Labor and Employment Law Weekly Update

02 April 2012 Publication

Legal News: Employment Law Update

The NLRB Announces Intent to Educate Nonunion Employees
Written by: Kristy Kunisaki Marino

The NLRB recently confirmed that it will embark on an education campaign directed at nonunion employees. In particular, the NLRB plans to roll out a new Web site aimed at educating nonunion employees about their rights under the National Labor Relations Act (NLRA). The NLRB also plans to print and distribute brochures aimed at nonunion employees.

The educational campaign will reportedly focus on informing employees about their right to protected concerted activity under the NLRA. That is, the NLRB has found that “protected concerted activity” may include instances when two or more employees address their employer about pay or when employees discuss work-related issues, such as safety concerns, with each other. Because the NLRA prohibits employers from disciplining or punishing employees for engaging in protected concerted activity, even if those employees are not represented by a union, employers may be at a greater risk for complaints if they violate the rights of employees.

The NLRB’s announcement appears to be in line with its larger educational campaign, which includes a rule that would require most private sector employers to post a notice that informs employees about their rights under the NLRA. (We previously published an update concerning the NLRB’s Notice-Posting Rule in the January 9, 2012 issue of Foley’s Legal News: Employment Law Update).

The NLRB’s recent announcement is a reminder to all employers that they should review their policies and current practices so that they do not become the subject of an unfair labor practice charge. For example, an employer’s policies should specify the avenue and mechanism for employees to raise concerns or complaints about the workplace. Finally, employers also should make certain that supervisors and managers are aware of the company’s policy when it comes to handling employee complaints, including any anti-retaliation provisions in the company’s policy.

Employment Practices Liability Insurance: Selecting Your Law Firm
Written by: Julie A. Angelini

Some employers purchase employment practices liability insurance (EPLI) for employment law claims. Depending on the policy, EPLI may provide protection for employee lawsuits, such as claims of discrimination, wrongful termination, breach of contract, and some protected leave claims. Not all labor and employment claims are covered by EPLI. It also may cover the cost of a judgment obtained or settlement reached in the lawsuit along with some of the legal costs of defending the lawsuit, after a certain retention or deductible is met.

However, should employers have to sacrifice their preferred law firm in order to make use of their EPLI? Many EPLI policies limit the employer to a pre-approved list of law firms designated in the policy when deciding which law firm to hire to defend the lawsuit. This pre-approved list may not, however, include the employer’s law firm of choice. Therefore, when employers obtain EPLI and wish to be able to hire a specific law firm, employers should speak with their insurance agent or broker to ensure that their preferred law firm is pre-approved to be able to represent them under the EPLI policy. Other items also are subject to negotiation, such as the retention or deductible amount, as well as the amount of attorneys’ fees that would be covered for defense. It is important to get this preapproval in advance of the policy going into effect.

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.

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