Personal services that can takes chunks out of the productive workday—from dental appointments to filling your car’s gas tank—and being brought to the worksite by employers of all sizes.

As members of Generation Z graduate from college, employers will need to provide the support, freedom and flexibility these younger workers seek. Here are a few examples of how employers are accomplishing this.

By Ronald Miller, J.D.

An employer’s allegations that a union steered higher-paying jobs to voting employees in the time period immediately preceding a representation election could plausibly be seen as an economic inducement to secure votes in favor of the union, and warrant an evidentiary hearing, ruled the Seventh Circuit. In this instance, the employer used its own employment records to compare the likelihood of nonunion members receiving union jobs before the critical period to what appeared to be a dramatic increase in the availability of union jobs during the critical period. It also identified three individuals who could provide further detail about how the referrals were given and which specific employees had received union work. Finding that the employer presented enough evidence to warrant a hearing on the validity of the election results, the appeals court denied enforcement and remanded for an evidentiary hearing (Jam Productions, Ltd. v. NLRB, June 28, 2018, Rovner, I.).

Jam Productions produces concerts, shows, and events at various venues around Chicago. It hired part-time and nonunion stagehands to unload lighting and sound equipment into venues, set it up, maintain it, take it down, and move it out of the venue after the show. Given the irregular schedule of shows, none of the stagehands were employed full time and their employment was generally sporadic.

In September 2015, the union filed an election petition to represent Jam’s employees. On September 30, the employer and union entered into a stipulated election agreement for a bargaining unit of stagehands. However, the day after the parties signed the election agreement, the representation petition was held in abeyance pending the investigation of an unfair labor practice charge filed by the union. The charge was based on the employer’s termination of a crew leader and the 53 employees he supervised. The charge was not resolved until April 6, 2016, when a regional director approved an agreement providing the employer would reinstate the employees by offering immediate and full participation on its “on-call list.”

Ballot challenges. Following resolution of the ULP charge, the election was held on May 16, 2016. Prior to the election, the employer asked the regional director to move the eligibility date of the election back two weeks on account of the seven-month election delay. The regional director did not respond, so the employer included on its voter eligibility list five stagehands hired in the two-week period after the agreed upon October 4, 2015 date. The union prevailed in the election by a vote of 22–10, with 21 ballots challenged. Eight challenges were uncontested, leaving 13 contested ballots. Five of those ballots were cast by employees hired in the two weeks following the stipulated eligibility date.

The employer also filed objections to the election results on the grounds that the union unlawfully provided economic benefits to employees during the critical period preceding the election. Specifically, the employer alleged that the union provided its employees premium, higher-paid work at union venues in the weeks before the election in an attempt to influence employees to vote union.

Refusal to bargain. Following an investigation, the regional director concluded that the employer’s offer of proof in support of its objection fell short of demonstrating “substantial and material factual issues” that would warrant setting aside the election. The NLRB declined the employer’s request for review and affirmed the regional director’s report certifying the union. Thereafter, the employer refused to bargain with the union, and the General Counsel filed an unfair labor practice charge. The Board rejected the employer’s affirmative defenses and found that the employer violated Section 8(a)(5) of the Act.

The employer petitioned for review of the Board’s order and the Board cross-applied for its enforcement. The central issue on appeal is whether the Board reasonably certified the union as bargaining representative.

Union certification. On appeal, the employer challenged the Board’s determination that union work given to employees preceding the election did not make the election unfair. According to the employer, the union engaged in a concerted effort to steer high-paying union jobs to the 21 voting members who had been recently reinstated (whose votes made up a majority of the counted votes). The employer submitted an offer of proof outlining multiple instances in the period before the election when the union chose a reinstated employee to work shows that would have ordinarily been staffed by other union members. It also offered its own records showing that when the union supplied stagehands outside the critical period, it did not hire nonunion employees.

The employer also sought employment records from the union for the 21 reinstated employees to demonstrate that it was unusual for them to have received union jobs. However, the union refused to provide any of the requested records and the regional director declined to interview any of the individuals identified by the employer. The Seventh Circuit concluded that the employer presented enough evidence to obtain an evidentiary hearing, and that the Board abused its discretion by failing to hold one.

