The court explained that a jury could find that an additional three months of job-protected leave would have constituted a reasonable accommodation under the ADA.

The court also found merit in the driver’s arguments that FedEx had failed to engage in a good-faith interactive process to determine whether any reasonable accommodations existed. The court noted that FedEx had provided no evidence that it had asked “the [driver] what he wanted, considered his suggestions, offered alternatives, or even asked him to fill out its standard reasonable accommodations form.”  Thus, the court reasoned that a jury might conclude that FedEx’s failure to engage in such an interactive process would support a claim of discrimination.

This case provides important reminders for employers seeking to navigate the complexities of the interplay between the FMLA and ADA, particularly with leaves of absence. First, when an employee is unable to return to work at the conclusion of an FMLA leave, employers should always consider whether an accommodation of some type will be necessary under the ADA. Frequently, this may include the employer’s providing additional, job-protected leave. Employers should consider accommodations in these circumstances even when the employee has not requested a specific accommodation. Second, the court’s decision makes clear an employer’s obligation to engage in a good faith interactive process. Simply rejecting one type of accommodation as unreasonable is typically not enough. Employers should engage directly with the employee, consider the employee’s suggestions and, when possible, offer alternative accommodations. Finally, employers should always document the interactive process.

If you have any questions regarding this decision or workplace accommodation issues, please contact Mike Chesney or any of Frantz Ward’s other labor and employment attorneys.

The Federal Arbitration Act (“FAA” or the “Act”) establishes the enforceability and primacy of contracts that call for the resolution of disputes to be submitted to and decided by arbitration. Section 1 of the Act, however, provides that it shall not “apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce”. On June 6, 2022, the United States Supreme Court issued a unanimous decision written by Justice Thomas concerning the meaning of this section.

In Southwest Airlines Co. v. Saxon, the Supreme Court held that a Southwest Airlines supervisor who supervises a team of Southwest employees who load and unload cargo, but who also frequently helps to load and unload cargo alongside the employees she supervises, belongs to a class of workers engaged in interstate commerce. Thus, the supervisor, Latrice Saxon, who had agreed with Southwest to arbitrate wage disputes on an individual basis, is exempt from coverage under the Act, and she is free to pursue a collective action in a court of law under the Fair Labor Standards Act.

In its ruling, the Supreme Court rejected interpretations of the FAA exemption proposed by both parties. Saxon had proposed that the exemption apply to all airline employees, but the Court found that was too broad. Southwest proposed that the exemption apply only to workers who physically move goods or people across foreign or international boundaries, which the Court reasoned was too narrow.  Instead, the Court considered the words of the exemption as they are defined in dictionaries, it applied canons of statutory interpretation, it scrutinized the judicial context in which the case arose, and it then concluded that workers who frequently load and unload cargo on and off airplanes are exempt from the FAA’s coverage.

The Court felt it unnecessary to look beyond the facts of the case to consider on a broader basis the scope of the exemption, and acknowledged that its ruling leaves unanswered questions such as whether the exemption will apply to workers whose duties are “further removed” from the channels of interstate commerce or the actual crossing of borders, or whether “last leg” delivery drivers are covered by the exemption. The Court did make three references to workers whose activities are within the “flow” or “free flow” of goods across borders and thus are covered by the exemption.

The scope of this exemption is a matter of great significance to both employers and workers. Among other reasons, employees who have signed arbitration agreements generally may not bring class actions, and they may not have their disputes decided by juries; rather the decision makers will be selected by the parties, and the risks of huge “runaway” jury verdicts are avoided. Consequently, employee claims that must be resolved through arbitration are generally much less appealing to plaintiffs’ lawyers and in many instances are likely to be settled quickly or not even pursued. At worst, arbitrable claims are generally more susceptible to reasonable settlements. Arbitration proceedings are also likely to be far less expensive than court proceedings and are typically concluded much sooner than are court actions.

If you have any questions regarding the Southwest decision, or concerning arbitration agreements in general, please feel free to contact Merritt Bumpass, Jon Scandling or any of Frantz Ward’s Labor and Employment attorneys.

