Monthly Archives: May 2013

EEOC Settles First GINA Lawsuit

The EEOC has reached a settlement in its first-ever GINA lawsuit.

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Passed in 2008, GINA, the Genetic Information Nondiscrimination Act, prohibits employers from basing employment decisions on genetic factors, including an applicant’s family medical history.

The case, which settled for $50,000, involved an employer-mandated physical for a job applicant. The doctor asked questions about the applicant’s family medical history of heart disease, cancer, diabetes, and other specific ailments. The applicant wasn’t hired after the company suspected she had carpal tunnel syndrome, which she denied.

The company also agreed to train its employees and post nondiscrimination notices to ensure it wouldn’t happen again.

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New Virginia Employee Privacy Law

Starting July 1, 2013, employers will not be required to hand out employees’ private information, including their phone numbers, email addresses, shift times, or work schedules, to third parties unless required by law.

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The Keeping Employees’ Emails and Phones Secure Act, or KEEP Act, mirrors a federal bill that stalled in Congress last year. Although ostensibly designed to protect employee privacy and safety, both the federal and Virginia bills are seen as responses to proposed NLRB rules that would require employers to provide more detailed employee contact information during labor union organizing campaigns. The new Virginia law gives employers cover for refusing to provide employee contact information.

It also may tee up a showdown if the federal NLRB rules are implemented because the Virginia law may be overridden if it conflicts with federal law.

The new law also does not require employers to keep the information confidential; it simply says they are not mandated to provide employee information to third parties. Employers may still do so if they wish.

Another Blow to NLRB Recess Appointments

Although it didn’t make quite as much of a splash as the D.C. Circuit’s ruling, another federal appeals court has invalidated the President’s recess appointments to the National Labor Relations Board.

The federal Third Circuit Court of Appeals, sitting in Philadelphia, adopted the same logic as the D.C. Circuit in invalidating the NLRB recess appointments. It ruled that Presidential recess appointments may only be made during the intersession recess between Congresses, and not during intrasession breaks when Congress happens to be out of session.

The NLRB has appealed the original D.C. Circuit case, Noel Canning, to the Supreme Court, which will likely hear the case during its upcoming term starting in October 2013.

OSHA Lets Unions In During Inspections of Non-Unionized Workplaces

In a dramatic shift from its prior interpretations, the federal Occupational Safety and Health Administration has released a new interpretation of its regulations allowing outside union representatives to accompany employees during OSHA inspections.

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Previously, employees in unionized and non-unionized workplaces could designate a representative to accompany the inspector during “walkaround” inspections. The representative typically had to be an employee or be from a union representing the workers. No more.

Under OSHA’s new rules, now, even in non-unionized workplaces, the employees may choose a union representative to attend the inspection, as long as the employees designate the representative.

It’s largely being viewed among management as an opportunity for union organizers to effectively persuade employees to form a union, and could give organizers a chance to more effectively access and recruit employees where the trend has been to restrict on-premises solicitation.

NLRB Posting Rule Struck Down

In what could be its death blow, the federal D.C. Circuit Court of Appeals struck down the National Labor Relations Board’s rule requiring every employer to display posters explaining employees’ union and organizing rights.

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After two federal trial courts invalidated the NLRB rule, the D.C. Circuit ruled that the Board exceeded its authority in mandating the employee-rights poster. The Fourth Circuit, governing Virginia, is also set to rule on the matter soon.

The rule would have required employers to display an 11″ by 17″ poster explaining employees’ rights regarding unionizing and exercising their right to concerted activity to complain about working conditions.

The Fourth Circuit may uphold the rule, which would create a split among the federal appeals courts and likely lead to a Supreme Court decision. If the Fourth Circuit strikes it down as well, though, it will almost certainly be the end of the line.

$240 Million Win for Harassment Victims

An EEOC lawsuit has resulted in a staggering $240 million award to 32 employees of a turkey processing facility in Iowa. (Alas, the company is now defunct, so the likelihood of recovery is slim.)

The mentally disabled employees, who were paid 41 cents an hour and housed in a rodent-infested bunkhouse, were reportedly “abused, harshly disciplined, kicked in the groin, denied bathroom breaks, and were forced to work even when they were sick or injured.” One employee apparently was handcuffed to a bed and left there screaming and crying. The company also denied the employees access to medical care. Eventually, the bunkhouse was condemned as unsafe.

The jury award of $240 million represents $7.5 million for each employee. That stands in addition to $4.3 million in fines the company owes to various state and federal agencies for employment violations.