Readers of a certain vintage, will remember Gilda Radner’s character Emily Litella who often said “Never Mind”.  (If you’ve never heard of Gilda Ratner or this, then I’ll pause while you watch this classic video.)  Readers of a later vintage will think of Nirvana’s “Nevermind”. If you just want the dictionary definition, here it is.

My work colleague, Jarad Lucan (vintage: timeless), has an informative post today updating us the status of a certain notice being advanced by the National Labor Relations Board and why “Never Mind” comes to mind.

Despite twice requesting extensions of time within which to file petitions for a writ of certiorari with the United States Supreme Court, the NLRB officially announced this week that it will not seek review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule.

That rule would have required most private sector employers to post a notice of employee rights under the National Labor Relations Act.

As many of you may recall, back in May of 2013, the D.C. Court of Appeals, in National Association of Manufacturers v. NLRB (which Dan discussed here), struck down the notice posting rule on the grounds that it violated an employer’s right to speak (or more accurately, right to remain silent) as protected by Section 8(c) of the NLRA.

One month later, the Fourth Circuit Court of Appeals in Chamber of Commerce of the United States v. NLRB likewise struck down the notice posting rule on the grounds that the NLRB was not empowered to promulgate such a rule.

What does this all mean for private employers in CT?

Well, at the 30,000 foot level, both Court of Appeals decisions now set binding precedent that may prove (it is far too early to tell) to restrain what has been viewed as the NLRB’s attempts to expand its powers, particularly in the nonunion context.

At the ground level, employers can stop asking “when do we need to post this thing?” You don’t need to.  A big “Never Mind”. 

It should be noted, that while the NLRB has decided not to seek Supreme Court review, in a recent press release, the NLRB stated that it will “continue its national outreach program to educate the American public about the statute.”

As part of that program, the NLRB has decided to post the same message that was to be printed on the notice on its website here. Some of you may find it interesting that the NLRB has taken it upon itself to translate that message into 26 different languages and promises to provide additional translations as they become available.

Of course, nothing prevents an employer from putting up such a poster; as the NLRB suggests on its website now, “Important note: Appellate courts have enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act. However, employers are free to voluntarily post the notice, if they wish.”  But employers who thought they needed to add this one to their poster arsenal can put those worries aside for now.

 

For lawyers, anytime there’s a change, it seems to be a big deal. But for employers, change is inevitable and part of business.  Indeed, if a new poster is required by employers, most employers simply shrug and order a new poster on the internet through a site like Gneil.com.

My colleague, Jon Orleans (fresh off his Title IX victory on behalf of a group of volleyball players — congrats Jon!), and I remind you of this fact in a quick update regarding FMLA and I-9 forms. So if you haven’t ordered some new posters yet, now’s a good time to do so.

Clean Up Your Posters

The Family and Medical Leave Act turned 20 last month.  For any Rip Van Winkles among our readers, the statute, enacted during the Clinton Administration, requires employers of at least 50 employees to provide up to 12 weeks of unpaid leave per year for a variety of health- and family-related conditions.

For employees, it has been an enormous benefit.  For employers, it can be an administrative nightmare

The U.S. Department of Labor marked the birthday by, among other things, issuing a new final rule implementing two expansions of FMLA protections enacted by Congress.  This blog previously covered the proposed changes a while back.

The FMLA now provides families of eligible veterans with the same FMLA leave currently available to families of military service members, and also enables more military families to take leave for activities that arise when a service member is deployed. The second expansion provides additional protections to airline personnel and flight crews.

Information concerning the new rule is available here.

In conjunction with the new rule, the DOL revised the mandatory FMLA poster that must be displayed by all employers subject to the Act.  The new poster is available here and should be posted now.

For additional blog posts about this subject, check out some background articles here, here and here.

One important item to note for Connecticut employers: Connecticut has not yet updated its regulations for the CTFMLA so be sure to consult with your lawyer before taking action just on the federal FMLA rule changes.  The new posters will still need to be put up, but you will need an individualized assessment of how the rule changes will impact your business directly. (Note too that the comparison posted on the CTDOL website of FMLA and CTFMLA regulations will now be slightly out of date.)

And while we’re pointing out new forms, be aware that the U.S. Citizenship and Immigration Service has issued a new version of the I-9, the form that must be used by employers to verify that any person hired is authorized to work in the United States.  The new form is available here.

Older versions of the form will not be accepted after May 7, 2013.  Note that it is not necessary to complete the new form for existing employees unless reverification is otherwise required; but the new form should be used for new hires going forward.

