Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
Observant HR pros understand there may have once been aspects of an employee’s working life that didn’t have to be directly addressed in a handbook right away—issues covered by informal interactions, common sense and the understanding that HR would eventually “catch up” to big new developments in the legal landscape.
There’s no room for error now. In an ever more litigious society that expects immediate reaction and response, your workers are applying that same standard to your policies. Tomorrow morning’s headlines on CNN could mean employees perceive their rights differently than the day before.
How many of the following aspects of an effective employee handbook are unfortunately on your list of “to-dos,” and represent dangerous omissions that could catch you off guard? Attorney Anniken Davenport recommends you update your handbook immediately if you lack:
What new job applicant to any white collar position isn’t thinking, “I wonder if I can eventually do two days per week from the basement?” Everywhere they look, they have friends and relatives claiming success with working remotely; sooner or later they’re going to ask, “Why not me?” While making no promises, your handbook needs to lay out who can telecommute and when.
Make sure your employees understand what to do if they wake up tomorrow to inclement weather or chaos of a totally different kind. Pay special attention to your expectations for swift communication both ways.
This law applies to nonexempt workers covered by the FLSA, and extends for a full year after a child’s birth. State laws may extend that coverage. The space provided by the employer cannot be a bathroom and it must be shielded from view and free from intrusion by co-workers or the public.
The best companies and HR departments don’t always wait for a court case to review their handbook. You can’t afford to be late when public opinion shifts dramatically against policies that can swiftly be deemed archaic and insensitive, especially with employee activism on the rise.
Go through your handbook for the specific reason of determining whether your organization has become tone-deaf to the trends and movements that are reshaping employee expectations—even if you haven’t come under direct pressure to bend to them yet. The pressure is likely coming.
It’s essential that private employers monitor the NLRB’s direction in order to keep your handbook current. Some examples of their recent attitude shifts:
“They don’t like blanket rules that say employees can’t be ‘disrespectful’,” Davenport informed her audience. This is because employees could construe such rules as banning protected criticism or protests against their treatment on the job.
“They don’t like rules that say ‘absolutely no cameras or recording in the workplace.’” You must able to argue that the negative effect on workplace safety or confidentiality outweighs employees’ rights to engage in activity protected by the National Labor Relations Act. Again, you must be aware of the possibility of a complaint by someone alleging you’re stifling the documentation of working conditions.
“They don’t like rules attempting to prevent people from talking about an investigation or a complaint that was filed.” As evidenced by the #MeToo movement, which brought so much publicity to the awareness of sexual harassment, it’s difficult to keep workers from discussing and debating issues that can even ensnare your own office.
In general, any policy attempting to require confidentiality during an investigation will only be seen as lawful during the limited span of that open investigation. You can only require confidentiality from its direct participants—employees who talk about the incidents that led up to it should not be punished.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session The Power of the NLRB: Protected Concerted Activities, Handbooks and Organizing
A good employee handbook is one of your most important tools for avoiding workplace disputes and staying out of court. However, a poorly drafted handbook is worse than having no handbook at all.
Use the following questions to analyze the thoroughness and reliability of your employee handbook:
□ 1. Does your handbook clearly state that it is not to be considered a contract in any way and that you reserve the right to change it?
□ 2. If your handbook lists offenses warranting discipline, including discharge, does it make clear that those listed are merely illustrative rather than exhaustive?
□ 3. Does your handbook encourage employees to bring their complaints to their union or to management?
□ 4. Does your handbook make clear that you don’t tolerate any type of harassment?
□ 5. Does it provide procedures for addressing harassment complaints?
□ 6. Do the benefits policies contained in the handbook comply with federal and state laws?
□ 7. Do all employees receive copies of the handbook after each revision?
□ 8. Do you have a receipt form that employees sign when they receive the handbook or any revisions of it?
□ 9. Is your handbook up to date in all areas?
□ 10. Does your attorney review your handbook regularly to see that it contains nothing in conflict with federal and state laws or local regulations?
□ 11. Is it written clearly and simply?
□ 12. Is the language respectful of employees?
□ 13. Are the rules described in the handbook enforced in an even-handed manner?
□ 14. Do you make sure that your employees read the handbook?
□ 15. Is it free of political statements, including the company’s opinions regarding labor organizing?
