Feedspot recognizes Fisher Phillips for contributing to workplace health and safety.

The Fisher Phillips Workplace Safety and Health Law blog has been named as one of the best on the internet, according to Feedspot’s “Top 75 Health and Safety Blogs” ranking. Of the thousands of health and safety blogs reviewed, Fisher Philips was ranked 18th by Feedspot’s group of expert panelists.

“Effective workplace safety and health management programs are crucial for a company’s success,” said Roger Quillen, Fisher Phillips’ chairman and managing partner. “We are proud of the Fisher Philips team for helping educate the public on these topics through our firm’s blog and are honored to be recognized as one of the most comprehensive resources available to employers.”

The “Top 75 Health and Safety Blogs” are ranked based on Google reputation and search rankings, influence and popularity on social media platforms, quality and consistency of posts, and Feedspot’s editorial team and expert review. The “Top 75 Health and Safety Blogs” are recognized for their valuable contributions to workplace health and safety.

“Like my partner Ed Foulke, I am passionate about workplace safety,” said Howard Mavity, a partner and co-chair of the firm's Workplace Safety and Catastrophe Management Practice Group. “Since we started the blog, we have expanded the scope beyond typical legal discussions to instead focus on practical subjects, information from non-lawyer professionals and interrelated employment law issues, and I think that makes us unique.”

“As an editor of the blog, I am pleased it has earned this recognition,” said Edwin Foulke, a partner and co-chair of the firm's Workplace Safety and Catastrophe Management Practice Group. “The blog was one of the first things we discussed when I came to Fisher Phillips, and we have tried to use it to make an impact – we want to see employees go home safe at night.” 

For more information on the firm’s Workplace Safety and Catastrophe Management practice group, whose members write the Workplace Safety and Health Law blog, please visit Fisher Phillips online.

About Fisher Phillips (www.fisherphillips.com)

Fisher Phillips attorneys are ready to help you take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back you up. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases. The firm has more than 350 attorneys in 32 offices. The offices are in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, New York, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.

Fisher Phillips announced today that the law firm has been named to the 2018 Best Law Firms by U.S. News - Best Lawyers®. The firm received “Tier 1 Rankings” for its Employment and Labor Law Practices as well as its Labor and Employment Litigation Practice. Additionally, 19 of the firm’s offices received “Metropolitan Tier 1 Rankings” for Employment Law, Labor Law, Employee Benefits, Labor and Employment Litigation, and/or ERISA Litigation. The ranked offices are in Atlanta, Charlotte, Cleveland, Columbia, Dallas, Denver, Fort Lauderdale, Irvine, Kansas City, Las Vegas, Louisville, Memphis, New Jersey, New Orleans, Orlando, Philadelphia, Portland, San Diego, and Tampa.

The firm has been included in every edition of the prestigious rankings since its inception in 2010.

Fisher Phillips Chairman and Managing Partner Roger Quillen said: “The lawyers in our firm are greatly committed to providing innovative and nimble legal service to our clients. Our clients benefit from the focus our lawyers have on each client’s business along with the strong support from our staff. The savvy clients who work with us continue to recognize the dedication, experience, and knowledge that goes into each of their legal matters.”

Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a “First-Tier” ranking signifies a quality law practice and breadth of legal experience and knowledge.

The 2018 Edition of The Best Lawyers in America© was based on 7.4 million evaluations of lawyers by other lawyers, which resulted in about 58,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” Fisher Phillips has 89 attorneys included in Best Lawyers.

About Fisher Phillips (www.fisherphillips.com)

Fisher Phillips attorneys are ready to help you take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back you up. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases. The firm has more than 350 attorneys in 32 offices. The offices are in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, New York, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.

About U.S. News & World Report

U.S. News & World Report is a multimedia publisher of news, consumer advice, rankings, and analysis. Focusing on Education, Health, Personal Finance, Travel, Cars, Law and News and Opinion, www.usnews.com has earned a reputation as the leading provider of consumer advice and analysis that helps its readers make informed life decisions.

About Best Lawyers

Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by his or her peers. For more than three decades, Best Lawyers lists have earned the respect of the profession, the media, and the public, as a reliable, unbiased source of legal referrals anywhere.

Hurricane Harvey has pummeled Houston and the cleanup has begun but there could be more trouble ahead. Hurricane season is expected to last through the end of November and tornado season following two months later, so it’s important for every employer to create a natural disaster plan. From family and military leave to disaster recovery funds, a well thought out plan can be an essential business tool.  

“Employees have missed or are missing work for reasons ranging from transportation issues, displacement, to military leave. Some employers are soliciting donations on behalf of their businesses for those hardest hit. Some employers are considering closing or mass layoffs,” said Collin Warren, partner in the Houston office of Fisher Phillips. “Each of these issues have legal ramifications so employers should exercise prudence.”

