Wednesday, December 21, 2011

NLRB Adopts Expedited Election Rules

The NLRB announced today that it has issued a final rule for expedited elections in union representation cases. The final rule will appear in the December 22, 2011 edition of the Federal Register and is set to go into effect on April 30, 2012. The Board's press release regarding the new rule is available here. A copy of the final rule that will appear in the Federal Register is available here.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace have already filed a lawsuit challenging the rule.

We will provide more information about the Board's final rule and its impact on employers following a thorough review.

Monday, December 5, 2011

Law To Encourage Hiring Veterans Signed by President

On November 21, 2011 President Obama signed into law the Vow to Hire Heroes Act of 2011, which is a law designed to encourage employers to hire military veterans. Generally, the focus of the law is to provide tax credit to any business that hires a veteran who has been unemployed for at least four weeks. The key provisions of the Act for employers include:

· Creates a new tax credit called the "Returning Heroes and Wounded Warrior Credit" to incentivize employers to hire unemployed veterans. The Vow Act provides a credit of 40% of the first $6,000 in wages (up to $2,400) for employers that hire veterans unemployed for 4 weeks or more and credit of up to 40% of the first $14,000 of wages (up to $5,600) for veterans who have been unemployed for 6 months or more.

· Creates a two-year program through the DOL for credentialing and licensing of veterans for specific civilian jobs.

· Requires the federal government to enter into agreements with employers and other organizations to provide job training and develop apprenticeship programs to provide veterans with the education, training, and services necessary to transition to civilian employment.

· Doubles the existing Wounded Warriors Opportunity Tax Credit, increasing the value of the tax credit from $4,800 to $9,600 for veterans who have been unemployed for 6 months and have a service-connected disability.

The Department of Veteran Affairs and the Department of Labor are working together to implement this program by July 1, 2012.  More information is available from the Department of Veterans’ Affairs here.

NLRB Issues Operational Memo Related to Required Notice

The National Labor Relations Board recently issued an Operational Memo dealing with the Notice of Rights Poster that employers are required to post by January 31, 2012.

The Operational Memo (OM 12-14, available on the Board's website here) first discusses the Board's outreach efforts to inform employers of the notice posting requirement.  The OM begins by noting that on October 5, 2011, the Board "postponed the effective date of its Notice Posting rule until January 31, 2012, to allow for “education and outreach” to employers “who operate small and medium sized businesses.”  The OM then goes on to outline the steps each Regional Office should take to achieve that goal, including letters to business groups, chambers of commerce, trade associations, and regional journals and publications, among others.  The OM also directs the Regional Offices to issue press releases to local journals and business publications and answer questions about the notice posting rule and its applicability to a particular business or organization.

An attachment to the Operational Memo addresses which employers are required to post the Notice of Rights Poster.  Under the Board's new rule, all employers subject to the Board's jurisdiction (except the Post Office) are required to display the poster.  Specifically, the OM states "The new requirement to post a Notice of Employee Rights under the National Labor Relations Act applies to all employers under the Board’s jurisdiction, except for the U.S. Postal Service."  The OM then discusses the coverage standards for employers in particular industries.  As the Board notes, however, very few employers are excluded.  The OM states: "As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws."  In other words, most all employers are required to post the required notice.
Employers should be prepared to post the required Notice of Rights by January 31, 2012.  Under the Board's new rule, failure to post the required notice is an unfair labor practice.  Additionally, the rule provides that the typical 6-month statute of limitations for filing unfair labor practice charges is tolled for as long as the required notice is not posted, even for unfair labor practices that are unrelated to the notice.  Additionally, the rule states that the Board may consider the failure to post the notice as evidence of anti-union animus, an element that the Board must establish to prove certain unfair labor practices, such as discriminatory discharge.

Thursday, December 1, 2011

NLRB Approves Resolution For Expedited Elections on 2-1 Vote

As anticipated, the NLRB voted along party lines (2-1) to approve a Resolution to amend certain election procedures and expedite union representation elections. Chairman Mark Pearce and member Craig Becker voted in favor of the Resolution, while Brian Hayes, the NLRB's only Republican member, voted against it.  The changes in the Resolution are drawn from a comprehensive overhaul of the election process proposed by the NLRB earlier this summer.  The text of the Chairman’s resolution is here, and the Chairman's explanation of the amendments can be found here.  This vote does not implement "quickie" elections, but it clears the way for the Board to develop and publish the final rule for an expedited election process at a later date.

Member Hayes did not resign from the Board to prevent the vote on the Resolution.  During prepared remarks during the meeting, Member Hayes said that his resignation would damage the Board's reputation of the in the same manner that the majority's decision to move toward expedited elections has damaged the Board's reputation as an objective and unbiased government agency.

The changes to election procedures proposed in the Resolution are not employer-friendly and are designed to assist unions in organizing employees.  But the changes in the Resolution are far less drastic than the rule proposed by the Board earlier this year.

We will continue to monitor the expedited election rule as it winds its way through the administrative process at the Board.

Boeing and IAM Reach Agreement That May End NLRB Action

On November 30, 2011, the Boeing Company and the International Association of Machinists (the union representing many of Boeing's employees in Washington state) reached an agreement that may resolve the NLRB's complaint against the Company.  The details of the agreement have not been reported, but generally, the agreement is part of an extension to the collective bargaining agreement covering the Washington state employees.

This agreement is a major development because of the political attention the Boeing case has brought to the Board.  Several bills were introduced in Congress in reaction to the Board's Complaint against Boeing.  Among them was a bill limiting the Board's remedial authority, which would have applied to all cases before the Board, not just the Boeing case.  It remains to be seen whether those bills will move forward without the political momentum generated by the Boeing case.

Wednesday, November 30, 2011

NLRB Chairman Releases Resolution for Today's Vote

Late yesterday, National Labor Relations Board Chairman Mark G. Pearce released the content of the Resolution proposed for toady's vote.  The Board is scheduled to vote to approve certain portions of the rules it considered earlier this year to alter the Board's election process and expedite union representation elections.  These are the rules that would implement so-called "Quickie" or "Ambush" elections.  The text of the Resolution is available from the Board's website here.  The Board's news release is available here.

In light of the 2-1 Democratic majority on the Board (Chairman Pearce and Member Craig Becker), it is likely that the Board will approve the Resolution to modify election procedures -- as long as the lone Republican on the Board, Member Brian Hayes, remains on the Board.  There were rumblings at the end of last week and the beginning of this week that Member Hayes may resign to prevent the Board from having the quorum necessary to approve the Resolution.  As of yet, however, there is no word whether Member Hayes will resign.  But many will be paying close attention to his actions leading up to the meeting scheduled for 2:30 p.m. today.

