GT L&E Blog

Global Developments In Labor & Employment Law

Cal/OSHA Proposes to Turn up the Heat on Heat Illness Prevention

Posted in Employee Policies, OSHA

On May 28, California’s Division of Occupational Safety and Health (Cal/OSHA) proposed amendments to CCR, Title 8, Section 3395 (heat illness prevention rule) that would add significant burdens to employers with employees working outdoors. The draft proposal can be found online at CA.gov’s Heat Illness Prevention Programs and Regulations page. Among other things, the changes:

  • Imply that a preventative cool down rest break taken by an employee shall be treated as a period of recovery from heat illness, rather than as a preventive measure when an employee feels the need to cool down. [Section (d)(3)]
  • Impose new duties to monitor employees for signs of heat illness, duties that may force employers to assess all employees for symptoms of heat illness during all breaks in temperatures over 80 degrees. In addition to the burden, they add a significant new exposure to “be a supervisor, go to jail” liability. [Sections (d)(4), (g)(3) and elsewhere]
  • Force employers to draft and implement unspecified methods to acclimatize employees when temperatures rise. [Section (f)(1)(D)]
  • Change the as-needed cool down rest into a mandatory recovery period every two hours for agricultural employees under high heat conditions. This unprecedented mingling of wage and hour requirements with health and safety requirements greatly facilitates private attorney actions to enforce heat illness prevention requirements, a precedent that could spread to all industries. [(e)(6)].

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NLRB To Revisit Use of Company E-Mail in Union Organizing

Posted in Employee Policies, NLRB, Unions

In May, this blog discussed the National Labor Relations Board (the Board or NLRB)’s potential targeting of policies regulating employee use of company email for non-business purposes. In inviting the filing of amicus briefs on the issue, (Purple Commc’ns, Inc., NLRB, No. 21-CA-95151, invitation to file briefs 5/1/14), the Board signaled that it may overturn the Bush-era Register Guard decision, 351 NLRB 1110 (2007), which held that employees do not have a Section 7 right to use their employer-provided email for union organizing.

As expected, in his Monday, June 16, 2014 brief, the NLRB’s General Counsel criticized the Register Guard decision, stating “the Board should hold that employees who use their employer’s electronic communications systems to perform their work have a statutory right to use those systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.”  Continue Reading

DOL and HHS Seek to Enhance Care Benefits Under COBRA

Posted in Benefits

On May 2, 2014, the Employee Benefits Security Administration of the Department of Labor (DOL) released proposed regulations, which contain changes to the existing COBRA notice requirements. These changes are intended to incorporate applicable provisions under the Affordable Care Act into the COBRA notice requirements. The proposed regulations provide updated versions of the model general notice and model election notice forms, which are available in modifiable, electronic form on the DOL’s website at www.dol.gov/ebsa/cobra.html. Employers should consider using the updated model notices (modified, as needed, to fit the employer’s particular situation) on a going-forward basis because the DOL will consider the use of the model notices to be good faith compliance with the notice content requirements under COBRA.

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GT Alert — Massachusetts Courts Tie the Very Existence of ‘Trade Secrets’ to Your Business Practice

Posted in Trade Secrets

The GT AlertMassachusetts Courts Tie the Very Existence of ‘Trade Secrets’ to Your Business Practices was prepared by David G. Thomas, James P. Ponsetto and Kurt A. Kappes.

Companies must take “reasonable measures” to protect trade secret information in the event the company needs to protect it through the Massachusetts Court System. Failing to do so may render even the most valuable trade secrets unprotectable. In this alert we discuss Massachusetts’s definition of trade secrets and provide some tips on how to protect them.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.

GT Alert — Recent NLRB Decision Limits Employer’s Ability to Restrict Off-Duty Employee Access to its Property

Posted in NLRB

The GT AlertRecent NLRB Decision Limits Employer’s Ability to Restrict Off-Duty Employee Access to its Property was prepared by Charles S. Birenbaum and April L. Weaver.

The National Labor Relations Board’s recent decision in Piedmont Gardens, 360 NLRB No. 100 (2014), restricts an employer’s ability to regulate off-duty employee access to its property. The authors discuss the ruling and offer insight as to what it may mean for other employers.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.

GT Alert — New Bill Seeks to Combat Theft of Trade Secrets, Protect Jobs

Posted in Trade Secrets

The GT AlertNew Bill Seeks to Combat Theft of Trade Secrets, Protect Jobs was prepared by Johnine P. Barnes and Mariana Gaxiola.

On April 29, 2014, Senator Christopher Coons (D-Del.) and Senator Orrin Hatch (R-Utah) introduced legislation to provide a federal cause of action to curtail the estimated $160 billion to $480 billion currently being lost by U.S. companies as a result of trade secret theft each year. The legislation would allow both individuals and private companies to file lawsuits under the Federal Economic Espionage Act of 1996, which currently only applies in criminal matters. The authors discuss the bill and the remedies it would allow those who are successful in suing offenders.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.

NLRB To Revisit Use of Company E-Mail Accounts in Union Organizing and Personal Use

Posted in Employee Policies, NLRB, Unions

The National Labor Relations Board (the “Board” or “NLRB”) under The President has broadly interpreted the protections afforded under Section 7 of the National Labor Relations Act (the “Act”).  Section 7 gives employees the right to engage in concerted activity for mutual aid and protection and to form, join or assist labor unions.  Employees also have the right to communicate about organizing and other union matters as part of their Section 7 rights.   Despite the incorrect assumption that even some attorneys often make, the Act applies to union and nonunion employers alike.

In expanding protections under Section 7, the Board has struck down what were previously considered customary and fairly innocuous workplace policies.  For example, the Board has struck down workplace policies requiring employees not to discuss confidential investigations (GT Blog, March 14, 2013) as well as overbroad social media policies governing what employees can and cannot post on social media websites or blogs.  These decisions have had considerable ramifications for employers who perhaps previously had paid little attention to the NLRB.

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GT Alert — Student-Athletes or Statutory Employees?

Posted in Employee Policies, State Law, Unions

In a closely-watched decision, a Regional Director for the National Labor Relations Board ruled on March 26, 2014 that football players receiving scholarships at Northwestern University are “employees” and eligible to unionize. This landmark decision marks a potential change in Board law that could possibly alter the landscape of union organizing; at least regarding private colleges and universities. Higher Education institutions should be proactive and at least begin thinking about the many and varied issues presented by the Northwestern case as it percolates through the NLRB and court system.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.

GT Alert — Join the Party. Another California-based Former Employee Challenges Out-of-State Company’s Non-Compete Provisions as Unfair Business Practice

Posted in Employee Policies, State Law

If your client has California operations and isn’t aware, it could end up like the employer did in Shomit James v. Globus Medical, Inc. James demonstrates that the competition in California for talent remains high, that competitors are increasingly aggressive about hiring employees your client may think are “locked up,” and will offensively challenge standard non-compete, no-hire and non-solicitation provisions with declaratory relief actions.  James serves as a valuable reminder of what is becoming an established practice in California — former employees (often bankrolled by their new employer) sue to invalidate these provisions as void and unenforceable under California law.  To make matters worse they often allege that, in seeking to enforce such restrictions, your client committed unfair business practices.

To view the GT Alert on www.gtlaw.com, please click here.

To view the GT Alert as a PDF, please click here.