Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

On August 25, 2011, the National Labor Relations Board ("NLRB") announced the issuance of a "Final Rule" that will require employers to notify employees of their rights under the National Labor Relations Act ("NLRA"). The Final Rule will take effect on November 14, 2011.

Which employers are affected by the Final Rule? The Final Rule applies to any employer that is covered by the NLRA. This includes most employers in the private sector; however, certain employers with an annual business volume of less than $500,000 may be excluded. Small businesses should consult with counsel to determine whether they fall under the NLRB's jurisdiction. Federal contractors who already post a similar notice under Executive Order 13496 are deemed to comply with the Final Rule if they comply with notice posting regulations under the Executive Order.

What are the notification requirements? Covered employers must post the required notice "in conspicuous places" where it is "readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted." The required notice informs employees of their rights under the NLRA. These include the rights to organize a union, bargain collectively, discuss wages with co-workers and to engage in a strike and other "protected concerted activity." The notice also provides information as to how employees may contact the NLRB for more information regarding their rights.

The required poster will be made available on the NLRB website. Employers may post the official color poster that appears on the NLRB website, or a black and white photocopy of it; however, all posted notices must be at least 11" by 17" and the same font as the official notice. In workplaces where 20% or more of the workforce is not proficient in English, special rules apply regarding posting the notice in other languages. Electronic posting on a company's intranet or Internet site is also required "if the employer customarily communicates with its employees about personnel rules or policies by such means."

What happens if an employer fails to comply? Employees may report employer non-compliance to the NLRB and failure to post the notice may result in the filing of an unfair labor practice charge ("ULP") with the Board. The Final Rule provides detailed instructions to employees on the process for filing a ULP charge. If an employer refuses to comply after receiving notice of non-compliance, the Regional Director for the NLRB may issue a formal complaint and schedule a hearing before a federal administrative law judge who may then issue an order requiring posting. A willful refusal to post the notice may be deemed by the NLRB as evidence of "unlawful motive" in cases where an employee alleges other violations of the NLRA (e.g. discrimination on the basis of union activity). In addition, in such cases where an employer fails to post the notice, the Board may excuse employees from the six-month statute of limitations for filing ULP charges based on other alleged unlawful conduct by the employer.

Why is the Final Rule controversial? The Final Rule is particularly controversial because the threat of union organizing is a hot button issue for many employers and the Final Rule is widely viewed as a political payback to unions by the current Administration. The sole Republican appointee on the Board dissented to the issuance of the Final Rule. Although employers are already required to post notices under several other federal employment laws (e.g. Title VII), those laws typically contain specific notice provisions – the NLRA does not. This is the first posting requirement of general applicability issued by the NLRB since the NLRA was passed in 1935. It remains to be seen whether business groups or political opponents of the Final Rule will take legal or political action to block enforcement.

If you have any questions regarding the Final Rule, you may contact any member of McNees Wallace & Nurick's Labor and Employment Law Group by clicking here.
 

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This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group, and Adam L. Santucci, Esq., an Associate in the Group.

On June 22, 2011, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking that, if finalized, would significantly change the union representation election process. According to a Board "Fact Sheet," the changes are designed to "reduce unnecessary litigation, streamline pre- and post-election procedures and facilitate the use of electronic communication and document filing." But the lone Republican Board Member, Brian E. Hayes, in a stinging dissent, seems to have more accurately characterized the proposed rule change as an "administrative fiat" which will "impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition." Hayes further described the proposal as an effort "to eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

The time between the date the petition is filed and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization. Often an organizing effort may have been ongoing for weeks or months without the employer's knowledge, and the employer only learns of the campaign when the election petition is filed with the Board. This means that the employees are only getting one side of the story, the union's side, prior to the filing of the petition. A shorter time between the filing of the petition and the election date will deprive employers of the time necessary to fairly present both sides of the representation question to employees.

Currently, the Board's operational goal is 42 days between the filing of the petition and the election, with the median time actually being only 38 days. Under the proposed rules, this time would be shortened significantly. The changes would require a pre-election hearing within seven (7) days of the filing of the petition and would defer rulings on any election issues until after the election, unless the issues would impact at least 20 percent of eligible voters. After an election has been directed, the employer would have only two (2) days to produce a list of eligible voters (not the current seven (7) days), which must include the names, home addresses, phone numbers, and if available, email addresses of these individuals. Currently, only names and addresses are required. In addition, the Board would have discretion to decline to review Regional Director rulings on post-election challenges.

These proposed rule changes, which also include the implementation of electronic filing of petitions, may not be quite as drastic as the changes that would have been wrought by the failed Employee Free Choice Act (EFCA). Nonetheless, the proposed changes have been highly applauded by unions (which are already winning NLRB elections - 69% of elections held in 2009 and 68% of elections held in 2010). EFCA would have eliminated secret ballot elections, required arbitration over the terms of a first collective bargaining agreement if the parties were unable to reach agreement, and increased penalties for employers that engaged in unfair labor practices. EFCA has stalled since the November 2008 elections, and it seems that the Board's real motivation in proposing the election changes is to enable organized labor to increase its representation in the private sector workforce, where only 7% of employees are currently unionized.

