Fisher Phillips News

Manufacturing Success, Episode #3, Part 2: Resurrecting Dead Doctrines and More - The 2023 NLRB Edition

2023 is shaping up to be one of the more active years at the NLRB in recent memory. The Biden Board has already started rolling back a number of pro-employer initiatives implemented during the Trump Administration, but the most significant efforts to support organized labor have yet to unfold.

In this two-part episode of Manufacturing Success, host Mike Carrouth is joined by Steve Mitchell, co-chair of Fisher Phillips’ Manufacturing Industry Group to preview the anticipated return of the Joy Silk Doctrine and the impact resurrecting of this old doctrine could have on employee relations for employers all across our country. Dragging the Joy Silk Doctrine back from the dead seems to be the main strategy to eliminate the secret-ballot voting process currently used by the NLRB. Don’t be alarmed if the name Joy Silk does not ring any bells; it references a Board decision from 1949, and was phased out more than 50 years ago.

Click here to listen to Part 1 of the podcast.

Manufacturing Success, Episode #3, Part 1: Resurrecting Dead Doctrines and More - The 2023 NLRB Edition

2023 is shaping up to be one of the more active years at the NLRB in recent memory. The Biden Board has already started rolling back a number of pro-employer initiatives implemented during the Trump Administration, but the most significant efforts to support organized labor have yet to unfold.

In this two-part episode of Manufacturing Success, host Mike Carrouth is joined by Steve Mitchell, co-chair of Fisher Phillips’ Manufacturing Industry Group to preview the anticipated return of the Joy Silk Doctrine and the impact resurrecting of this old doctrine could have on employee relations for employers all across our country. Dragging the Joy Silk Doctrine back from the dead seems to be the main strategy to eliminate the secret-ballot voting process currently used by the NLRB. Don’t be alarmed if the name Joy Silk does not ring any bells; it references a Board decision from 1949, and was phased out more than 50 years ago.

Manufacturing Success, Episode #2: The FTC’s Massive Step Toward Limiting Restrictive Covenants

On January 5^th 2023, the FTC took historic action ostensibly aimed at stamping out the “unfair” use of non-complete clauses in employment contracts. The proposed rule is broad and sweeping, with thousands of employers and millions of employees set to be impacted if it takes effect. For now, the FTC’s efforts can be characterized as “throwing the baby out with the bath water.” But there is a long way to go, and a lot to consider before allowing panic to set it. In this episode of Manufacturing Success, host Mike Carrouth talks with Michael Elkon, co-chair of Fisher Phillips Employee Defection and Trade Secrets practice group, about the proposed rule; how we got here, what happens next, and practical suggestions employers may want to consider while the FTC’s proposed seismic change to business practices moves forward. For more information on the FTC’s proposed rule change, please reference Fisher Phillips’ recently published Insights on the issue:

• FTC Proposes the End of Employment-Based Non-Compete Agreements
• Frequently Asked Questions About the FTC’s Proposal to Ban Non-Compete Agreements

Manufacturing Success, Episode #1: People Analytics in the Manufacturing Workplace

In the first episode of “Manufacturing Success,” host Mike Carrouth is joined by David Walton for a high-level discussion around the increasingly important topic of people analytics and how its associated principles relate to human resources in the workplace. Big data, analytics, artificial intelligence and human resource functions come together at a workplace crossroads that can have a big impact on how manufacturers approach employee relations. Approximately 80% of human resource departments – including those of manufacturers - currently utilize some form of these people analytics in connection with recruiting, hiring, performance management, compensation, training and other practices.

But the laws regulating their use are murky at best, and non-existent at worst. So how can (and should) manufacturers come to understand and take advantage of these powerful technologies, without running afoul of the law? Start by joining Mike and David for this interactive and forward-thinking discussion, designed to provide a baseline education in this evolving area of technology and law.

