clinton2013Yesterday, I offered up three questions for moderators to use during the Presidential Debates to question Donald Trump on employment law issues.

Today is Secretary Hillary Clinton’s turn.

  1. Secretary Clinton, the National Labor Relations Board has been quite active in the Obama years; in fact, despite the failure of Congress to pass the Employee Free Choice Act (of which you were an original co-sponsor), many of the ideas from that bill have made its way to regulations from the NLRB including new speedy elections.  You have indicated that you will “fight to strengthen the labor movement” on your website.  What additional changes would you like to see to the nation’s labor laws and why isn’t what we have now enough?
  2. You have indicated that you will also “protect workers from exploitation, including employer misclassification, wage theft, and other forms of exploitation.”  Yet our federal and state laws already prohibit the use of independent contractors as employees and cover the so-called “wage theft” examples. What are you going to do differently, if anything?
  3. In a speech yesterday, you spotlighted a constituency that we haven’t heard much about during this election cycle — those with disabilities.  And you have indicated that you want to fulfill the promise of the Americans with Disabilities Act.   Beyond eliminating the sub-minimum wage that is allowable under current law, would you make any changes to the ADA itself? And in “fulfilling the promise” of the ADA, would you ask the Department of Justice make enforcement a top priority of its strategic plan?

I’m under no illusion: These topics are unlikely to get discussed.  We’ll probably hear more about e-mails and taco trucks.  But perhaps someone somewhere will press the candidates on these important issues.

Since we just an election last week, I thought it would be fun to revisit one of my earliest blog posts from back in November 2007 (!).

Let me pose a scenario first. Suppose you work for a mid-size employer in the state and decide to run for a local or state office. Perhaps against the public’s better judgment, you even win a full-time elected position — for two terms. But then – after eight years in office — you have been voted out of office.

Can you get your job back with your prior employer? Well, under state law, the answer is likely yes.  And you can get credit for your time in office.

Sounds a little absurd right? After all, new parents who leave the workforce for years to raise their kids don’t get this protection, nor do people who suffer from long-term illnesses who have to leave their jobs for some years.

But, it’s all there in black and white. Indeed, in Conn. Gen. Stat. 31-51l, any person employed by a private employer of 25 or more people who leaves such employment to accept a full-time elective municipal or state office must be granted a personal leave of absence for two consecutive terms.

Upon reapplication to the employer, the employer must then reinstate that employee to his or her original position or a similar position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits.

There is one exception to the general rule. If the employer’s circumstances have changed as to make it impossible or unreasonable to do so, the employer is not required to do so. But how often is it “impossible” for an employer to rehire an employee to at least a similar position?

(Before you start berating our current legislators for preserving their own interests, remember that they are part-time legislators so this statute does not apply to most of them.)

Certainly, we want to encourage public service, but it’s not like we have a shortage of people running for full-time elected office. In other words, is there really a problem that needs a fix like this statute? Moreover, why should employers bear the burden when a person seeks elected office for their own personal growth? And why should an employer have to rehire someone who may no longer have the skills necessary for the position or whose actions while in office lead the company to believe that it does not want to be associated with that person?

Ultimately, this statute is a trap and bad deal for the unwary private employer and boon to elected officials. The solution: Eliminate the law and let elected officials seek jobs like the rest of the workforce.

President Obama was re-elected to a second term last night (something forecasted by stats guru Nate Silver). What does it mean for employers?

Four More Years

I won’t go quite as far as fellow blogger Jon Hyman, who said this morning that “it just doesn’t matter” who won last night.  I think it matters in part.

But the impact for employers will probably be far less than was suggested during the campaign season.  Much will depend on the level of compromise that comes out of Washington.

Here are four areas where we should keep an eye on:

  • “Obamacare” — With Obama’s re-election, the idea that universal healthcare will somehow be repealed is done.  With implementation of key provisions due in 2014, employers who have been on the fence about the changes that are required to their benefit system should now start moving forward.  Verdict: It’s happening.
  • NLRB — The National Labor Relations Board has been flexing its muscle under Obama’s first term.  This political agency will likely try to continue to push forward changes to election rules and posters — even as the litigation regarding those items promises to slow things down.   This is one area that employers ought to pay close attention to. Verdict: NLRB remains an agency to watch.
  • ENDA — The Employment Nondiscrimination Act, which would prohibit employers nationwide from discriminating against employees based on their sexual orientation, has been discussed a lot. But with same-sex laws passing in Maine and Maryland, the sentiment in the country appears to be shifting.  While this won’t have much impact in Connecticut (where state law already prohibits such discrimination), I wouldn’t be surprised to see a new push for this bill’s passage.  Verdict: Some compromise bill is likely on ENDA.
  • Paycheck Fairness Act — Stephanie Thomas of the Proactive Employer blog suggests this morning that the gender pay gap was an issue in the last term and will remain a priority in the next term.  (Check out her post for other potential issues.) I tend to agree with her, but with a Republican-controlled House of Representatives, it’s hard to see how a compromise is going to be shaped here.  Verdict: My guess is that we won’t see passage of this bill anytime soon.

