Posted by Catherine Reuben on Wed, May 02, 2012 @ 02:47 PM
As we noted in our recent Legal Alert, most of the key provisions of the new CORI Reform law go into effect on May 4, 2012. May 4 is just days away, but the Department of Criminal Justice Information Services (DCJIS) (formerly the Criminal History Systems Board) still has not formally adopted its proposed CORI regulations nor updated the model policy on its website. Yesterday, I spoke with one of the attorneys at the DCJIS to find out where things stand and whether employers can expect more guidance before the deadline.
The DCJIS attorney informed me that DCJIS expects to have its new web-based criminal background check system, iCORI, up and running by May 7. As of that date, any employer will be able to register for an iCORI account and obtain “Standard Access” to CORI, which includes felony convictions disposed of within the past ten years, misdemeanors disposed of within the past five years, pending charges and certain other information. Employers that register for iCORI will be subject to strict procedures with respect to how they access and use the information. For example, an employer will not be permitted to deny employment to an applicant due to information on a CORI report unless the employer first provides the individual with a copy of the report and information on how to correct any errors. Employers that annually conduct five or more criminal background checks, whether through DCJIS or some other source, will be required to implement a written CORI policy. These and other requirements are set forth in detail in the proposed regulations. Employers that do not comply with the law and regulations can be subject to criminal penalties and civil liability.
At this point, however, it’s not totally clear exactly what employers will be expected to comply with. The DCJIS attorney confirmed that, as of the date of this blog, the proposed regulations have not been formally adopted. DCJIS is still considering the many comments that were submitted, both in writing and during the public hearing that was held on March 30. Click here for a sample of some of the comments that were made. According to the DCJIS attorney, if DCJIS decides to make major changes to the proposed regulations based those comments, DCJIS will likely post revised regulations on its website and invite further comment. Otherwise, they will probably be adopted in their current form on May 4. Our best guess is that those portions of the regulations dealing with procedural requirements are likely to remain largely unchanged.
DCJIS is working on updating their model CORI policy, and the attorney reports that it will probably be very similar to the one that is currently on its website. Employers may want to use the existing model policy as a starting point, and revise it as appropriate for their business. The currently-posted policy largely complies with the new law, but it incorrectly refers to CHSB instead of DCJIS, and other changes could be made to better track the statute. Employers should consult with counsel to ensure that their policy complies with the new statute and proposed regulations. For example, if the employer obtains the criminal history information from a source other than DCJIS (such as a consumer reporting agency), different procedures apply.
Feel free to contact a member of the HRW CORI team – Cathy Reuben, Dave Wilson, Sheryl Eisenberg and Kristy Avino – for further updates and compliance assistance.
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Posted by Amanda Kellar on Fri, Apr 13, 2012 @ 03:59 PM
Picture this: you are in charge of interviewing candidates for a new position at your company. You have asked the applicant all of the basic background questions and you did your due diligence before she arrived by Googling her and seeing what information you could find about her on the internet. When you were searching her name on the internet, you came across her Facebook page, but the information on her profile was not publicly available. You want to look at her Facebook profile and ask her for her username and password during the interview so that you can properly vet her as a candidate. Can you do this? Can she say no? Does it matter what type of job she is applying for?
On April 10, 2012, the Maryland General Assembly answered some o
f these questions by passing legislation prohibiting employers in the state from asking current and prospective employees for their user names and passwords to websites such as Facebook and Twitter. The full text of the bill can be found here.
Massachusetts may not be far behind. On March 23, 2012, state representative Cheryl Coakley-Rivera filed a similar bill that would prohibit employers from requesting social media usernames and passwords, as well as passwords for personal email from both employees and prospective employees. Many other states are also considering similar legislation, including, California, Minnesota, New Jersey, Illinois and Washington State.
The issue has become a hot topic after media reports surfaced that a number of companies were asking for prospective employees’ social media user names and passwords. In response, New York Senator Charles Schumer and Connecticut Senator Richard Blumenthal asked the U.S. Department of Justice to investigate if the practice violates federal laws, including the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act (CFAA). Senator Blumenthal announced that he is in the process of writing a federal bill to outlaw the practice.