Election fairness tainted. In considering whether a particular incentive taints the fairness of an election, the appeals court asks whether what was offered was “sufficiently valuable and desirable in the eyes of the person to whom they were offered, to have the potential to influence that person’s vote.” The financial benefit of the higher-paying jobs immediately preceding the election could plausibly be seen as an economic inducement to secure votes in favor of the union, concluded the court.

Here, the employer provided more than vague, unsubstantiated accusations. It used its own employment records to compare the likelihood of nonunion members receiving union jobs before the critical period to what appeared a dramatic increase in the availability of union jobs during the critical period. It also identified three individuals who could provide further detail about how the referrals were given and which specific employees had received union work. The whole purpose of the evidentiary hearing was to inquire into whether the employer’s allegations were meritorious. Because the regional director declined to interview individuals identified by the employer, it had no way of knowing if the nonunion employees ordinarily received union job offers outside the critical period. As a consequence, the appeals court granted the employer’s petition for review and remand for a hearing on its election objection, and denied the Board’s cross-application for enforcement.

By Pamela C. Maloney, J.D.

A spouse who was harmed allegedly by exposure to asbestos while laundering her husband’s work clothes could sue the companies that had supplied asbestos products to her husband’s employer for their failure to provide the employer with sufficient warnings about the dangers of those products and with instructions for how those clothes should be laundered, the Delaware Supreme Court ruled, overruling long-standing precedent that disallowed take-home asbestos exposure claims by third parties against manufacturers of these products. Reversing and remanding  summary judgment in favor of the manufacturers, the state high court took into account legitimate concerns about exposing asbestos products manufacturers to unrestricted liability in take-home asbestos exposure cases and the right of foreseeable family members to recover for serious injuries caused by take-home asbestos exposure. (Ramsey v. Georgia Southern University Advanced Development Center, June 27, 2018, Strine, E.).

The employee, who had been employed by Haveg Industries, Inc. as a maintenance worker, had regularly handled asbestos products manufactured by Georgia Southern University Advanced Development Center (Herty) and by Hollingsworth and Vose Company in his role as a pipe maker and fitter. The dust from that work settled on the employee’s uniforms, which were laundered by his wife. Before her death from lung cancer, the employee’s wife sued the asbestos products manufacturers alleging that their negligence caused her illness because they (1) knew of the dangers of asbestos exposure but failed to adequately warn her of those risks; (2) did not adequately package, distribute, and use asbestos in a manner that would minimize the escape of asbestos fibers; and (3) did not take adequate steps to remedy those failures.

The manufacturers moved for summary judgment arguing that they did not owe the wife a duty of care, and that her allegations were claims of nonfeasance, which required her to identify a “special relationship” with the manufacturers before liability could attach to their alleged failure to act. According to the manufacturers, the wife could not identify such a “special relationship” and, moreover, that no such relationship existed.

The superior court granted the motion based on the Delaware Supreme Court’s decisions in Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), and Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), in which the state high court had determined that the employers of workers who handled asbestos products did not engage in affirmative conduct that worked positive injury on the spouses of their employees. Instead, the employers merely had failed to act to protect a distant third party who had never entered onto their property. Further, in both cases, the state supreme court found that on their claims of nonfeasance, the plaintiff-spouses failed to show a special relationship between themselves and their husbands’ employers. The superior court extended the reasoning in Price and Riedel to manufacturers of asbestos products, holding that because the wife in this case had alleged nonfeasance claims, she was required to identify the existence of a special relationship between herself and the asbestos products manufacturers before liability could be imposed. Her failure to do so was detrimental to her take-home asbestos exposure claims.

Warning duty under §388. On appeal, the wife’s estate argued that the superior court had erred in finding that the asbestos products manufacturers did not have a duty to warn her of the dangers of their asbestos under §388, which provides that an asbestos products manufacturer has a duty to warn foreseeable users of the dangers of its products to the extent the manufacturer has actual or constructive knowledge of that danger and when it is unlikely that the user will discover the dangerous condition. The state high court pointed out, however, that it was well established under Delaware law that manufacturers whose asbestos products were later used in a facility could discharge this duty to warn by giving adequate warnings to employers, who in turn have a duty to provide their employees with a safe workplace and to warn them of any dangers associated with their job responsibilities.

