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.

 

As the temperature starts to dip this week and our thoughts start turning from fall to winter, so starts slow climb up the absenteeism ladder.

Around many workplaces, flu shot clinics are starting to pop up.  Not surprisingly, studies show that flu shots reduce the rate of absenteeism.  (Employees who get vaccinated get sick less — go figure!)

The Connecticut Department of Public Health has a whole website devoted to employers who wish to run a flu clinic. And the CDC has lots of information like the button below.

Learn about Who Needs A Flu Vaccine.
http://www.cdc.gov/flu/protect/whoshouldvax.htm

But can an employer mandate that employees get a flu shot? Around Connecticut, numerous healthcare institutions started instituting mandatory vaccinations for their workers…and the local press made it a big issue.

Lost in that so-called debate, however, was the clear-cut guidance that came out from the Commission on Human Rights and Opportunities.  In an article last December, the CHRO said unequivocally that there was no issue with mandatory flu shots.

Charles Krich, principal attorney for the Connecticut Commission on Human Rights and Opportunities, says this corporate policy [of mandatory flu shots] does not violate constitutional rights. It also does not qualify as discrimination.

“About a hundred years ago, the Supreme Court said the state absolutely has the right to require vaccinations of people to protect the public health,” Krich explained.

Despite the undisputed public health benefits to such a policy, State Senator Joe Markley introduced a bill earlier this year into the Connecticut General Assembly that would ban such mandated vaccinations.  Thankfully, the bill went nowhere. 

Employers should, however, still be mindful of federal laws that mandate some accomodation of an employee’s religious beliefs and may, on a case-by-case basis, consider some flexibility.

Many hospitals have created a system to analyze requests for exceptions to the policy and created an exception as follows:  “Those who cannot receive the flu vaccine, whether for religious or medical reasons, will be required to properly wear a protective surgical mask over their mouth and nose when within 6 feet of any patient and when entering a patient room during the influenza season.”

Employers with unions and collective bargaining agreements should also be mindful that some have argued that mandatory flu shots should be a bargained-for term of employer. Last year, the NLRB ruled that a hospital did not violate the federal labor laws when instituting a mandatory policy over the objections of the nurses’ union.  But that decision relied on a broad “management rights” provision so employers should have their own situation reviewed by their labor counsel.

 

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?

Last week, I touched on a few aspects of the new Paid Sick Leave Guidance that was released by the Connecticut Department of Labor. (For prior posts, see here, here and here.) Today, I continue to discuss the guidance with a look at when service workers can start using accumulated paid sick leave.

One of the more notable aspects of the Paid Sick Leave law (which, as a reminder, goes into effect on January 1, 2012) is that service workers cannot start to use any accumulated paid sick leave until they have worked 680 hours for the employer. But the new law left a few issues open; the CTDOL guidance has attempted to settle some of these issues.

Counting 680 Hours

Firs, the guidance confirms that the 680 hour requirement is a actual time worked rule. That is, “Service workers cannot use accrued paid sick leave until they have worked 680 hours of employment. The 680 hours must be hours actually worked and does not include any time off (e.g. vacation, paid time off…) taken by the service worker.”

Employers should start counting the 680 hours starts either on January 1, 2012 or whenever the employee is hired, whichever is later.

Second, the guidance confirms that the 680 hour requirement is a “one-time requirement.”  As the guidance states, “Once service workers meet the 680 hours, they never have to meet it again for the same employer.”

What does this mean in practical terms? It means that if a service worker works 300 hours for the employer, then resigns, then starts working for the same employer 5 years later, the 300 hours that the worker worked must be counted towards the 680 hour threshold.  For employers, that means that an employee’s hours need to be retained forever — or at least until that worker hits 680 hours.

Third, the guidance sheds some light on a little-discussed provision. “After the service worker meets the 680 hours requirement and seeks to use accrued paid seek leave, [he or she] can use accrued time only if the service worker [has] worked an AVERAGE of 10 hours per week in the most recent completed calendar quarter.”    This will have a big impact for employers who use seasonal workers or lots of part-time workers.   Note that it does not require employees to work 10 hours each week — rather merely an average of 10 hours a week.

As I’ve stated before, the paid sick leave law promises to be among the more challenging endeavors for employers to track. Be sure to work closely with any payroll service you have to make sure that you are tracking the time properly.

(We’ll address this law and other new developments at our upcoming free seminar on Thursday. There are just a few seats available.)

As I catch up from being at the ABA Annual Meeting, my colleague, Mick Lavelle, prepared this terrific little post about some long-standing labor statutes that employers should not ignore.

The Connecticut Department of Labor enforces statutes which were first enacted in the days when payroll records were paper documents, to be stored in filing cabinets.  

Our more modern era of electronic data storage does not excuse compliance, as some employers have learned after being caught short in a DOL Wage and Workplace Standards audit. However, waiver of these requirements can be obtained relatively easily.

In a recent post in his summer series on employment basics, Dan wrote of the authorization available on line from the DOL website for employer deductions from pay to reimburse advance vacation pay. 

Although deductions from pay (other than deductions legally required) must be approved by the DOL, per Conn. Gen. Stat. 31-71e, the department routinely grants approval for such standard deductions as advance vacation pay, along with employee loans, United Way contributions, 401K contributions, and the like. Forms can be filled out and filed on line with relatively little effort.

There are two other DOL authorization "traps for the unwary," as lawyers say. Conn. Gen. Stat. 31-71i requires weekly pay, and Conn. Gen. Stat. 31-66 requires that time and wage records be kept at the employee’s place of employment. However, waivers of these requirements are also available on line at the DOL website.

A bi-weekly payday has become more or less standard, and the DOL will approve pay every other week (26 pay periods per year, not 24). For employers with multiple work sites, the DOL will also accommodate "storage" of pay records at a central location, especially since such storage is often electronic in any case.

Recently an employer whose business consists of several small convenience stores was sanctioned in an DOL audit because the pay records of the store clerks were not kept on site, although there was a computer terminal from which the records could be accessed. The employer had not obtained a waiver prior to the audit. 

The lesson for Connecticut employers is to take the time to obtain DOL waivers and authorizations and keep copies on file to satisfy a DOL auditor.

(Photo Courtesy of Library of Congress Public Domain)