Tuesday, November 29, 2011

Showdown at the NLRB Corral

The NLRB scheduled a vote for November 30, 2011 on its controversial new rule governing union representation elections, which would implement what some have referred to as "Quickie Elections."  Under the new rules, representation elections would be held within 10 to 21 days of filing a petition for an election.  This timeframe, reduced from an average of 42 days, would limit an employer's ability to communicate with its employees about what it means to be unionized before the employees vote.

Mark Pearce, chair of the NLRB, called for the vote, saying that some provisions of the proposal should be approved before the end of 2011, when the term of member Craig Becker is set to expire. When Becker's term expires, the Board would have only two members and would not have a quorum necessary to take official actions.  Member Hayes, the sole Republican member of the Board, has threatened to resign prior to the Board's vote to deprive the Board of the authority to implement the controversial and decidedly pro-labor rules.  It remains to be seen whether Member Hayes will actually resign to prevent the Board's action, but you can expect that the bullets at the NLRB Corral will continue to fly for the next several weeks.

Monday, November 28, 2011

New EEOC Regulation For Age Claims Increases Uncertainty for Employers

On a 3-2 vote that broke along party lines, the EEOC approved a new regulation stating that an employer's policy or practice that adversely impacts older workers violates the ADEA unless the employer can justify the policy or practice with a “reasonable factor other than age.”  The regulation partially stems from the Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005). In the Smith decision, United States Supreme Court held that the ADEA authorizes recovery for claims that a practice has a disparate impact on employees based on age and that the "reasonable factors other than age" test, rather than the business-necessity test, is the appropriate standard for determining whether a practice that disproportionately affects older employees is unlawful under the ADEA.

The EEOC's new regulation is intended to provide guidance on the definition of what will constitute "reasonable factors other than age."  However, the new regulation emphasizes that whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. In other words, there is no bright line rule for employers to follow.  Instead, the regulation provides lists of factors for determining whether an employment practice is reasonable and whether it’s based on a factor other than age.  The EEOC said it will look to tort law to determine what is "reasonable."

In voting against the new regulation, Commissioner Constance S. Barker said “I’m concerned about creating a new defense that imposes a more restrictive and more difficult defense for employers to apply,” especially the small business owner. "No matter how well intentioned these regulations may be, when we look at the small business person who is desperately working to just keep his doors open and keep a few Americans employed, … adding this tort law standard … may mean the difference between keeping his doors open or not," she said.  Similarly, Commissioner  Victoria Lipnic said that “The proposed final rule regulation places a duty on employers to pre-emptively avoid age discrimination and to seek out and assess less discriminatory alternatives,” something that she said neither the ADEA nor the Supreme Court requires.

The "Final Regulation on Disparate Impact and Reasonable Factors Other Than Age" now goes to the U.S. Office of Management and Budget (OMB) for review. Upon OMB approval, the regulation will be published in the Federal Register and become effective a period of time after being published.

We will continue to monitor the progress of the regulation and how courts apply it to employers' everyday practices.

EEOC Charges Set Multiple Records

On November 15, 2011, the EEOC released its annual Performance and Accountability Report, revealing that the agency received 99,947 charges of employment discrimination in fiscal year 2011, which is the highest number of charges filed in one year since the EEOC was established in 1965. That is approximately 274 charges per day. According to the Report, the EEOC ended its fiscal year with 78,136 pending charges, which is a decrease of 8,202 charges from the prior fiscal year.

The EEOC also obtained more than $364.6 million in monetary benefits for charging parties through administrative enforcement.  This is the highest level of monetary relief obtained in the EEOC's 46-year history.

In a written statement coinciding with the release of the Report, Jacqueline A. Berrien, chair of the EEOC, said “I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination.”  She also said that “[t]he EEOC was able to take full advantage of increased resources in the past two fiscal years to make significant progress towards effective enforcement of the nation’s civil rights laws.”

As long as the economy continues to struggle and unemployment rates remain high, employers can anticipate that the number of EEOC charges will remain at historic levels.

Thursday, November 3, 2011

OSHA Publishes Interim Final Rule Revising SOX Whistleblower Complaint Procedures

The Occupational Safety and Health Administration (OSHA), a division of the U.S. Department of labor, is responsible for the investigation and enforcement of whistleblower complaints under the Sarbanes-Oxley Act of 2002, which is referred to as "SOX." OSHA announced recently that it will publish interim final rules that revise the regulations governing whistleblower complaints filed under SOX. Among other changes to the complaint filing process, the revised rules will allow employees to file complainants SOX complaints orally and in any language. OSHA is requesting public comment on the interim final rule.  The deadline for submitting comments on the rule is January 3, 2012

The whistleblower provisions of SOX make it unlawful for a publicly traded company (or its subsidiaries) to retaliate against an employee for reporting mail fraud, wire fraud, bank fraud, securities fraud, violations of SEC rules or regulations, or violations of any provision of federal law relating to fraud against shareholders. 

According to a DOL news release regarding the interim rule, OSHA Assistant Secretary Dr. David Michaels said that "Fraudulent practices by publicly held corporations have contributed to the economic difficulties currently facing our nation." "The best way to prevent this from happening in the future is to ensure that workers feel free to blow the whistle on corrupt corporate practices without fear of retaliation, and OSHA is committed to protecting the rights of those workers to speak out."

Friday, October 21, 2011

Tennessee Jury Duty Pay Includes Travel Time

The Tennessee Attorney General recently issued an opinion finding that Tennessee law requires employers to pay employees for time spent traveling to and from jury duty. 

While Tennessee law clearly required employers to provide an employee with the employee's "usual compensation" for serving on a jury, there was a question as to whether the employee was entitled to payment for travel time to and from the court when the employee was not usually compensated for travel to and from work.  According to the Attorney General, the statute's reference to "usual compensation" includes the time the employee spends traveling to and from jury duty.

The Attorney General's interpretation of the statute poses a potential trap for the unwary employer who is not accustomed to paying employees for travel time.  In fact, in most cases, employers are not obligated to pay employees for travel from their homes to work and back each day.  Accordingly, human resources and payroll professionals should note this exception to the general rule and make sure that employees are properly compensated when reporting for jury duty.

Wednesday, October 19, 2011

“Hope and Change: Employment Laws are Changing, Better Hope You are Prepared”

            The Hunter, Smith & Davis Labor and Employment Team will be holding its annual Labor and Employment Seminar on Thursday, October 27, 2011 at the Millennium Centre in Johnson City, Tennessee.

The following topics, as well as your questions, will be addressed during this lively half day session. 

