Archive | May 2013

Tennessee Attorney General Opinion on Employee Gun Possession

Tn CodeThe Tennessee legislature recently passed a statute that states that an individual does not commit a criminal act when the individual transports or stores a firearm or ammunition in the person’s privately-owned vehicle when the individual has a handgun carry permit recognized in Tennessee.  This statute, which goes into effect on July 1, provides for storage in the vehicle in any public or private parking area provided the gun or ammunition is kept from observation, or is locked in a trunk, glove box, or container if the person is not in the vehicle.  Many Tennessee employers have been reviewing weapons policies in advance of the law.

The Tennessee Attorney General released an opinion on May 28 that finds that this statute does not alter or impact the employer-employee relationship.  In other words, employers can still prohibit handguns on their property by employees.  As the opinion notes, employers have long had the ability to prohibit or restrict lawful activity through employment policies.  While the opinion does not have the authority of a court decision, the reasoning should be considered by employers who are reviewing their policies.

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What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies, Part 2

Confidentiality Policy

The NLRB found a confidentiality policy to be overbroad.  While employers have a legitimate, business interest in restricting the improper disclosure of propriety information, a policy may violate Section 7 if confidential information is defined too broadly.  This violation could happen if the definition prevented an employee from discussing the terms or conditions of employment.  For example, a prohibition against disclosing personnel information to any person outside the business when the employee could face legal action or firing may be too broad because is prohibits employees from talking about their own personal wages or job conditions.

At-Will Policy

Tennessee is an at-will employment state.  Many employers adopt policies making clear that employees are working at-will.  The NLRB ruled that policy language saying that the at-will employment relationship cannot be modified or altered would violate the NLRA because employees may request to change at-will status.  The NLRB Acting General Counsel then released Advice Memoranda reviewing at-will employment clauses from two employee handbooks, noting that both were lawful under the NLRA.

Policy impacting use of Social Media

Whether in the context of harassment, bullying, social media, or communications, policies that restrict comments made on social media could arguably have a chilling effect on an employee’s Section 7 rights.  Policies that have zero tolerance language are ripe for concern.  Comments or communications by the employee may constitute concerted activity if they are for the purpose of mutual aid or protection.  If the comments are made as a step toward group action to defend workers, then the action may be protected.

Policy restricting Negative or Adverse Comments

A policy that restricts employees from making statements that purportedly damage the business, defame another individual, or damage another person’s reputation may be considered overbroad because it could prevent an employee from engaging in protected communications critical of the employer or its representatives.  Policies against malicious, abusive, or unlawful behavior are not objectionable.

What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies

POLICY MANUALEven though the NLRB is currently under fire and courts are striking down its rulings made after the recess appointments, it may still be useful to consider the rulings related to employment policies.  The NLRB was very active last year reviewing policies from employee handbooks.  Many of these policies had been utilized without question by employers for years.   The basis for the scrutiny has been that some of these policies interfere with rights to protected concerted activity under Section 7 of the NLRA.  These considerations are important because Section 7 does not apply merely to union workplaces.

Section 7 of the NLRA, in effect since 1935, offers employees the right to engage in protected concerted activity for their mutual aid or protection concerning the terms and conditions of their employment.  An employee may prove a violation by establishing:

  1. Employees would reasonably construe the language to prohibit protected activity;
  2. The rule was created in response to union activity; or
  3. The rule has been applied to restrict the exercise of protected rights.

In 2012, the NLRB called these types of policies into question:

  1. Confidentiality Policy;
  2. At-Will Policy;
  3. Policy impacting use of Social Media
  4. Policy restricting Negative or Adverse Comments.

My next post will discuss the issues raised about these four categories of policies.

Anniversary of Brown v. Board of Education of Topeka, Kansas

U.S. Supreme CourtIn 1954, the United States Supreme Court released its unanimous opinion that found laws in several states requiring separate but equal educational institutions for African-Americans and whites violated the Fourteenth Amendment’s Equal Protection Clause.  Chief Justice Earl Warren framed the question as “the constitutionality of segregation in public education,” saying, “[w]e have now announced that such segregation is a denial of the equal protection of the laws.”  The Court ruled on cases from four states but the practice occurred in many more.

While the opinion did not have an immediate impact on the workplace, it was a precursor to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin.

New I-9 Form Required This Week

On March 8, 2013, the U.S. USCISCitizenship and Immigration Services office issued a new two-page I-9 form.  This form has a number of changes from the previous version.  For new hires, employers must start using the form by May 7.  Employers are not required to complete the new form for current employees, provided they have properly completed forms already on file.  The USCIS also released an updated M-274, Handbook for Employers.

New Workers’ Compensation Law for Tennessee

IMG_3476The Tennessee legislature recently created a new workers’ compensation system.  Governor Haslam has now signed that system into law.  Rather than the courts, a new State agency managed by an individual appointed by the Governor will resolve disputed matters.  New methods for calculating benefits and new treatment guidelines will be established.  While organizational steps will start now, the system goes into full effect July 1, 2014.