As noted in our June 2017 Employment Law Letter, the West Virginia Legislature passed the West Virginia Safer Workplaces Act. The new law, which went into effect on July 7, 2017, generally expands the circumstances under which employers may conduct drug and alcohol testing, with some important limitations. If your business conducts drug or alcohol testing, now is a good time to revisit your policy and consult with your attorney to ensure that it is compliant with the new law. Here, we will summarize the new law, including what it permits and what it prohibits.
In the past month, there have been several important Federal Appellate Court decisions regarding sexual orientation discrimination. On March 20, the Eleventh Circuit reaffirmed its prior precedent that Title VII does not extend protection to individuals harassed on the basis of sexual orientation. The Court noted that claims for gender nonconformity are allowed, but stated that there were not sufficient facts for such a finding in the present case. The Court also stated that it cannot reconsider prior precedent without a hearing in front of all the judges of the Eleventh Circuit—potentially signaling that the Court is willing to reconsider its position on sexual orientation discrimination.
The United States Equal Opportunity Employment Commission (“EEOC”) is the federal agency charged with enforcing federal employment discrimination laws. In recent weeks, the EEOC issued the final version of its long anticipated Enforcement Guidance on Retaliation and Related Issues, (the “Guidance”) which provides loads of helpful information about the elements of proof for retaliation suits filed under EEO laws such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and Title II of the Americans With Disabilities Act. Employers take note.
The National Labor Relations Board (the “Board”) continues its focus on overly-broad work policies – now in a non-union workplace – with a recent decision against Chipotle Mexican Grill. Although the Board found Chipotle violated the National Labor Relations Act (the “Act”) by (1) maintaining overly-broad social media and work policies, (2) ordering an employee to quit circulating a petition, and (3) firing the employee when he refused to do so, it found the employer did not violate the Act by asking the employee to remove certain tweets from his Twitter account. This case provides additional guidance on what is and is not permissible in work rules, particularly as they apply to social media posts by employees.
According to the Occupational Safety & Health Administration (“OSHA”), nearly two million American workers report having been victims of workplace violence each year. In fact, according to the Bureau of Labor Statistics, homicide is the fifth-leading cause of workplace fatalities in the U.S., accounting for 8% of all fatal on-the-job injuries. In recent years, tragedies around the country have focused employers’ attention on workplace violence, especially those involving firearms.
If you set goals late last year or early this year for workplace compliance to be completed in 2016 and have not yet met your goals, now is the time to revisit them. It is critical to allocate time and energy now to review your policies and achieve compliance with various statutes including the National Labor Relations Act, the Fair Labor Standards Act and the Fair Credit Reporting Act (“FCRA”) as the repercussions to employers for failing to do so are proving to be very costly. As was predicted for 2016, the trend of filing class actions for failure to comply with the requirements of the FCRA has and continues to grow.
On May 11, 2016, the Occupational Health and Safety Administration (“OSHA”) issued the final version of amendments to its Injury and Illness Recordkeeping Rule. While the principal function of the new rule is to require certain employers to begin electronically filing injury and illness reports to OSHA in 2017 (records which will then be published to the public), employers should also take note that OSHA has quietly adopted new anti-retaliation provisions in its regulations that could lead to more investigations and citations.
If you haven’t already heard, Pokémon Go, a virtual reality app created by Nintendo and Niantic, is taking the world by storm. According to Forbes, the app is about to surpass Twitter on the Android platform in daily active users, even though it was first released just a couple weeks ago in the United States and Australia and has not yet been made available worldwide. More and more people are getting in on the action, exploring real world landscapes with their smart phones in hopes of capturing virtual Pokémon appearing on their screen based on their phone’s clock and GPS location. It seems that no location is off limits, as Pokémon appear on or near both public and private property – even in bathrooms. As the Pokémon franchise motto commands, users “Gotta Catch ’Em All” at designated “Pokéstops” in their quest to become a renown Pokémon “trainer” who can out battle other users at local, virtual “Gyms.”
Having a solid confidentiality policy can protect your business from liability as well as protect your proprietary information. Thus, all employers should have a policy which governs the confidentiality of personnel information (social security numbers, medical information, etc.) management information (investigations, employee discipline, etc.) and business information (financial information, customer information, proprietary information, etc.).
Despite being listed as a Schedule 1 controlled substance under the federal Controlled Substances Act (“CSA”), marijuana has been legalized or de-criminalized in twenty-five states and the District of Columbia. In five states, such as Colorado, marijuana is legal for recreational purposes – adults are permitted to possess marijuana for essentially any and all personal purposes. In other states, marijuana use is limited to medical purposes – children and adults may ingest some forms of marijuana for enumerated medical purposes so long as they maintain valid prescriptions. The conflict between federal law and state law has created a tricky landscape for employers to navigate.