Facebook also responded to the media storm, by issuing a statement through its Chief Privacy Officer stating: “We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s the right thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person...”
Opponents of the practice applauded Maryland’s efforts at paving the way to protect private information in a digital age. Some proponents of the practice, however, argued that the bill was too broad and should have carved out an exception for individuals applying for jobs with public agencies. For example, they argue that a police department should be allowed to screen its applicants by reviewing the applicants’ Facebook page for hate speech because criminals could be acquitted if a defense attorney learned about the hate speech.
In the end, these bills do not change my thoughts on how employers should handle social media issues in the workplace. Employers can and should review publicly available information about any prospective job candidates, including information that is publicly available on Facebook and Twitter. It goes without saying that an employer should never hire someone without “Googling” them first (with the caveat that an employer should be reviewing information relevant to the applicant’s employability and not information relating to the applicant’s protected status.) And while this legislation does give employees (at least in Maryland) some security in knowing their private information on social media sites can stay private, employees would be wise to behave as though all the information they post on Facebook or other social media sites is public (even if it’s technically not).
- Amanda K. Karras
image by: lifehack.org
Posted by C. Max Perlman on Thu, Mar 01, 2012 @ 10:32 AM
I’ll admit it. I am addicted to Storage Wars, the quasi-reality show that pits a cast of regular characters (who are far from regular) against each other, bidding at auctions for abandoned storage units. On a recent cross-country flight, I must have watched four consecutive hours (eight episodes), repeatedly getting hooked into each episode by the prospect that the newly-acquired units contain treasures like a baseball card collection, a dusty Stradivarius, or grandma’s old gold necklaces.
But I am a lawyer, after all, so I cannot simply enjoy the show for its entertainment value. I have the nagging need to analyze the show from a legal perspective. And the thing that bothers me about Storage Wars has to do with data security.
You see, under Massachusetts law, any business that stores “personal information” (defined here) must take affirmative steps to protect it. Additionally, the business must report to the Massachusetts Attorney General, among others, if any personal information is acquired by an unauthorized person.
So this makes me wonder: what are storage facilities doing to ensure that the winning bidder on an abandoned unit doesn’t inherit a treasure trove of personal information? Let’s say the previous unit owner was a business, and the unit contained a bunch of old personnel files. In today’s day and age, with the raging epidemic of identity theft, if the wrong person hits a mother lode of personal information, it could be more valuable than that Stradivarius. And the storage facility would be required to report this to the AG, after all, the winning bidder would be getting unauthorized access to the personal information of others.
There are considerations here for storage facilities and their customers. Businesses that store information with storage facilities need to take steps to make sure that the personal information being stored is sufficiently protected. Under Massachusetts law, this means taking reasonable measures to select vendors capable of maintaining appropriate security measures and requiring such vendors by contract to implement and maintain such security measures. I covered these requirements in a recent blog post.
Storage facilities, for their part, need to figure out ways to ensure that they’re not permitting unauthorized access to personal information in their customers’ units. Perhaps this means a protocol that requires that an employee of the storage facility to supervise the emptying of the unit by the successful bidder and that any personal information be discarded. If this is the solution, the storage facility will need to get rid of the personal information in the specific manner prescribed by law.
Does your business use off-site storage facilities, and if so, have you met the legal requirements for selecting and contracting with that facility? If not, one of the members of HRW’s Data Security Team can help you with this. Or are you a storage facility, and if so, have you considered and/or adopted policies and procedures to ensure that you’re not permitting unauthorized access to personal information stored by your customers? We would be interested in brainstorming with you about solutions to this issue – but not while Storage Wars is on.
-- C. Max Perlman
Image: aetv.com
Posted by C. Max Perlman on Fri, Feb 24, 2012 @ 08:28 AM
I got a call from a manager who wanted to fire an employee. I asked “why?” of course. In response, I heard a credible and comprehensive description of a litany of performance and behavior problems that the employee had exhibited over the years, climaxing in recent weeks. I thought to myself, “this should be an easy one.” But just to be on the safe side, and as I usually do, I asked to see the employee’s personnel record. When I received it, however, I saw not a shred of evidence of the pervasive problems that the client had just described. In fact, the only indication of the employee’s performance was a series of annual reviews reflecting that he was either meeting or exceeding expectations in nearly every regard.
