Recent activity by the National Labor Relations Board (“NLRB”) suggests that the Board may overturn a 2007 landmark decision in which it held that employees have no statutory right to use their employers’ electronic communications systems for non-business purposes, including union organization and other concerted activities for the purpose of collective bargaining or other mutual aid or protection (also known as “Section 7 rights”).  See 29 U.S.C. § 157.  The Board’s 2007 landmark decision is known as the “Register Guard decision”.

On April 30, 2014, the NLRB issued a Notice and Invitation to File Briefs in the matter of Purple Communications, Inc., inviting parties and other interested individuals and organizations to answer the question of whether the Board should reconsider or overrule its 2007 decision in Register Guard. The NLRB invites briefing and evidence to address the following questions:

• Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system or other electronic communications systems for Section 7 activity?
• If the Board overrules Register Guard, what standards, restrictions, and factors should be applied to employee access to employers’ electronic communications systems?
• To what extent and how should the impact on the employer affect the issue?
• Do employees’ personal electronic devices, social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ rights under the NLRA to communicate about work-related matters?
• Are there any other technological issues regarding email or other electronic communications systems or any relevant technological changes that have occurred since the Board’s 2007  Register Guard decision that should be taken into account?

If the NLRB overrules its Register Guard decision, employees may be permitted to use employers’ email and communications systems for Section 7 activity, including union organizing activities.

Employers should pay close attention to the Board’s decision in Purple Communications, Inc., as it could have a significant impact on employers’ policies and practices regarding employees’ personal use of company communications systems.  We will keep you informed when the Board issues its decision.

A number of courts have traditionally held that attendance is an essential function of most jobs and, on that basis, have found that telecommuting, or working from home, as an accommodation is not reasonable.  Recently, however, the United States Court of Appeals for the Sixth Circuit departed from this traditional notion and held that an employee’s request for telecommuting as an accommodation was reasonable and that her physical presence at work was not an essential function of her job. This recent decision by the Sixth Circuit may present a problem for some employers and may be a signal that other federal courts, such as the Seventh Circuit, which oversees the federal district courts in Illinois, Indiana, and Wisconsin, may now be willing to recognize that allowing an employee to work from home may be a reasonable accommodation.

At issue in EEOC v. Ford Motor Company was whether a telecommuting arrangement could be a reasonable accommodation for an employee in a resale steel buyer position suffering from irritable bowel syndrome (“IBS”). The employee had formally requested that she be permitted to telecommute on an as-needed basis as an accommodation for her disability. Ford did maintain a telecommuting policy that authorized employees to telecommute up to four days per week, but specifically provided that telecommuting was not appropriate for all jobs, employees, work environments or managers. Ford ultimately determined that the employee’s position was not suitable to telecommuting and denied her request.

In defending against the EEOC’s claim, it was Ford’s position that the employee was not “otherwise qualified” because physical presence at the workplace was an essential job function and that the employee’s inability to demonstrate regular attendance made her unable to perform an essential function of her job and, therefore, she was not a “qualified” individual under the ADA and did not fall within the statute’s protections.

The Sixth Circuit rejected Ford’s argument and, for the following reasons, found that Ford could not show that the employee’s physical presence at work was essential to performing her job:

• The assumption that attendance at the workplace is essential for most jobs no longer applies due to technological advances that allow employees to perform a number of tasks remotely;
• Because of those technological advances, positions that require a great deal of teamwork are not inherently unsuitable to telecommuting arrangements;
• The EEOC offered evidence that cast doubt on the importance of face-to-face interactions in the employee’s position;
• The employee could still conduct on-site visits to suppliers’ places of business if she worked partially or even primarily from her home rather than the employer’s facilities; and
• The employer permitted other resale buyers to telecommute, albeit on a more limited basis.

The Sixth Circuit emphasized that determining whether physical presence is essential to a particular job is a highly fact-specific question and that it considered several factors to guide its inquiry, including the following: written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions.

What Does This Decision Mean for Employers?

Although this decision comes out of the Sixth Circuit, it has opened the door for the EEOC to take an aggressive approach on the issue of whether physical presence in the workplace is truly essential to performing a specific job. The Sixth Circuit’s decision in EEOC v. Ford Motor Co., represents a significant departure from the traditional majority viewpoint that regular attendance at the workplace is usually an essential function of the job. For example, in 1995 in Vande Zande v. Wisconsin Department of Administration, the Seventh Circuit stated:

“Most jobs in organizations public or private involve teamwork under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home. This is the majority view . . . . But we think the majority view is correct. An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. No doubt to this as to any generalization about so complex and varied activity as employment there are exceptions, but it would take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.”