·         Americans With Disabilities Act:  Millions More Employees are Now Covered
·         Workers’ Compensation – Recent Changes to this Ever-Changing Law
·         Erosion of The Employment at Will Doctrine By Retaliation and Whistleblowing claims
·         Distinguishing Independent Contractors from Your Employees: It’s Getting Harder
·         Body Art – How Much Self-expression Must an Employer Tolerate?
·         We’re From the Government and We’re Here to Help  . . . UNIONS!
·         Immigration Law Update

Continental Breakfast and Lunch will be provided.  Registration and breakfast begin at 7:30 a.m. followed by presentations from 8:00 to 12:00 and lunch and questions at 12:00.
The cost is $30 for first registration and $20 for each additional registration.

Reserve your spot by calling 1-877-552-9928 or e-mail
      If you have any questions, call Steve Darden at 283-6303.

Friday, October 7, 2011

NLRB Postpones Deadline For Posting Notice

The National Labor Relations Board announced recently its decision to postpone the implementation date for its new notice-posting rule. Previously, the Board's new notice-posting rule required employers to post the 11x17 inch poster no later than November 14, 2011. That date has been delayed until January 31, 2012.

In a press release, the Board indicated that the rule's effective date was delayed "by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." The Board indicated that it had received a number of questions from business and trade organizations that suggested uncertainty about which businesses are covered by the new requirement.

Other than the effective date, no other changes in the rule, or in the form or content of the notice, will be made.

Monday, September 19, 2011

U.S. House Passes Bill Limiting NLRB's Remedial Authority

The United States House recently passed a bill, called the Protecting Jobs From Government Interference Act (H.R. 2587), which would prohibit the National Labor Relations Board from ordering any employer to shut down plants or relocate work, even if the Board finds that the employer has committed an unfair labor practice. The bill is in response to the Board's complaint against Boeing for opening a new facility in South Carolina. Commentators predict that the bill will not be passed, or even considered, in the Democratically-controlled Senate. We will continue to monitor the bill's progress. You can access the House's legislation here.

NLRB Notice of Rights Poster Available

The National Labor Relations Board recently announced that the Notice of Employee Rights poster is available on the Board's website here. Under the NLRB's new rules, all employers covered by the Act are now required to post the Notice of Rights Poster by November 14, 2011. Employers who customarily post personnel rules or policies on an internet or intranet site must also provide a link to the poster from those sites.

An employer's failure to post the Notice of Rights is considered an unfair labor practice and may toll the statute of limitations for employees to file unfair labor practices on other grounds while the Notice is not in place. Additionally, the Board's new rule provides that a knowing and willful failure to post the Notice, that may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the Act.

Thursday, August 25, 2011

NLRB Adopts Notice Posting Requirement For Private Sector Employers

The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice notifying employees of their rights under the National Labor Relations Act. The final rule is scheduled to be posted in the Federal Register on August 30, 2011 and will take effect 75 days later, on November 14, 2011. The poster is similar to the one federal contractors are already required to post pursuant to Executive Order 13496, which was issued by President Obama on January 30, 2009. The Board’s new rule expands the notice requirement beyond federal contractors to most private sector employers. Copies of the required poster should be available from the Board and on the Board’s website in the near future, and at least before November 1, 2011. The Notice must be posted by November 14, 2011.

In addition to physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if other personnel rules and policies are customarily posted there.

Failure to post the notice will be considered an unfair labor practice and an employee may file a charge based on the failure. Additionally, the rule provides that the Board may extend the 6-month statute of limitations for filing a charge involving other, unrelated unfair labor practice allegations during the time the notice is not posted. Finally, if an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Board Member Brian Hayes dissented from the rulemaking, asserting that the Board does not have the authority to promulgate the rule or to toll the statute of limitations spelled out in the Act. Member Hayes also commented on the Board’s motivation for creating the posting requirement stating that “Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.” Indeed, employers should expect that the posting the notice will prompt employees to begin asking questions about unions and employers should be prepared to explain to employees the truth about what it means to be unionized.

There is likely to be a legal challenge to the rule in the near future. We will continue to monitor any developments.

Friday, August 12, 2011

Brave New World in Tennessee: E-Verify

Following up on the news that the Tennessee legislature passed a new law - 'The Tennessee Lawful Employment Act' - ('TLEA') in an effort to require all employers to use the federal 'E-Verify' employment authorization system, we will address 5 specific areas of the new law. (Please see prior post of July 7, 2011 for an overview of the Law). The first topic is the 'E-Verify' requirement.

In actuality, this is as much about the Form I-9 process as it is E-Verify. Basically, once the law becomes effective for each employment sector (based upon size), an employer is required to either maintain copies of documents provided by the employee to prove employment eligibility - or use E-Verify to verify employment authorization. The document copies or authorization from E-Verify must be kept for either 3 years after the documentation is provided (or 'date of hire' for E-Verify) or 1 year following termination of employment, whichever is longer.

For those of you who work with the Form I-9, this all sounds familiar - but a little 'off'. For example, the Tennessee law limits the acceptable documents to an odd assortment of birth certificates and 'current immigration registration', etc. Although all of the listed documents appear to be on the list of I-9 approved documents, not all I-9 approved documents appear on the list of Tennessee approved documents. Thus, employers are faced with the peculiar problem of getting documents for the I-9 and then possibly seeking different documents for the TLEA requirements. Of course, to avoid a charge of discrimination, you should not request the employee to provide any specific document on either list; (see, recent U.S. Dept. of Justice settlement with Summit Steel Fabricators, Inc. for an idea of fines and penalties).

The alternative is to enroll in E-Verify. This, of course, is what the Legislature hopes you will do. Without going into details about the E-Verify process at this time, ultimately, you should not begin the employment of an employee until you verify that the employee is authorized to work through the E-Verify system, and maintain proof of this verification for 3 years after hire or 1 year after termination, whichever is later. The incentive, however, is that if it turns out that an employee that you have hired is actually not authorized to work, you can avoid the charge of having 'knowingly' hired an illegal alien by using E-Verify. This is the 'Safe Harbor' under the Tennessee law. Conversely, reliance simply upon keeping documents related to the I-9 process is an ineffective defense to the charge. And the distinction between a 'Safe Harbor' and a charge of 'knowingly' hiring an unauthorized employee is very damaging both financially and to your ability to maintain your license to conduct business in the State of Tennessee.

Finally, it should be noted that you are also required to determine work authorization - from non-employees (e.g. independent contractors) who perform services for you!

That will be a discussion for our next blog -

Tuesday, July 26, 2011

FMLA Parental Bereavement Leave: Have we met before?

Recent Family and Medical Leave news has been about a proposed amendment to the Act which would provide parental bereavement leave upon the death of a son or daughter. As with parental bonding leave that is currently provided for in the Act, bereavement leave would be taken in one block unless the employer agreed to allow for intermittent leave.

