Q&A with Fisher & Phillips: HR Topics and HR Trends for 2014

Senior Director of Marketing

On May 21, 2014, PreCheck hosted a complimentary webinar covering the hottest legal issues facing employers in 2014. Guest speakers A. Kevin Troutman and Mauro Ramirez, labor and employment law attorneys from Fisher & Phillips law firm provided tips and best practices to mitigate risk during this educational session. The webinar recording is now available on-demand here. While we were unable to answer everyone’s questions during the live session, Kevin and Mauro have answered the questions submitted from our attendees in the article below.

I do not understand how the NLRB can deem it unlawful for just anyone in the company to divulge personnel information.  That speaks to the integrity of the HR department if people are releasing information on a ‘willy nilly’ basis.  As well, how can it be okay for an employee to walk off the job or refuse a directive from a supervisor without consequence?  That’s like letting the inmates run the asylum. Please explain.

We recognize and agree with most of your concerns.  The law permits employees to act together to try to improve their wages, benefits or working conditions, whether they are unionized or not.  As you recall, this law does not protect purely individual grievances.  This means, however, that employees are free to discuss topics such as wages, including individual pay rates, and/or supervisors whom they dislike.  (These rights apply to "employees," as defined under the National Labor Relations Act (NLRA).  They do not apply to supervisors.)  These rights do not grant employees free reign to neglect their duties or engage in misconduct.  Althogh overreaching at times, the Board has generally based its decisions invalidating employer policies by examining whether the policies could be interpreted to "chill" employees' exercise of their rights under the NLRA.  For employers, the key is to review and revise existing policy language, narrowing it down carefully to match specific business circumstances, needs or concerns.  In healthcare, for example, employees cannot abandon care duties when doing so could cause harm to a patient.  In general, the more broadly-worded the policy prohibition, the more likely it is to be declared unlawful.     

Where is the best place to find sample policies on social media that comply with current laws and guidelines for evaluation forms that comply with labor laws? And best place to find state labor laws as well? Where can we find instructions or procedures for the wage and hour audit?

Some states and federal agencies provide sample policies or forms.  Without some revisions, however, these documents may not adequately protect the employer's rights or interests.  The NLRB posted a social media policy that it approved, but it should probably be modified to meet a specific company's circumstances.  If you are interested, we can point you toward more information about these specific questions, including an excellent self-audit form that covers many Wage & Hour issues, as well as a number of other employment law issues.

Do you mind explaining again, the issue with the policy about to transfer if an employee was recently written up?

I believe this question refers to being alert for possible retaliation claims.  We would be happy to discuss specific circumstances in more detail, but in general, when an employee has engaged in protected activity (by making a complaint; provding information in connection with a workplace investigation; or taken FMLA leave, to name a few examples), employers considering transfer, reassignment or some form of disciplinary action should be alert to the real risk of a retaliation claim.  Companies can protect themselves by carefully reviewing and documenting the legitimate, non-discriminatory reasons for the decision.  In doing so, they should examine the decision from the perspective of a neutral third-party who does not know either the employee or the company. 

A. Kevin Troutman is a Partner at the Houston office of Fisher & Phillips, a national labor and employment law firm. Kevin chairs the firms national Healthcare Practice Group and has successfully represented clients in hundreds of litigation and administrative matters.
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Mauro Ramirez is an Associate at the Houston office of Fisher & Phillips. Mauro has extensive experience working with healthcare organizations and litigates and advises clients regarding federal and state employment laws.
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