A new post on the Management Memo blog will be of interest to many of our readers in the tech industry: “‘A Day Without’ Actions – How Can Employers Prepare?” by our colleagues Steven M. Swirsky and Laura C. Monaco of Epstein Becker Green.

Following is an excerpt:

[T]he same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case. …

Read the full post here.

In August 2015, the National Labor Relations Board (“Board”) issued its decision in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), adopting a new standard for determining whether a company is a joint employer and therefore subject to all of an employer’s legal obligations under the NLRA with respect to the employees of another employer that provides it with services, leased or temporary labor, or the like. Since then, there have been many dire predictions as to how this new test would result in finding businesses to be joint employers of the employees of those they do business with, whether suppliers of temporary labor, franchisees, or a wide range of other circumstances. The latest permutation involves claims that a business that maintains a corporate social responsibility (“CSR”) policy intended to ensure that its suppliers and business affiliates comply with applicable laws and treat their employees fairly is, by virtue of such a policy, a joint employer of the supplier’s employees.

Under the new test that the Board adopted in Browning-Ferris Industries (“BFI”), what matters is whether the purported joint employer possesses the authority to control the terms and conditions of employment, either directly or indirectly, of another employer’s employees. In other words, the actual or potential ability to exercise control, regardless of whether the company has, in fact, exercised such authority, is now the focus of the Board’s inquiry. As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry.”

Not surprisingly, the Board’s decision in BFI has been appealed. An amicus brief supporting a challenge to the BFI decision recently filed on behalf of Microsoft illustrates that the Board’s new standard, if left undisturbed, is likely to have the unintended consequence of discouraging responsible companies from encouraging their suppliers to provide their employees with benefits in excess of the bare minimums required by law.

In BFI, the Board held that the NLRA imposes joint-employer obligations if (1) a common law employment relationship exists between the putative joint employer and another entity’s employees and (2) “the putative joint employer possesses sufficient control over the employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”

As this amicus brief points out, one potential consequence of the new joint-employer rule is to discourage companies from maintaining CSR policies to ensure that those companies they do business with, in the United States, follow responsible policies when it comes to the treatment of their own employees. Typically, CSR policies provide for a minimum set of standards that would-be suppliers and service providers are expected to follow. For example, in March 2015, Microsoft announced that it would do business with only those large suppliers that provided employees with at least 15 days of paid leave annually. Both President Obama and Secretary of Labor Perez praised Microsoft’s CSR policy and expressed the hope that other companies would follow suit.

After BFI was decided, however, a union representing the employees of one of its suppliers claimed that Microsoft was a joint employer of the supplier’s workers and therefore subject to the supplier’s obligations under the NLRA vis–à–vis the supplier’s workforce. When Microsoft disagreed and declined to participate in bargaining between the supplier and its employees’ union, the union filed an unfair labor practice charge against Microsoft claiming that the company was a joint employer of the supplier’s workers and accusing it of unlawfully refusing to bargain.

The amicus brief highlights the importance of the first element of the BFI test (i.e., only common law employers can be liable as joint employers) in constructing a workable definition of “joint employer.” Basing the existence of joint employer status simply on whether a company has “sufficient control . . . to permit meaningful collective bargaining” overlooks the fact that a wide variety of economic actors have substantial control over the terms and conditions of workers employed by others. A company is unlikely to adopt a CSR policy if it lacks the size and market power to encourage vendors to comply with that policy. Thus, CSR policies do not demonstrate control over labor relations but, rather, should be more properly thought of as eligibility criteria for suppliers to provide services and do business. As Microsoft points out in its brief, “such oversight and standard-setting is commonplace in a supplier contracting relationship and is not the type of control that can support a finding of joint employment.”

Thus far, unions have had some success in organizing the employees of vendors, such as shuttle bus companies that provide services to technology companies. They have also had limited success organizing workers directly employed by technology companies. This presents a strategic challenge for unions as the direct employers of the employees they represent are often in commoditized businesses with comparatively low margins, unable to offer the pay and benefits provided to technology company employees. Unions therefore have a strong financial interest in blurring the distinction between customers and employers, in an effort to forge a strategy to force technology companies to the bargaining table and extract expensive concessions.

A version of this article originally appeared in the Take 5 newsletter “Five Trending Challenges Facing Employers in the Technology, Media, and Telecommunications Industry.”