But as I said before, it’s still too early to figure out what the next four years will bring.  Even driving into work, I heard a dozen differing opinions about what the election “means”.  We tend to overstate the results from elections on the morning after, and I think the same applies here.

The fact is we’ve had gridlock on the Hill for the last two years; no employment laws have been passed. Will the gridlock in Washington continue? Perhaps.  But if it starts to break, then perhaps we will start to see some more compromise measures being passed.

 

Election Day is nearly upon us.  Much like I did two years ago, it’s time to recap the rules for employers regarding the election.  The polls are open from 6 a.m. to 8 p.m. for everyone to vote for their favorite candidate…or at least the one that they dislike the least.  You can find out where you should vote at this easy to use link.

Any Time Off Required?

One question that arises from time to time: Do employers in Connecticut need to provide employees with time off to vote?

Many states offer this protection.   However, Connecticut isn’t one of them.

What does that mean? It means employers can insist that employees vote during non-working hours and have no legal obligation to provide time off to employees to vote. 

However, a reminder to employees about the polls being open and that they should vote either before or after their particular shift or work hours is certainly appropriate.

No “Threats” To Employees

Connecticut does have one peculiar law, however, that prevents employers from interfering with an employee’s vote. In fact, earlier this year, Conn. Gen. Stat. Sec. 9-365 was amended to make interference with the election a Class D felony:

Any person who (1) during the period that is sixty days or less prior to any election, municipal meeting, school district election or school district meeting, attempts to influence the vote of any operative in his or her employ by threats of withholding employment from him or her or by promises of employment, or (2) dismisses any operative from his or her employment on account of any vote he or she has given at any such election or meeting shall be guilty of a class D felony.

Despite a version of this law being on the books for nearly 60 years, don’t expect to find much, if any caselaw or commentary on it.  Yet, employers should still avoid the appearance of suggesting how to vote to employees. 

Remind Employees of “Bill of Rights”

Employers can feel free to remind employees of their “Bill of Rights” for voting.   Connecticut set up these rules and summarized them in a document here.  Among the more noteworthy rules that employees should know of is their right to vote when they are “in line” at the time the polls close. 

Other Tidbits

Reviewing the state’s laws on elections also reveals some other interesting quirks and trivial details.  For example, voting areas must have have a United States flag on the wall (Connecticut’s flag is optional), and a telephone. (And no United Nations Flags are allowed.)

Everyone ok out there?

Election Day is Nearly Here

What a wild couple of days we’ve had in Connecticut and, for those still without power, it’s not over yet.  Much like Irene and the October snowstorm before it, Sandy has left her mark. 

But it’s time to get back to business today. We’re less than a week away from the election. 

And a question that has been on the minds of many this year is the extent to which employers can (or should) talk politics in the workplace.

Lots of posts have been written about it, so I’m not going to try to reinvent the wheel here. Rather, I’ll attempt to highlight some key issues to think about.

Robin Shea, of the Employment & Labor Insider, is quick to note a new November rule: “If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home. ”

But Robin is quick to add a number of important tips about understanding when political speech is protected by the NLRA and when employers should be “very careful” about engaging in political speech of their own.

The Duff on Hospitality Law blog has some helpful tips too saying that just because it may be legal to express your endorsement of a candidate and to relay that to your employees, that doesn’t make it a good idea.  “The real risk of such public endorsement (and perceived veiled threats) in the workplace is the inherent tension and negative atmosphere that results.”

Stoel Rives World of Employment blog provides some do’s and don’ts as well. Among them: “Do set the tone” and “Don’t allow bad behavior in the name of ‘free speech’.  Importantly, it notes that employers should be aware of any state or local laws that may provide greater protection to political speech.

Connecticut may be one of those states. As I’ve discussed before, Section 31-51q of Connecticut law, applies First Amendment protection to private employee speech. So, be cautious of posts that say that the First Amendment doesn’t apply to the private workplace — Connecticut law is different. 

The Proactive Employer blog reminds readers that to many of us, voting is a personal issue.

While employers may have the legal right to voice their opinion and tell you how they think you should vote, last I knew actually casting your ballot was a personal choice and a confidential matter. Though I in no way agree with employers using intimidation tactics or attempting to control employees, perhaps we should quit wasting time questioning employers’ motives and possible unethical behavior regarding politics.

There are plenty of other good pieces on this issue too, including posts from Employment Law Daily here and here.  The New Jersey Human Resources blog discusses the issue here and the Fisher and Phillips blog/newsletter on the subject is here too.   

In short, politics and the workplace are a dangerous mix. Before you delve in too deep, understand the limits to employer speech and the protections afforded to private employees.