One can't help but look at the amendment and see shades of the Genetic Information Nondiscrimination Act (GINA) which added another protected class to employment discrimination. At the time of passage in 2008, many wondered if this was a solution looking for a problem. With this proposed FMLA amendment, curiosity requires the question of whether an employer would deny leave to an employee in the face of the tragic loss of a child. An employee who finds him-/herself needing more leave in the face of such a loss might have the option of doing so under either an unpaid leave of absence or by utilizing accrued/banked leave under other policies (PTO, sick, personal). Additionally, if the grief is so great that it causes depression, requires counseling, or prevents an employee from engaging in daily living activities might qualify the employee for an extended leave under the Americans With Disabilities Act, given the recent overtures by the EEOC that disabling conditions essentially mandate such action.

Of course, this discussion may be putting the cart before the horse: the FMLA Parental Bereavement Leave bill is in its infancy stages and has yet to secure a sponsor in the House of Representatives. That said, the bill is worth tracking (you can do that here) as companion legislation, or the success of this amendment, is not beyond the realm of possibility.

Thursday, July 14, 2011

Bending With the Wind: EEOC's Attack on Inflexible Leave Policies

Much publicity has been given to the recent $20 million settlement (for good reason) the EEOC negotiated with Verizon Wireless concerning the company's leave policy. The Verizon settlement is now the largest example of the EEOC's enforcement approach concerning "inflexible medical leave policies." This case is an illustration of what many experts predicted would be the paradigm shift in ADA analyses under the 2008 Amendments: the question is no longer whether the employee is disabled, but rather what an employer is doing to provide a reasonable accommodation.

The most recent settlement, while eye-popping, is not the first foray by the EEOC into this specific area of ADA enforcement:
  • August 2001: The EEOC settles a reasonable accommodation suit against Blood Systems, Inc./United Blood Services for $650,000. The Commission claimed that the employer's medical leave policies "illegally required termination of a class of employees with disabilities after 120 days without consideration of whether an extension would be a reasonable accommodation in accordance with the ADA."
  • August 2009: The EEOC sues UPS for summarily enforcing a leave policy that results in termination of employment if the employee is unable to return to work after a 12-month leave of absence for at least 30 days.
  • September 2009: The EEOC enters into a consent decree with Sears, Roebuck and Co. for $6.2 million (at the time, the largest ADA settlement in a single lawsuit for the Commission). The EEOC had sued Sears claiming that the company's "inflexible workers' compensation leave exhaustion policy" illegally discriminated against employees with disabilities by failing to assess whether additional leave would be a reasonable accommodation.
  • August 2010: The EEOC files suit against Princeton HealthCare System for enforcing "leave policies that do not provide reasonable accommodations" by terminating employment of individuals who are unable to return to work within 7 days (if not eligible for FMLA) and refusing to grant FMLA-eligible employees leave beyond the mandated 12 weeks.
  • September 2010: The Commission files suit against United Road Towing for an inflexible 12-week medical leave policy.
  • September 2010: Texas concrete manufacturer Ingram Readymix is sued by the EEOC for allegedly denying periodic leave to an employee for medical treatment.
  • October 2010: California company American Apparel is sued by the Commission for terminating an employee who needed additional leave for chemotherapy after he had taken approved leave for the initial treatment.
  • January 2011: Supervalu (Jewel-Osco) settles a suit brought by the EEOC for $3.2 million. The Commission alleged that the company "operated an overly rigid and illegal disability leave policy" that terminated disabled employees if they could not return to work after a year without any need for accommodations or physical/mental restrictions.
An employer's take-away from all of this can be found in a quote from one of the EEOC's regional attorneys: "The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over."

If you haven't already re-evaluated your leave policies, these examples are hopefully an impetus to do just that. While hardwoods have their place, your leave policy might be more appropriately constructed as a willow.

Thursday, July 7, 2011

The Brave New World of Hiring in Tennessee

Since 1986, employers have been the primary enforcement tool of immigration. With the creation of the I-9 Form, it has been the responsibility of employers to find out if a person seeking employment is authorized to be and work in the United States.

The pressure on employers to enforce these immigration laws during the hiring process is getting ready to explode for employers in Tennessee. On June 7, 2011, Tennessee Governor Haslam signed into law new provisions of the 'Tennessee Lawful Employment Act' that will dramatically change the way employers hire new employees - and even independent contractors who provide labor and services for your company.

A new complex layer of state immigration enforcement obligations will supplement (and sometimes overlap) the federal regulations that employers already follow. The new legislation is built around the use of the federal 'E-Verify' system or maintenance of documentation proving legal residency for every employee similar to what is now required with the Form I-9.

Over the next several days, we will focus on 5 different components of the new legislation to help explain the scope of the new law. In summary, the 5 topics will include:

1. E-Verify and Legal Residency documentation; Employer will either have to register and use E-Verify or maintain specific documentation proving lawful residency - even if you do not have internet access;

2. Independent Contractors; new verification requirements now extend to persons who provide labor or services to your company - even if they are not your own employees;

3. Worksite Investigations; a new state office will be created to conduct random audits and inspections at your workplace;

4. Increased Penalties; higher fines and the possible permanent suspension of your license are now among the heightened penalties for violation of these new provisions;

5. Implementation Dates; Employer obligations to comply with this new legislation will be phased in depending upon the size of your workforce. Generally, the law becomes effective on January 1, 2012.

Welcome to the New World of Immigration Enforcement!

Wednesday, June 22, 2011

NLRB Proposes Rules For “Quickie Elections”

On June 22, 2011, the National Labor Relations Board proposed new rules to “streamline” pre- and post- union election procedures that will have the effect of shortening the time between the filing of an election petition and the election, among other things. If adopted, the Board’s proposed rules would likely:

  • reduce the amount of time employers have to respond to a union organizing campaign and

  • restrict employers’ opportunities to communicate with employees about what it really means to have a union.

Since organized labor has not been able to pass the Employee Free Choice Act, “by administrative fiat in lieu of Congressional action, the Board 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.” (Member Hayes, dissenting, available here)

The practical effect, and the desired result, of the changes is to :

  • implement “quickie elections,” held within a matter of days of filing of a petition,

  • severely restrict an employer’s ability to communicate with its employees about the collective bargaining process and what it really means to be unionized,

  • require regional directors to schedule an election for the “’earliest date practicable consistent’ with the rules.”

The Board has scheduled a hearing on the proposed rules for July 18, 2011, and will accept written comments for a 60-day period with a 14-day period for reply comments. We will continue to monitor the developments, and tune back in for additional posts on the proposed rules.

Tuesday, June 21, 2011

Rule Proposed By DOL Would Require Employers to Disclose Agreements With Their Attorneys

The DOL has proposed a rule that will broaden the requirements for reporting persuader activity by employers. (You can access the DOL’s Notice of Proposed Rulemaking here). While this might appear to be an obscure and mundane area of labor law, the DOL’s proposed rule change would have a profound effect on how employers respond to union organizing campaigns.

