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Acquisitions, No FMLA Abroad, Sharps Containers
Q: We are acquiring a company that has unionized employees. Can we terminate the employees and hire employees who aren’t in a union?
A: Cease fire, terminator! While most states are at will, this does not mean that an acquiring company can legally terminate any existing employees simply because they are members of a labor union.
The National Labor Relations Act (NLRA) specifically addresses the duty of successor employers in its Basic Guide to the National Labor Relations Act, whereby an acquiring employer may be obligated to recognize and bargain with an existing union.
It states that “an employer who purchases or otherwise acquires the operations of another may be obligated to recognize and bargain with the union that represented the employees before the business was transferred.”
The fact that the new or acquiring employer does not have a contract with the existing union has no bearing on this obligation. Whether or not this obligation is present is determined largely by the nature of the business following the acquisition.
If the business is generally run in the same manner and its operations will produce the same or similar results, the successor employer may likely be required to recognize and bargain with the existing union. Employers that plan to open a new plant across the street won’t likely escape this obligation either, because this standard also may reach to physical location changes within a reasonable distance of the former location.
Other factors are relevant as well. As the NLRA explains in its guide, “whether the purchaser is a successor employer is dependent on several factors, including the number of employees taken over by the purchasing employer, the similarity in operations and product of the two employers, the manner in which the purchaser integrates the purchased operations into its other operations, and the character of the bargaining relationship and agreement between the union and the original employer.”
If a union files a grievance with a successor employer, based on suspected union animus, the standard found in Wright Line (251 NLRB 1083 (1980)) likely will be applied. The successor employer then will need to demonstrate that any decisions made that negatively affected existing union members would have been made regardless of the employee affiliation with a union.
Q:We are a government contractor that will send some of our employees on international assignments that could last up to two years. When our employees work outside the United States, are they covered by the FMLA?
A: Most U.S. employees working overseas for U.S. employers are not covered by the Family and Medical Leave Act (FMLA), according to the Department of Labor (DOL).
A DOL opinion letter states: “The Department of Labor administers the FMLA only with respect to employees employed in the United States, including the District of Columbia and any territory or possession of the United States. Therefore, employees stationed full time overseas in a foreign country on one- and two-year employment contracts would not be eligible for the benefits of the FMLA while working overseas.”
If your employees are assigned to any of the current U.S. territories—including American Samoa, Guam, Midway Islands, Puerto Rico and the U.S. Virgin Islands—they would be covered by the FMLA.
The basis for the DOL opinion letter may be found in section 29 C.F.R. §825.105 of the DOL regulation on the FMLA. The regulation, which outlines steps to determine whether an employer is covered under the FMLA, specifically states that the “FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any territory or possession of the United States. Employees who are employed outside these areas are not counted for purposes of determining employer coverage or employee eligibility.”
Therefore, employees working outside of the United States and its territories, as described above, would not be covered by the FMLA.
Q: An employee has diabetes and self-administers insulin at work. Are we required to provide her with a sharps container for disposal of her needles and syringes?
A: The Occupational Safety and Health Administration’s (OSHA) Bloodborne Pathogens Standard applies only to occupational exposure to blood. The standard does not require an employer in a non-health care environment to provide a sharps container to an employee who uses needles and syringes for personal therapeutic reasons.
You may wonder if the Americans with Disabilities Act (ADA) requires employers to provide a sharps container as a reasonable accommodation. Much as the ADA does not require employers to provide a vision-impaired employee with eyeglasses, employers are not required by the ADA to provide a sharps container to an employee. Reasonable accommodations are adjustments or modifications to the workplace or the job to enable people with disabilities to enjoy equal employment opportunities.
Regardless of the absence of a statutory requirement to provide this employee a sharps container, it is certainly prudent for the employer to ensure the proper disposal of used needles and syringes. Discarded needles and syringes create a potential for exposure for other employees, in particular workers who empty the trash.
The employer has the responsibility for protecting all workers who may encounter discarded needles and syringes. This can be accomplished by including custodial workers in an exposure control plan and by other means such as requiring employees to discard their used needles and syringes in special containers.
The employer may either provide the container or insist the employee bring in her own sharps container. The employee’s prescription drug provider can probably provide that container on a free or inexpensive basis. If not, sharps containers are inexpensive and easy to find (see, for example, the vendor directories at Google, Yahoo! and Open Directory).
If there is a charge for a workplace sharps container, it’s a small price for the employer to pay for the safety of all employees. Additional employer-specific resources on this topic include the employer’s prescription drug benefit provider, the company’s waste management vendor and, if applicable, the company’s custodial services provider.
Regan Halvorsen, SPHR, and Deb Levine, SPHR, are information specialists in the Society for Human Resource Managements Information Center. Anne St. Martin, SPHR, CEBS, is manager of express operations in the center.
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