Update: The NLRB has announced an indefinite postponement of the rules. See this updated post here. 

Another month has passed, and we are now ever closer to the effective date of the NLRB’s new posting rules. 

Posters for Your Lunchroom

Thus far, many of the legal challenges to the proposed rule have been ineffective, as the Employer Law Report recently noted.

Unless something dramatic occurs in the next three weeks, the NLRB’s new posting requirements will take effect on April 30, 2012.  This applies to both unionized and non-unionized employers.

I’ve long felt that the publicity surrounding this rule was a bit overblown.  As I noted in a prior post:

In this age of technology, employees don’t need to rely on posters in the back of a lunch room for information on their rights anymore. (And really, how many times have you REALLY seen employees even look at these.) They can use their smart phones to check out the NLRB website from anywhere.  

But in addition to worrying about the posters, employers should use this new requirement as an opportunity to take a fresh look at their workplace policies and procedures. Among the issues that were identified by the Employer Law Report:

  • Does your employee handbook prevent discussion among employees of wages or have any other restrictions that run afoul of the NLRA? …
  • Are your managers aware of the NLRB posting and attuned to how best to respond to questions or concerns that might be raised by employees?
  • Most important, have your managers been trained in and are they committed to the kind of management behavior and communication with workers that makes employees less susceptible to union organizing efforts?

Three weeks to go. Are you ready?

A lot of people have been writing about a recent court ruling that upheld significant portions of a new NLRB-promulgated poster that will get put up on a wall in some common area.

I’ve been reluctant to write about it because, as I mentioned back in the fall, things continue to change on this particular poster.  There is still another lawsuit about this poster out there and an appeal that is happening too.

So, where do things stand now?

Right now, the posting requirement is still scheduled to go into effect on April 30, 2012 with some minor modifications.  

What did the court’s latest order say? Labor Relations Today has a good recap:

In the order issued on Friday, March 2 in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), District Court Judge Amy Berman Jackson held both the NLRB had authority to issue a rule requiring private-sector employers to post notices informing employees of their rights under the Act, and that the NLRB could consider an employer’s “knowing and willful” failure to post the notice as evidence of an unlawful motive. However, she struck down the portions of the NLRB’s rule that would automatically deem an employer’s failure to post the notice an unfair labor practice and that would toll the statute of limitations for unfair labor practice charges filed against employers that failed to post the notice.

What else can an employer do? Russell Cawyer of the Texas Employment Law Update suggests that employers put up the NLRB poster but also put up a poster of their own that details the employer’s view on things. 

For more on the subject, check out these posts here, here, and here

From my perspective, the amount of focus on posting requirement is a bit overblown. In this age of technology, employees don’t need to rely on posters in the back of a lunch room for information on their rights anymore. (And really, how many times have you REALLY seen employees even look at these.)  They can use their smart phones to check out the NLRB website from anywhere

Yes, it is possible that the NLRB is overstepping its authority, but employers in Connecticut have long since had to deal with numerous posting requirements.  Employers should keep up to date on whether the notices are going to go into effect but ultimately, it’s just another one brick notice on the wall. 

This poster is not to be confused with other changes to the election procedures that are also going into effect on April 30, 2012. You can read more about those changes here.

The National Labor Relations Board today announced that it has postponed the start date for its new notice-posting rule until January 31, 2012.

(I previously covered the new rule in a prior post here.)

In a press release, it indicated that it did so to allow for “enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

The delay also comes after numerous groups have complained about the posters and a few have filed suit to stop its implementation.

(Indeed, minutes after the announcement, the National Right to Work Foundation claimed credit for the delay in an email saying that the delay occurred only after it and other groups groups are “challenging the rule in federal court”. )

According to the NLRB:

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made. …

Most private sector employers will be required to post the 11-by-17-inch notice, which is available at no cost from the NLRB through its website, either by downloading and printing or ordering a print by mail.

For more information, the agency has a FAQ section here.

Earlier this month, I told you that effective November 14th, the NLRB is requiring yet another posting for your workplace.

The posting will, in some ways, look familiar to employers that have had unions; similar postings may go up around elections or other union-related issues.

But this new poster is different in some ways because it is required for both union and non-union employers.

The NLRB has now created a poster for free that employers can download here.

It can go up where you have all the other postings such as the minimum wage law and, in Connecticut, the electronic monitoring notice.

As I mentioned last week (when in Connecticut, we were focused on Irene), the NLRB has been busy in August issuing new rules and new rulings.

