Occupy [Insert Your City] Is Coming to Town — Are You Prepared?
Written by: John H. Douglas
You might have to live under a rock not to have heard about the Occupy Wall Street protests by now. As such protest activity spreads to additional cities and towns around the country, employers should prepare for issues that may arise if their employees opt to join in or support such activity in person or via social media.
Many non-union employers have been surprised to learn recently that even though their employees are not unionized, the NLRB (https://www.nlrb.gov/) may still take a keen interest if an employee who has joined with other employees to protest or complain about inadequate wages or unfair working conditions is disciplined. Under the National Labor Relations Act, employers generally cannot legally exact discipline on such employees because they are engaging in “protected concerted activity.” Although such activity can lose its protection at times when employees engage in egregious misconduct, the NLRB does not consider a group of employees striking for a day or two to constitute such misconduct. However, if strike activity is repeated intermittently, or employees engage in a “partial” strike by refusing to do some, but not all, their work duties, the result can be different. In such circumstances, employers generally have a free hand to exact discipline up to and including termination.
Occupy Oakland called for a “general strike” in Oakland, California on November 2, 2011. Whether this call will spread to other cities is unclear. It would not be the first time a general strike has occurred in Oakland. In October 1946, 400 clerks from downtown Oakland’s Hastings and Kahn’s department stores went out on strike while trying to unionize. In early December, the strike escalated when Oakland police cleared away pickets and tried to protect trucks crossing the picket line. On December 3, 1946, approximately 100,000 AFL-affiliated workers employed in Oakland responded by declaring a “work holiday,” walking off their jobs.
Not only can the National Labor Relations Act come into play and protect individuals participating in protected concerted activity, but many states, including California, have laws that protect employees engaged in lawful off-duty activity. In addition, California has generally dispensed with the “state action” requirement for violations of California constitutional rights. It is thus generally illegal for employers in California to retaliate against their employees for engaging in political protest. (This also may constitute a separate statutory violation under certain provisions of the California Labor Code).
The bottom line — an employer that reflexively terminates or disciplines employees for supporting or participating in the activities of the Occupy Wall Street movement may eventually find itself on the short end of a legal stick. Employers are well advised to weigh their legal options carefully when and if they are contemplating their response to employees engaged in this kind of activity.
EEOC Opines That Personal and Occupational Health Information Should Be Maintained Separately
Written by: John G. Yslas
On May 31, 2011, the EEOC issued an opinion letter (http://tinyurl.com/66perm5) that essentially opined that employers should not maintain personal health information (i.e., information obtained in the course of diagnosis and treatment) and occupational health information (i.e., appropriate medical information concerning an employee’s ability to work) in a single paper or electronic medical record (EMR) (http://tinyurl.com/2uoxa2). The EEOC stated that an employer’s right to access personal health information regarding applicants and employees and allow access to occupational health information by individuals providing health services unrelated to employment is strictly limited under the ADA and the Genetic Information Non Discrimination Act (GINA). Among other things, the ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and treated as a confidential medical record. Similarly, if an employer has genetic information obtained under one of GINA’s limited exceptions, it also must keep this information separate from personnel files and treat it as a confidential record.
The EEOC further explained that regardless of whether an employer maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under certain circumstances. As just one of several examples, because the ADA limits pre-offer inquires and prohibits an employer from withdrawing a job offer from an individual with a disability or making other discriminatory decisions based on a person’s actual or perceived medical conditions, an employer should be careful not to obtain more information than is necessary to determine whether a person can do a job, even at the post-offer stage. Once an individual begins working, an employer may only ask disability-related questions or require medical examinations in appropriate circumstances that are job-related and consistent with business necessity and potentially in other appropriate circumstances (which may include evaluating non-obvious disability leave requests and reasonable accommodations). GINA also prohibits (with limited exceptions) employers from requesting, requiring, or purchasing genetic information, including during the post-offer stage of employment. As such, an employer cannot ask for, or view, an employee’s complete medical record because it is likely to contain information unrelated to the need to make an employment-related decision or is otherwise unlawful. Readers are advised to consult with counsel before accessing any type of medical or genetic information, so the specific circumstances and other applicable federal and state law can be evaluated.
Thus, the EEOC concluded, maintaining personal health information and occupational health information in a single EMR presents a real possibility that ADA, GINA, or both will be violated.
Labor and Employment Trivia
Last week’s question: Which federal labor law was passed over a presidential veto? Who was the president and how did he seek to use the law he originally opposed?
Answer: The Labor-Management Relations Act, commonly known as Taft-Hartley, became law on June 23, 1947 when Congress overrode the veto of President Harry Truman. Some of the features of the new law were 60-day cooling off periods and the ability of the president to declare a National Emergency Strike. When the steel industry was struck in 1952, during the Korean War, demonstrating his continued distaste for Taft-Hartley, Truman refused to use these options and instead nationalized the steel mills. Seizure of the steel mills was declared unconstitutional by the U.S. Supreme Court in Youngstown Sheet & Tube Co., 343 U.S. 579 (1952). Had Truman used the provisions of the Act, he might have ended the strike and not lost political face.
This week’s question: In 1965, a new union leader started a nationwide boycott of a common product sold in supermarkets. Name the product, the union leader, and the union involved.
Please continue to send suggestions for trivia questions to [email protected].
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.