What to believe?
In my experience, and contrary to what some might expect, the employer’s oral description at the time of termination is usually a more accurate reflection of the employee’s performance than the documents in the file. This leads to some questions: Why is this? Why would the documentation fail us? Is this blogger just blinded or biased from years and years of representing employers?
I think it comes down to conflict avoidance. It is human nature to want peace. No one wants to go to work and fight with their co-workers or subordinates. No one wants to hear grumbling as they walk by. Too often, supervisors are overcome by the desire to avoid conflict with their subordinates. They will not be painfully honest, even when true problems exist. They prefer to cover for the problems, mask them, or accept them, rather than have the difficult conversations needed to improve and meaningfully evaluate performance. Rather than deal with the fallout from giving an employee some 2’s (out of 5), the supervisor will bump them up to 3’s, and everyone gets to be happy. Sometimes, it can even make the difference whether the employee gets a bonus, and in these trying economic times, the supervisor might not want that burden.
Understandable as it might be, giving in to conflict avoidance can have major negative consequences for employers. It creates a situation where it is difficult or impossible to justify a termination. A governmental agency or jury will look at all of the 3’s and 4’s on the evaluation and likely will discredit the conflicting testimony by the company’s witnesses. It is this kind of situation that leads to large settlements and severance payments. In addition to impacting the employee’s likelihood of success, conflict avoidance also makes it much more likely that an employee will sue in the first place. A termination after years of conflict avoidance will seem out-of-the-blue, which will leave the employee searching for “the real reason” for the termination, and a lawyer to help theorize regarding the possible reasons. “No surprises” should be the goal and the rule.
Conflict avoidance also leads directly to retaliation claims. Often times, supervisors become much less committed to avoiding conflict once the employee has thrown down the gauntlet. For example, let’s say that a poor performer with a clean personnel file complains to HR that her supervisor is harassing her. After this happens, the supervisor may become a lot more willing to criticize the employee, and a lot less prone to biting his tongue, given the fact that the conflict is already started and the relationship is already damaged. The problem is that even if the circumstances are fully justified and reflect an honest evaluation, a government agency or jury may see this as actionable retaliation for her complaint.
Conflict avoidance can also sink an employer when it creeps into a termination. Rather than describing the actual reasons for termination, employers often give a neutral reason, just to get the employee out the door without further conflict. The employer tells the employee that he is losing his job due to a “reorganization” or a “layoff” when the actual reason is rooted in actual performance inadequacies. The main problem with this approach is that it lays the groundwork for a claim that the reason given for the termination is “pretext” for an impermissible ground for termination, such as discrimination – turning a perfectly acceptable termination into one for which a successful claim is much more likely.
So, what can employers do to combat the negative effects of conflict avoidance? It starts with training supervisors. Companies should train their supervisors about the need to properly evaluate employees. Supervisors should learn that they need to be honest in their evaluations, even in cases where the honesty might be painful. Supervisors should understand the potential consequences of conflict avoidance, and should be informed that their failure to properly evaluate employees (and document such evaluations) can lead to real problems for the supervisor and the company. For example, if a supervisor “needs” to terminate a member of her team, she might not be able to do so and could be stuck with the employee until a better case for termination can be made.
Has your company ever run into the problem of having to justify a termination, despite having little or no record of poor performance? Have you considered the effect of the human nature of conflict avoidance? What does your company do to make sure that employees are receiving accurate and truthful evaluations of their performance? The employment lawyers at HRW would be happy to discuss these issues with you and to help you avoid avoiding necessary conflict.
-- C. Max Perlman
Image: synergysharedsolutions.com
Posted by C. Max Perlman on Tue, Feb 21, 2012 @ 11:23 AM
A chain is only as strong as its weakest link. This principle is on display in the Massachusetts data security regulations (201 CMR 17.00), which require companies to protect personal information not only by implementing their own safeguards, but also by forcing companies to fortify the other links in the chain by having their vendors sign contracts committing to do the same. When the regulations went in to effect on March 1, 2010, they grandfathered existing contracts with vendors, meaning that these contracts were not required to contain the data security assurances. But the grandfathering ends on March 1, 2012.