The Labor Management Reporting and Disclosure Act (“LMRDA”) requires employers to disclose agreements or arrangements between employers and labor relations consultants (including attorneys) when a consultant engages in activities to “persuade” employees in the exercise of their rights under the National Labor Relations Act. Of course, this typically involves activities during a union organizing campaign to persuade employees to vote against a union. The LMRDA includes an exemption to the reporting requirements for “advice” an employer receives. The DOL has traditionally interpreted the “advice” exception to apply when the consultant or attorney advises the employer and provides planning and materials, but does not directly address or interact with the employees. In those cases, the arrangement or agreement did not have to be reported. The DOL’s new rule will change that interpretation.

The DOL’s proposed rule would redefine and significantly narrow the scope of the “advice exemption,” and consequently broaden the scope of activity defined as direct persuader activity that employers must report. The proposal would define the term "advice" as "an oral or written recommendation regarding a decision or course of conduct." Under the DOL’s proposed rule, an agreement would be reportable in any case where the consultant engages in activities to persuade employees that go beyond the more narrow definition of “advice.” Persuader activities would be reportable when a consultant engages in any activity on behalf of an employer that would directly or indirectly persuade workers concerning their rights under the NLRA, even if the consultant does not have any direct contact with employees. According to the DOL’s press release, the rule would also require reporting even where an attorney provides “advice,” where the attorney also “plans or orchestrates a campaign or program to avoid or counter a union organizing or collective bargaining effort.” It appears that an agreement would be reportable under the revised rule if a consultant or attorney prepared speeches or materials for a union campaign.

The DOL’s press release regarding the proposed rule (available here) suggests that “[b]etter disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.” The practical effect of the rule, however, will be to force employers to choose between (1) forgoing assistance during a union organizing campaign (which benefits the union’s chances of winning) or (2) disclosing the employer’s arrangements with the consultant/attorney (which provides a source of material for the union’s campaign).

The DOL’s proposed rule will be published in the Federal Register on June 21, 2011, and the deadline for submitting comments is August 22, 2011. We will continue to monitor the developments on this rule.

Attorneys are more influential than they thought. . . or maybe the DOL is giving us too much credit

The U.S. Department of Labor issued a press release yesterday announcing a proposed rule aimed at requiring employers to disclose the use of consultants and redefining the scope of "persuader" activity (such as in a counter campaign to a union organization push).

Specifically, the notice states that activities such as trainings, speeches and other communications that are the result of attorney work-product would be subject to reporting requirements. This includes communications that do not specifically address employees.

In the release, the Department of Labor states that “Better disclosure is critical to helping workers make informed decisions about their right to organize and bargain collectively.”

The comment period on the proposed rule will be open until August 22. We'll be working on our submission--wonder if it will be reportable as persuader activity?

(Thanks to Joe Harvey for finding this information.)

Tuesday, June 14, 2011

New and Improved: The NLRB’s Latest Moves

With a controversial complaint against Boeing, a lawsuit against Arizona and lawsuits threatened against three other states over their constitutional amendments, and rulemaking underway for a new mandatory notice posting, you might have thought that the NLRB had its hands full. But, taking a line from any good infomercial pitchman, the Board has essentially said “But, wait there’s more!” In a memo issued by the Board’s General Counsel, the Board revealed that it has more to offer.

According to a recent General Counsel Memo, the Board is considering a rule that would require employers to provide information to unions about all transfers of work, even if the employer is not legally obligated to bargain with the union about the transfer. (You can access the memo here.) Currently, employers are not required to bargain with a union about a transfer of work where the transfer involves a change in the scope or direction of the business, or where labor costs were not a factor, or where, even if labor costs were a factor, the union could not have offered labor-cost concessions sufficient to alter the employer’s decision. In a decision from earlier this year, the Board dismissed an allegation that an employer violated the Act by refusing to provide information related to its decision to relocate operations. (You can read the decision here.) The Board found that since the relocation decision in that case was not a mandatory subject of bargaining, there was no obligation to provide information about it. In a concurring opinion, however, Chairman of the Board, Wilma Liebman (former attorney for the Teamsters and the Bricklayers unions) “suggested that she would consider modifying the [existing] framework with regard to information requests if a party were to ask the Board to revisit existing law in this area.” In other words, she would consider changing the law to require employers to provide information to unions about a relocation decision even if the employer is under no obligation to bargain about that decision. The purpose of the General Counsel’s memo is to instruct Regional Directors to identify cases that would be suitable for the Board to use to change the law in this respect.

As much as the Board has already done, employers should expect that the Board will continue to adopt changes to the law that benefit labor organizations. And there is a “money-back guarantee” on that prediction!

Monday, June 13, 2011

E-Verify is Coming! E-Verify is Coming! (to Tennessee, that is)

If you do business and have employees in Tennessee, a law signed by Governor Haslam last week could impact the method by which you verify your applicants’ authorization to work in the United States.

Under the new law (known as the Tennessee Lawful Employment Act), all employers are required:

  1. Before October 1, 2011, to enroll and maintain active participation in the E-Verify program;
  2. On or after October 1, 2011, to verify the work authorization status of each employee hired on or after October 1, 2011, by using the E-Verify program; and
  3. On or after October 1, 2011, to maintain records of all results generated by the E-Verify program pursuant to the work authorization status check required by this bill.

If you use independent contractors, the contractor must present a valid Tennessee driver’s license, and you must maintain a copy of it. If the contractor has a license from another state, that is acceptable provided it is a state whose issuance requirements are at least as strict as Tennessee’s.

We will have a blog post discussing this legislation in more detail in the coming week.

Wednesday, June 8, 2011

Hello, Old Friend: Tennessee Legislature Reinstates McDonnell Douglas Burden Shifting

A new law recently passed by the Tennessee legislature and sent to the Governor for his signature will reinstate the framework for analyzing discrimination and retaliation claims that had been in place for thirty-seven years, but was tossed out by the Tennessee Supreme Court last September.

In 1973, the United States Supreme Court adopted a “burden-shifting” analysis for evaluating claims of racial discrimination claims under Title VII. The burden-shifting analysis was labeled “McDonnell Douglas burden shifting” after the name of the Supreme Court decision that established it. In the years following the Supreme Court’s decision, all federal courts and state courts in nearly every state adopted the McDonnell Douglas burden shifting analysis for all types of discrimination claims under Title VII, other federal laws such as the ADA, ADEA, and state anti-discrimination laws. This analysis was widely accepted and used in nearly every discrimination case for over 35 years – so much so that it rolls off the tongue of every employment lawyer like the pledge of allegiance.