In light of these principles, the asbestos products manufacturers did not dispute that they had a duty to warn the employer in this case of the dangers of the asbestos products, including the dangers that could ensue if clothes exposed to those products were not laundered in a manner that protected the person who did the laundering. Instead, the manufacturers argued that if they provided adequate warnings to the employer, they were entitled to rely on the employer’s duty to share those warnings with employees as a defense in any suit against them.

In considering this argument, the high court acknowledged that the manufacturers’ warning duty was complicated by the fact that in Delaware, as in other states, an employer has no exposure in tort to employees for workplace injuries. Instead, the employer provides worker’s compensation for those injuries, regardless of fault. Hence, the court pointed out that the crux of manufacturer’s argument was that it did not make sense in take-home asbestos exposure cases to immunize the employer from liability to the employee’s spouse but to still hold the asbestos products manufacturers responsible, especially given that it was the employer who shaped the conditions under which an employee worked with asbestos products, failed to ensure that the employee’s clothes were laundered safely on-site, and failed to provide the employee with safe laundering instructions when washing his close at home.

Reconsidering Price and Riedel. In response to the manufacturers’ argument, the estate argued that if the conduct of manufacturers and employers caused asbestos to go home on an employee’s clothes without any warning or safe laundering instructions, it was foreseeable that people like the spouse in the case at bar not only would be injured, but also would be denied any remedy.

While hesitant to revisit its prior decisions, the state high court agreed that in this case it was necessary to do so in order to avoid denying recovery to third parties who had been exposed to serious harm when the responsible parties—the manufacturers and the employers—had failed to take reasonable care to prevent that harm. To that end, the court found that despite its earlier rulings, a fair and efficient accountability system could be established by limiting the duty of asbestos products manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. In other words, manufacturers could discharge their duty by warning employers and employers could discharge their duty by warning the employees. However, if the manufacturers and employers failed in their warning duties and that failure left the employee without the information needed to protect his spouse, the spouse should be permitted to recover if she could prove the other elements of her claim. This duty scheme, the court explained was consistent with long-standing principles of law that supported liability for harm to others caused by a failure to exercise a minimal level of care in preventing a risk of harm.

This conclusion raised two related issues in this case: (1) whether the employee’s spouse was a reasonably foreseeable plaintiff, and, if so, (2) what duty of care could be fairly expected of an asbestos products manufacturer in addressing the potential harm to persons like her.

Foreseeable user. The state high court noted that Delaware recognized that an employee’s exposure to asbestos in the workplace was a reasonably foreseeable harm that gave rise to a duty of care. It was also foreseeable that an employee who wore his uniform home might not be the person who did the family laundry, thus making the most natural class of persons to be exposed to harmful asbestos dust, other than the employee, those in the household who laundered the asbestos-covered uniform. As such, because the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing was reasonably foreseeable, the spouse in this case—as well as other plaintiffs in the spouse’s position—had a viable claim against an asbestos products manufacturer who failed to warn and provide safe laundering instructions to an employer that exposed its employees to that manufacturer’s asbestos products.

Duty of care and sophisticated purchaser defense. By adhering to the principles set out in sophisticated purchaser defense, pursuant to which a manufacturer could satisfy its duty to warn an employee by relying on the warnings given by the manufacturer to the employer, the Delaware high court opined that the asbestos products manufacturers’ legitimate concerns about the feasibility of their duty to warn in take-home asbestos exposure cases was addressed. The defense encouraged conduct that feasibly could be performed without placing an unreasonable burden on manufacturers and provided a safe harbor from liability for an asbestos products manufacturer that conveyed warnings to the employer, who was in the best position to convey those warnings to its employees.

Applying the defense in this case, the court explained that the spouse had a viable claim against the asbestos products manufacturers if they failed to give warnings and safe laundering instructions to her husband’s employer. If the manufacturers had failed to do so, and therefore, the employer also had failed to do so, the manufacturers should be accountable for any harm she could prove was caused by exposure to their products.