Many companies are struggling to return to normal. When complicated employment-related issues arise, it’s important for businesses to contact a trusted advisor or attorney to assist with planning. Below are some of the issues facing Texas employers today:

Family and Medical Leave

If employees choose to stay home or has transportation difficulties due to weather, the U.S. Department of Labor considers this an absence for personal reasons. Employers may place an employee on leave without pay or make deductions, depending on the employee’s status. For a number of reasons, caution is recommended in docking salaried employees' pay.  

Military Leave and Emergency Workers

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a Federal law that establishes rights and responsibilities for uniformed Service members and their civilian employers. In addition to military personnel called up to serve in the federal response to the hurricane disasters, the act protects federal emergency workers including those employees performing as intermittent disaster response appointees even if they are not otherwise members of the uniformed services. There are three major categories of employer obligations: prohibition against discrimination, continuations of benefits while on leave and right to reemployment.

Workplace Donations to Natural Disaster

Victims Employers can create a “tax-efficient” charitable fund (i.e., all contributions are tax-deductible to the donors and all distributions are income tax-free to the recipients) to provide disaster relief assistance to its own employees. After the 9/11 disaster, Congress enacted the Victims of Terrorism Tax Relief Act of 2001, which allowed employers to establish a 501(c)(3) private foundation for the sole purpose of providing disaster relief assistance to the employer’s employees and their families. In order to avoid IRS concerns regarding private inurement, there are very specific requirements that must be followed.

Plant Closing Laws

The WARN Act states employers must provide at least 60 calendar days of notice prior to any covered plant closing or mass layoff. Fortunately, even in cases where its notice requirements would otherwise apply, the WARN Act provides a specific exception due to any form of natural disaster.

Businesses interested in learning more about legal issues that often arise during a natural disaster can visit the Fisher Phillips website for FAQs that addresses the above as well as workplace safety issues, wage and hour issues, labor relations, workers’ compensation and immigration law.  

About Fisher Phillips (www.fisherphillips.com)

Fisher Phillips attorneys are ready to help you take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back you up. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases. The firm has 350 attorneys in 32 offices. In addition to Houston there are offices in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, New York, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.

The 5th Circuit Court of Appeals recently became the second federal appeals court this year to hold that an employer’s rule prohibiting recording in the workplace violates the National Labor Relations Act (NLRA). In a July 25 decision, the court agreed with the National Labor Relations Board that such a rule could discourage unionizing or other protected activity. This case is yet another reminder that employers need to tread carefully when it comes to personnel policies restricting audio and video recording (T-Mobile USA, Incorporated v. NLRB).

T-Mobile’s Policies Come Under NLRB Scrutiny

T-Mobile’s employee handbook contained four workplace rules that are not necessarily uncommon in today’s modern workplace: (1) a rule encouraging employees to “maintain a positive work environment;” (2) a rule prohibiting arguing or fighting, failing to treat others with respect, or failing to demonstrate teamwork; (3) a rule prohibiting access to electronic information by non-approved individuals; and (4) a rule prohibiting all photography and audio/video recording in the workplace without prior permission from management, human resources, or the legal department. 

The NLRB was called upon to render judgment on these rules after a challenge was raised by the Communication Workers of America. The Board ruled that all four violated the NLRA because, in its view, they had a chilling effect on employees’ exercise of their Section 7 rights to engage in protected, concerted activity with regard to the terms and conditions of employment. The employer appealed the ruling to the 5th Circuit Court of Appeals, which issued its decision late last month.

Appeals Court: Recording Ban Needs To Be Rescinded

On appeal, the 5th Circuit, widely regarded as one of the most employer-friendly appeals courts, disagreed with the Board and found that the first three policies were lawful.  But the court enforced that portion of the Board’s order holding that the employer’s complete ban on photography and recording violated the NLRA. In doing so, the 5th Circuit joined with the 2nd Circuit Court of Appeals, which reached the same conclusion in June as to a similar workplace recording ban.  

To reach its conclusion, the 5th Circuit applied the framework set out in the Board’s Lutheran Heritage decision from 2004. Under that framework, the court first looks at whether the rule at issue explicitly restricts Section 7 activities. If the restriction is not explicit, it may still violate the NLRA if employees would reasonably construe the rule to prohibit Section 7 activity, the employer promulgated the rule in response to union activity, or the employer has applied the rule to restrict the exercise of Section 7 rights.

Since the NLRB did not argue the recording ban explicitly restricted protected activity, was promulgated in response to union activity, or had been applied to restrict the exercise of protected activity, the court’s focus was on whether a reasonable T-Mobile employee would reasonably construe the language of the recording rule to prohibit Section 7 activity. The 5th Circuit explained the “reasonable employee” for purposes of its inquiry “is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA.” 

Applying the Lutheran Heritage test to the first three rules, which the court characterized as “common sense civility guidelines,” the court held that a reasonable employee would not construe them to restrict Section 7 activity. Here, the court emphasized the importance of both context when interpreting the rules and the necessity to give such rules a reasonable reading. The question, the court instructed, is not how the reasonable employee could interpret these policies, but rather how the reasonable employee would interpret them.