Last September, the Tennessee Supreme Court discarded the McDonnell Douglas burden shifting analysis for common law retaliation claims -- and in all probability, also for all discrimination and statutory retaliation claims in state court. The Court held that the burden shifting analysis adopted by the United States Supreme Court was inconsistent with Tennessee’s standard for summary judgment. (You can read the Supreme Court's opinion here and our post about the case here). In one fell swoop, the Supreme Court fundamentally altered the analysis for claims of discrimination and retaliation in Tennessee state courts. The decision had the practical effect of making it more difficult for employers to obtain summary judgment dismissing meritless claims of discrimination and retaliation.

In its latest session, the legislature reacted by passing a bill that adds new sections to the Tennessee Human Rights Act and the provisions related to retaliation claims. The new sections explicitly reject and legislatively overrule the Supreme Court’s decision, and “establish the McDonnell Douglas framework as the appropriate and legally required framework for the consideration of evidence offered during all stages of the proceedings in employment discrimination and retaliation cases.”

The new statutes bring Tennessee law back in line with federal law and the law of a vast majority of the states. Importantly, the new statutes will eliminate uncertainty that would have resulted from a sea change in the law and will provide a more predictable standard for employers to obtain summary judgment dismissing frivolous discrimination and retaliation claims.

A copy of the bill can be found at

Tuesday, June 7, 2011

Legislature Resuscitates Summary Judgment in Tennessee

Thanks to a new Tennessee law, it will be a little easier for parties, including employers, to obtain summary judgment in cases filed on or after July 1, 2011. A bill recently passed by the legislature and awaiting the Governor’s signature reverses the effects of a Tennessee Supreme Court decision that nearly made summary judgment obsolete and pushed more cases to trial (or settlement).

Summary judgment is a procedural device that allows the judge to dispose of cases prior to trial where there trial is unnecessary because the facts are not disputed and the plaintiff’s claims are legally insufficient. Summary judgment is a tool that employers commonly used to have meritless discrimination, harassment, and retaliation claims dismissed without having to undergo the expense and uncertainty of that accompanies a trial.

(You can read about the cases which led to this legislation here  and here.)

With the passage of House Bill No. 1358/Senate Bill No. 1114, the Tennessee legislature has not only reversed the effects of the Hannan decision, but it has required Tennessee courts to apply the same summary judgment procedure as is applied in federal courts. The operative language of the statute states that the moving party shall be entitled to summary judgment if it “[d]emonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” The legislature clearly intended to revive summary judgment as a useful procedural device to weed out the cases that do not deserve to go to trial.

It remains to be seen how courts will interpret this law and whether courts will still feel reluctant to grant summary judgment. From the employer’s standpoint, however, this is a welcome change in the law. It will reduce the risk that meritless lawsuits go further in the process than they should, or that employers feel extorted to settle on unfavorable terms simply to avoid the costs of litigating the case.

Tuesday, May 17, 2011

USCIS' I-9 Central is open for business

USCIS announced that it has a newly-launched I-9 headquarters aimed at making employer compliance with work authorization more accessible and easier. Dubbed I-9 Central, press release notes that this is yet another step by USCIS to provide "employment-related enhancements" for the business world.

With USCIS working toward making compliance "easier," it would not be a stretch to think that the expectations of compliance will increase as well. For more information about I-9 audits, check out these previous blog posts.

Friday, May 13, 2011

New Tennessee Law Prohibits Maintenance of Membership Clauses in Labor Agreements

On May 5, 2001, Tennessee Governor Bill Haslam signed a new law making it unlawful for employers and unions to include a “maintenance of membership” clause in their collective bargaining agreement. A maintenance of membership clause requires those employees who are members of the union to continue their union membership (i.e., keep paying dues to the union) until the collective bargaining agreement expires. Only then can the employee withdraw from the Union. Tennessee’s new law makes such arrangements illegal in the future, but does not affect existing contracts. Going forward, an employee’s right to withdraw from the union cannot be restricted by contract between the company and the union. Legislators who supported the new law felt that such clauses were inconsistent with the state’s right to work laws and that “employees should be permitted to decide for themselves whether or not to join or financially support a union.” Additionally, it also appears that the law may prohibit an employee from entering into an agreement with a union that would restrict the employee’s right to withdraw from union membership. It would seem this law would have an impact on bargaining table conduct as well as membership agreements between a union and employees/membership in the union.

The bill signed by the governor can be found at:

Thursday, May 12, 2011

Is your workers' comp carrier also verifying your employees' eligibility to work?

Some insurance companies may be denying payment of benefits on the basis that unauthorized workers should not have been employed in the first place and thus are not eligible to be returned to work (or receive payments for the difference in wages for light duty work versus the employee's regular position). How does the company know that the worker is unauthorized? Well, some may be running the Social Security Numbers of your employees through either E-Verify or the Social Security Number Verification Service. [An aside:  neither program authorizes its use for that purpose, and the SSNVS handbook specifically prohibits third parties, i.e., someone other than the employer, from using it to take action that might be deemed adverse to the employee.]
This can create several issues for employers. First, an employer could have some liability to the employee if the employer knows that the SSN is being used for an improper purpose. Second, if the carrier makes the employer aware that the SSN was returned as mismatched or that the carrier has reason to believe the employee is not authorized to work, the employer must determine what steps it wishes to take to further verify employment eligibility. If it doesn't take any steps, it runs the risk of being considered "on notice" that a potentially unauthorized worker is in its employ.

Employers should consider periodically informing the carriers that any information provided is to be used for its authorized and intended purpose only. Taking it a step further, employers could also provide a statement to the carrier that the SSN is not to be used for any unauthorized purpose, including specifically any attempts to determine the work eligibility status of the employee.

In the FYI category--Tennessee's workers' compensation statutes provide that unauthorized workers are still eligible to receive certain benefits. The law places a limit on the amount of those benefits that can be awarded versus what would be available to an authorized employee. [See T.C.A. 50-6-241(e)(1)]

Tuesday, May 10, 2011

Need evidence for a Wage & Hour Lawsuit? There's an app for that.

The United States Department of Labor announced yesterday that it has developed an “app” for smartphones that is designed to help employees keep track of their hours worked and calculate their wages and overtime pay. This free app is available for download on the DOL’s webpage. According to Secretary of Labor Hilda Solis, “This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

This is a development that employers should be aware of and pay attention to. The DOL’s app is really a convenient way for employees to collect evidence to support a wage and hour complaint and/or lawsuit. In fact, the DOL has practically admitted this. In a news release, the DOL stated that “This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.” In other words, the DOL would rely on employees’ records where the employer has not maintained accurate records of the hours an employee has worked. Even for those employees who are not as tech savvy, the DOL has developed a printable work hours calendar for employees to use to track rate of pay, work start and stop times, and arrival and departure times

It is easy to imagine a situation where an employee’s records using a smartphone app or paper calendar are different from the employer’s records, and create a conflict as to how much the employee is owed. To lessen the threat of a successful wage and hour lawsuit based on the employee’s independent records, some employers may choose to require employees sign time sheets and pay stubs to verify that the employer’s record of the employee’s hours and wages are accurate. In light of the DOL’s announcement, now is a good time for employers to ensure that they have properly classified employees as exempt or non-exempt, are paying employees properly for all time worked, and are maintaining accurate records related to employees pay.