Some people are expressing surprise at the shift seen in these rules and disgust that prior NLRB rules are effectively being overturned.  But none of this should be surprising whatsoever.

Indeed, back in 2009, when the NLRB chairperson was nominated, I quoted another blog as saying that “As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. … As a proponent of unions, Liebman will surely do just that if given the opportunity.”

But lest you think this is a Republicans vs. Democrats issue, it’s not. It is what every NLRB has done for a generation.  Indeed, when President Bush took over in 2001, his appointees shifted the board.  Rulings were overturned and new rules and regulations for employers were barely seen or heard from.

Personally, I think its terrible that we have a government agency so blatantly political (on either side).  It prevents employers and employees from having settled expectations and it undermines the entire judicial system when cases are overturned for political purposes (under the guise of the Rule of Law).

But this is the reality of the agency.  Rather than cry foul over the latest changes and be indigent, we’re best off when we understand the changes that are taking place and respond accordingly.

Others have done a good job explaining the changes so I’m merely going to summarize them here with links to further resources if you have an interest in a particular topic.

New Postings

First and perhaps more importantly, a new NLRB effective by November 14, 2011 will require basically all private sector employers to put up a new posting regarding unions.  The notice is in some ways similar to what some employers have to post after an unfair labor practice charge for for federal contractors.  The text of the notice is linked here. The NLRB has a FAQ on the new rule here.

Although I can’t imagine employers are happy about the notice, these types of notices are put up on bulletin boards all the time.  I’ve yet to see an employee standing and actually reading them.  Besides, if employees wanted to find out more about a union, they could type “how do I form a union” into Google.   You get 173 million responses.

Bottom Line: Stop worrying about whether a poster is going to lead to a union and worry about the overall environment instead.  Oh, and just get a copy of the poster and put it up.

New Cases

The NLRB also issued three new cases this week, that overturns some key precedents on a union majority status.  (You can read a summary here.) One case overturns precedent which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. According to the NLRB, employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces.”

Another case questions whether employees always have a right to a secret ballot election.  In rare circumstances, where card-checks are used, the employee may not have a right have that right.

Bottom Line: If you have an interest in labor law, you’ll want to followup to see if any of the rules have a particular application to your business; some are more technical than substantive.

Employers, it’s time to tune up on your Spanish.

Buried in the new bill on Paid Sick Leave is a section that suggests to employers in Connecticut that a posting should be written in both English and Spanish.

Time to learn Spanish?

First the context: Senate Bill 913 says that at the time of hiring, each employers should notify new service workers: 1)  of the entitlement to paid sick leave (and the amount); that the employer is prohibited from retaliating against the worker for taking the leave; and that the worker can file a compliant with the Department of Labor for violations.

But the bill suggests a path that virtually all employers will likely follow instead: Post a notice.

Posting notices is common.  For example, Connecticut’s electronic monitoring statute suggests that a notice be done in a conspicuous place but it doesn’t specify a language (presumably inferring that a notice in English is required).

But this Senate Bill is different. It suggests that employers may comply by displaying a poster that contains the information above “in both English and Spanish.” (emphasis added).

What are most employers supposed to do? Hire a Spanish speaker to translate the bill’s provisions into Spanish? Seek out someone on the staff to assist?

Presumably, the Connecticut Department of Labor (and companies that specialize in posters) will come out with a notice at some point. But until then, this new law suggests that Spanish is now a language that employers need to be aware of.

My quick review of other employment statutes (like FMLA) do not show any other instances of employers notices being written in Spanish.  Is this an indicator of where employment law regulation is headed in this state or is it an outlier? Time will tell.

But for now, employers who have to comply with this new soon-to-be-law should be sure that any notices they draw up are done in both Spanish and English

(If you’re interested in what others are writing about this bill — particularly from Ohio, check out this post by the Ohio Employer’s Law Blog.)

 

One of the great local treats in Connecticut this time of year is a corn maze. My favorite for the last few years is the one created by Lyman Orchards in Middlefield, CT.  (And while you’re there, don’t miss picking a few apples or getting a fresh apple pie).

Mazes aren’t anything new. Employment lawyers and human resources staff, nowadays, have to go through seemingly endless mazes of laws and regulations.  It can be difficult to find your way out.  

But hope is not lost. Indeed, even at Lyman Orchards, there were guides and clues to help you find your way. In that same fashion, hopefully this post can serve a similar function.