Employers’ conduct as misfeasance v. nonfeasance. The court expressed its belief that the sophisticated purchaser defense also addressed the concern that asbestos products manufacturers could face liability in circumstances in which the employers would not. Instead of accepting the manufacturers’ suggestion that the court adopt a fundamental change in the principles of law applicable to asbestos products manufacturers, the court determined that the answer to the manufacturers’ concerns was to revisit Riedel and Price and their characterization of the employer’s conduct in take-home asbestos exposure cases as nonfeasance.

A case of nonfeasance involved a situation in which a bystander, seeing another person suffering from harm, did nothing to stop or ameliorate the harm. In those cases, the bystander owed the victim a duty of care under the law only if the bystander had a special relationship with the victim that imposed on the bystander a corresponding duty to act. In the case of misfeasance, the defendant, by interfering with a plaintiff or his affairs, creates a new risk of harm to the plaintiff and creates a minus quantity or a positive loss.

Applying these concepts in take-home asbestos exposure cases, the court concluded that an employer engaged in misfeasance when it caused an employee to work with asbestos products under conditions that caused asbestos dust to cover the clothes he wore at work and had laundered at home. Even in Riedel, the state high court acknowledged that this active course of conduct amounted to misfeasance by the employer as to the employee, and the court in the case at bar failed to comprehend why that logic should not extend further to include spouses, given that it was the employer’s active conduct of causing the employee’s clothes to become covered with dust that resulted in the spouse’s exposure. According to the court, this was not a case in which the employer did nothing; instead, the employer’s affirmative actions caused the exposure.

The fact that exposure to both the employee and his spouse could have been limited by proper warnings and laundering instructions did not turn the employer’s action into nonfeasance. The nonfeasance in this case—the failure to warn—was culpable precisely because a duty to warn arose when the employer engaged in the misfeasance of exposing its employees to dangerous asbestos products. The court concluded that once the employer engaged in misfeasance, recognized principles of tort law imposed on it a duty to act reasonably, including protecting against reasonably foreseeable events, like the exposure to asbestos dust by family members who laundered the work clothes of employees.

Australia’s Fair Work Commission, the country’s national workplace relations tribunal, has kicked off an unfair dismissal hearing about human cloud food delivery firm Foodora’s local operations, reports ZDNet. During the hearing, a delivery rider, Josh Klooger, provided testimony on allegedly being dismissed after complaining about a lack of workers’ rights. Klooger said that Foodora wages had been halved over the last two years and that riders never received sick leave nor workers’ compensation even after being injured on the job. Klooger brought his claim to the Fair Work Commission, arguing that he was unfairly dismissed in March after speaking publicly about the Foodora’s riders’ low pay and poor conditions. Earlier this month, the Fair Work Ombudsman accused Foodora over employment practices that resulted in the underpayment of workers as contractors. A case management hearing is scheduled to take place in the Australian Federal Court on 10 July 10 and deals with three delivery drivers who were contracted by Foodora Australia. The company could face penalties for each violation if it is found to have breached the Fair Work Act.

Jobseekers eager to work in Japan will have the chance to prove they have the right skills through a private-sector exam that will be made available in September, reports Nikkei Asian Review. Earlier this month, the Japanese government announced a plan that would allow more foreign workers in the country to help tackle its ongoing labour shortages. Through the exam, known as the ‘Test of Employment Aptitude for Foreign Nationals’, foreign workers will be assessed on basic skills, such as Japanese language ability, social etiquette and workplace communication. It is expected to make it easier for employers to discover suitable non-Japanese talent. Major companies in Japan have reportedly already shown interest in using the test as a criterion for hiring foreign nationals. The test will also ask questions about garbage disposal rules, common business practices and proper ways to welcome clients and handle telephone calls. Japan Association for the Employment of Foreign Nationals, made up of experts in the field and corporate representatives, will hold the multiple-choice test. The Association has asked the Japanese government to make its test a requirement in order to obtain a work permit.

PARIS (Reuters) – Fast-growing “superstar” tech firms are taking a growing share of national income in many countries, leaving workers’ overall wage growth subdued, the Organization for Economic Cooperation and Development said on Wednesday.

Lawmakers recently introduced a bill that would amend California’s employment discrimination laws to impose liability on employers for alleged discrimination against medical marijuana users—but the bill has been shelved while lawmakers refine its language.