In recent years, the use of wearable devices, such as smartwatches and Fitbits, has gained popularity not only with the general public and consumers but also among employers as a way to encourage workers to maintain healthier habits and, in turn, help reduce health care costs. Increasingly, companies are distributing wearable devices to employees as part of workplace wellness programs. According to one estimate, nearly half of employers that have a workplace wellness program use fitness trackers.[1] This trend shows little sign of abating. The data collected from these trackers—on such things as quality of sleep and activity level, for example—can be shared with health insurance companies, which may allow employers to negotiate lower insurance policy rates for their employees. Companies that have encouraged wearable fitness trackers have also realized other benefits, including decreased absenteeism and increased worker productivity.

Beyond wellness applications, employers around the globe are also using wearables to increase worker safety. One company in Australia, for example, has had its truck drivers wear “SmartCaps”[2] in an effort to reduce fatigue-related accidents. These hats resemble baseball caps but include built-in sensors that can detect driver alertness and provide a warning to drivers when their fatigue level begins to rise.

To be sure, the benefits of wearable devices, as well as the value of the data generated by them, cannot be ignored. Yet, despite the potential benefits of introducing wearables into the workplace, employers should be mindful of the potential legal pitfalls. Monitoring employees, whether during work or non-work hours, can expose employers to legal risks even if the monitoring is intended to promote employee wellness, improve business operations, or keep employees safe.

What Are the Legal Risks?

Several legal risks arise from the various health-related data that can be collected from these workplace wearables and used by employers. One key threat is that cybercriminals could hack into the servers of companies that sell fitness tracking wearables (and manage the associated mobile health apps) and access employees’ personal data. It is also possible that these companies could sell employees’ personal data to advertising companies or other third parties without employee knowledge.

In addition to data privacy and security concerns, antidiscrimination laws also represent an important risk for employers. For example, under the Americans with Disabilities Act (“ADA”), employers are prohibited from conducting a “medical examination” of employees unless the examination is “job-related and consistent with business necessity.”[3] A medical examination includes a procedure or test that seeks information about an employee’s physical or mental impairments or health. Because wearables today can measure various health metrics, such as heart rate and blood pressure, an employer’s rollout of wearables could unintentionally result in prohibited medical examinations under the ADA. While employers are permitted to conduct voluntary medical examinations as part of voluntary workplace wellness programs, provided that certain conditions are met, this is still an area in which employers should be cautious. Further, to the extent that wearables collect information about employees’ family medical history or other genetic information, employers may face liability under the Genetic Information Nondiscrimination Act (“GINA”). Under GINA, it is illegal for employers to use genetic information in making employment decisions. Finally, employee monitoring, particularly with respect to GPS location, can also potentially run afoul of protections afforded by the National Labor Relations Act (“NLRA”).

How Can Employers Mitigate the Risks of Using Wearables in the Workplace?

While the law in this area is in its nascent stage, before rolling out a wearables program, either as part of an overall wellness plan or independently, employers in all industries should do the following:

  • Although wearable technology is rapidly advancing and adopting novel methods of employee tracking and monitoring may be alluring, exercise particular caution when adopting novel tracking methods, regardless of how strong the underlying business, health, and/or safety justification may be.
  • Consider working with a third-party vendor to administer the workplace wellness program so that you receive information derived from employee wearables on an aggregate basis that does not individually identify data for any specific employee.
  • Ensure that there is a policy in place detailing how the technology will be used and the scope of information that will be collected. Also, consider obtaining employee consent related to data collection.
  • As the legal landscape surrounding workplace wearables evolves, closely track and monitor developments in applicable state and federal laws (including the ADA, GINA, and NLRA, among others) and revise your policies accordingly.

A version of this article originally appeared in the Take 5 newsletter “Five Trending Challenges Facing Employers in the Technology, Media, and Telecommunications Industry.”

[1] Patience Haggin, As Wearables in Workplace Spread, So Do Legal Concerns, The Wall Street Journal, March 13, 2016, http://www.wsj.com/articles/as-wearables-in-workplace-spread-so-do-legal-concerns-1457921550.

[2] Rio Tinto, Hi-Tech Cap Helps Coal & Allied Truck Drivers Work Smarter to Manage Fatigue (May 2013), http://www.riotinto.com/media/media-releases-237_8713.aspx.

[3] U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html.

On Epstein Becker Green’s OSHA Law Update blog, Eric Conn reviews the agreement between the NLRB and OSHA, which allows employees to file out-of-date safety related whistleblower claims to be filed with the NLRB.

Following is an excerpt from the blog post:

On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.

To access the full blog post, please click here.