Employment Law Update
California Considers a “Right to Disconnect” Law for Employees
Would you believe it? California is considering expanding employee rights. The California legislature is considering a bill that would curtail employers from contacting employees outside of working hours. Specifically, the proposed law would require employers to establish a workplace policy that provides employees the “right to disconnect” from communications from the employer during nonworking hours. In other words, under the proposed law, employees would have the right to ignore communications from their employers during agreed-upon nonworking hours. The bill carves out two limited exceptions: (1) emergencies, and (2) changes to an employee’s schedule that happen within 24 hours of the scheduled shift. If an employer commits three or more violations of the “right to disconnect,” employees are entitled to file a complaint with the California Labor Commissioner, which can assess civil penalties. Again, this bill hasn’t been signed into law. But if it is, it will likely be in a watered-down form (with more exceptions), and it won’t go into effect until next year at the earliest. You can read more on this story here.
OSHA Revises its Rule for Inspections
On March 29, 2024, the U.S. Department of Labor (DOL) published its final rule clarifying who is allowed to be present for an Occupational Safety and Health Administration (OSHA) inspection. Under Section 8(e) of the Occupational Safety and Health Act (Act), both employees and employers have the right to have a “walkaround representative” accompany OSHA Compliance Officers during physical inspections of worksites. A 2017 court decision found that OSHA's practice of permitting third parties to be employee walkaround representatives was a valid interpretation of the Act but was not consistent with OSHA’s regulation. As a result, OSHA revised the regulation to reinstate its longstanding practice of permitting third parties to be employee walkaround representatives. Under the final rule, whether employees can appoint a third party as their walkaround representative is subject to “the judgment of the Compliance Safety and Health Officer,” and requires a “good cause” showing that “a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The “good cause” can consist of things like the third party’s “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” The final rule becomes effective on May 31, 2024. You can read the final rule here, and you can see OSHA’s FAQ page for the final rule here.
Employers Get a Win Over the NLRB in an Employee-Surveillance Case: Nearly all employers monitor their employees’ conduct in one form or another—from listening to calls, to monitoring email traffic, to hiring private investigators to dig into their employees’ pasts, (just ask furniture/meatball giant IKEA). While employers can sometimes go too far in that monitoring, (like allegedly giving your employees a calendar app that is basically spyware….we’re looking at you, Google), courts will generally give employers a fair amount of leeway. That’s precisely what happened in a recent decision issued by the D.C. Circuit Court of Appeals—a case that involved employer-provided dashcams. In Stern Produce Co., Inc. v. NLRB, the employer equipped its fleet of delivery vehicles with dashcams to ensure safe driving, protect drivers from car-accident liability and improve efficiencies through tracking location. The employer required employees to keep the dashcams on at all times. During a delivery stop, an employee covered his dashcam. A few hours later, his supervisor sent him a text telling him he couldn’t cover his dashcam—which obviously meant the supervisor was watching the employee’s dashcam footage. The NLRB concluded that the supervisor’s surveillance of the employee was “out of the ordinary” in light of the employee’s “history of union-related conflicts,” and thus constituted a violation the National Labor Relations Act (NLRA). In a rather scathing decision, the D.C. Circuit Court disagreed. Relying heavily on the employer’s handbook and driver’s manual, the court noted that employees were aware the company could monitor them through the dashcams and that the cameras must remain on at all times. The court also pointed to the fact that there was no evidence of union activity going on in the small cab of a delivery truck. The court did recognize, however, that “elevated or abnormal scrutiny of pro-union employees” can constitute unlawful surveillance. So while the D.C. Circuit Court’s decision is helpful to employers, it should not be seen as judicial sanctioning of surveillance in every situation—so maybe don’t develop software to scour the social media accounts for every employee who supports a wage increase (ahem…McDonald’s). You can read the D.C. Circuit Court’s decision here.
