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203 North LaSalle, Suite 2100
Chicago, IL 60601
Phone: 312-827-7973
Email:
BTsamis@TsamisLaw.com
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Employment Law Update: 2009 was a busy year that provided for changes in various laws impacting the employment relationship. Beginning in 2009, major changes to the Americans with Disabilities Act and the Family Medical Leave Act were implemented. Additionally, the Lily Ledbetter Fair Pay Act was passed by Congress which extends the time in period in which a complainant can file a charge alleging pay discrimination. 2010 is also certain to provide many changes in workplace law. Currently, pending legislation includes the Employee Free Choice Act (EFCA) and the Arbitration Fairness Act (AFA). EFCA, if passed, will eliminate the standard process of bargaining unit elections, allowing employees to choose a representative by "card check." This process will eliminate the time period often used by employers to explore and implement union avoidance strategies. Notwithstanding passage of EFCA, employers who want to maintain a union-free workplace should partner with experienced counsel well before a union organizing campaign to undertake and implement those initiatives that contribute to employees not desiring a union (good employee relations programs, including adequate mechanisms by which to address grievances; improved wages, working conditions, and benefits; and job security initiatives). If an employer waits until an obvious union organizing effort, much of the employer's union avoidance efforts will be strictly construed against the employer and could perhaps lead to an NLRB determination that the employer engaged in an unfair labor practice. AFA will eliminate pre-dispute arbitration agreements in employment and possibly consumer transactions. Pre-dispute arbitration agreements in employment have come in vogue this past decade. Although many employers were quick to rush to get these agreements in place, few employers contemplated the added costs and uncertainty involved in applying these agreements. The first hurdle an employer must clear is whether the agreement is enforceable. More often than not, most arbitration agreements in employment are upheld but not before employer spends tens of thousands of dollars fighting this battle. The second hurdle the employer must clear is uncertainty in how the arbitrator will rule. If the ruling is adverse to the employer, has the employer reserved the right to have the award set aside? These are some of the issues that arise in arbitartion agreements and the Obama administration has signaled its desire to see these eliminated in the employment relationship. Emerging Workplace Issues: Social Media and the Workplace: Employers have struggled with this recently emerging hot button area. Should you or should you not have a policy addressing use of social media applications by employees? Employees have also struggled, trying to determine what they can and cannot write that might run afoul of their employer's policies. Family Responsibility Leave Discrimination: This emerging area of the law requires consideration whenever evaluating a prospective employee with family care obligations or when faced with a request by an employee for time off to care for a sick child or family member. Application of NLRA to non-union workplaces: The proper way to view the NLRA is that it applies to activities more than it applies to union or non-un ion workplaces. Employers can easily run afoul of the NLRA for disciplining employees who discusss wages with each other or complain about discipline or other terms and conditions of employment. E-mail and non-solicitation policies: Employers who have these types of policies can find themselves in hot water if they do not administer these policies consistently. IT is also problematic for employers when these policies are so vaguely drafted as to prohibit protected activity under the NLRA. FLSA/Department of Labor/Wage & Hour Issues: The Obama administration has promised an uptick in DOL enforcement actions against employers. Betty Tsamis recently represented a glass manufacturer in a matter involving improper rounding of employee time via timeclock keeping practices. The employer faced well over one million dollars in fines and penalties. The matter was ultimately resolved for a nominal sum. Wage & Hour issues will continue to be an area of interest to the DOL. Employer should perform a full FLSA audit of: record keeping, child labor, and wage and hour issues. Employee Handbooks: These very important legal tools are often misunderstood. Are they a contract or not? A handbook could create an actual and/or implied contract depending upon both how it is drafted and how it is administered by the employer and its management. Anyone with basic internet skills will quickly realize that numerous employee handbook templates exist that purport to be legally complaint and can be purchased inexpensively. Although some of the templates out there are sufficient and serve as a starting point, they are merely that: a starting point. An employee handbook is an important legal document that can create legal liability in numerous areas for an employer while providing a shield to the employer when terminating an employee. We are here to offer our expertise in this vitally important area of employee relations and can assist you in creating, drafting, and implementing your employee handbook.
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