The Sixth Circuit’s decision in EEOC v. Ford Motor Co., may be a signal to other courts that technology has advanced such that the courts need to re-consider this traditional viewpoint.

With the federal courts and the EEOC beginning to embrace the concept that physical presence at the employer’s place of business is not an essential job function, this may be the beginning of a slippery slope toward requiring employers to consider telecommuting as an accommodation. The question most employers will have is whether such an accommodation is reasonable, particularly because many employers, like Yahoo! CEO Marissa Mayer, are committed to the philosophy that in-person, face-to-face communication, and interaction fosters the type of collaboration, innovation, and production that is essential to a successful business.

Employers should keep a close eye on how other federal courts address the issue of telecommuting as a reasonable accommodation.

Spring is finally here! Like household cleaning, it is also important to do spring cleaning in the workplace. Spring is a great time for employers to audit their human resources policies and procedures to account for recent changes in state and/or federal law and to find and correct potential problems before they turn into costly claims or lawsuits.

Failing to regularly review your personnel policies and procedures could create litigation risks for your business. The key areas of focus for your workplace spring cleaning should include:

• Reviewing and revising employee handbooks and other individual policies as needed;
• Reviewing and revising your personnel practices and procedures regarding:
  • Avoiding discrimination, harassment, and retaliation in all aspects of employment;
  • Approving and managing leaves of absence;
  • Accommodating disabilities or religious needs;
  • Wage and hour issues; and
  • Disciplinary practices and investigations.
• Identifying any important changes in federal and state law, determining how any changes will affect your policies and procedures, and revising those policies and procedures accordingly.
• Conducting training and re-training for key personnel on important human resources policies such as harassment.

Reviewing your personnel policies and procedures annually and ensuring your employees have the proper training to implement and enforce your policies and procedures is a springtime best practice for employers.

If you would like additional resources to assist you in conducting your human resources audit or are looking for someone to conduct informational training for your employees or supervisors, please contact us.

The Milwaukee Justice Center, organized by Milwaukee County, the Milwaukee Bar Association and the Marquette University School of Law, provides civil legal assistance to people who cannot afford an attorney. In 2012, the volunteers of the Center provided nearly 9,000 hours of pro bonoservice to 10,659 unrepresented litigants.

Fifteen attorneys from the law firm of O’Neil, Cannon, Hollman, DeJong and Laing contributed the success of the Milwaukee Justice Center in 2012 to include:

• Doug Dehler
• Megan Eisch
• Miles Goodwin
• Grant Killoran
• Justinian Koenings
• Claude Krawczyk
• Gregory Lyons
• Sarah Matt
•  Joseph Newbold
• Laura Now
• Jason Scoby
• Steven Slawinski
• Steven Strye
•  Timothy Van de Kamp
•  Peter Walsh

On April 8, 2014, Governor Scott Walker signed into law the Wisconsin Social Media Protection Act (the “Act”). 2013 Wisconsin Act 208. The new law, which went into effect on April 10, 2014, Wis. Stat. § 995.55, prohibits employers from requesting an employee or an applicant to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s “Personal Internet account,” defined as an “Internet-based account that is created and used by an individual exclusively for purposes of personal communications.”

Specifically, under the new law, employers may not:

• Request or require an employee or applicant for employment to disclose access information for a Personal Internet account or otherwise grant access to or allow observation of that account as a condition of employment;
• Discharge or otherwise discriminate against an employee for:
  • Exercising his or her right to refuse to disclose access information, grant access to, or allow observation of his or her Personal Internet account;
  • Opposing a practice prohibited under the Act;
  • Filing a complaint or attempting to enforce any right under the Act; or
  • Testifying or assisting in any action or proceeding to enforce any right under the Act.
  • Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s Personal Internet account.

The Act does, however, permit an employer to do any of the following:

• Request or require an employee to disclose access information to allow the employer to gain access to an account, service, or electronic communications device that the employer supplied or paid for (in whole or in part) in connection with the employee’s employment or used for the employer’s business purposes;
• Discharge or discipline an employee for transferring the employer’s proprietary or confidential or financial information to the employee’s Personal Internet account without the employer’s authorization;
• Conducting an investigation or requiring an employee to cooperate in an investigation if an employer has reasonable cause to believe that there has been:
  • Any alleged unauthorized transfer of confidential, proprietary, or financial information to the employee’s Personal Internet account; or
  • Any other allege employment-related misconduct, violation of the law, or violation of the employer’s work rules, as specified in an employee handbook, if the misconduct is related to activity on the employee’s Personal Internet account.