The recording ban, on the other hand, troubled the court because of its sheer breadth.  Citing the 2nd Circuit’s June 2017 decision, the 5th Circuit agreed with the NLRB that a reasonable employee would interpret the ban – which by its plain language encompasses any and all photography and recording without permission – as discouraging protected activity, such as “an off-duty employee photographing a wage schedule on a corporate bulletin board.”

The court rejected T-Mobile’s argument that the recording rule’s stated purposes — “to prevent harassment, maintain individual privacy, encourage open communication, and protected confidential information,”— justified the ban. These recitations were not enough to overcome the broad prohibition of protected activity, “including Section 7 activity wholly unrelated to those stated interests.” The court declined to decide whether a right to photograph and record the workplace exists under the NLRA, noting that “there are circumstances in which taking photographs or recordings may be protected activity [such as the example of photographing a wage schedule], and . . . T-Mobile has not provided any legitimate reason why its ban ought to be allowed to encompass such activity.”

Conclusion: What Should Employers Do?

With two federal appeals courts reaching the same conclusion within a few months about the legality of broad workplace recording bans, it certainly appears that a trend is emerging that impacts your ability to control workplace recordings. If you operate in any of the states covered by the 5th Circuit (Texas, Louisiana, and Mississippi) or 2nd Circuit (New York, Connecticut, and Vermont), you should pay particular attention to this trend. But the larger question remains: should you scrap your anti-recording policies altogether?

Given the fact that most employees bring mobile devices capable of audio and video recording to work on a daily basis, and given the additional fact that disgruntled workers commonly surreptitiously record meetings, discussions, and events, solid arguments can be made for keeping or implementing policies that limit recording in the workplace. But this decision is a reminder – or, for some, a wake-up call – to carefully craft such rules to maximize their enforceability. If you want to ensure your policy walks the fine line between legitimate workplace rule and illegal workplace practices, consult with your regular Fisher Phillips attorney.

It is hot, hot, hot in Texas and many employers are wondering whether to crank up the A/C, or relax the dress code and risk turning up the heat in the office if skimpier wardrobes bare more than some want to see, including unwelcome tattoos.

The number of Americans sporting tattoos has risen dramatically in recent years. In fact, a 2015 study by The Harris Poll shows that 29 percent of Americans now have at least one tattoo, and the number increases to nearly half of Millennials (47%) and over a third of Gen Xers (36%).

“Addressing tattoos in the workplace is a relatively new situation for many employers,” said Michael V. Abcarian, managing partner of labor and employment law firm Fisher Phillips’ Dallas office. “If tattoos are an issue for an employer, it is important that they develop a dress and grooming policy based on the company’s best interests and lawful workplace regulation principles. Additionally, the policy may need to outline what is appropriate for different positions within the company. A non-visible tattoo policy may be appropriate for positions in customer service, but not for those whose jobs do not involve customer contact. Employers must also keep in mind that some tattoos may have religious affiliation, which could require an exception to the policy. Other than tattoos that have religious meaning, tattoo and summer dress code policies should be consistently enforced for both men and women.”

If tattoos and summer wear seem to cross the line, employers need to know what may be considered unlawful when enforcing dress code compliance.

Here are a few tips for deciding how to handle a company’s summer dress code:

• Have a written dress code policy that details what is acceptable and unacceptable, with examples.
• Communicate policies to all employees. It may be helpful to consider in some instances requiring that employees sign a form acknowledging the policies.
• Consistently enforce dress code policies; only make exceptions when you must in order to reasonably accommodate employees based on a protected class (such as religion, ethnicity, etc.).
• Enforce the same or similar policies for men and women. If it is absolutely necessary to include different standards, make sure neither sex faces a greater burden.
• If there is a need to address an employee’s wardrobe, it is typically best to have a person of the same gender as the employee present in order to avoid an appearance of sex discriminatory motivation.

Smart employers will communicate and implement policies before issues arise, lest a wayward employee claim that the rules unfairly target them.  When reviewing or forming a dress code, be sure it is reasonable, nondiscriminatory, and founded on legitimate business needs.  This way you can beat the summer heat, without getting burned by a cold employee.

About Fisher Phillips (www.fisherphillips.com)

Fisher Phillips attorneys are ready to help you take a stand: in court, with employees and unions, or with competitors. Fisher Phillips has the experience and resolve to back you up. That’s why some of the savviest employers come to the firm to handle their toughest labor and employment cases.

The firm has more than 350 attorneys in 32 offices. In addition to Dallas, the firm maintains offices in Atlanta, Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New Jersey, New Orleans, New York, Orlando, Philadelphia, Phoenix, Portland, Sacramento, San Diego, San Francisco, Seattle, Tampa, and Washington, D.C.