Wednesday, April 20, 2011

When on the phone means on the clock

I remember the days before smartphones, when I could only access my e-mail remotely from a laptop. I yearned for one of those cool little phones that would let me immediately respond without the need for lugging around my laptop, opening a VPN connection and logging on. And now I have it--check that: I've had it for several years. And I find that I now yearn for those times when I can power down the cool little phone and disconnect from work. But that's about all I need to worry with as an exempt employee.

What about those employees who are non-exempt and have those cool little phones with remote e-mail access? They, too, may have the longing to disconnect and not do work. Employers should have that desire for the non-exempt employees as well. Otherwise, employers could be facing unpaid time claims (including overtime claims) for time spent by non-exempt employees checking their work e-mail accounts.

Even in situations where the smartphone is the non-exempt employee's personal phone and not company-issued, the employer can still have liability for time spent on the smartphone performing work-related tasks. If the employee uses it to do work on the company's behalf, that is compensable time under the Fair Labor Standards Act (that whole "suffer or permitted to work" thing).

So, what to do? Here are a couple of thoughts:
  • check your e-mail use/electronic communications policy to ensure that you have advised employees that they have no expectation of privacy in their company e-mail accounts--regardless of how the accounts are accessed
  • update your timekeeping policy, e-mail policy, etc. to prohibit unauthorized time worked after hours, and remind employees that any work which might result in overtime should be approved first
  • most e-mail programs have a setting that allows you to schedule when particular messages will be delivered. Train your supervisors how to use that setting so that e-mails which are being sent to non-exempt employees are delivered during normal working hours
  • prohibit employees (exempt and non-exempt alike) from having remote access to the e-mail accounts without prior permission (which gives you some control over who has the ability to check e-mail during off hours)
  • remind non-exempt employees that they are to record ALL time worked, including those seemingly small, incremental periods during off hours when they are accessing e-mail remotely
  • perform overtime/timekeeping audits periodically; this will also help you discover any patterns in e-mail usage that you can then use to better control remote access
  • if you find an employee has violated your policies and established expectations, counsel the employee on the appropriate conduct.
If you haven't updated your electronic communications policy recently, or your timekeeping/overtime policy, now is a great time to do that. It provides you with a forum to remind employees of the company's expectations.

Thursday, March 17, 2011

Timing IS everything

I love it when I'm scheduled to give a speech, and someone more famous than I (that doesn't take much, mind you) gives me fodder to present as an example.

This time, it's my speech on dealing with the borderline employee. One of the building blocks I recommend to my audience is the concept of time. More specifically, I encourage the audience to review the calendar before it metes out discipline or informs an employee of his/her termination from the job. It isn't wise to terminate close to a holiday or on an employee's birthday, as examples.

Enter The University of Tennessee Athletic Director Mike Hamilton.

Mr. Hamilton has experienced his share of gray-hair-making moments since he hired Lane Kiffin to be football coach in 2009. Most of those occurred on the football side of operations until men's basketball coach Bruce Pearl was caught in a lie to NCAA investigators during a 17-month investigation of the program.

The AD has done a respectable job of making appropriate comments concerning the future of the basketball program and its big personality coach in Pearl. That all changed on Wednesday, though. During a radio interview on a Knoxville station, Hamilton stated that he was unsure of Pearl's future with the program. This is the first departure from the stoic support received by Pearl since the NCAA investigation was revealed.

Search the words "Mike Hamilton Coach Pearl", and you'll be directed to a page-worth of articles concerning the "uncertainty" of Pearl's future, how it appears that the Vols' foes extend beyond their first-round tournament match-up with Michigan, that the "jury is out" on Pearl's job. . . you get the idea.

Timing really is everything. I can't help but scratch my head and wonder what motivated Mr. Hamilton to make those comments this close to the Vols' NCAA tournament appearance. Many sports analysts stated that the Vols needed to make a deep run in the tournament in order for UT's fans to be appeased (i.e., give Mr. Hamilton any shot at making the case for Pearl to keep his job, regardless of the velocity of sanctions that are forthcoming from the NCAA).

Prior to those comments, most would have thought that UT was more than fair to Pearl in extending him the grace it has thus far. Mr. Hamilton might have timed his comments well enough to now place the martyr crown on Pearl's head. And those who attended my presentation today know that doing that serves to take away power from the employer and give it to the borderline employee.

It will be interesting to see what unfolds from all of this. The possible gains from the timing of this statement are lost on this employment counselor, but that doesn't mean they don't exist. I just can't imagine what they are (save from someone already informing Mr. Hamilton that he has lost his job and he feels that he has nothing to lose). Mr. Hamilton has given the predictable, "My comments were misinterpreted" explanation for the internet wildfire that surrounds him. Maybe I'll send an invite to Mr. Hamilton next time I give the presentation. It's the least I owe him after he provided me with such fine material.

The line is blurry: personal vs. professional in social media

In case you missed our last post about the less-than-defined line between the business you and personal you in social media, take a gander at this article from Forbes about tweets which cost some tweeps their jobs.

Monday, February 28, 2011

So much social media, so little time

I just read (thanks, @MollyDiBi) about an attorney in Indiana who was fired for tweeting his views on how pro-labor protesters in Wisconsin should be handled. Perhaps an employee management course is in order for him? But I digress.

I read about this shortly after giving a presentation to a client's workforce about social networking, the workplace, and the blurry line that defines who they are professionally from who they are personally.

Some employees think it's unfair that they aren't allowed to "speak their minds" on matters that are important to them. I fall into that category from time to time (more so during The University of Tennessee's football season than other times of the year). The reality, though, is that we are "followed" by more than just our closest friends on Facebook, Twitter, LinkedIn and blogs. Thus, many people don't know us well enough to understand when it is "Laura A. Steel, attorney at law" speaking versus "Laura Steel Woods, rabid UT fan" speaking.

And that's our trade-off for participating in, and allowing employees to participate in, the social media web. I'm fine with that exchange since I understand my firm's policy on taking stands and sharing views. Are your employees familiar with your policy? If you aren't sure, it's best to over-educate than to learn the hard way that someone thought her innocuous post about the Communism-inspired traffic light cameras actually stirred up a little trouble in the community.

Tuesday, February 1, 2011

An employee filed a complaint? Facebook probably isn't an appropriate place to vent. . .

Even though it's turning the tables a bit, one would think it goes without saying that managers/employers should not use Facebook to comment on employee complaints. Well, apparently, it doesn't:

Wednesday, January 26, 2011

Virginia lawmakers introduce gay rights bill

Virginia's lawmakers have a bill before them that would prohibit discrimination on the basis of sexual orientation in the Commonwealth's workforce and Virginia's National Guard.