(Although an employer can require an employee to grant access to or allow observation of the employee’s Personal Internet accounts for this purpose, the employer may not require the employee to disclose access information for that account.)

• Restrict or prohibit an employee’s access to certain internet sites while using an electronic communication device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources;
• Comply with a duty to:
  • Screen applicants prior to hiring; or
  • Monitor or retain employee communications as required by state or federal laws, rules, and regulations or the rules of a self-regulatory organization.
  • View, access, or use information about an employee or applicant for employment that can be obtained without access information or is available in the public domain; and
  • Request or require an employee to disclose his or her personal e-mail address.

An employee or applicant who believes he or she was discharged or otherwise discriminated against in violation of the Act may file a complaint with the Department of Workforce Development in the same manner as other employment discrimination complaints are filed and processed with the Department.

Employers should review and revise their policies and practices to ensure that they are in compliance with the Act. For more information about the Wisconsin Social Media Protection Act or if you have questions about whether your practices comply with the new law, please contact us.

Grant Killoran, the Chair of O’Neil, Cannon, Hollman, DeJong and Laing S.C.’s Litigation Practice Group, has been selected by the American Bar Association Section of Litigation as an Outstanding Subcommittee Chair for the 2013-2014 ABA year.

Grant serves as the Co-Editor of the ABA Section of Litigation’s Health Law Litigation Newsletter and is being honored for his work on that publication.

Grant has served as a Co-Editor of the ABA Health Law Litigation Newsletter for a number of years. He previously served as the Co-Chair of the ABA Section of Litigation’s Health Law Litigation Committee.

Grant’s practice focuses on complex business disputes, including those involving the health care industry.

The National Labor Relations Board (“NLRB”) Regional Director for Region 13 issued a decision on March 26, 2014, finding that college football players receiving grant-in-aid scholarships from Northwestern University who have not exhausted their playing eligibility are “employees” under Section 2(3) of the National Labor Relations Act (“NLRA”). What does this mean for Northwestern football players? It means that those football players who meet the definition of an “employee” of the University can vote for whether they want to be represented by a union and collectively bargain over the terms and conditions of their relationship with the University. In fact, in his March 26th decision, the Regional Director ordered that an immediate secret ballot election be held among the eligible employees in the unit to determine whether they should be represented by the College Athletes Players Association (“CAPA”) in collective bargaining with Northwestern.

In finding that the Northwestern football players receiving grant-in-aid scholarships are employees under the NLRA, the Regional Director relied on the broad definition of “employee” under Section 2(3) of the NLRA, which provides, in relevant part, that the term “employee” shall include “any employee . . . .”  The Regional Director also relied on the U.S. Supreme Court’s holding in NLRB v. Town and Country Electric, 516, U.S. 85 (1995), that in applying the broad definition of “employee” under the NLRA, it is necessary to consider the common law definition of “employee.” The Regional Director noted that, “[u]nder the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”

In finding that Northwestern University football players receiving grant-in-aid scholarships to perform football-related services for the University fall within this definition of “employee,” the Regional Director emphasized the significant amount of revenue the football program generates for the University, the amount of time the players spend on football-related activities, the fact that the players who receive scholarships are required to sign a “tender,” which the Regional Director compares to an employment contract, that the scholarships the players receive are in exchange for the athletic services being performed, and the amount of control the University and the football coaches have over the players and their daily lives.

Although this decision is just one Region’s decision, it is noteworthy, as it is the first case in which the NLRB has ruled that student-athletes at a private university qualify as employees under the NLRA and are therefore allowed to unionize. Northwestern has already released a statement confirming its plan to appeal the Regional Director’s decision. We are likely a long way from the ultimate conclusion in the Northwestern case. However, this decision may open the door for student-athletes at other private universities and colleges to argue that they, too, are considered employees under the NLRA.

Including student athletes within the definition of “employees” under the NLRA may present a whole host of unexpected issues. For example, if student athletes on scholarship are “employees” of their college or university, should their scholarships be considered taxable income? Are these athletes also covered by other labor and employment statutes like the Fair Labor Standards Act, which requires employees to be paid minimum wage and overtime for all hours worked over forty in a given workweek? These are just some of the issues that may be raised with the recent decision issued by Region 13. The ultimate consequences of this decision out of Region 13, and their significance and reach, remain to be seen.

