On May 7, the U.S. Court of Appeals for the District of Columbia struck down the NLRB’s 2011 rule requiring businesses to post notice of employee rights under the National Labor Relations Act. The court found that the rule violated the constitutional right to free speech. The one-sided NLRB rule requires employers to post a notice informing workers of their right to unionize. The notice does not inform employees of their protected right not to join a union (in right to work states such as Tennessee) or of their right to decertify an existing union. This is a big victory for employers and further confirms that the NLRB members appointed by President Obama have been furthering their pro-union political agenda at the expense of American businesses and taxpayers. It is expected that the Obama administration will appeal this decision to the U.S. Supreme Court.
Seemingly “Right” Process Cannot Save “Wrong Result”
Posted in UncategorizedAn employer received a report of a manager harassing his subordinates. The employer appears to take all the right steps: 1) conducting an investigation; 2) involving several higher-level managers in the decision-making process; and 3) even hiring an outside law firm to assist it in deciding what discipline to impose.
BUT, months later, after the manager had been suspended and had his pay docked (a “fine”), the employer has fired the manager (yet he still qualified for a large bonus), the manager’s assistant has resigned, the manager’s supervisor has resigned, another high ranking official with the employer has resigned and the employer is in the midst of a public relations nightmare. Continue Reading
Successor Liability in “Asset Deal” Extends to Wage/Hour Liability
Posted in Wage and Hour Law and PracticeThe Seventh Circuit recently held that a purchaser in an “asset deal” of a business in receivership was found to be a successor employer for the purposes of a $500,000 wage/hour settlement. The liability was imposed on the purchaser even though the contract formalizing the asset deal expressly excluded that liability. Teed v. Thomas & Betts Power Solutions, LLC. Found here.
Tennessee’s New “Guns in Trunks” Law
Posted in Doing Business in TennesseeA new Tennessee law, effective July 1, 2013, allows Tennessee employees who hold valid permits to carry concealed weapons, to bring their weapons onto their employer’s parking lot, under certain conditions. In light of this new law, Tennessee employers who wish to limit handguns and other weapons on their premises may do the following:
- Continue to post signs that weapons are not permitted on their property. The law allows employers to continue to prohibit weapons in the employer’s building, and it allows employers to continue to prohibit weapons even in parking lots, if the employee or visitor does not have a valid carry permit.
- Adopt a policy requiring any employee who brings a gun to work in accordance with the statute:
- To park in a specific designated parking area of the employer’s premises,
- To notify the company that the employee has a weapon in the vehicle, and
- To provide proof to the employer that the employee holds a valid permit to carry a concealed weapon.
Employers Should Begin Using the New Form I-9 “Right Away”
Posted in Employment Agreements/Non-Compete Policies and PracticeThe United States Citizenship and Immigration Services (USCIS) recently published a revised Employment Eligibility Verification form (Form I-9). The USCIS website has instructed employers to begin using the new form “right away.” However, the currently approved forms dated February 2, 2009 and August 7, 2009 will be deemed acceptable until May 7, 2013. After May 7, 2013, only the new form dated March 8, 2013 will be acceptable.
All employers must verify the identity and work authorization of each new employee (citizens and noncitizens) hired to work in the United States after November 6, 1986 using the Form I-9. For those employees whose work authorization expires on a certain date, employers are required to re-verify the work authorization on or before the expiration date provided. Employers are also responsible for retaining the Form I-9s either for three years after the date of hire or for one year after employment is terminated, whichever is later. Failure to complete a Form I-9 for each new hire may result in fines for the employer.
New FMLA Regulations Have Limited Impact But Will Require New Poster
Posted in Leaves of Absence/FMLA Law and PracticeThe Department of Labor recently issued new FMLA regulations. The new regulations will take effect March 8, 2013. The regulations will have limited impact on most employers. However, the new regulations will require employers to obtain and post a new poster with the revised language contained in the regulations.
The other, more substantive impact is limited. The new regulations relate primarily to employees who are active military or retired. For a qualifying exigency leave, the definition of “active duty” is now “covered active duty” and will somewhat narrow coverage for eligible employees – the coverage will now extend only to those whose related service members are being deployed to a foreign country. On the other hand, military caregiver leave has been expanded. That leave – which provides for as much as 26 weeks of leave in 12 months – now includes eligible employees who are caring for covered veterans as well as covered service members. Covered veterans are those with a “serious injury or illness” who were discharged or released under conditions other than dishonorable within five years of an eligible employee’s initial request for leave (subject to certain exclusions extending the time for requesting leave). These and other new provisions are included on the revised FMLA Employee Rights and Responsibilities Poster (WH 1420). Employers should obtain new posters now for posting by March 8.
If you have questions about the new regulations and how they will affect your leave policies or would like assistance obtaining the revised poster, contact any of our Labor and Employment attorneys.
Union Membership Sees a Decline in 2012
Posted in Union Organizing and Collective BargainingThe Bureau of Labor Statistics reported today that in 2012, U.S. labor unions saw their sharpest decline in membership ever. The unionization rate fell from 11.8 percent to 11.3 percent of all workers, the lowest level since the 1930s. Here is a link to the report.
In the Absence of a Negotiated Grievance Procedure, Employers Must Bargain With Unions Over Significant Employee Discipline
Posted in Union Organizing and Collective BargainingThe NLRB recently ruled that an employer who is imposing “discretionary” and “material” discipline must consult with the union before doing so if that union has won a representation election but has not yet agreed to an initial contract. The NLRB described its ruling as the first in its “doctrinal context.”
The issue was whether an employer whose employees are represented by a union must bargain with the union before imposing discretionary discipline on a unit employee. After a majority of its employees voted in favor of representation by a union, but before execution of a first collective bargaining agreement, the employer disciplined certain employees without providing the union notice and an opportunity to bargain. Continue Reading
Dues Check-off Obligation No Longer Expires With Collective Bargaining
Posted in Union Organizing and Collective BargainingWKYC-TV, Gannet Co., Inc., 359 NLRB No. 30 (2012)
Reversing 50 years of settled precedent, the NLRB recently ruled that a “dues check-off” provision in a union contract continues to require an employer to deduct union dues from employees’ paychecks even after the union contract expires. This ruling shows the Board’s continuing path of “pro-union” decisions and significantly impacts union/employer negotiation leverage in favor of a union’s position at the bargaining table. Continue Reading
EEOC Continues Aggressive Look at Employer Leave Policies
Posted in Leaves of Absence/FMLA Law and PracticeThe EEOC recently announced two multi-million dollar settlements relating to the targeted employers leave of absence practices. In November, the EEOC announced a $4.5m settlement with Interstate Distributor Company, based on claims that the trucking company did not provide reasonable accommodation to scores of employees who were terminated upon exhausting available leave time. The EEOC claimed that the company’s practice of automatically terminating employees after exhausting a set amount of leave without any interactive discussions with the employee, along with an alleged “no restrictions” policy violated the Americans with Disabilities Act (ADA).
Similarly, on December 18 (the same day that the EEOC announced its strategic plan), the EEOC announced a $2m settlement with Dillard’s Inc. based on similar allegations. There, Dillard’s was accused not only of having a practice of terminating employees after a specific period of leave but also of having a practice of seeking specific medical information from an employee seeking sick leave. According to the EEOC, these practices violated the ADA.
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