Spam-A-Lot: NLRB Expands Protections for E-Mail-based Union Organizing

A divided National Labor Relations Board held today that employees who are given access to their employers’ e-mail systems have a right to use those e-mail systems for nonbusiness purposes, including union organizing communications, during nonworking hours.  In a case involving Purple Communications, Inc., a California company which provides sign-language interpretation services to the deaf, the Board held that the company’s policy prohibiting employees from using the company e-mail system to engage in activities “on behalf of organizations or persons with no professional or business affiliation with” the company impermissibly infringed upon the employees’ right to discuss the terms and conditions of their employment, and, as a result, violated the National Labor Relations Act.

The ruling overturned the Board’s previous decision in Register Guard, which held that an employer could prohibit its employees from using the employer’s e-mail system for union organizing purposes so long as any such prohibition was not applied discriminatorily (i.e., so long as union activities were not specifically singled out for prohibition).  In a slight nod to employers, the Board did provide a carve-out within today’s holding which would allow employers to demonstrate that special circumstances necessary to maintain productivity or discipline justify restricting employee communication rights, and thus avoid liability for unfair labor practices.  Make no mistake about it, though: this will be a high bar for employers to meet.  Employers should consider seeking legal advice to ensure that their e-mail policies comply with all applicable laws.

The Board’s decision today opens up a new battleground for employers in the ever-expanding war against union overreach: the employers’ own e-mail systems!  Where will the Board strike next?  Stay tuned.

Tell Me Quick! What Larger Hawaii Employers Need to Know About Obamacare’s Employer Mandate Before January 1, 2015

Is ACA Compliance on your list of New Year’s Resolutions? (Photo: Creative Commons)

Is ACA Compliance on your list of New Year’s Resolutions? (Photo: Creative Commons)

The employer mandate portion of the Patient Protection and Affordable Care Act (also known as the ACA or Obamacare) kicks into gear on January 1 of next year.  It applies to “Applicable Large Employers” (ALEs) – employers who have 50 or more full-time employees. To count full-time employees for determination of ALE status, each employee who averages 120 or more hours of service per month is counted as one full-time employee.  The catch is that part-time employees must be counted and included to determine ALE status.  To count part-time employees (up to 120 hours per employee per month) aggregate the hours of part-time employees and divide by 120 to get the number of “full-time equivalent employees” that must also be accounted for as full-time employees to determine ALE status.

If an employer is an ALE, then the ACA’s employer mandate applies.  ALEs are required to offer qualifying health insurance coverage to full-time employees.  For the purposes of the mandate, a full-time employee is generally defined as employees who average 130 or more hours per month.  Alternatively, employers may choose to be subject to a penalty—this option is what’s known as “Pay or Play.”  New reporting requirements will also apply. Read More →

Hawaii Supreme Court Delivers a Mixed Plate for Employers

Photo: Creative Commons

Photo: Creative Commons

The Hawaii Supreme Court recently ruled that supervisors cannot be held personally liable under Hawaii’s employment discrimination law.  This decision has settled a long-time dispute among lawyers, and even Hawaii’s federal court judges, as to whether a supervisor could be sued for employment discrimination under state law.  This is welcome news for supervisors!  (The caveat is that a supervisor can be sued for aiding, abetting, inciting, compelling, or coercing another employee in the discrimination and harassment.)

In the same case, however, the Court declined to apply the Faragher/Ellerth defense for harassing conduct by supervisors.  Under this defense, an employer can avoid liability for harassment by a supervisor if it can prove: (1) the employer did not engage in a “tangible employment action”; (2) the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and (3) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.  This defense often comes in handy when the employee did not make any complaints of harassment to management.

So what does this all mean?  The case provides much needed relief to supervisors, who are just trying to do their jobs.  But, while the supervisor may get off unscathed (see aforementioned caveat), the employer is still on the hook – a really nasty hook – for unlawful harassing conduct by the supervisor.  Employers should regularly and thoroughly train their supervisors on their anti-harassment policy because the ostrich defense may not be effective under Hawaii law.

(Photo courtesy of Varin Tsai / Creative Commons @ Flickr.)

What Constitutes “Discrimination” These Days?

Don’t we all feel like the black sheep sometimes? (Photo: Creative Commons)

Isn’t it just crazy how many employees these days believe that they have been discriminated against, even after the employer provides legitimate reasons for the layoff or discharge?  After all, we live and work in Hawaii—a state adopting the so-called “at-will” employment rule, right?

Yes and yes.  That may all be true, but…

A recent Hawaii Intermediate Court of Appeals decision should make us, employers, pause and think twice about how we go about disciplining or terminating employees.

Read More →

New Sample Notices Available to Inform Employees of the Hawaii Health Connector by October 1, 2013

As a follow up to last week’s posting regarding the upcoming “Health Insurance Marketplace” employee notice deadline, sample “Hawaii” notices can be found below.  The Hawaii samples meet the Department of Labor requirements, and have been tailored to employees in Hawaii by including information about the Hawaii Prepaid Health Care Act and Hawaii’s Health Connector, which is the Health Insurance Marketplace in our state.  Employers can use either the Department of Labor samples or these Hawaii notices.

Sample Notices for Hawaii Employers:

  • If you offer coverage, click here.
  • If you do not offer coverage, click here.

* Terri O’Connell prepared the Hawaii sample notices and concentrates her practice in the area of health care law.