If you answered “No” to any of these questions, you should review your company policies and the way they are communicated to your workforce.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session OSHA Compliance: Employer Responsibilities for Workplace Safety
Download Checklist: Complying with OSHA.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session OSHA Compliance: Employer Responsibilities for Workplace Safety
OSHA’s recently issued final rule on who may represent employees during safety and health inspections has employers worried. As a practical matter, the “walkaround rule”—which took effect May 31—means employers have little opportunity to object to third parties who employees choose to accompany OSHA inspectors as they check for unsafe working conditions or practices.
The rule lets employees designate someone to walk the workplace with inspectors—and that person doesn’t need to be an employee.
According to the rule, employee representatives could be anyone who, in the judgment of the OSHA inspector, is “reasonably necessary to aid in the inspection.” The rule says those third-party representatives “may be reasonably necessary because of their relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces.”
Employers fear that could literally open the door for union organizers or union-paid industrial hygienists to trail along behind inspectors, possibly influencing their findings or gathering information that could influence collective bargaining.
The walkaround rule provides that:
Fortunately, employers do have some say in the selection of third-party representatives. For example, they can object to outside employee representatives entering certain restricted areas if employers are concerned that trade secrets might be revealed or that classified materials might be exposed.
Employers can also prohibit third-party reps from taking photos and videos, making measurements, collecting samples and so forth. Employers can insist that the individual be adequately clothed in appropriate safety gear.
Perhaps most significantly, employers do not have to allow the third-party representative to discuss anything unrelated to the safety and health inspection—such as the benefits of belonging to a union.
Final note: Remember, the walkaround rule stipulates that the role of third-party employee representatives is to assist the OSHA inspector in doing their job, not to conduct their own independent inspection.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Managing Workplace Drug Issues: Policies, Compliance and Best Practices
Drug and alcohol testing at work have been commonplace for years, and for good reason. Employers want to ensure they host a safe and productive work environment. The use of alcohol and drugs poses a threat to the health and safety of employees and the security of facilities and equipment.
Since Pennsylvania does not have a specific statute setting out what employers can and cannot do, case law has developed to guide drug testing practices. In Pennsylvania, case law says employers should balance an employee’s privacy interests against the need for random drug testing.
Balancing privacy interests
The public’s interest in ensuring that workers in safety-sensitive positions are drug-free may outweigh any individual right to privacy.
For example, in 1992, the 3rd Circuit Court of Appeals found that terminating an employee for refusing to consent to a drug test may violate Pennsylvania’s public policy against tortious invasion of privacy. It ruled an employer must balance “the employee’s privacy interest against the employer’s interest in maintaining a drug-free workplace in order to determine whether a reasonable person would find the employer’s program highly offensive.” (Borse v. Piece Goods Shop, Inc., 3rd Cir., 1992)
What about the ADA?
The ADA does not prohibit drug and alcohol testing, and employers are permitted to implement policies and procedures to ensure that employees and applicants are not actively engaged in illegal drug use. (The ADA does not protect active drug users.)
However, medical marijuana users who have been subject to drug and alcohol testing have brought suits alleging violations of their rights under the ADA, as well as state law equivalents. In some cases, courts have agreed.
Interactive process required
Most recently, in Barbuto v. Advantage Sales & Marketing, LLC (477 Mass. 456, 2017), the Massachusetts Supreme Court decided that an employer is required to engage in the interactive process regarding potential accommodations and may be required to reasonably accommodate the medical use of marijuana outside of the workplace.
In Barbuto, the plaintiff accepted a job offer. When she was informed she would have to take a drug test, she told her supervisor that she would test positive for marijuana because she suffered from Crohn’s disease and was a qualifying medical marijuana patient under Massachusetts law. She noted that she did not use marijuana daily and would not consume it before or at work. The supervisor confirmed that her marijuana use would not be an issue.
Shortly after, the employee tested positive for marijuana. HR terminated her, saying it did not matter that she used marijuana to treat a medical condition since the company followed federal law, not state law.
The employee brought suit alleging, among other things, violation of the Massachusetts handicap discrimination law. She won.
Pennsylvania rules
In Pennsylvania, the medical marijuana law prohibits employers from discriminating against employees because of their medical marijuana status.
According to Pennsylvania law, however, employers are not required to “make any accommodation of the use of medical marijuana on the property or premises of any place of employment.” You may discipline employees for “being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.”