As of that fast-approaching date, companies must contractually require all third-party service providers who touch personal information to implement and maintain appropriate security measures. This change in the law affects every business. We all have vendors that handle our personal information, including: payroll providers, banks, lawyers, insurers, benefits providers, shredding and disposal companies, cleaning companies, and record storage companies, to name a few.
A good third-party service contract will require a vendor to:
-- protect all personal information in the manner required by law and regulations;
-- have a Written Information Security Program (“WISP”);
-- enter into contracts with its third-party service providers;
-- provide immediate notification in the event of a data security breach; and
-- provide indemnification for any mishandling of personal information.
And know that even the best contract might not be enough. Companies are required to take reasonable measures to select vendors capable of maintaining appropriate security measures to protect personal information. So, if your business involves significant amounts of personal information, it might not be appropriate to use Joe’s Shredding and Acupuncture, no matter what contract Joe is willing to sign. You would want to use a company whose name and reputation would instill a bit more confidence.
In some cases, especially where a lot is at stake, it would be appropriate to go an additional step and actually enter into discussions with vendors regarding what they do to protect personal information, and to ask to see their WISP.
If all of this sounds extreme, consider this: if a vendor loses your customers’ personal information that they have given to you, will your customers hold it against the vendor or you? In deciding whether to bail on you, will they even make the distinction? And will plaintiff’s lawyers give you a pass because you are able to ascribe blame to another company? The answers to these questions make it clear that companies need to do their best to ensure that their vendors are strong links in the data security chain.
What is your business doing to confirm that its vendors are protecting personal information? What kinds of contracts do you have in place? Have you seen your vendors’ WISP’s? The HRW Data Security Team would be glad to discuss these issues with you and to give you sample language that you can use in your contracts with third-party service providers.
-- C. Max Perlman
Photo: www.photo-dictionary.com
Posted by Kara DelTufo on Thu, Feb 02, 2012 @ 02:14 PM
On December 27, 2011 the Department of Labor’s Wage and Hour Division published a Notice of Proposed Rulemaking to revise the Fair Labor Standards Act (FLSA) regulations pertaining to companionship services and live-in domestic services.
Due to significant shifts in the home health care industry over the last 35 years, the Department of Labor (DOL) is proposing to change the regulations interpreting the FLSA with respect to two types of domestic workers: 1) domestic workers who provide companionship services to a person who because of advanced age or mental or physical infirmity cannot care for his or her own needs (“companion domestic workers”); and 2) domestic service employees who reside in the household where they are employed (“live-in domestic workers”). Currently, companion domestic workers are “exempt” from the requirements of the FLSA – meaning they do not need to be paid minimum wage or overtime. Live-in domestic workers are “exempt” from the FLSA’s requirement that they be paid overtime.
Today, workers who provide in-home care to individuals are performing duties and working in circumstances that were not envisioned when the companionship services regulations were first promulgated in 1974. And the DOL contends that workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. The number of workers providing these services has also greatly increased.
Companion Domestic Workers
The DOL’s proposed amendment more clearly defines the tasks that may be performed by a companion domestic worker to remain exempt from the minimum wage and overtime requirements of the FLSA. Currently, the regulations define “companionship services” as fellowship, care and protection for a person who because of advanced age or mental or physical infirmity cannot care for his or her own needs. Companion domestic workers are permitted to prepare meals, make beds, wash clothes and engage in other similar services and still maintain the exemption from minimum wage and overtime. The current regulations also allow the companion domestic worker to perform general household work (as long as it is limited to 20% of the companion’s job duties).
The proposed regulations would significantly limit the duties a companion domestic worker could engage in and still remain exempt from the FLSA. Companion domestic workers would no longer be permitted to perform unlimited care services and would be limited to duties of “fellowship and protection,” such as watching television together, visiting with friends and neighbors, taking walks, or engaging in hobbies. Incidental intimate personal care services, such as occasional dressing, grooming, and driving to appointments, would be permitted if this work is performed in conjunction with the fellowship and protection of the individual and does not exceed 20 percent of the total hours worked by the companion domestic worker in the workweek. But the companion could not perform general household tasks or many of the care services domestic workers currently perform.
