Labor & Employment Developments Blog

This week, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a finalized recordkeeping rule that becomes effective January 1, 2017.  Under the final rule, certain employers are required to electronically submit data regarding work-related injuries and illnesses.  Impacted employers are already required to collect and record this data under OSHA regulations.  However, now, this employer injury and illness data will be public.  Once OSHA removes personal identifying information of employees, the data will be posted on OSHA’s website.

I recently wrote about OSHA’s plan to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.  This week, OSHA issued “Best Practices - A Guide to Restroom Access for Transgender Workers,” with the stated Core Principle that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The OSHA Guide notes the following:

Unless you’ve been out of the country or purposely avoiding news about sports, you’ve probably heard a lot about “Deflategate” and the punishment handed down by the National Football League (NFL) against the New England Patriots and star quarterback Tom Brady.  The short version of the scandal is that during the AFC Championship game on January 18, 2015, some of the New England Patriots’ game footballs were discovered to be underinflated, which could provide a competitive advantage to a quarterback by making them easier to grip. 

The widely discussed Bruce Jenner interview has been a media sensation but for employers there are more important recent stories on transgender issues in the workplace. Last month, the EEOC issued a ruling that Title VII was violated by the Army when it refused to allow a transgender, male-to-female, civilian employee to use the women’s common restroom.   

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. 

On Tuesday, the Supreme Court issued a highly-anticipated ruling in the case of Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (Dec. 9, 2014, Thomas, C.).   

This Wednesday, December 3, 2014, the United States Supreme Court will hear oral arguments in the case of Young v. UPS, No. 12-1226, on appeal from the Fourth Circuit Court of Appeal.  The Young case has received significant attention because it asks the Court to directly address the question of what, if any, accommodation is required for a pregnant worker with work limitations under the Pregnancy Discrimination Act, incorporated into Title VII of the Civil Rights Act in 1978, where the employer provides work accommodations to non-pregnant employees with work limitations, such as those affected by on-the-job injuries or a disability as defined by the Americans with Disabilities Act.   

The U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) issued a final rule on September 11, 2014, requiring employers to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation or loss of an eye. The rule will go into effect on Jan. 1, 2015.  The rule also updates the list of employers partially exempt from OSHA’s recordkeeping requirements.

The recently-published video of NFL star-running back Ray Rice beating his then-fiancée in a casino elevator begs the question:  What should an employer do when it faces bad behavior by one of its employees?  And, does it matter if the employee is off-the-clock?

Companies with Kentucky employees need to review their non-competition agreements.