The law is silent on the implications if an employee who uses medical marijuana tests positive.
Advice for employers
Employers should not have a per se rule prohibiting employment when an employee tests positive for marijuana. If an employee tests positive for marijuana and informs you about legal medical marijuana use, engage in the interactive process to determine whether you can waive your drug testing policy without causing an undue hardship.
Waiving that policy does not mean you must allow the employee to work under the influence or use medical marijuana while working.
But testing positive for medical marijuana should not by itself disqualify an applicant or be automatic grounds for termination. Consider the type of work the employee does and whether there is a safety risk. The higher the safety risk, the less likely you will be required to accommodate the employee’s medical marijuana use.
Positive test vs. impairment
Remember, just because an employee who uses medical marijuana tests positive does not mean he or she is under the influence. Marijuana’s active chemical ingredient, THC, can stay in a user’s system for days or weeks, long after the effects of marijuana have subsided. This makes it difficult to determine whether an employee is actually under the influence at the time of the test.
If faced with this complicated issue, consult your attorney before making any disciplinary decisions.
Kali Wellington-James is an associate in the Labor and Employment Practice Group of Pepper Hamilton, working in the firm’s Berwyn, Pa. office.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Managing Workplace Drug Issues: Policies, Compliance and Best Practices
Some states have anti-discrimination laws that make it illegal for employers to punish employees for participating in legal activities outside of work. For example, employers can’t discipline or fire (or refuse to hire) someone who drinks alcohol or smokes cigarettes on their own time away from work premises.
But what about casual marijuana smokers in states that allow recreational use of cannabis? Can employers refuse to hire them or fire them if they test positive on a blood test? That’s the conundrum an Illinois employer recently faced when it wanted to enforce a zero-tolerance policy against drug users, including users of marijuana.
Recent case: Joseph was a territory account manager for Timken Gears, selling the transmission equipment the company makes. He worked mostly from his home. Timken Gears has a strict no-drugs policy that includes marijuana on the list of controlled substances that are not allowed.
When Joseph failed a random drug test that showed use of marijuana, he was suspended pending a negative test. He finally tested negative and was reinstated. But follow-up tests showed he might have used cannabis again, so the company fired him.
Joseph sued, alleging his firing violated the Illinois Right to Privacy in the Workplace Act. That law says employers can’t fire workers “because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.”
Since 2020, using marijuana has been legal in Illinois.
The employer argued that the law that legalized marijuana usage allows employers to establish and maintain a drug-free workplace. The court was left to decide whether testing positive but not actively using the substance at work could be grounds for termination.
After reading the statutory language, the court concluded that off-premises drug use could be punished if the policy was reasonable and didn’t discriminate. And it said Timken Gears’ policy—which gave employees a second chance to get and stay clean—was reasonable. (White v. Timken Gears, ND IL, 2024)
Advice: Before implementing and executing a drug-testing program in a state that permits marijuana use and has a law protecting employees from lifestyle discrimination, have your attorney review each law carefully. Are controlled substances excluded from protection under the lifestyle-discrimination law? Does the marijuana law address at-work use? Do the exclusions require any safeguards, such as running a second test of the same sample? Must a drug-free policy be reasonable and nondiscriminatory? Only a qualified attorney can safely guide you through that legal maze.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session AI and HR: Shaping the Future Together
Download Managing Responsible Use of AI in HR.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session AI and HR: Shaping the Future Together
Relying on an artificial intelligence-based service to screen résumés and select candidates to interview may seem like a great idea. AI vendors tout the ability of their algorithms to quickly weed out unqualified applicants.
They also suggest that using AI to screen candidates can insulate employers from discrimination charges. After all, bias can’t taint the hiring process if no one in HR or on a selection team reviews résumés and applications, right?
Maybe not. AI skeptics and a growing cadre of plaintiffs’ attorneys argue that instead of preventing hiring bias, relying on an AI algorithm may actually bake discrimination into the selection process. That’s what is alleged in one recent complaint filed with the Federal Trade Commission and another with the EEOC.
The complaint: The American Civil Liberties Union recently filed dual complaints with the FTC and the EEOC alleging that a personality assessment tool based on AI illegally screens out people with disabilities. Aon, a risk management company that provides HR solutions, sells the tool, as well as a video-interview system and a cognitive-assessment program.
Aon says its products improve the recruitment process and also increase the diversity of the candidate pool.