Read more about it here.

Tuesday, January 25, 2011

Take Your Tie And Go “Packing”

A car salesman in Chicago was fired recently for refusing to remove his Green Bay Packers tie. Many are already calling for the former salesman to find a lawyer and “sue the dealership for all it's worth.” While wearing a tie emblazoned with the Packers logo the day after the Packers beat the Bears is probably not the best way to make friends (or sell cars) in Chicago, does it really give the geographically-challenged salesman grounds for suing his former employer? Certainly not. Unfortunately for this former employee, there is no law protecting Packers fans from being discharged from their jobs. Some may believe that firing the salesman for his choice of neckwear was unfair or harsh, but unfairness does not mean the discharge was illegal or grounds for a lawsuit. If this Packers fan wants to sell any 2011 models, he will have to do so at a different (and more Packer-friendly) dealership.

NLRB faces off with 4 states over constitutional amendments

The National Labor Relations Board announced on January 14 that it believes constitutional amendments passed in four states violate/are preempted by the National Labor Relations Act. South Carolina, Utah, South Dakota and Arizona passed amendments to their respective state constitutions that govern how unions can achieve representation of workers. The NLRB sent notices to the states advising of its position concerning the conflict and warning that suits will be filed to prevent enforcement of the amendments.

Monday, January 24, 2011

3rd party retaliation under Title VII? US Supreme Court says it's possible

One of the cases we were following at the U.S. Supreme Court is Thompson v. North American Stainless. That is the case where one employee (Miriam Regalado) filed a charge of discrimination against the Defendant while she was still working for it. Her fiance, Eric Thompson, also worked for the Defendant. He was fired three weeks after the Equal Employment Opportunity Commission notified the Defendant of Regalado's charge. He filed a retaliation claim under Title VII, alleging that his firing was because his fiancee engaged in protected activity.

The district court in Kentucky disagreed, dismissing Thompson's case on summary judgement. The Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky and Tennessee) affirmed the decision of the district court.

The U.S. Supreme Court said two questions needed to be answered:

  1. Did the Defendant's firing of Thompson constitute unlawful retaliation?
  2. If it did, does Title VII grant Thompson a cause of action?

The Court held unanimously that:
  1. Title VII's anti-retaliation provision, which is more broadly construed than its anti-discrimination provision, prohibits more than conduct which only impact the terms and conditions of employment.
  2. The anti-retaliation provision prohibits actions by an employer that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
  3. Title VII did give Thompson the right to sue, because he is a "person aggrieved" under the statute.
  4. To be "aggrieved" under Title VII means that Thompson is someone who has interests that are sought to be protected by Title VII.
  5. If you accept the facts as Thompson represents them, he was collateral damage of his fiancee's charge of discrimination, squarely placing him within the zone of protection intended by Title VII's anti-retaliation provision.

What are the take-away points?
  1. Remember that this case decides a procedural point, but it does not decide whether Thompson actually experienced retaliation. Rather, the decision only means that Thompson should be allowed to present his case to a fact-finder (judge or jury) and let that body decide whether Title VII was violated.
  2. It also means that where someone raises a claim for third-party retaliation, the chances of disposing of the case at the summary judgment level have been greatly diminished. The Court acknowledged that its holding does raise a question about who is a protected third-party? Is being something less than a fiance going to be enough? What about if you're a close friend, acquaintance, or simply a co-worker with no defining relationship outside the workplace? Regardless of this gray area, the Court believed that the anti-retaliation provision's breadth could not be limited by creating bright-line relationship rules for its application.
  3. The Court ruled unanimously. This means that the Court wants to send a clear message about its holding and the intended consequences of the same. (Justice Kagan, the newest Justice, did not participate in the deliberations.)

Thursday, January 13, 2011

Employer I-9 handbook from USCIS

US Citizenship and Immigration Services unveiled the latest I-9 Handbook for Employers on January 6. You can get your copy here. For anyone in your organization who has responsibility for completing, reviewing, correcting, and storing I-9s, the handbook will be, well, handy.

Tuesday, January 4, 2011

EEOC Recess Appointments Confirmed by Senate

Just before Christmas, the Senate confirmed President Obama's three recess appointments to the Equal Employment Opportunity Commission: Jacqueline A. Berrien, Chai R. Feldblum and Victoria A. Lipnic. Without the confirmation, Lipnic's recess appointment would have retired, leaving only 3 commissioners plus the chair.

Lack of confirmation could have resulted in more of a shift in the EEOC's ideology than has already occurred with a Democratic majority on the Commission. Lipnic and Constance Barker are the two Republican commissioners. Stuart Ishimaru, a Democrat, rounds out the panel.

Now that we know who's going to be leading the EEOC's agenda for a while, let's take a look at the background of those on the Commission:

Jacqueline Berrien (Chair, Democrat): Berrien came to the EEOC from the NAACP Legal Defense and Educational Fund, where she had worked for the last 5 1/2 years. Her previous employment roles, including some time at the American Civil Liberties Union, allowed her to represent voters on issues of representation and voting rights, and for women's rights.

Stuart J. Ishimaru (Commissioner): Ishimaru started his service on the Commission under George W. Bush in 2003 as a Democratic appointment. Ishimaru was acting Chair during the last few years when the EEOC saw its budget increased significantly in order to ramp up its enforcement efforts and staffing. The drive to investigate and litigate systemic discrimination cases began under Ishimaru's tenure as acting Chair. He testified before Congress in support of the Employment Nondiscrimination Act (which, if passed, would have prohibited discrimination on the basis of gender identity and sexual orientation).

Constance S. Barker (Commissioner): Barker was nominated by President George W. Bush and confirmed by the Senate in 2008. Prior to joining the Commission, she worked for a private firm in Alabama defending businesses in cases of harassment and discrimination. She also worked as an assistant district attorney and has spent her time on the Commission focusing on issues involving worksite rape and sexual assault.

Chai Feldblum (Commissioner): Feldblum has previous legislative experience in playing major roles in the drafting of the Americans With Disabilities Act of 1990 and the Amendments which were passed in 2008. She worked for the American Civil Liberties Union as legislative counsel for its AIDS project and played a significant role in drafting the Employment Nondiscrimination Act. Feldblum has been perhaps the most controversial of President Obama's appointments given her particularly strong views on advancing the rights of gays, lesbians and transsexuals.

Victoria A. Lipnic (Commissioner): Lipnic came to the EEOC from private practice with a Washington, D.C. law firm. She previously worked in government, having oversight responsibilities for the Wage and Hour Division of the U.S. Department of Labor when it overhauled its overtime and exemption standards, as well as playing a role in the issuance of revised Family and Medical Leave Act regulations.