In other recent developments, the activist Obama Board has also filed a lawsuit against Boeing Co., over Boeing's decision to perform manufacturing work at a non-union facility in South Carolina. The Board has also been highly active in protecting and advocating the use of social media for employees and unions. And, in December 2010, the Board announced a Notice of Proposed Rulemaking that would require virtually all private sector employers to post a notice to employees regarding their rights to organize under the National Labor Relations Act. In addition, the Department of Labor has announced a Notice of Proposed Rulemaking that would require further disclosure of employer use of consultants during union organizing campaigns, in an obvious effort to discourage the use of such consultants.

These developments send a loud and clear message that the current administration emphatically supports union organizing efforts. Employers must be aware that if the Board's proposed rules become final, employers will be significantly restricted in their ability to respond to union organizing campaigns. Therefore, employers must become more proactive than ever in addressing employee relations issues now and conducting union avoidance training for their supervisors and managers.

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In what the National Labor Relations Board's (the "NLRB") Acting General Counsel called a "straightforward case" under the National Labor Relations Act ("NLRA"), the Hartford Regional Office of the NLRB issued a Complaint (pdf) alleging that an employer illegally terminated an employee who posted disparaging remarks about her supervisor on her personal Facebook page. While the October 27, 2010 Complaint is only an accusation, and not a formal ruling from the NLRB, the repercussions of this action are critically important for both unionized and non-union employers.

Employees of the employer, American Medical Response of Connecticut, Inc., are represented by Teamsters Local 443. One of those employees posted negative, critical comments mocking her supervisor on her personal Facebook page. Other employees commented on the posts, which prompted the employee to make further negative statements. The employee was subsequently terminated by the employer for posting the disparaging comments on the Internet, because the posts violated the employer's social media policy. The NLRB conducted an initial investigation, and determined that there was enough evidence to warrant a hearing to determine whether the employer violated the NLRA.

The Complaint alleges that the termination violated the NLRA's prohibition against punishing employees for engaging in concerted protected activity. The NLRB Regional Director has taken the position that the employee's disparaging comments about her supervisor were protected activity under the NLRA because the employee was discussing her working conditions. Under the NLRA, employers are prohibited from punishing employees for concertedly discussing wages, benefits and other working conditions. In the NLRB's view, the fact that other employees commented on the employee's post meant that there was concerted activity by the employees.

Importantly for both unionized and non-union employers, the Complaint also alleges that the employer's policies were overly broad and restricted employees from discussing working conditions. In the view of the NLRB Regional Director, the policies alone violate the NLRA.

While this matter is only at the Complaint stage, the Complaint itself is an eye-opener for many employers and may be another sign of things to come from the NLRB. On September 9, 2010, we added a post about President Obama's appointments to the NLRB, and the likelihood that the NLRB would continue to pursue a decidedly pro-union agenda.

Unionized and non-union employers alike must be sure to review all of their policies, including their social media and internet posting policies, to ensure that the policies do not restrict employees' abilities to discuss wages, hours and other working conditions. Also, we will continue to provide updates as this case unfolds, so employers should also be sure to check back for further posts.
 

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Human Resource Professionals face a demanding legal compliance year in 2009. The following five items should be added to your "To Do" list for the first quarter of '09:

ADA Amendments Act Compliance (effective 1/1/2009):  The amendments greatly expand the definition of disability refocusing compliance on determining whether the employee is "qualified" and evaluating reasonable accommodations. Employers should consider the following:

• Revising job descriptions to define essential job functions and minimum qualifications.
• Formalizing the interactive process for assessing disability issues.
• Educating supervisors on the expanded ADA coverage.

E-Verify Registration and Immigration Compliance (effective 1/15/2009):  Government contractors and subcontracts may need to register for and use the E-Verify System for new and existing government contracts. Employers who may be covered should inventory their existing contracts and review prospective contracts and subcontracts to determine whether they are covered by the regulations.

U.S. Citizenship and Immigration Services (USCIS) has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. There are other changes to the types of acceptable documents. Employers must use the revised Form I-9 (not yet issued) for all new hires and to re-verify any employee with expiring employment authorization beginning January 31, 2009. The current version of the Form I-9 will no longer be valid as of February 2, 2009.

FMLA Regulations Implementation (effective 1/16/2009):  Amendments to the FMLA's regulations require action by employers in the following areas:

• Reviewing the regulatory changes and integrate them into your compliance program.
• Using the new forms and poster.
• Revising Employee Handbook provisions.

EFCA and RESPECT Act Planning:  This pending legislation has enormous potential consequences for employers. Developing an action plan should include the following items:

• Assessing union eligibility of working supervisors under RESPECT Act.
• Educating supervisors on authorization cards and the Nuts and Bolts of EFCA.
• Adopting union-free policies on solicitation, bulletin boards, and use of e-mail.
• Initiating engagement surveys.

Wage & Hour Self-Audit:  As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims particularly in the following areas;

• Employee classification (exempt vs. non-exempt)
• Off the clock work (starting times, breaks and meal periods)
• Donning and Doffing
• Child labor

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