The Post-Van Buren Workplace and the Computer Fraud and Abuse Act, Part III

More than a half-year has passed since the Supreme Court ruled in Van Buren v. United States that one "exceeds authorized access" by accessing off-limit files and other information on a computer system they were otherwise authorized to access, effectively narrowing the applicability of the CFAA in prosecuting cybersecurity and computer crime. At that time, Brent Cossrow and Dave Walton shared rapid reactions and perspectives in Part I of this broadcast. Soon afterwards, they reviewed the first wave of cases that discussed Van Buren in Part II. And in this episode, they are back to analyze a fresh slate of cases that were directly informed by this new “gates up or down” era for employers seeking to protect workplace computers and electronically stored information.

The Stengart Fact Pattern and Expectations of Digital Privacy

In this episode, Brent Cossrow and Dave Walton are joined by Risa Boerner, Chair of the Data Security and Workplace Privacy Practice Group at Fisher Phillips, for a discussion around employee privacy through the lens of Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (2010). Though more than 10 year old, the New Jersey Supreme Court’s decision in Stengart continues to manifest itself on a very regular basis. To what extent may employees expect privacy and confidentiality in personal e-mails composed on company-owned computers? According to the New Jersey Supreme Court, there should be a "reasonable" expectation of privacy in personal e-mails on company computers, and that attorney–client communication privileges and privacy should not be violated. But technology and the work environment have evolved considerably in the past 11 years. Join Brent, Dave and Risa as they unpack certain of the interpretations and applications the passage of time allows for, and how employers should respond.

Big Data, Analytics and the Workplace, Part III

In this episode, Brent Cossrow and Dave Walton wrap up their discussion around the intersection of data analytics and the workplace. Having reviewed the basics of big data in practical terms (Part I) and how powerful algorithms designed for use in theaters of war are making their way into HR departments across the country (Part II), Brent and Dave dig a little deeper into use-cases for this technology and the accompanying risks that organizations take on by leveraging these new tools. Questions of discrimination present themselves in new ways that organizations and their counsel must be cognizant of to avoid legal trouble.

Big Data, Analytics and the Workplace, Part II

In this episode, Brent Cossrow and Dave Walton continue their discussion around the intersection of data analytics and the workplace. Powerful algorithms designed for use in theaters of war have made their way into HR departments across the country, helping organizations in connection with training, promotion, recruitment, hiring and more. The technology is strong and its impact on HR functions is clear, but what about the risk? Generally speaking, the law lags behind technology. So while there is no compelling reason not to use the best tools available, certain precautions should be undertaken to protect organizations and individuals against the threat of litigation, down the road.

Click here to listen to the first installment of this series:  Big Data, Analytics and the Workplace, Part I

Big Data, Analytics and the Workplace, Part I

In this episode, Brent Cossrow and Dave Walton review the basics of big data in practical terms. What are analytics and why is discussion of their value so pervasive? How, when and why does the use analytics move from the realm of data scientists to the desks of human resource professionals and in-house counsel? Like so many aspects of employment law, the answers are both complicated and evolving. In this instance, at the speed of technology. Before end-users can reasonably be expected to interpret and apply predictive analytics, they must first develop a foundation of understanding for what they are looking at and where it came from. Part I of “Big Data, Analytics and the Workplace” aims to provide this baseline. Parts II and III will discuss some of the circumstances under which human resource professionals and other employees tasked with managing a workforce can and should be leveraging this fountain of invaluable information, as well as the accompanying legal considerations.

The Post-Van Buren Workplace and the Computer Fraud and Abuse Act, Part II

In this episode, Brent Cossrow and Dave Walton continue to unpack the Van Buren v. United States Supreme Court ruling and the new “gates up or down” era of data protection it has unleashed. Part II focuses on even more recent cases that have discussed the Court’s decision in Van Buren, which is less than 60-days old. The ruling in Van Buren stands to impact millions of Americans and their rights with respect to personal devices, employer-owned devices and the data both contain. As litigation progresses around the country, expect to see more rulings to lean on the Van Buren decision. And keep listening to better understand how, as employers, you should interpret and respond to the changing landscape of data protection.

Click here to listen to the first installment of this episode:  The Post-Van Buren Workplace and the Computer Fraud and Abuse Act, Part I