The recent spate of mass shootings in the U.S. is understandably causing many employers to re-examine their workplace weapons policies. As with all workplace issues, however, employers should be careful to make sure their policies comply with applicable laws. Ohio law, for example, has for years prohibited employers from banning firearms and ammunition from their parking lots if the person bringing them has a valid concealed handgun license and stores them in a privately owned motor vehicle. About half of the states have similar laws that are commonly referred to as “guns in trunks” statutes.

Notably, Ohio has a new gun law that takes effect on June 13 permitting all qualified adults to carry certain concealed firearms, even without a license. Although that law does not expressly modify Ohio’s existing parking lot law, it is reasonable to conclude that it will allow all qualified adults to bring their guns to work and store them in personal vehicles in their employer’s parking lot.

Some states go beyond parking lot laws to protect gun owners from employer policies, such as states that make gun ownership a protected classification. In states like Kentucky, for example, employers are not permitted to discriminate or retaliate against employees for owning, possessing or using guns and ammunition.

Despite these and other legal restrictions, safety-minded employers can still implement common sense weapons policies that: prohibit employees from bringing weapons into the workplace, to the extent permissible by the applicable law; establish a confidential process by which employees can report violations; identify the security and/or law enforcement personnel who will be involved in addressing violations; and establish clear penalties for violations.

If you have questions about this or other Labor and Employment issues, contact Brian Kelly or another member of the Frantz Ward Labor and Employment Practice Group.

A string of recent inquiries from clients and colleagues suggests that it might be a good time to post this reminder: for the Ohio BWC, a drug-free workplace still means a marijuana-free workplace.

Under the BWC’s Drug-Free Safety Program (DFSP), sometimes also referred to as its Drug-Free Workplace Program (DFWP), Ohio employers can qualify for annual premium discounts if they fulfill certain requirements with respect to their drug and alcohol policies. Specifically, employers participating in the BWC’s DFSP must implement the following components:

  • Develop a written drug and alcohol policy
  • Provide employee education
  • Offer supervisor training
  • Conduct drug and alcohol testing
  • Offer employee assistance with substance abuse issues

For the drug and alcohol testing, the DFSP requires the following types of testing:

  • Pre-employment / new hire
  • Reasonable suspicion
  • Post-accident
  • Return-to-duty / Follow up
  • Random (for the advanced levels of participation in the DFSP)

Finally, the DFSP requires testing for at least the following five (5) substances:

  1. Cocaine
  2. Marijuana
  3. Opiates
  4. Amphetamines
  5. Phencyclidine (PCP/angel dust)

Following Ohio’s legalization of medical marijuana in 2016, many employers have wondered if marijuana was going to be removed from that list. The questions typically come in one of two flavors: “Must we stop testing our employees for marijuana?” or “Can we stop testing our employees for marijuana?” But despite the change in the legal status of marijuana in the state, and despite the years that have gone by since that change, the BWC’s treatment of the drug when it comes to the DFSP remains as it was before legalization—employers who wish to maintain participation in the DFSP and retain their premium discounts must still test for marijuana.

For some employers, the marijuana testing requirements can create an unwanted impediment to hiring and retaining workers at a time when good help may be hard to find. Some employers may even consider giving up their BWC premium discounts under the DFSP in order to broaden the pool of potential hires. As an alternative, however, another option available to employers would be to stick to the lowest level of participation in the DFSP—offering a lower premium discount than higher levels of participation but a discount nonetheless—while eliminating the random drug testing for marijuana that is required for the higher levels of DFSP participation.

Since at least 1978 when the U.S. Equal Opportunity Commission (“EEOC”) issued guidance on hiring tools, employers have known that they need to analyze carefully any testing procedures they utilize to screen potential employees and current employees in order to ensure that they are properly validated and do not discriminate against individuals or protected classes under the disparate treatment and disparate impact theories of discrimination.  On May 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) for the first time issued guidance in a question and answer format to employers, employees and applicants on the use of artificial intelligence tools.

Artificial intelligence (“AI”) tools are often times used by employers to assist them and save them time in making decisions regarding hiring new employees, monitoring their work performance, determining wages and promotions, as well as other terms and conditions of employment.  These tools typically rely upon software that uses algorithms to aid the decision-making process.  The concern of the EEOC is that artificial intelligence tools utilized by employers may have a disparate impact on individuals, both applicants and current employees, with disabilities, and therefore violate Title I of the Americans with Disabilities Act (“ADA”). The technical assistance guidance published by the EEOC gives employers practical tips on how to comply with the ADA, and to applicants and employees whose rights may have been violated.