The proposal also clarifies that “companionship services” do not include the performance of medically-related tasks for which training is typically a prerequisite. The current regulations specifically identify trained personnel such as nurses as outside the scope of the exemption, and this clarification more clearly identifies what constitutes medically-related services.
Live-in Domestic Workers
The DOL’s proposal also limits the application of the overtime pay exemption to individuals, families and households employing a live-in domestic worker. Live-in domestic workers employed by a third party employer would be entitled to minimum wage and overtime from that third party employer. This would be the case even if the live-in domestic worker was jointly employed by an individual, family or household along with a third party The proposed regulations would also revise the recordkeeping requirements for live-in domestic workers. Under the proposal, employers would be required to maintain an accurate record of hours worked by such workers, just as other covered employees must keep such records.
Staffing Agencies
Finally, the Department proposes to change the regulation to make clear that employees of third party employers such as staffing agencies are not exempt from minimum wage and overtime protections. This will limit the exemptions currently applied to companion and live-in domestic workers to those employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.
Any changes to the FLSA regulations on the companionship and live-in domestic services exemptions will have a significant effect on workers and employers in the home healthcare industry and will inevitably become a hot-button issue. The Department of Labor has posted a website providing detailed information about the proposed changes at http://www.dol.gov/whd/flsa/companionNPRM.htm and invites interested parties to submit written comments on the proposed rule on or before February 27, 2012 at http://www.regulations.gov.
By Kara M. DelTufo
Image Source: http://mrg.bz/py614N
If you have any questions about the information above, please contact Kara M. DelTufo directly or fill out this form and I will contact you.
Posted by Kara DelTufo on Mon, Jan 30, 2012 @ 10:08 AM
Though tax day is not until April 17th, most employers are focused on January 31, 2012. This is the day when every employer engaged in a trade or business who pays remuneration, including noncash payments, of $600 or more for the year for services performed by an employee, must give employees Form W-2, Wage and Tax Statement reflecting information about:
• the employee's wages, tips, other compensation;
• social security, Medicare, withheld income taxes; and
• advance earned income credit (EIC) payments.
Employers must also send a copy of the W-2 to the Social Security Administration. Some employers may not be inclined to worry about this – particularly if a third-party payroll service provider provides the W-2 statements. But the IRS states that this does not relieve an employer of the responsibility to ensure that Forms W-2 are furnished to employees. And employers who fail to comply may be subject to IRS penalties.
By Kara M. DelTufo
Image Source
If you have any questions about the information above, please contact me or another member of the HRW Team or fill out this form and we will contact you.
Posted by Kara DelTufo on Thu, Jan 19, 2012 @ 12:51 PM
Independent Contractor or Employee?
This is a common issue employers struggle with and sometimes take their chances on. But in Massachusetts a wrong answer comes with high costs. While worker misclassification can be an expensive mistake under Massachusetts law – employers who violate the Massachusetts Wage Act are liable for treble damages and attorneys’ fees – a recent plea deal between the attorney general’s Fair Labor Division and a Massachusetts construction company and its owners illustrate an even greater cost – jail time. 
On January 10, 2012, a Watertown construction company and its owners pleaded guilty in state court to 20 counts related to payroll classification as well as one count of failing to pay workers the prevailing wage. The company and its owners were charged with failing to disclose millions of dollars in misclassified subcontractor payroll in order to evade payment of workers’ compensation premiums and unemployment insurance taxes. (See Attorney General’s January 10, 2011 Press Release, http://www.mass.gov/ago/news-and-updates/press-releases/2012/2012-01-10-newton-contracting-plea.html).
One of the owners was sentenced to a two-year prison term (suspended for five years), and ordered to pay $100,000 in restitution to a workers' compensation insurer and $150,000 in fines. The other owner was sentenced to two years of probation and ordered to pay $74,000 in fines. This is on top of the restitution paid to the Commonwealth’s Division of Unemployment Assistance and to employees for wage violations. The company and its owners also were barred from bidding on or contracting for public construction projects for five years.
Besides the very severe penalties the employer suffered in this matter, it’s also a good example of how government agencies are collaborating in an effort to stop misclassification of workers – which is considered insurance fraud.
