North Dakota News & Analysis

  • NLRB loosens the reins on employee handbook rules

    Over the last several years, employers have had a great deal of frustration in drafting workplace policies and rules. They have struggled because of decisions and guidance from the National Labor Relations Board (NLRB) stating that seemingly innocuous policies violate Section 7 of the National Labor Relations Act (NLRA) because they be construed as implicating employees' protected right to organize or engage in concerted activities for the purpose of collective bargaining or obtaining mutual aid or protection. Given the broad reach of the NLRB's decisions and guidance, they affected employer policies governing social media, civility, insubordination, and confidentiality, to name a few. In short, they affected basic aspects of the employment relationship, even for nonunion employers.

  • Does #MeToo movement mean #TheEnd for workplace romance?

    Recent reports of serious sexual misconduct by prominent men across the country have drawn renewed attention to a variety of issues involving sexual harassment in the workplace. One such issue is how to tell when romantic and/or sexual overtures at work cross the line into sexual harassment or misconduct. The line is often clear—especially for egregious misconduct—but not always. The challenge for employers is to design policies and procedures that make the line clearer for employees and give the employer an opportunity to identify and manage potentially problematic relationships.

  • Stayin' alive: ADA compensatory damages claim survives employee

    The U.S. 8th Circuit Court of Appeals (whose rulings apply to all North Dakota employers) recently reversed a district court's dismissal of a discrimination claim brought under the Americans with Disabilities Act (ADA) by a deceased employee's estate.

  • How (not) to handle negative social media posts

    Lawyers frequently get calls from employers that want to know what to do in response to a negative social media post. The offending post could be an unfairly negative review on Yelp. Or it could be a rant by an ex-employee on the company's Facebook page. What to do in response (and what not to do) is a tricky question that has become more complicated by a federal law.

  • Agency Action

    Change likely to NLRBs union election rules. The National Labor Relations Board (NLRB) published a Request for Information in December 2017 asking for public input on the Boards 2014 rule that shortened the process of holding union representation elections. The NLRB was seeking comments on whether the 2014 rule should be retained, modified, or rescinded. The Boards action on the election rule was one of a string of party-line 3-2 votes taken in December just days before Republican member and Chairman Philip A. Miscimarras term ended on December 16. His departure leaves the Board with two Republicans (Marvin E. Kaplan and William J. Emanuel) and two Democrats (Mark Gaston Pearce and Lauren McFerran). Other actions included decisions overruling Obama-era decisions on union organization of microunits, joint employment, employee rights related to handbook provisions, the reasonableness settlement standard in single-employer claims, and bargaining obligations required before implementing a unilateral change in employment matters.

  • Union Activity

    Union praises Atlanta ordinance on airport job security. UNITE HERE issued a statement in December commending an Atlanta City Council vote approving a worker retention ordinance for contracted service workers at the citys Hartsfield- Jackson Atlanta International Airport. The unions statement said that until the ordinance was passed, the airports contracted service workers had little to no job security. A changeover in contractor could result in largescale displacement for that companys employees, even when their employer was replaced by another company that performed the exact same service. The ordinance ensures that qualified displaced workers get first opportunity to work the new job.

  • New year, new me: North Dakota employment law in 2018

    As we say goodbye to 2017, it's time to consider what the employment law landscape will bring to North Dakota in 2018. After last year was ushered out on a wave of sexual harassment allegations and scandals and a flurry of year-end rulings from the National Labor Relations Board (NLRB), it appears that 2018 may be more employer-friendly at the federal levelparticularly with the U.S. Department of Labor (DOL) and NLRBbut may also expand some employee rights at the state level. Here are a few topics that North Dakota employers should keep an eye on over the next year.

  • Employers ditching annual reviews for more frequent feedback

    There seems to be a shift in the way employers evaluate workers. A number of large companies (for example, Microsoft, Dell, and Gap) have recently nixed annual review systems in favor of more frequent forms of feedback on employees' performance.

  • Agency Action

    EEOC cites progress in managing charge inventory. The Equal Employment Opportunity Commission (EEOC) released its annual Performance and Accountability Report on November 15, 2017, showing a decline in charge inventory as a highlight. During fiscal year 2017, which ended September 30, the agency reported it had resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years. Additionally, the EEOC handled over 540,000 calls to its toll-free number and more than 155,000 contacts about possible charge filings in field offices, resulting in 84,254 charges being filed. The 2017 report also notes that the agency secured approximately $484 million for victims of discrimination in the workplace.

  • Updating your inclement weather policy

    Q We are currently reviewing our inclement weather policy. Does our company need to pay employees who miss work because of a snowstorm or other inclement weather conditions?