Connecticut employers have particular requirements for to provide sexual harassment training for some of the employees (and you should read them in full here and seek legal guidance if you need it). Here’s some of the basics:

  • Only employers with 50 or more employees fall within the scope of the regulation.
  • For such employers,  two or more hours of training and education to all supervisor employees within 6 months of their assumption of such a role (whether through a hire or promotion).  
  • That training has to be conducted in a classroom-like setting (though electronic delivery has also been approved in some circumstances), using "clear and understandable language and in a format that allows participants to ask questions and receive answers."
  • The training must include:
    • Describing the federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply
    • Defining sexual harassment as defined by the law and distinguishing it from other forms of harassment
    • Discussing the types of conduct that may constitute sexual harassment under the law
    • Describing the remedies available in sexual harassment cases
    • Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and
    • Discussing strategies to prevent sexual harassment in the work place. 

The regulations provide that additional topics or approaches may be done, but emphasizes that they are optional.

Similarly, the regulations suggest that employers of 50 or more employees provide an "upgrade" of the information every three (3) years.

Lawfirms and experienced HR consultants have long been providing this service so it should not be difficult to find someone to assist. But this is a fairly easy regulation to abide by.  Note that employers under 50 merely have posting requirements, though nothing prevents the employer from conducting the training anyways.

One practical suggestion: Conduct trainings in late-April and late-October in regular intervals. That should cover new supervisory employees in a timely fashion and reduce the number of people likely to be on vacation.  

And this will be one maze of regulations that you can find your way out of.  

 

On Friday afternoon — conveniently right before a long holiday weekend — the NLRB dropped a significant decision on an important issue — whether an employer may set up a policy that, in turn, prohibits employees from using the employer’s e-mail system for any "non-job-related solicitations." 

The NLRB answered "yes" in the case of The Guard Publishing Company d/b/a The Register-Guard,  351 NLRB No. 70.

The NLRB issued a lengthy press release discussing the case available here which also addressed some additional, and no less significant, issues:

The employer’s written policy prohibited the use of e-mail for “non-job-related solicitations.” In practice, the employer allowed a number of nonwork-related employee e-mails, but there was no evidence that it permitted e-mails urging support for groups or organizations. … 

Addressing the maintenance of the policy, the Board majority of Chairman Battista and Members Schaumber and Kirsanow reasoned that under Board precedent, employees have no statutory right to use an employer’s equipment for Section 7 purposes. The majority found that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the Court held that a ban on solicitation during nonworking time was unlawful absent special circumstances, was inapplicable to the use of an employer’s e-mail system, because Republic Aviation involved only face-to-face solicitation, not the use of employer equipment. The majority noted that the use of e-mail “has not changed the pattern of industrial life at the Respondent’s facility to the extent that the forms of workplace communication sanctioned in Republic Aviation have been rendered useless . . . . Consequently, we find no basis in this case to refrain from applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.” Therefore, the majority concluded, the maintenance of the policy did not violate Section 8(a)(1).

With respect to the alleged discriminatory application of the policy to Prozanski’s e-mails, the majority clarified that “discrimination under the Act means drawing a distinction along Section 7 lines.” The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and “group” or “organizational” postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court’s analysis, “rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals.” The majority overruled the Board’s decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.

The case has already been written about by The New York Times, and discussed at length by several blogs over the weekend, including Workplace Prof (which heavily criticizes the decision), Ross Runkel’s NLRB Law Memo, Workplace Horizons, Eye on the NLRB, and Pennsylvania Employment Law Blog, so I won’t repeat their thorough coverage here (plus I’m technically on "vacation").

But a few thoughts immediately come to mind:

1) Employers will need to consider revising their employment policies on use of electronic mail and intranets immediately to take advantage of the protections this case offers.  After the new year, I’ll add more on this as the analysis of the case becomes clear.

2) For the non-labor lawyers or non-union employers, you may be wondering what the fuss is all about. After all, limiting employees’ use of the e-mail system to work-related conduct is something that many employers preach. Some even go further with computer-aided limits on sites with personal e-mail accounts, etc.  For these employers, the decision may not seem as ground-breaking, but nevertheless, it allows the employer to create an employment policy that brings consistency and identifible limits. 

3) The case seems to distringuish between "solicitation" and general announcements.  You wonder, however, how this will apply in a practical sense. Will employees try to couch future e-mails as informational — even when they may just be solicitations dressed up with "informational" language?

Of course, should the makeup of the NLRB change after the next election cycle, all bets are off on whether this case continues to be binding precedent.