In the case of the Watertown construction company, complaints were first received by the Massachusetts Joint Enforcement Task Force on the Underground Economy and Employee Misclassification, which audited the company and discovered multiple employees misclassified as independent contractors, meaning the company had failed to disclose to the state more than $2.4 million in misclassified payroll for each quarter from 2006 to 2008. The Insurance Fraud Bureau was also involved: it determined that the firm misclassified half of its workforce as subcontractors to evade workers' compensation premiums between 2005 and 2009. And the Attorney General's Fair Labor Division discovered that the company had misclassified employees working on a Suffolk County jail project as laborers, paying them $44.10 per hour, instead of the state prevailing wage for roofers of $53.86. The company subsequently paid more than $5,000 in restitution to employees.
This sort of collaboration is also occurring on the federal level. On September 19, 2011, the U.S. Department of Labor entered into an agreement with the Internal Revenue Service to improve departmental efforts to combat worker misclassification. In addition, labor commissioners and other agency leaders representing seven states – including Massachusetts – agreed to share information and coordinate law enforcement with the U.S. Department of Labor’s Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor.
Which raises the question, why is the government going to such lengths to crack down on worker misclassification? In short, it comes down to revenue. While misclassification deprives workers of unemployment insurance and workers compensation, it also deprives the state and federal government of tax revenue that it would otherwise receive from payroll taxes. In addition, as a result of misclassification, the Commonwealth often incurs additional costs, such as providing health care coverage for uninsured workers, providing workers’ compensation benefits paid by the Workers’ Compensation Trust Fund, and unemployment assistance without employer contribution into the Division of Unemployment Assistance fund, among other indirect costs.
The takeaway here: when it comes to properly classifying employees, employers are better safe than incarcerated.
If you have any questions about the information above, please contact Kara M. DelTufo directly or fill out this form and I will contact you.
Posted by Catherine Reuben on Fri, Dec 30, 2011 @ 01:27 PM
Note: Since this article was written, the NLRB’s Notice-Posting Rule was placed on hold. Employers are NOT required to post the notice of NLRA rights on April 30, 2012. Click HERE for more information.
It’s been a busy December for the NLRB.
On December 23rd, the NLRB announced that it is postponing yet again the effective date of its new notice posting rule. The NLRB’s new rule will require most private-sector employers to notify workers of their rights under the National Labor Relations Act (NLRA) by posting an 11 x 17 inch notice in conspicuous places where the notices can be readily seen by employees. Click here to read the NLRB notice. The new effective date of the rule is April 30, 2012.
This posting requirement was originally scheduled to take effect on November 14, 2011, but that date was postponed to January 31, 2012. The latest postponement is being done at the request of a federal court in Washington DC which is considering a legal challenge to the rule. Judge Amy Berman Jackson indicated that the case is complicated and she asked the NLRB to postpone the effective date in order to give her more time to consider the issues. There is a similar legal challenge pending in the U.S. District Court in South Carolina.
All of this highlights the controversial nature of the NLRB’s recent pro-labor maneuvers and the ongoing political struggle over the agency’s proper role and authority. Click here for our earlier discussion of this topic.
Perhaps most controversial of all is the NLRB’s new rule amending the agency’s election case procedures. Click here to read the NLRB's rule in its entirety. This new rule, announced on December 22nd, will almost surely shorten election time periods (i.e., “quickie elections” or “snap elections”). A quicker election places the employer at a serious disadvantage during an organizing campaign.
The new NLRB election procedures rule is actually a pared-down version of an even more controversial rule that the NLRB initially proposed back in June.
Like the notice-posting rule, the new elections procedures rule is scheduled to take effect on April 30, 2012. But just as with the NLRB’s notice-posting rule there are legal challenges. On December 20, 2011, the U.S. Chamber of Commerce filed suit in federal court challenging the rule and seeking a preliminary injunction to bar the rule from going into effect. And on December 22, 2011, Senator Michael Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions Committee, announced his intention to challenge the new election rule under the Congressional Review Act.
So, on the one hand April 30th is shaping up to be a banner day for new NLRB rules. But on the other hand we’ll all just have to wait and see what happens next.
