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Employment Law This Week - August 22, 2017: NLRB’s Voting Unit Test, Electronic Acknowledgment of Arbitration Policy, Website Accessibility, CT’s Medical Marijuana Law [VIDEO]

We invite you to view Employment Law This Week- a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work.

This week’s stories include ...

(1) D.C. Circuit Endorses NLRB's Voting Unit Test

Our top story: The U.S. Court of Appeals for the District of Columbia Circuit endorsed the National Labor Relations Board’s (“NLRB’s” or “Board’s”) standard for micro-bargaining units. The Board applies the Specialty Healthcare test to determine whether a group of employees is an appropriate bargaining unit or if other job classifications must also be included. A theatrical staging company recently challenged both the test and its application, arguing that the company’s equipment riggers should not have been allowed to organize in a micro-unit. The D.C. Circuit upheld the Board’s ruling that the riggers micro-unit was appropriate, and that other workers did not share an overwhelming community of interest them. The D.C. Circuit found that the Board's standard is consistent with the National Labor Relations Act and the Board did not exceed its authority in adopting the standard. Pat Wheeler has more.

“For employers holding out hope that the D.C. Circuit was going to turn the tide on the Specialty Healthcare case, the Rhino decision is indeed a setback. And now, the most likely way that change will come will be from the Board itself once the Republican majority is in place, which should be sometime this year. In fact, it's notable that on May 10, NLRB Chairman Phil Miscimarra issued a dissent to the Crystal case, in which he explicitly stated that he believed Specialty Healthcare was wrongly decided. And Miscimarra noted that the micro-unit certified in the Crystal case was a unit he did not believe was an appropriate unit, because it promotes instability by creating a fractured or fragmented unit.”

(2) Electronic Acknowledgment Box Does Not Imply Agreement

Electronic acknowledgment of an arbitration policy does not imply agreement in New Jersey. A state appeals court reinstated the age discrimination lawsuit of a former Best Buy worker, concluding that he was not required to arbitrate his claims. The company implemented an arbitration policy three weeks before the plaintiff’s termination, and he clicked an electronic box labeled “I acknowledge.” The New Jersey appellate division held that neither the plaintiff’s acknowledgement that he received the policy nor his continued employment demonstrated that he agreed to the policy’s terms. The court held that the employee’s consent must be established by either his signature on the agreement or another “explicit indication” that he intended to abide by that provision.

(3) District Court Takes Broad Approach to Website Accessibility

Pressure from the courts to compel website accessibility is building. New York art supply store Blick, which sells some products and services exclusively online, was brought to court on charges that its website was not fully accessible to the visually impaired. Blick filed a motion to dismiss, arguing that the Americans with Disabilities Act (ADA) does not apply to online-only businesses. The district court denied the motion in an expansive decision. The courts have recently issued other pro-plaintiff decisions on this issue in such cases as Five Guys, Winn-Dixie, and Hobby Lobby. But in a troubling development for online-only businesses, the court in this case joined a select few in holding that the ADA covers all retail websites, not just those that connect to a brick-and-mortar store.

(4) Connecticut Medical Marijuana Law Trumps Federal Law

A federal district court in Connecticut finds that federal law does not preempt the state’s medical marijuana law. Before undergoing a routine drug test, a Connecticut nursing home employee disclosed to her employer that she was prescribed medical marijuana at night for PTSD. The employer rescinded her job offer after she tested positive for marijuana. Connecticut’s Palliative Use of Marijuana Act prohibits employment discrimination solely on the basis that the employee is a medical marijuana user. The U.S. District Court for the District of Connecticut ruled that federal law does not preempt the state employment law in this instance.

(5) Tip of the Week

Marie Chery, Senior Vice President of Human Resources for Mizuho Americas, shares some advice on HR's role in successfully managing change:

“First and foremost, secure the total buy-in, support, drive, visibility, and leadership on an ongoing basis from your senior management. Create a project plan with clear goals, milestones, deliverables, accountabilities, as well as action plans. Determine how you will measure your progress so that you can course-correct at any point in time. Make sure you get the buy-in from your line managers and provide them with the tools and resources they need to lead the change at the team level. Don't forget your employees. Always treat them the way you would like to be treated—with dignity, courtesy, and respect, as this will help maintain their engagement.”

©2018 Epstein Becker & Green, P.C. All rights reserved.


About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
Senior Counsel

PATRICIA A. WHEELER is a Senior Counsel in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Wheeler’s experience includes:

  • Advising on the interpretation and application of policies and regulatory, administrative, and employment laws, including the National Labor Relations Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act (ERISA), the Family and Medical Leave Act, and Title VII 

  • Counseling on employee discipline, termination, workplace investigations, performance management, conflicts of interest, policy development, wage and hour issues, workplace accommodations, training, and the protection of intellectual property, trade secrets, and confidential information 

  • Conducting and supervising internal investigations of alleged employee misconduct and recommending appropriate responses

  • Managing all employment aspects of corporate transactions, including risk analysis, benefits and policy planning, and drafting/negotiating executive employment agreements and transactional documents