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Labor and Employment Law Weekly Update

Legal News: Employment Law Update
20 February 2012

Your Position at the Bargaining Table May Open the Door to a Broad Request for Information From the Union
Written by: Thomas C. Pence

Unions have a broad right to request information related to grievances or to the collective bargaining process. With respect to collective bargaining, the position an employer takes at the bargaining table may open the door to even more intrusive than expected information requests.

Employers know the general caution they should not say “we can’t afford it” while at the bargaining table unless they really mean it, and want to prove it, because doing so will give the union the right to ask for and see the employer's financial records, including balance sheets, revenue, profit information, and so forth.

Other bargaining table claims, however, can also open the door to broad information requests. For example, in KLB Industries, the NLRB decided that an employer's claim that it needed huge wage concessions in order to be "competitive" allowed the union to ask for documents that would prove or disprove the claim — information relevant to current and former customers, job quotes, outsourcing, pricing structure, market studies, and competitors.

This does not mean an employer should give a union a blank check for whatever information it wants in every situation. For example, there may be times when the employer can say: a) the request for information is not relevant to any position it has taken at the table; b) the statement it made at the table was too general or vague to trigger a duty to provide information; and/or c) even if there is a duty to provide information, it will only do so under an appropriate confidentiality agreement.

But, cases like KLB Industries do remind employers they should be careful about what claims they make at the bargaining table. If you say it, you may be required to prove it.

EEOC Issues Final GINA Recordkeeping Rules
Written by: Larry S. Perlman

In our January 16, 2012 edition of Legal News: Employment Law Update, we discussed companies’ numerous obligations with respect to employee recordkeeping. On February 12, 2012, the EEOC added another set of requirements into the mix, issuing its final recordkeeping rules for the Genetic Information Non Discrimination Act (GINA).

Under Title II of GINA, employers with 15 or more employees are prohibited from discriminating against an individual based on their “genetic information.” Under the statute, “genetic information” includes an individual's family medical history, an individual's participation in genetic testing, counseling, or education, as well as the genetic testing results of employees or their family members.

The new recordkeeping rule imposes the same recordkeeping requirements as currently exist under Title VII and the ADA. Specifically, the following steps will be required for purposes of compliance with GINA:

  • All employment and personnel records must be kept for a period of one year from the date the record is made or the personnel action is taken, whichever is later. In the case of an involuntary termination, the employer must keep the individual’s employment records for a period of one year following the termination.
  • For records relating to a discrimination charge filed with the EEOC, or a civil action under GINA brought by the EEOC or the Attorney General, the employer must preserve all employment records relevant to the EEOC charge or action until its final disposition. Although the regulations require employers to maintain any applicable records that they create, there is no requirement that employers create additional documents. Additionally, the rule does not impose any reporting requirements under GINA.

The new recordkeeping obligations go into effect on April 3, 2012.

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.