By: Catherine E. Reuben and Peter J. Moser
Image: http://mrg.bz/48SmbA
If you have any questions about the information above, please contact Peter J. Moser or Catherine E. Reuben directly or fill out this form and we will contact you.
Posted by Catherine Reuben on Thu, Sep 29, 2011 @ 12:46 PM
Note: Since this article was written, the NLRB’s Notice-Posting Rule was placed on hold. Employers are NOT required to post the notice of NLRA rights on April 30, 2012. Click HERE for more information.
The National Labor Relations Board (NLRB) has issued a Final Rule requiring most private-sector employers to notify employees of their rights under the National Labor Relations Act (NLRA). The rule mandates, among other things, that employers post an 11 x 17 inch notice in conspicuous places where they are readily seen by employees. Employers must also post the required notice on an intranet or internet site if personnel policies and rules are customarily posted there. The rule was to take effect on November 14, 2011, but the NLRB recently postponed the effective date to January 31, 2012, to allow for further education and outreach. Click here for a client alert that describes the rule in more detail. Click here for a link to the required poster.
The ink is barely dry on the rule, and already several legal challenges have been mounted. On September 19, the United States and South Carolina Chambers of Commerce filed a lawsuit in federal court in South Carolina seeking an injunction to prevent the NLRB from enforcing the rule. In the lawsuit, the Chambers claim, among other things, that the NLRB lacks statutory authority to impose the posting and other requirements contained in the rule, that the NLRB’s actions were arbitrary and capricious and that the posting requirement constitutes “compelled speech,” in violation of the First Amendment. Similar lawsuits have been filed by the National Association of Manufacturers, and the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business. There is also legislation pending in Congress, the “Employee Workplace Freedom Act” which would rescind the rule.
The NLRB’s new notice posting requirement is just one example of the agency’s recent controversial pro-labor maneuvers. In July, the NLRB issued a notice of proposed rulemaking concerning new rules that would, among other things, shorten the length of time between the filing of a representation petition and an election (so-called “quickie elections”). https://www.nlrb.gov/news/board-proposes-rules-reform-pre-and-post-election-representation-case-procedures This move was anticipated in the wake of EFCA’s failed passage, and it is drawing strong opposition. Trade groups have blasted the maneuver, and Senator DeMint (R-SC) filed a bill in July (S-1425) that would legislatively prohibit quickie elections. http://www.govtrack.us/congress/bill.xpd?bill=s112-1425
The NLRB has also been under attack in Congress recently as a result of the agency’s aggressive and well-publicized litigation against Boeing. Recall that the NLRB filed ULP Charges against Boeing earlier this year in connection with the company’s decision to open a non-union plant in South Carolina, which is a right to work state. http://www.nlrb.gov/boeing-complaint-fact-sheet On September 21st the Senate Appropriations Committee voted on a proposed amendment to the fiscal year 2012 Labor-HHS-Education Appropriations bill that would have prohibited the NLRB from ordering an employer to close, relocate, or transfer employment as a remedy for an unfair labor practice (i.e., the type of remedies potentially at issue in the Boeing case). The vote resulted in a tie (15-15), and so passage of the amendment failed. http://www.businessweek.com/ap/financialnews/D9PT7VA83.htm
There will no doubt be much more to report in the weeks and months ahead as the NLRB continues to flex its muscles. Stay tuned. In the meantime, consider that now is a good time to educate managers and supervisors about NLRA do’s and don’ts, and union avoidance strategies. And don’t forget the best union avoidance strategy of them all: Maintain a positive, respectful workplace where morale is high, employees have a voice, and employees do not feel the need to turn to a union or the NLRB. There is an old adage which says that employees don’t vote for a union they vote against their employer. You have the power to ensure that your business remains union-free.
As for notice posting, the NLRB’s new rule will go into effect on January 31st. The new rule will stand unless and until the Courts or Congress do something to block it, which seems unlikely in the short-run. Employers need to be ready to comply.
By: Catherine E. Reuben and Peter J. Moser
If you have any questions about the information above, please contact Peter J. Moser or Catherine E. Reuben directly or fill out this form and we will contact you.