Featured Articles

The Washington Court of Appeals recently provided a reminder to employers of potential liability if they encourage new employees to bring confidential data from their old employers. In Thola v. Henschell, a chiropractor practice encouraged a prospective employee to take the confidential customer list of a current employer in order to contact those customers and urge them to follow the chiropractor to his new place of business. The hiring employer's inducement included a bonus of $100 for each new customer. Read the full article.

In a recent flurry of decisions which have drawn fire from labor unions, narrow majorities of the National Labor Relations Board have decided a number of cases in favor of management rights in union organizing settings. One such decision handed down in December of 2007 was the Guard Publishing Company decision which addressed employer rules governing employee use of e-mail systems for union solicitations. The newspaper in question had a written policy prohibiting the use of e-mail for "non-job-related solicitations." Despite the policy, the Company had allowed nonwork-related employee e-mails such as announcements of sales of personal possessions and weddings. The Company issued two written warnings to an employee for sending pro-union e-mails to fellow employees. The newspaper guild filed an unfair labor practice charge claiming that the policy was unlawful since employees had a right under the National Labor Relations Act to use the company system to communicate with one another. The Guild also alleged that the enforcement of the policy against the employee in question was discriminatory. Read the full article.

In December 2007 the EEOC issued its fact sheet on Employment Tests and Selection Procedures. See http://www.eeoc.gov/policy/docs/factemployment_procedures.html . This fact sheet reminds employers that the use of tests and other selection procedures may violate anti-discrimination laws if they disproportionately exclude protected group members. Further, it advises that, even if validated at one point, tests may become obsolete and unlawful if less discriminatory selection procedures are subsequently developed or the job changes so the test is no longer job related. Employers should review their selection procedures as, according to the EEOC, the number of EEOC charges based on tests and selection procedures is increasing.

In another recent decision angering unions, the National Labor Relations Board announced that it will implement a new procedure giving employees notice of their right to set aside their employer's voluntary recognition of a union. The need for such a procedure was created by the National Labor Relations Board's 2007 decision of Dana Corporation. This decision modified the current rule blocking employee decertification petitions for a reasonable period of time following an employer's voluntary recognition of a union. Since voluntary recognitions are occurring more frequently as a result of so-called "neutrality agreements" which typically include card-check provisions, the decision and the resulting procedure are very important. Let's sort out what has occurred and what will occur under the procedure. Read the full article.

On January 24, 2008, the California Supreme Court in Ross v. Ragingwire Telecommunications, Inc., answered the question of whether it was unlawful for an employer to fire or refuse to hire a person who used marijuana to treat chronic back pain as allowed by California's Compassionate Use Act of 1996 but who failed its pre-employment drug test because of that use.

The California Compassionate Use Act gives a person who uses marijuana for medical purposes on a physician's recommendation a defense to state criminal charges involving the drug. The plaintiff/employee claimed in this case that the employer discriminated against him on the basis of his disability, failed to make reasonable accommodation for his disability, and terminated him in violation of public policy when it terminated him because he failed the employer's pre-employment drug test when he tested positive for marijuana. The employee argued that since medical marijuana use was legal in California the employer was not permitted to prohibit him from using it and in fact needed to accommodate his use. Read the full article.

On January 28, 2008, President Bush signed into law the first expansion of the Family & Medical Leave Act since its enactment in 1993. See H.R. 4986, the National Defense Authorization Act for FY 2008, Pub. L. 110-181 and particularly § 585. The new sections provide for:

(1) 12 weeks of leave for a spouse, son, daughter or parent of a soldier called to active duty or in receipt of notice of an impending call to active duty. Leave may be used for a "qualifying exigency" - as will be defined by the Secretary of the Department of Labor, and

(2) Up to 26 weeks of leave during a single 12 month period for a spouse, son, daughter or next of kin of a service member to care for the service member who suffered an illness or injury while on active duty that renders them unable to perform their service duties.

Seminars

The next Seattle Labor & Employment Breakfast Seminar is scheduled for Friday, February 8 at Two Union Square in Seattle. For more information and registration, please click here.

The next Portland Labor & Employment Breakfast Seminar, Immigration Tips and Traps: New Regulations and Compliance in Employment Law is on Thursday, February 28 at the Multnomah Athletic Club in Portland, OR. For more information and registration, please click here.

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