HR Legal Insider
Look who's back... Back again... Obamacare in the Supreme Court.
The Supreme Court already scrutinized the Affordable Care Act in 2012, when it held the law was properly enacted by Congress as part of its taxation powers. Three years later, the Supreme Court Justices will hear another attack based on eight words of the law. This week, the Court heard oral arguments in King v. Burwell, which challenges the law’s subsidies to citizens in the states who use the federal exchange, rather than create their own exchange. Why?
Wondering if your company's non-compete agreements apply to all your competitors? Learn about how to protect you and your company from your competitors.
Non-competition agreements are generally not enforceable unless they are reasonable in scope and reasonably aimed to protect the employer’s business interests. A Missouri case drives home the scope element of a non-competition agreement. In Sigma-Aldrich Corp. v. Vilkin, No. ED-100575 (Mo. Ct. App. Oct. 14, 2014), the Missouri Court of Appeals held a global non-compete was unenforceable. The non-competition agreement prohibited a sales employee from working for any competitor for two years. There was no geographic restriction (i.e. within 50 miles); nor was there any limitation on what kind of competitors would be excluded. This was fatal, and the Court held the agreement unenforceable as a matter of law.
Employers with confidentiality provisions are often caught unawares by the National Labor Relations Board, which governs union- and non-union employers. Be aware of the red flags for employer confidentiality policies.
In 2014, the Board has pushed employers on their policies protecting employer information, calling many standard policies “overbroad.” Specifically, the National Labor Relations Act protects employees’ right to engage in “concerted activity” for “mutual aid or protection.” Employers may not interfere or restrain this right of employees. The Board has taken the view that many employers’ confidentiality policies would “tend to chill employees” in the exercise of their rights under the National Labor Relations Act. For instance, an overbroad policy that prevents employees from discussing wages, employee records, and discipline have been found to be overly broad. Fresh & Easy Neighborhood Market (2014). In Fresh & Easy, the company’s policy that employee information is to be kept secure and used only for its intended purpose was overbroad. The Board determined that an employee would read the policy to mean he or she could not discuss wages or conditions of employment. In another 2014 case, Phillips Electronics North America Corp. the Board found that a firm violated the Act due to its policy prohibiting employees from speaking about discipline, unless the employer has a legitimate and substantive business reason for the policy.
Should a company itself investigate or engage an outside investigator? Attorney-client privilege protects company internal investigations.
Each company should have a robust anti-discrimination, anti-harassment policy in its handbook. The policy is insufficient unless it outlines a method for employees to report discrimination and harassment that violates the company policy. But employers are often stumped with how to handle the situation when an employee does blow the whistle and make such an allegation. Should the company itself investigate or engage an outside investigator?
Performance Reviews Should be Ongoing
Throughout the year, an employer should be providing feedback to each employee. If an employee is failing to reach performance goals or has a bad attitude, this should be addressed immediately and noted in their employee file. When a client comes to us with a problem employee, they are in much better shape when the employee’s file actually shows what has actually been going on. At the same time, praise when your employee goes above and beyond. This keeps the employee motivated. The perks can be as simple as a company-wide shout-out, a VIP parking space for a week, or even a simple “Great job!” The takeaway is that reviews should be continuous, which brings us to our next point…
Prohibiting Off-Duty Drinking for Alcoholic Employees? Reasons Employers Should Carefully Consider Policies
Recently, a union representing workers at nuclear power plants requested an informal opinion letter from the Equal Employment Opportunity Commission asking whether an alcohol policy of the public utility violated the Americans with Disabilities Act. The policy included drug and alcohol testing and, at issue, employees who were participants in the company’s alcohol counseling program were prohibited from consuming alcohol on- or off-duty.
Four Areas Your Employee Handbook May be Outdated
In the last few years, the National Labor Relations Board (NLRB) has shifted its focus from union employment to many non-union employers and employees. The NLRB governs most employers, union and non-union alike. There are some exceptions, such as agricultural enterprises, independent contractors, and many supervisors. Recent findings by the NLRB signal that many company handbooks may need revision to prevent policies from illegally broad application.
South Dakota employers will see an increase in the state’s minimum wage from $7.25 to $8.50 effective January 1, 2015. The state’s minimum wage will also automatically increase for inflation each year starting on January 1, 2016. The increase for inflation will be based on the Consumer Price Index, determined each August. The most recent CPI (August 2014) was 1.7%, but that rate will likely change each year.
A recent case in Indiana emphasizes that an employer must carefully consider how its actions will affect a non-competition agreement with its employees. Nightingale Home Healthcare, Inc. v. Helmuth, 29A04-1403-PL-121 (Ind. App. 8/28/14). A home health care employee signed a non-compete when he was hired, which restricted him from working for a competitor for two years after his employment ended. A year later, the employee was let go. He was required to turn in company equipment and property, his badge and keys. Ten days later, he was re-hired for the same position, as a patient advocate, for the same salary and benefits. He did not have to reapply or fill out new-hire paperwork. He did not sign a new non-compete. The patient advocate continued working for Nightingale for another three years.