As the week draws to a close, it’s time for another installment of Quick Hits, where I highlight a few blog posts worth a read.

As we continue our series this week of highlighting employment law issues for the candidates, next up is Rep. Paul Ryan.  (For previous posts and groundrules, see here, here, and here.)

Given his record in the House of Representatives, there are plenty of other topics that could be addressed as well including the ADAAA.  But what would you ask Rep. Paul Ryan as it relates to employment law?

And be sure to check out posts from other employment law blogs here, here, here, and here.

All this week, this blog (and other employment law blogs — here, here, here and here) are posting employment law-related questions for the major-party candidates for President and Vice President.  Today’s turn: Mitt Romney.

Courtesy Mitt Romney Campaign

(For a recap of this process — and a reminder that these questions should not be interpreted as being “for” or “against” a candidate — see my post from yesterday.)

  • On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.”  Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is.  Under George W. Bush, it became more pro-business and under Obama, it became more pro-union.  Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?
  • In 1994, as a candidate for Senate, you supported the Employment Non Discrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation.  In 2007, you indicated that you would not support ENDA and that you believed this policy is best implemented at a state level.  Why have you changed your mind on this and why are sexual orientation discrimination policies best left for individual states when we already have federal laws on age, race and gender discrimination?
  • More retaliation claims are filed with the EEOC than any other protected characteristic. Indeed, the Supreme Court — in some cases unanimously — has endorsed a fairly broad view of such claims. Do you believe there is an epidemic of retaliation claims? Do you believe the issue needs to be addressed through legislation?  

What employment law questions would you like to see Mitt Romney address? Feel free to add them in the comment section below.

Photo from Barack Obama Campaign

With the Presidential election just six weeks away, we have yet to see any of the major party candidates tackle employment law issues in detail.  That, of course, is not surprising.

But as we head towards the debates, I talked with several other employment lawyers who run blogs and we thought we could bring some attention to these issues by posting a series of “debate questions” for the candidates.  So, all this week, you’ll see several of us doing posts on the subject.

Today we tackle some employment law questions for President Obama. Later this week, we’ll have questions for Mitt Romney, Vice President Joe Biden, and Rep. Paul Ryan. 

An important note: This blog, as it did four years ago, isn’t advocating for or against a candidate (I’ll leave that for the political blogs out there); rather, these posts are designed to bring attention to issues that might otherwise get ignored.  I’m not naive; the odds that a debate will focus on this type of question are somewhere between slim and none. But perhaps the candidates can use these closing weeks to address the issues and help those who are interested in these issues gain some greater clarity.  

Here are three employment law questions for President Obama that I’d like to see addressed at the upcoming debates:

  • On your campaign website, you have touted your strong support for the Lilly Ledbetter Fair Pay Restoration Act.  But four years after passage, can you point to any specific instances where this law has made a difference in “pay discrimination”?
  • As President, you have barred discrimination in your administration on the basis of sexual orientation and gender identity. Given your actions in your administration, why has there been no progress in Congress on passage of the Employment Non-Discrimination Act, a proposed bill that would bar employment discrimination on the basis of sexual orientation? Moreover, do you support that bill anymore? Your campaign website has no reference to that bill.
  • The National Labor Relations Board has been advancing a series of rulings that have called into question longstanding business practices including at-will disclaimers and confidential workplace investigations.    In the past, you supported the Employee Free Choice Act.  Do you support what the NLRB has been doing recently? Are there areas where you disagree with them?

Obviously, this can only scratch the surface of issues. But in the comments below, feel free to add your own questions that you’d like to see addressed by the candidates.

And check out the posts today by other employment law blogs: The Employer Handbook, Screw You Guys I’m Going Home, Ohio Employer’s Law Blog, and Employment and Labor Insider.

Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it. – Ferris Bueller

Well, did you miss it?

Just as people were settling down to the NLRB’s new speedy election rules this month, events over the last two days have completedly upended that.

First was the Court action. As noted by the Employer Law Report blog, “The NLRB was issued a stunning rebuke yesterday by U.S. District Court Judge James Boasberg (an Obama appointee) when he ruled that the NLRB’s controversial union election rule changes were invalid because they were enacted without the required three-member quorum.”

Second, the NLRB itself reviewed the ruling and its rule and yesterday suspended implementation of the new rule.  As reported by Labor Relations Today, “The Board just announced it has temporarily suspended the implementation of changes to its representation case procedures. While Board Chairman Mark Gaston Pearce reiterated his support for the rule changes, pending review of legal options, the Board will continue to process representation petitions under the previous, long-standing guidelines. ”

You can read the NLRB’s announcement here. 

You may recall that the NLRB also tried to institute new rules regarding postings in the workplace. But court challenges to that rule also led the NLRB to suspend implementation of that rule too. 

For employers, the last few days have moved pretty quickly.  But if you’re keeping score at home, it might read: Courts 2, NLRB 0.  Stay tuned.