Examples of some of the AI tools that concern the EEOC are: “resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.”

While the technical assistance guidance was issued by the EEOC, it was done in conjunction with the U.S. Department of Justice (“DOJ”), as the EEOC enforces disability discrimination laws for the private sector and federal employees, whereas the DOJ enforces such laws for state and local government employees.  The guidance comes after disability advocates for years have been complaining of discrimination via employer testing programs, and been clamoring for action with respect to the use of AI.  In this regard, it is estimated that more than 80% of employers use some form of automated tools to screen candidates for hire.

The guidance explains the meaning of AI as well as “software and algorithms,” and how they relate to one another when used in the workplace.  It then goes on to discuss the basics of the ADA and reasonable accommodation, as well as algorithmic-decision making tools that screen out qualified individuals with disabilities and that violate the prohibitions on disability-related inquiries and medical examinations.  It finishes by providing “Promising Practices” for employers, job applicants and employees.  In particular, the technical assistance guidance directs employers to be critical of any AI tools they may use, and it includes questions that employers should ask vendors of AI tools.  The EEOC emphasizes that any AI tools should focus on determining the abilities or qualifications that are needed for a job, regardless of whether a reasonable accommodation is needed to perform the essential job functions.

On July 22, 2021, Jennifer Abruzzo was sworn in as the General Counsel for the National Labor Relations Board (“NLRB”) for a four-year term. In the more than nine months that have followed, the new General Counsel has urged the NLRB to reverse several existing precedents in ways that would dramatically enhance the ability of unions to organize employees.

Shortly after her appointment as General Counsel, Ms. Abruzzo signaled the scope and nature of her agenda. Starting in August 2021, she issued a series of memoranda that outlined the voluminous issues and concerns she intended to address. Overwhelmingly, the General Counsel’s writings and actions have favored unions and employees.  While the number and significance of her proposed changes are quite dramatic, the General Counsel’s anti-employer agenda is not surprising.  She was nominated by President Biden, who has announced that he intends to be the most pro-union president in the history of the country, she had served in various positions with the NLRB for more than 20 years, and her last employment before assuming the General Counsel’s job was as the Special Counsel for Strategic Initiatives for the Communications Workers of America.[1]

The three majority members of the Board are likely to lend a sympathetic ear to the General Counsel’s arguments. Two of the three were appointed by President Biden in August of 2021. Both had previously served as counsel for unions. The Chairperson was appointed to the Board by President Obama in 2014, and in January of 2021, President Biden made her the Chairperson of the Board. The Chairperson previously served in positions that supported two Democratic senators.

As an example of the General Counsel’s pro-union stance, she has argued in her brief to the NLRB in a pending case, Cemex Construction Materials Pacific, LLC, 28-RC-232059, that five different prior NLRB holdings should be overruled. Probably the most significant NLRB doctrine that the General Counsel seeks to overturn in this case involves union recognition based on union authorization cards. For decades, employers have routinely and lawfully rejected requests from union representatives for recognition based upon authorization cards supposedly signed by a majority of the employees the union sought to represent. Instead, employers usually simply replied to such requests that they preferred to rely upon the results of a secret ballot election conducted by the NLRB. The General Counsel now argues that under such circumstances, an employer should be ordered to bargain with a union unless the employer can establish that it rejected the union’s request based on a good faith doubt that the union represented a majority of the employees in the proposed bargaining unit. The General Counsel asserts that a 1949 NLRB decision in which this theory was espoused, Joy Silk Mills, Inc., 85 NLRB 1263 (1949),  provides superior logic and reasoning and would reduce unlawful actions by employers. She also believes that the commission of unfair labor practices subsequent to employer’s rejection of card-check recognition can be relied upon as support for the conclusion that the employer lacked good faith for its doubt of majority status at the time of its rejection of a union’s request for recognition. If the NLRB and the courts adopt this ruling, employers will face very difficult choices. If they examine authorization cards and those cards appear to have been signed by a majority of the employees in an appropriate unit, the employer will be bound by that knowledge and will not be able to seek an election.

