Monthly Archives: November 2012

NLRB OFFERS GUIDANCE ON ACCEPTABLE “AT-WILL” EMPLOYMENT LANGUAGE

What’s an employer to do?  The courts have held that an employee handbook can create an employment contract unless it has a specific disclaimer that the employer maintains an employment at-will policy.  On the other hand, the National Labor Relations Board (“NLRB”) has found employers guilty of unfair labor practices because it determined that an at-will disclaimer chilled employees’ rights to organize and enter into collective bargaining agreements.  Recently, the NLRB’s Office of General Counsel issued two Advice Memorandums that offer much-needed guidance to employers wishing to include at-will employment disclaimers.

 

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SAY WHAT YOU MEAN, MEAN WHAT YOU SAY: THE NLRB SAYS CONTRACT LANGUAGE DOESN’T MEAN WHAT IT SAYS

“[I]f it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.” – Through the Looking Glass

It is a challenge to convince a business person that unlike any other business contract, when a collective bargaining agreement (CBA) has expired, virtually all of its terms continue to be in effect.  This is because under the National Labor Relations Act (NLRA) an employer cannot unilaterally change terms and conditions of employment, regardless of whether there is a contract or not.  The NLRA mandates good faith bargaining before such changes can be made or implemented. 

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FACEBOOK TIMELINE:ONE REASON I DON’T LIKE CHANGE, AND PERHAPS EMPLOYERS SHOULDN’T EITHER

I had a fantastic weekend with my boys.  We went hiking and arrowhead hunting (unsuccessful) and came home hours later, dirty but with smiles on our faces.  Like any good mother, I promptly attempted to post pictures from our adventure to my Facebook account from my phone.  That didn’t go so well and, foiled by technology, I sat down to my computer to try again.  Now, I haven’t spent much time on Facebook since my forced conversion to Timeline, so I was a little horrified to discover what was there:  Hooters.

Now, don’t get me wrong.  I like wings.  I like owls (check out our awesome blog avatar for proof).  But, I have never been to Hooters.  Yet, the first thing that draws my eye on my Timeline is a map with a little teardrop proclaiming to all that I spend my spare time at Hooters.  And, I can’t for the life of me figure out how to make it go away.  Perhaps you think I’m silly to worry about such a thing, but give me another minute of your time before you make up your mind.

Scrolling further down the Timeline of my life for the past three years, I am aghast to light upon a summer vacation picture of me.  In a swimsuit.  Are you feeling my horror now?  See, I did not post either of these items.  I was tagged by others so that I could see their posts that they thought might be interesting to me.  Those tags automatically post to my Timeline for all to see and without me having to lift a single finger.

I’m not a Facebook guru.  I’m not here to tell you how to stop these automatic posts from happening, or even if it’s possible to stop them.  But, many employers – my own included – have Facebook pages for their business.  Timeline, however, could create pitfalls for less-than-vigilant employers.  Suppose you fire an employee who has already friended your company.  Vitriolic diatribes or other distasteful materials could be posted to your Timeline for the world, and your customers/clients, to see.  Customer complaints and adverse publicity could also find their way to your Timeline, and you may not even realize it.  Such posts can be damaging.

In my view, a business using Facebook should have someone knowledgeable about the program responsible for monitoring its site.  This individual’s email address should be the one that gets posting updates, so these can be viewed immediately for appropriate content.  Guidelines should be set with regard to the kinds of posts that will remain visible on the business’s Timeline.  When employees leave their employment on less than civil grounds, this individual should be informed so that the company can unfriend that person.  Just as employees should be cautious as to what they put out there in the public arena, so should employers.  If you have any suggestions for our readers on this issue, I’d love for you to share your views.

REVIEWING WORKERS COMPENSATION DISABILITY CLAIMS IN WEST VIRGINIA: WE HOLD THESE TRUTHS TO BE SELF-EVIDENT, THAT ALL INSURERS ARE CREATED EQUAL

Following significant reforms to West Virginia’s workers’ compensation system in 2003 and 2005, insured employers benefitted from statutory changes that granted them the right to review claims in which awards of permanent total disability benefits had been made.  This review process allowed insured employers to determine if workers who had been granted such awards previously remained qualified recipients of the benefits.  This grant of authority from the legislature remained relatively unused since the revisions to the Workers’ Compensation Act because of a lack of interpretation from the Supreme Court of Appeals.  A decision entered just this week, however, is likely to change that lack of use.

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DELAYED REACTION: EMPLOYER’S APPEAL OF UNEMPLOYMENT BENEFIT AWARD GIVES RISE TO TITLE VII RETALIATION CASE

On October 4, the United States District Court for the Eastern District of Pennsylvania issued a rather interesting decision regarding the intersection of Title VII rights and unemployment compensation proceedings.  In Stezzi v. Citizens Bank of Pennsylvania, the court held that an employee can base a Title VII retaliation claim on an employer’s termination of unemployment benefits.

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REOPENING AND RE-EVALUATING PERMANENT TOTAL DISABILITY AWARDS CONSIDERED BY W. VA. SUPREME COURT

W. Va. Code § 23-4-16(d) was amended in 2005 in regard to permanent total disability (“PTD”) awards that have been previously granted.  The amendment requires the private carrier or self-insured employer to continuously monitor these awards.  It further allows the private carrier or self-insured employer to reopen these claims for re-evaluation of the PTD award using the current statute governing the granting of such award and also provides for the possibility of modification of the award. 

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