Bass Berry & Sims Labor Talk

Facebook ‘Likes’ a Headache for Employer Policies

Posted in Hiring and Recruiting

Bass, Berry & Sims attorney Michael Moschel spoke at the seminar “The Complexities and Challenges of Social Media in the Workplace” sponsored by the Human Resource Association of the National Capital Area in Washington, D.C. on September 16, 2015. Bloomberg BNA provided a recap of Michael’s presentation in the article “Facebook ‘Likes’ a Headache for Employer Policies.” As Michael pointed out in his presentation,  “employers have a right to protect their legitimate business interests and a duty to protect employees and customers, so they may discipline employees for off-duty conduct on social media where it has some impact on those interests.” The article includes 10 factors for a company to consider when crafting a social media policy, such as what activity is restricted and permitted under the National Labor Relations Act.

The full article, “Facebook ‘Likes’ a Headache for Employer Policies,” was published on September 21, 2015 on the Bloomberg BNA website and is available online.

Is Your Workplace the New Battleground for the Culture Wars?

Posted in Discrimination and Harassment Law and Practice

Bass, Berry & Sims attorney Tim Garrett authored an article detailing how employers can navigate the changing cultural landscape in a way that balances the differing needs and rights of various “constituencies.” As Tim points out, while the “workforce continues to grow and diversify , it would appear that the workplace has become the frontline of America’s cultural war.” In this first article in a three-part series on the topic, Tim examines how religious accommodations can be approached when personal views are expressed outside of the office but those views may impact the treatment of employees inside the workplace.

The full article, “Is Your Workplace the New Battleground for the Culture Wars?,” was published by InsideCounsel on September 15, 2015 and is available online.


On-demand Services Look Made to Order for Nashville

Posted in Wage and Hour Law and Practice

Bass, Berry & Sims attorney Michael Moschel was quoted in an article that outlines the pros and cons of the quickly growing on-demand economy, defined as the economic activity created by technology companies that fulfill consumer demand via the immediate provisioning of goods and services. As reported in the article, companies such as Uber, Lyft, Shipt, Favor and OrderUp all have established a Nashville presence and are impacting the way business is now done in Middle Tennessee. Employers are watching several case developments and new guidance from the Department of Labor to learn how workers should be classified when employed under this business model, either as independent contractors or employees.

The full article, “On-demand Services Look Made to Order for Nashville,” was published by The Tennessean on September 6, 2015, and is available online.

Healthcare HR – New Developments Lead to New Challenges

Posted in Labor Board Proceedings and Practice

Bass, Berry & Sims attorney Tim Garrett authored an article outlining several new labor rulings and developments and explained how these issues impact the healthcare industry. Specifically, Tim highlights cases related to pregnancy accommodation, religious discrimination and accommodations, and union activity. Should an employment situation arise, Tim recommends “engaging employees in an ‘interactive process’ to collaboratively come up with a solution.”

The full article, “Healthcare HR – New Developments Lead to New Challenges,” was published on September 4, 2015 by Becker’s Hospital Review and is available online.

New Ruling Impacts Home Care Worker Exemptions Under the FLSA

Posted in Wage and Hour Law and Practice

Home healthcare agencies and other third party employers of home care workers recently lost a key fight to prevent the Department of Labor (“DOL”) from eliminating Fair Labor Standards Act (“FLSA”) exemptions for employees who provide companionship services and live-in care within a home. On August 21, the District of Columbia Court of Appeals reversed a district court decision invalidating the regulations, meaning that employers in at least 27 states (where state law has not afforded the home care workers with minimum wage or overtime protections) should now modify their pay practices to conform with the new regulations. Continue Reading

NLRB Adopts New Controversial “Joint Employer” Standard

Posted in Labor Board Proceedings and Practice

On August 27, the National Labor Relations Board (NLRB or the Board), in a 3-2 vote along party lines, adopted a new standard for determining whether an employer who uses third party contractors is a “joint employer.” Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The new standard will make it easier for unions to negotiate on behalf of workers at fast-food chains and other companies relying on contractors and franchisees. Continue Reading

Can Employer Require Impaired Employee to Take Medication?

Posted in Discrimination and Harassment Law and Practice

The EEOC says no. In a recent case, the EEOC filed suit against a paper company in Michigan over this issue. The employee had a seizure at work and was diagnosed with epilepsy. After a period of leave, the employee was released to return to work by his physician. Continue Reading

Hidden Risks in Confidentiality Requirements

Posted in Employment Agreements/Non-Compete Policies and Practice

Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored an article outlining the actions employers should take to avoid violating the Dodd-Frank Act relating to confidentiality agreements. Rule 21F-17 was adopted by the SEC to prevent employers from taking any action that would prevent an employee from “directly communicating with the Commission staff about a possible securities law violation.” To highlight the risk, Tim and Dustin provided details related to the SEC’s first enforcement action under Rule 21F-17 that was brought against a company for language found in the company’s confidentiality agreement. As pointed out in the article, “employers should review confidentiality provisions in employee handbooks/codes of conduct, severance agreements, and practices for internal investigations” for any language that conflicts with Rule 21F-17.

The full article, “Hidden Risks in Confidentiality Requirements” was published in the August/September 2015 issue of Today’s General Counsel and is available online.

Northwestern Football Players’ Unionization Drive Halted

Posted in Labor Board Proceedings and Practice, Union Organizing and Collective Bargaining

In a ruling on August 17, 2015, the National Labor Relations Board (NLRB) decided that it should not exercise jurisdiction over the unionization attempts by Northwestern football players.  The NLRB “punted” the issue and declined to decide whether the football players were employees permitted to unionize under the National Labor Relations Act. Continue Reading

Motives Matter: Ignorance is No Defense for Employers in Religious Accommodation Cases

Posted in Hiring and Recruiting, Labor Board Proceedings and Practice

In a recent decision, the Supreme Court of the United States made an important distinction with respect to employment decisions: what matters is not what an employer knows, but why an employer acts.  As esoteric as the distinction may seem in the abstract, the ruling has real-world implications for employers encountering an increasingly-diversified pool of applicants and employees. Continue Reading