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Offit Kurman Telebriefs® | Workforce Mobility Act, Post-Obama NLRB Rulings, and More

Workforce Mobility Act, Post-Obama NLRB Rulings, Determining Worker Cannabis Intoxication, and Relationship Disclosures

Senators Chris Murphy (D–Connecticut) and Todd Young (R–Indiana) recently introduced a Senate bill titled the Workforce Mobility Act. The bill seeks to ban non-compete agreements outside of the sale of a business or the dissolution of a partnership. If enacted, the law would empower the Department of Labor (DOL) and the Federal Trade Commission (FTC) to enforce the legislation through fines.

The National Labor Relations Board (NLRB) overturned an administrative law judge’s finding that an employer’s confidentiality rule and media rule violated the National Labor Relations Act (NLRA). The decision follows the promulgation of a new interpretive rule in 2017, which modified restrictive Obama-era decisions pertaining to employee handbooks and employees’ social media activity.

In other NLRB news, the Board recently applied what is likely to be applicable Board law in a universal context on the issue of joint employer status. The Obama-era NLRB overthrew well-established prior Board law determining whether two putative employers would be deemed to be joint employers. The recent application marks a return to the test that had been used for decades: if one employer exercises direct and immediate control over the terms and conditions of employment of the employees of the second employer, they will be found to be joint employers under the NLRA. Keep in mind that if two employers are found to be joint employers under the NLRA, one may become liable for the representation obligation of the other.

The Oklahoma Court of Civil Appeals made what may prove to be a significant determination in a case called Rose v. Berry Plastics Corporation. The employee, Rose, worked for Berry Plastics in the role of a machine operator. While he was trying to clear an obstruction by hand from a jammed machine, a co-worker of his triggered a so-called guillotine machine crushing Rose’s hand and wrist. The company’s policy was that after any accident a drug test would be conducted. Rose went through the drug test and tested positive for cannabis. He admitted smoking cannabis the night before but he denied being impaired at the time of the accident, which occurred about 10 hours after he had consumed the substance at home. The initial court upheld the termination but the Appellate Court, the Oklahoma Court of Civil Appeals, overturned the lower court’s decision and rejected the underlying inference that he was intoxicated. The court cited the fact that Rose overcame this presumption by showing up to work at 6am, driving apparently safely 45 minutes to work, operating his machine without incident for the first two hours of the shift, and showing no signs of unfitness or intoxication to his co-workers—and, consequently, that the employer offered no evidence of intoxication at the time of the accident.

As many readers are aware, McDonald’s recently fired CEO Steve Easterbrook after the company’s board found that he demonstrated poor judgment by having a consensual affair with a subordinate. The termination raised an issue that has gained traction particularly in the aftermath of the #MeToo movement, namely, should companies prohibit any kind of a consensual relationship between C-level employer representatives and subordinates, as opposed to consensual relationships between rank-and-file employees. Employers should review their employment policies and consider executing a) a policy which would prohibit any relationships between C-level executives and other employees, as well as b) a policy which would mandate that any co-employees involved in even consensual relationships disclose that information in a formal way to the company’s HR department.


Questions about labor and employment law or other topics from this week’s Telebrief?

Contact Howard Kurman at or 410-209-6417.

About the Telebriefs®

The Telebriefs® are 30-minute, information-packed phone calls geared towards executives, HR directors, supervisors, managers, and business owners. Join Howard K. Kurman, as he discusses employment law developments occurring over the past two weeks that will most significantly impact employers nationwide. These twice-monthly phone calls are an easy way to stay current and compliant with the latest employment law developments that will significantly affect you and your company. The goal is to provide information and insights to help executives stay current with the latest workplace law developments and in front of trends, to enable proactive policy-making and management. Our guarantee: You will learn something useful on every call!

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Howard Kurman Casual-Small | 410-209-6417

Howard K. Kurman is an employment attorney. Mr. Kurman regularly counsels clients on all aspects of proactive employment/labor issues. He represents employers ranging in size from as small as 20 employees to those employers with geographically disparate locations consisting of over 4,000 employees. Mr. Kurman assures, through regular contact with his clients, that they promulgate and maintain the most effective employment policies that will, to the extent possible, minimize their legal exposure in today’s litigious workplace. Mr. Kurman offers advice on employee handbooks, employment agreements, and covenants not to compete as well as confidentiality and non-disclosure agreements. Previously, Mr. Kurman was the chair of the firm’s Labor & Employment Practice Group.





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