As “e-cigarettes” grow in popularity, employers must decide how to address the use of e-cigarettes in the workplace. Electronic cigarettes or “e-cigarettes” are battery-operated devices that deliver nicotine or other substances to its user in the form of a vapor that is then inhaled. Many e-cigarettes are manufactured to look just like everyday objects that can be found in the workplace, such as pens or USB sticks.

E-cigarettes are currently unregulated by the U.S. Food and Drug Administration, which means the FDA has not evaluated any e-cigarettes for safety or effectiveness. A number of recent independent studies on the effects of e-cigarettes and the emissions from those devices have yielded mixed results, with some indicating that the vapor emitted by e-cigarettes contains some of the same carcinogens that you find in traditional cigarette smoke. So, as an employer, how can you know whether you should be regulating the use of these devices in the workplace?

Currently, there is no federal law regulating the use of e-cigarettes and no state has completely banned their use. Twenty-four (24) states, including Wisconsin, and the District of Columbia currently have “smoke-free” laws that prohibit smoking of traditional tobacco cigarettes in the workplace. Because e-cigarettes are still fairly new, most of these “smoke-free” laws do not address whether the use of e-cigarettes is also prohibited in the workplace. Recently, a number of municipalities and some states have enacted new laws or amended their “smoke-free” laws to ban the use of e-cigarettes in the same way use of traditional tobacco cigarettes is prohibited in the workplace.

Wisconsin’s legislature has taken an approach quite different from the trend toward banning the use of e-cigarettes in the workplace and other public places. The Wisconsin legislature has introduced a bill that, if passed, would exclude e-cigarettes from the types of smoking devices that are prohibited under Wisconsin’s “smoke-free” law, which would mean that using e-cigarettes would be permitted in those places where smoking traditional cigarettes is now prohibited. It is not likely, however, that this bill would require private employers to allow employees to use e-cigarettes in the workplace.

With more employees bringing e-cigarettes into the workplace, employers are faced with the decision whether to permit or ban employees’ use of e-cigarettes at work. Some employers find that permitting employees to use e-cigarettes cuts down on the number of smoking breaks employees take each day, thereby increasing some employees’ productivity, while other employers find that e-cigarettes create a distraction for users and non-users alike. Absent legal restrictions regarding the use of e-cigarettes in most cities and states, employers in those jurisdictions are free to create their own reasonable policies addressing the use of e-cigarettes just as they would maintain policies addressing or restricting other activities and conduct that could interfere with employees’ ability to do their jobs or otherwise disrupt the workplace.

Employers should stay up to date on state and municipal laws and ordinances that could affect how employers may be required to treat the use of e-cigarettes in the workplace.

On March 6, 2014, the Equal Employment Opportunity Commission announced that it released two new publications addressing religious dress and grooming rights and responsibilities in the workplace under Title VII of the Civil Rights Act of 1964 (Title VII), in response to an increased number of religious discrimination charges filed with the agency.

The EEOC has published a question-and-answer guide and a fact sheet in an effort to provide employers and employees practical guidance for complying with Title VII, which, under certain circumstances, requires employers to provide reasonable accommodations to employees and applicants who wear clothing or follow certain grooming practices for religious reasons, unless doing so poses an undue hardship on the employer’s business operations.

The two publications address a number of topics, including examples of common religious dress and grooming practices and when an employer’s duty to consider an accommodation request is triggered, potential claims against employers for failing to accommodate religious requests, tips for preventing and addressing workplace harassment and retaliation against employees who request religious accommodations, and examples of when these requests have posed undue hardship on employers.

If you have questions about religious accommodation under Title VII, please contact one of our Employment Law attorneys.

James G. DeJong, a 1973 Carroll graduate and president of the Milwaukee law firm O’Neil, Cannon, Hollman, DeJong and Laing, will be inducted into the Phi Kappa Phi National Honor Society during a ceremony at Carroll University in April. Founded in 1897, this highly selective honors society was created to recognize and promote academic excellence in all fields of higher education and to engage the community of scholars in service to others.

A Mequon, Wis., resident, DeJong joined Carroll’s Board of Trustees in May 2008. He has served on the Board’s Executive and Institutional Advancement committees and was elected Board Chair in 2013. He is serving a three-year term.