In Dish Network, LLC, the National Labor Relations Board (NLRB) stated that a mandatory arbitration agreement violated the National Labor Relations Act (NLRA) where it required all employment disputes be subject to arbitration. Specifically, by making a generalization of all disputes, the agreement implicitly restricted employee access to the NLRB. The NLRB has historically identified these types of agreements as falling under Category 3 (prohibited) of the Boeing rules.

The NLRB also approved of language in the arbitration agreement that keeps arbitration proceedings, hearings, discovery, and awards confidential. However, it stated that requiring settlements of any arbitrated disputes to be confidential falls under Boeing Category 3. Specifically, settlements are separate from arbitration proceedings, and restricting settlement terms in this context could restrict NLRA rights to discuss employment terms and conditions or seek NLRA remedies from the NLRB. The NLRB indicated that a savings clause preserving NLRA rights could ameliorate this issue. Also, there is nothing that would prohibit parties in the settlement process itself to agree to confidentiality terms at that time.

Employers should continue to scrutinize their arbitration agreements to ensure compliance with federal and state laws. Similar to employee policies, including language that maintains NLRA rights can help avoid some of the pitfalls at issue in this ruling.

Action Items

The California Department of Fair Employment and Housing (DFEH) recently updated its COVID-19 Guidance page to address vaccine-related questions. The latest update, as of March 4, 2021, answers one of the biggest questions for many employers: can we require employees to get vaccinated?

SB 1480 requires Illinois employers who are required to complete the federal EEO-1 report, to provide similar information to the state who will publicly publish the information. Specifically, employers with 100 or more employees (or 50 or more employees with a government contract of $50,000 or more) are required to file the federal EEO-1 report. Those same employers will be required to report similar race, ethnicity, and gender data in a format that will be approved by the Secretary of State. Like California, Illinois employers will also be required to submit corresponding pay data. The new requirements will go into effect on or after January 1, 2023.

Effective immediately, the New York Marihuana [sic] Regulation and Taxation Act legalized the recreational use of marijuana in the state. Employers are prohibited from discriminating against employees based on the legal use or possession of marijuana while off duty and outside the workplace, subject to limited exceptions.

However, employers can still prohibit marijuana use or possession during work hours, while on work premises, and while using an employer’s equipment or property. This includes being impaired while working or driving for work. Impairment means when “the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law.”

These new protections essentially prohibit employers from taking adverse action simply based on a positive marijuana drug screen without separate objective indication that an employee was actually impaired while working. These prohibitions do not apply where drug testing is required by law, or would cause an employer to violate federal law or lose federal contracts or funding.

Action Items

In Rohrer v. Oswego Cove, LLC, the Oregon Court of Appeal said that where alleged protected activity does not have an adequate statutory remedy under the state’s whistleblower law, an employee may bring a common-law wrongful discharge claim. There, an employee claimed harassment in the workplace. When no action was taken by the employer, the employee sought legal advice from an attorney about the alleged harassment. The employee claimed she was retaliated against because she was fired shortly after seeking legal advice.

The court distinguished between retaliation for reporting unlawful activity, which could be protected under the state’s whistleblower laws, and retaliation for seeking legal counsel, which has no specific statutory protection. Because the employee’s allegations centered on the latter rather than the former, the court allowed the employee’s claims to move forward.

Employers must take care in how they manage employee claims and review potential exposure before taking adverse action against an employee following employee claims.

Action Items