The General Counsel has also argued in Cemex that the NLRB should overrule long-established precedent and hold that mandatory employee meetings at which employers seek to persuade employees not to support unions violate the National Labor Relations Act. Such meetings have long been a staple of employer campaigns in response to union campaigns. The General Counsel argues that such meetings are unlawful because they inherently involve a threat of reprisal against employees for exercising their protected right to refrain from listening to such speech. The General Counsel also contends that an employer violates the law when a manager or supervisor “corners” an employee who is working at his job and thus is compelled to listen to the anti-union views of the manager or supervisor. According to the General Counsel, employers may avoid liability if they assure employees that attending mandatory meetings or suffering such “cornering” is voluntary and that non-participation will not result in any reprisals.

In Cemex and another case the General Counsel has also argued that employees who have been discharged unlawfully under the Act should be entitled not only to the traditional remedies of reinstatement and bargaining, but also should be made whole for all losses they have suffered, just as they would under other statutes. More specifically, according to the General Counsel, unlawfully terminated employees should be able to recover “expenses, penalties, legal fees, late fees” and “damages for harm such as emotional distress or injury to character, professional standing or reputation; as well as remedies that are tailored to addressing the public harm and chilling effect, or potential thereof, of the unfair labor practice at issue.”

Elsewhere, the General Counsel has asserted that more publication than the mere posting of  notices on a bulletin board regarding employer violations of the Act is needed in order to remedy employer violations. The General Counsel also contends that employers should be required to pay for costs incurred by a union in connection with a re-run of an election that was necessary because of an employer’s misconduct.

Finally, in February of this year, the General Counsel launched a “new injunction initiative” that is aimed at promptly addressing and stopping the actions of employers who threaten or coerce employees during organizing campaigns. In one of her earlier memoranda, the General Counsel wrote that such injunctions are one of the most important tools available for the enforcement of the Act, and that she intended to “aggressively” seek such relief where necessary. She pointed specifically to allegedly unlawful discharges that occur during union organization campaigns as constituting the types of violations that should result in injunctive relief.

The General Counsel’s emphasis of such injunctive relief is an unspoken acknowledgement that pursuit by the NLRB of its normal remedies under the Act can take months if not years to reach conclusions, long after an election has been conducted. On the other hand, successful pursuit by the NLRB of injunctive relief from a federal district court can result in reinstatement of discharged employees and the redressing of other alleged actions in a matter of days, versus the months if not years it can take for the NLRB to obtain “normal” remedies under the Act. Thus, seeking an injunction can have a powerful effect upon the outcome of a pending election.

[1] Interestingly, in the first six months of the NLRB’s 2022 fiscal year, the number of union representation petitions filed with the NLRB have increased by 57% — from 748 during the Board’s 2021 fiscal year to 1,174 during the period from October 1, 2021 to March 31, 2022.

Wage transparency laws are getting more and more popular, and employers should expect this trend to continue. These laws are designed to correct the gender pay gap and, generally, require an employer to publish the salary range for the job position being advertised.

For example, Washington and New York City recently joined Colorado in requiring wage transparency. Washington now requires that employers disclose in each job posting the wage scale or salary range, and a general description of all of the benefits and other compensation to be offered. This law goes into effect on January 1, 2023 and applies to employers with fifteen or more employees.

Similarly, New York City now requires that employers advertising jobs include a “good faith” salary range for every job, promotion, and transfer opportunity advertised. “Good faith” means the salary range the employer honestly believes at the time it is listing the job advertisement that it is willing to pay the applicant. Unlike Washington, however, employers in New York City do not have to list the benefits offered in the position as “salary” does not include other forms of compensation or benefits offered such as insurance, paid time off, bonuses, or commissions. This law applies to employers with four or more employees and covered employers must begin posting salary ranges on May 15, 2022.

We can reasonably expect that these wage transparency laws will be implemented in more states and cities across the country. As such, employers should start to consider how they will comply with a wage transparency law. Employers should also analyze their pay and wage date to determine if there are any wage gaps that will come to light if a wage transparency law were implemented. If so, an employer may want to correct – or start correcting – such wage gaps. At a minimum, this is good for employee relations and may save time and energy in the future.