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."