by Cynthia Price
Legal News
It is not every day that 35 corporate attorneys and human resource managers are willing to arrive downtown by 7:30 a.m., but the recent Association of Corporate Counsel (ACC) employment law and policy seminar made it worth their while.
Presenters Steven A. Palazzolo and Robert R. Cleary, both from Warner Norcross and Judd LLP, were
informative, up-to-date, and even entertaining on a subject that might have been somewhat dry: employment law, policy, and emerging issues.
Before Palazzolo and Cleary began their updates, a member of the Association of Corporate Counsel (ACC) gave a welcome. Wendell Russell, Senior Counsel for Meijer Inc., spoke glowingly of the benefits of membership in ACC, promoting its monthly magazine and virtual library and saying, “It’s a very economical organization to join, and specifically oriented to the corporate bar.”
The Michigan chapter of ACC has over 300 members. More information is available at http://www.acc.com/
chapters/mich/.
As Cleary began his Congressional update, he asked anyone who had a story to tell or a question to ask to interrupt him as he spoke, and attendees took him up on that as the morning progressed.
His discussion of legislation in the 111th Congress had a theme: a number of the employment-related bills introduced in 2009 had “lost a lot of momentum,” many having been referred back to committee.
Included are the Employee Free Choice Act which liberalized labor union access to employees; the Balancing Act of 2009, the Paid Vacation Act, the Family and Medical Leave Inclusion Act, and the Family Fairness Act, all of which expanded the provisions of the existing Family Medical Leave Act; Protecting Older Workers Against Discrimination Act; and the Forewarn Act, which increases penalties of the WARN (Worker Adjustment and Retraining Notification) Act and would have triggered WARN’s 60-day notification at lower thresholds.
Apparently some of these bills had caused anxiety for corporate counsel because they would impact the bottom line, but Cleary felt that there was no political will to pass them under the current conditions. However, Cleary advised that a significant change had taken place on the National Labor Relations Board (NLRB).
In April President Obama addressed the fact that the NLRB was operating with only two out of five members by making two recess appointments likely to have a different perspective on labor rulings. Craig Becker, a former associate general counsel for the SEIU (Service Employees International Union), and Gaston Pierce, the former trial specialist for the NLRB, will probably “change in great ways the way the board is adjudicating cases,” according to Cleary.
In a related story, the U.S. Supreme Court ruled on June 17 that the decisions on some 600 cases made by that two-person NLRB were illegal, and will have to be revisited.
After Cleary’s detailed and informative legislative update, Steve Palazzolo lightened up the tone by talking about social networking and employment issues.
Asking, “When did ‘friend’ become a verb?” Palazzolo talked about consulting with his 14-year-old daughter about how to put up a Facebook page solely for the purpose of illustrating these seminar talks. He showed a PowerPoint slide of the page as he went over the potential concerns with such social media.
The first he discussed is Human Resource visits to employment candidates’ social networking pages in order to determine whether or not to hire them. In most cases, he advised, this is a bad idea, though there is as yet no case law to back that up. Basing decisions on much of the information garnered there is illegal to use in hiring: age, extrapolated information about affiliations such as churches, health information that may lead to genetic assumptions, as just a few examples.
He advised having a policy which either places an outright ban on HR professionals looking at social media sites for pre-employment information, or requires candidate permission and states explicitly that “non-job-related criteria will not be considered.”
Palazzolo also discussed other employment issues related to social networking sites, including the amount of time spent on them during work hours, citing a study that showed 76% of employees admitted to checking their Facebook pages during the work day; and the need to make clear the legal boundaries about employees’ product claims on their social media pages.
Cleary returned to the podium to discuss in detail the ramifications of electronic document retention and, finally, office romance. On the latter, Cleary differed with Palazzolo on the worst associated pitfalls, feeling that sexual harassment was less of an issue than real or perceived favoritism.
The theme that emerged repeatedly throughout the morning was: companies should have written policies in advance of problems arising.
The broad range of topic areas resulted from suggestions of previous seminar attendees. Cleary requested that those with urgent questions make them known either to ACC or himself (rcleary@wnj.com).
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