April 2018 Legal Report
The U.S. National Labor Relations Board (NLRB) ruled that Boeing violated U.S. federal law by maintaining a work rule that restricted camera-enabled devices in the workplace.
Boeing designs and manufactures military and commercial aircraft at facilities throughout the United States. To maintain the security of its facilities—and the information housed within them—Boeing maintains a policy called the "no-camera rule."
The rule was created in November 2011 and prohibits the use of camera-enabled devices to capture images or video without a valid business need and an approved camera permit granted by Boeing's security team after a review. The rule applies to personal digital assistants, cell phones, laptops and personal cameras, and bar code scanners.
Boeing's Senior Security Manager James Harris said the rule is an "integral component" of the company's security protocols to maintain its accreditation as a federal contractor to perform classified work for the U.S. government.
The rule also plays a role in ensuring that Boeing complies with its duty to prevent the disclosure of "export-controlled information" or the exposure of "export-controlled materials to unauthorized persons."
Additionally, the rule helps prevent the disclosure of proprietary information, limits the risk of releasing employees' personally identifiable information, and limits the risk of a terrorist attack on Boeing.
Recently, Boeing published a time-lapse video of its 777 aircraft production line for public release. It also became known that Boeing allowed participants in VIP tours to take photographs during their tours, as long as security could review the footage afterwards.
In response, Boeing's camera rule was challenged, and a judge rejected the company's reasoning for it. He said the justifications for the rule were "non-credible based on [Boeing's] contrary practice of allowing free access to its manufacturing process" when it released the 777 video and by allowing "unfettered photography" during VIP tours, according to board documents.
The judge also said Boeing violated the National Labor Relations Act (NLRA) with its no camera rule because employees could "reasonably construe" it to prohibit protected activity.
Boeing filed an exception to challenge the ruling, which was taken up by the NLRB. The board ruled against Boeing's rule, but created a new test for employers that ultimately went in Boeing's favor.
Under the new test, the NLRB said it will find a rule violates the NLRA if it "explicitly restricts employees' protected concerted activity." To evaluate this, the NLRB will look at the rule's potential impact on protected concerted activity and the employer's legitimate business justifications for the rule.
"Applying the new test retroactively to Boeing's no-camera rule, the majority found that the Respondent's justifications for the rule, including the protection of information implicating national security, proprietary trade secrets, and employees' personal information, outweighed any potential impact on employees' protected concerted activity," according to the NLRB. (The Boeing Company, National Labor Relations Board, Nos. 19-CA-090932, 19-CA-090948, and 19-CA-095926, 2018)
A hospital will pay $400,000 and other relief to settle charges that it engaged in age discrimination when 29 employees 40 and older were fired or forced to resign.
The U.S. Equal Employment Opportunity Commission (EEOC) charged that Montrose Memorial Hospital fired older employees for performance deficiencies while treating younger employees more leniently.
The EEOC also claimed that hospital managers made ageist comments, including that younger nurses "could dance around the older nurses" and that the managers preferred "fresher" nurses, according to a press release.
Such activity violates the Age Discrimination in Employment Act that protects people 40 years and older from discrimination based on age, according to the EEOC.
As part of the consent decree, the hospital will pay monetary damages and conduct annual antidiscrimination training for employees, managers, supervisors, and human resources employees. The hospital is also required to revise and distribute its antidiscrimination policy and report any complaints of age discrimination to the EEOC. (EEOC v. Montrose Memorial Hospital, Inc., U.S. District Court for the District of Colorado, No. 1:16-cv-02277-WYD-GPG, 2018)
The Federal Energy Regulatory Commission (FERC) voted unanimously to adopt new cybersecurity rules to increase supply chain security.
The rules, now in a proposed rulemaking process, would require major utilities to create plans to secure their supply chains to include assessing vendors' cybersecurity practices. The new rules would also require electric grid operators to have a plan to cut off remote access often used by third-party suppliers to monitor equipment performance.
FERC is an independent agency that regulates the interstate transmission of electricity, natural gas, and oil in North America.
The U.S. Department of Labor increased penalties for violations of employment regulations.
The new rule raises fines for regulation violations, including those of the Fair Labor Standards Act, from $166 to $169.
Fines were also raised for Family and Medical Leave Act violations for repeated or willful violations of minimum wage or overtime ($1,925 to $1,964), child labor violations ($12,278 to $12,529), child labor violations that cause serious injury or death ($55,808 to $56,947), and willful or repeated child labor violations that cause serious injury or death ($111,616 to $113,894).
The rule also raises penalties for violations of the Occupational Safety and Health Act for serious and other-than-serious violations ($12,675 to $12,934), willful violations ($126,749 to $129,336), repeated violations ($126,749 to $129,336), posting requirement violations ($12,675 to $12,934), and failure-to-abate violations ($12,675 to $12,934).
The fees apply to penalties assessed after January 2, 2018, for violations that occurred after November 2, 2015.
Iceland enacted a new law that requires some companies to prove that they compensate men and women in the same jobs equally.
The Act on Equal Status and Equal Rights of Women and Men applies to Icelandic companies and organizations with 25 or more full-time employees, requiring them to get equal pay certification from the government.
The government will use the Equal Pay Standard, an equal pay management system that was developed by Icelandic trade unions, employers' confederation, and government officials, according to the Icelandic Women's Rights Association (IWRA).
"The standard is a set of rules and guidelines which analyze the pay structure within a company, and show whether or not men and women are paid equal wages for the same or equal value of work within the workplace," an IWRA fact sheet on the law said. "When companies and institutions have fulfilled the requirements of the standard, they receive certification that they have complied with the standard."
Organizations with more than 250 employees will have to be certified by the end of 2018, while smaller firms will have a delayed rollout. Failure to comply with the new law could result in fines of up to $500 per day.
Businesses are now prohibited from deducting the cost of sexual harassment or sexual abuse settlements in some circumstances under the new U.S. tax law.
The law (P.L. 115-97) adds to the Internal Revenue Code Section a subsection that prevents organizations from deducting expenses related to sexual harassment or sexual abuse settlements if the payment is subject to a nondisclosure agreement.
The provision was added in the wake of the "Me Too" movement, where scores of women have come forward with allegations of sexual harassment against business executives, politicians, and celebrities.
U.S. President Donald Trump signed two bills into law that would enhance efforts to combat human trafficking in the transportation sector.
The Combating Human Trafficking in Commercial Vehicles Act (P.L. 115-99) directs the U.S. Department of Transportation (DOT) to designate an official to coordinate human trafficking prevention efforts across the federal government and consider the challenges of combating human trafficking when several transportation modes are used.
The law also expands the Federal Motor Carrier Safety Administration's outreach and education program, as well as the DOT's commercial driver's license financial assistance program, to recognize, prevent, and report human trafficking. DOT is also instructed to create an advisory committee on human trafficking.
The No Human Trafficking on Our Roads Act (P.L. 115-106) also directs the DOT to disqualify operators of commercial motor vehicles—for life—if they use vehicles to commit a felony involving human trafficking.
U.S. President Donald Trump signed legislation into law that reauthorizes electronic surveillance tools for another six years.
The law (P.L. 115-118) renews Section 702 of the Foreign Intelligence Surveillance Act, which allows U.S. agencies to monitor communications of foreigners on foreign soil without a warrant.
This activity was criticized heavily after the Edward Snowden leaks, when opponents to the surveilance program said it could also be used to monitor communications of Americans with foreigners without a warrant.
After initially criticizing the legislation, Trump signed it.