Hunton Employment & Labor Perspectives

On December 24, Craig Becker’s nomination to the NLRB ran into a significant obstacle when the Senate returned the nomination to the White House for reconsideration.

Becker, who works for the Service Employees International Union, was nominated by the President earlier this year to fill one of the two vacant Democratic seats on the NLRB.  There has been significant controversy surrounding his nomination due to what critics describe as his extreme, some say radical, pro-union views concerning possible changes to the nation’s labor laws.  The nominations of Democrat Mark Pierce and Republican Robert Hayes were both held over by the Senate for consideration during the next term, indicating that both are likely to be confirmed.  

Dr. David Michaels was confirmed and sworn in on December 9 as Assistant Secretary of Labor for OSHA.  Before coming to OSHA, Dr. Michaels was a professor and interim chair at the George Washington University School of Public Health and Health Services' Department of Environmental and Occupational Health.

The Supreme Court last week agreed to decide whether a California police department violated the privacy rights of an employee police officer by reading sexually-explicit text messages on the officer’s employer-issued pager.  The case, Quon v. Arch Wireless Operating Company, is on appeal from the Ninth Circuit, which ruled that in certain circumstances a public employee has a reasonable expectation of privacy in personal text messages -- even when those messages are sent on a device owned and provided by the employer. The decision is directly at odds with current employee privacy law, which generally holds that employees have no reasonable expectation of privacy in electronic communications on employer-provided electronic devices, and it adds to the list of headaches for employers adjusting to the exploding use of instant messaging in the workplace.

What to do with an employee who tested positive for marijuana used to be an easy decision.  That is not necessarily the case anymore.

Thirteen states have legalized the use of marijuana for medical purposes.  Some of these states require employers to accommodate the medical use of marijuana.  Although use of marijuana remains illegal under the federal Controlled Substances Act regardless of whether it is medically prescribed, the U.S. Department of Justice announced in October 2009 that federal agents will target users and distributors of marijuana only when they violate both federal and state laws.  In addition, employers may have to consider whether they must allow employees to use medical marijuana as a reasonable accommodation pursuant to the federal Americans With Disabilities Act (ADA).  These developments have caused employers to re-examine their “zero tolerance” policies with regard to drug use by employees.

Fairly or not, America’s commercial banks have been vilified by many as the cause of the nation’s financial meltdown. The CEOs of America’s most venerable financial institutions have been called to Washington and excoriated by an angry Congress, and on talk shows across the nation their salaries have been contrasted with those of hourly-paid financial workers. The new administration has called for tighter regulation of the financial sector and even appointed a “pay czar” to review the compensation structures of banks that have received bailout funds. While most of the attention over the banking crisis is focused on whether, and to what extent, the industry is in need of reform, far less attention has been placed on the veritable “perfect storm” the current political and economic climate has created for unions eager to make inroads into an industry that has been largely untouched by big labor.

In Mohawk Industries, Inc. v. Carpenter, the Supreme Court resolved a circuit split and held that an order requiring the disclosure of documents arguably protected by the attorney-client privilege does not qualify for immediate appeal under the “collateral order doctrine.”  The collateral order doctrine allows litigants to appeal a small class of orders that (1) conclusively determine a disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) are effectively unreviewable on appeal from a final judgment.  Orders that do not fit within these parameters can be challenged only after a final judgment is rendered in the case or by other procedural means.

Recently a woman found out just how serious social media can be when she lost her benefits as a result of photos she had uploaded to her Facebook page.  She posted photos on her Facebook page that showed her having fun on vacation and also enjoying a “Chippendales” show.  The problem was that she was on extended sick leave from her job at the time, purportedly because she was suffering from depression.  Her employer’s insurance company saw the photos and discontinued her benefit payments, concluding that she was not unable to work due to depression.  She argued her doctor recommended that she try to have fun to help her forget about her problems.

Now that the House has passed a health care reform bill and the Senate is considering its own version, we are beginning to get a better picture about what might be presented to President Obama.

The Affordable Health Care for America Act (H.R. 3962) is estimated by its supporters to reduce federal budget deficits by $109 billion over the 2010-2019 period.  The bill was passed on November 7 with the support of only one Republican in the 220-215 vote.  The Senate version of the bill entitled the Patient Protection and Affordable Care Act (H.R. 3590), is estimated by its supporters to reduce the federal budget deficits by $130 billion over a ten year period.  The text of the bill takes up more than 2,000 pages.

The U.S. Department of Labor (DOL) recently announced that it will propose new regulations that potentially could expand employers’ and labor consultants’ reporting obligations under Section 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). This may require employers to disclose some information that currently is not reportable, such as information related to advice from labor consultants and perhaps even attorneys.

The Office of Federal Contract Compliance Programs (OFCCP),  recently signaled that it may conduct more evaluations of multi-facility employers.  Its recently revised standard Corporate Scheduling Announcement Letter (CSAL) describes new and different practices that will accompany compliance audits of federal contractors.

In the past two months, both the House and Senate have proposed legislation that would extend the COBRA subsidy for health insurance created by the America Recovery and Reinvestment Act of 2009 (ARRA). The ARRA subsidy will begin to expire on December 1, 2009 without government action.  As the subsidy expires, unemployed Americans receiving the subsidy will see their COBRA premiums increase from 35% to 100% of the premium cost.