The ACLU complained to the FTC that Aon deceived its customers by claiming the products are “bias-free” when in reality they appear to discriminate. The ACLU alleges the screening program identifies as negative several applicant characteristics that its diagnostic criteria say are evidence of mental-health disabilities and autism. Thus, people with the characteristics indicating a diagnosis of having a mental-health condition or autism are flagged as poor job candidates.
How do the screening tools work? Applicants are asked to read a series of statements and then say whether they agree with them or not. The video-interview tool assesses the candidate’s performance and responses against diagnostic criteria. That is, the program may view candidate behavior such as looking down or gazing around the room instead of looking directly at the camera as disqualifying. Yet it’s well documented that many people with autism avoid looking others directly in the eye.
Finally, the tools also transcribe speech. The ACLU claims the program routinely makes more mistakes when transcribing Black candidates’ speech than that of other non-Black candidates.
If you use AI tools to screen candidates, take these steps to minimize your discrimination liability:
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Balancing Civility and Employee Expression in the Workplace
By Jon Hyman, Esq., Wickens, Herzer & Panza, Cleveland
When a Pennsylvania brewery noticed a large number of online complaints about employees’ sexist behaviors, its owner (who was at the center of those allegations) stepped away. The brewery also decided to publish a comprehensive new code of conduct on its website.
Most companies have anti-harassment policies. Far fewer include behaviors that fall outside of illegal protected-class workplace harassment. The time has come for all employers to adopt a code of conduct in addition to their harassment policy—and let all employees, customers and vendors know that any mistreatment of employees or others will not be tolerated. What should it include, and to whom should it apply? Some tips:
For employees, it depends on the severity of the offense. Employers have a legal obligation in cases of protected-class harassment to instill corrective action reasonably likely to stop future harassment (possibly including termination). For non-protected-class harassment or other code of conduct violations, the remedy should be no different.
For non-employee business partners (e.g., contractors and vendors), violations should constitute a breach of their agreement, which entitles the company to terminate the agreement. At a minimum, the offending person should be banned from the premises.
For customers, again, depending on the severity of the offense, remedies could vary from a warning to removal to a permanent ban from the business.
For employees, it should be handed out as a stand-alone document and put in the handbook. If you have an intranet, add it there.
For non-employee business partners, add it as a clause in agreements.
For customers, add it to your site and post it in your workplace.
A final word: Having a code of conduct is one thing. Living it in your culture is another. Unless you’re prepared to act on it no matter the perpetrator, there’s no point in drafting it in the first place.
Jon Hyman is a partner at Wickens, Herzer & Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. You can read his popular blog at www.OhioEmployerLawBlog.com.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
See other supplemental materials available.
Supplemental materials for LEAP 2025 session Balancing Civility and Employee Expression in the Workplace
As the election nears, your employees are going to bring some of their political opinions to work. It’s your job as a responsible employer to keep the workplace free of harassment. You can and should train employees to interact civilly with one another, even those with different political views.
But that can be difficult when public discourse from politicians descends to levels that would be inappropriate at work, creating a hostile work environment.
Recently, with the emergence of Vice President Kamala Harris as the Democratic presidential candidate, there has been a flood of social media memes and comments centering on her sex, race and national origins. If employees share some of this content via company email, text or other official channels, it could trigger harassment lawsuits.
Take, for example, a recent widely circulated comment about single cat ladies being unfit for office. Could it be interpreted as an insult to women in general because of their sex or reproductive status? What about comments about Harris being a “DEI candidate”? That could be seen as a racist comment stereotyping Black or Asian individuals as less capable than others.
Here’s what employers can do to maintain civility in contentious times:
Reinforce your electronic-communication rules. Remind all employees that they may not use company-owned computers, email systems, smartphones and text-messaging applications to share political memes or comments that denigrate anyone’s protected characteristics. Explain that sharing such content may create a hostile work environment for customers, clients and co-workers.
Ensure private social media doesn’t implicate the company. Remind employees that what they say or share on private social media must not mention the company or tag co-workers or customers who may find the message harassing.
Hold a meeting. It may help to hold an all-hands-on-deck-type meeting. Remind staff of your communication and anti-harassment policies. Explain that you will investigate all reports of harassment or statements that may create a hostile work environment. Follow up with a disclaimer that you are not prohibiting civil discussions that address politics or the election.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
