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.

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.)

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.

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.

HIRE is Expiring, but tax credits are still available

Although the HIRE Act is set to sunset on December 31, 2010, employers should remember that tracking a qualified employee's wages goes beyond December 31, 2010.

Under the Act, employers are eligible to seek two types of credits:

1. The payroll tax exemption: the employer does not pay its 6.2 percent share of Social Security tax on wages paid to qualifying employees during the period of March 19, 2010-December 31, 2010.

2. The new hire retention credit: for each qualified employee you retain for at least 52 consecutive weeks, the employer is eligible for a business tax credit of 6.2 percent of wages paid to the qualified employee during that 52 week period (up to $1000).

You can read more about the HIRE Act in our post from April.

NLRB To Consider Rule Requiring Employers to Post Notice Informing Employees of Rights

The National Labor Relations Board announced on Tuesday that it is considering adoption of a rule that would require employers covered by the National Labor Relations Act to post a notice informing employees of their rights to form, join, and assist labor unions. If the rule is implemented, the required notice would mirror the notice that federal contractors must post pursuant to an Executive Order issued by President Obama and implemented by Department of Labor regulations earlier this year. The Notice prepared by the Department of Labor was criticized by business and employer groups as going too far to promote union membership as opposed to merely informing employees of their rights under the Act.

For years, the Board has avoided the formal rule-making procedure in favor of adopting rules in reported Board decisions. The Board’s announcement today that it intends to participate in rule-making is a significant departure from its prior practice. This rule-making is likely a reflection of the Board’s current make-up, which many believe is decidedly pro-union.

The public will have 60-days to comment on the Board’s proposed rule. The Board’s press release can be accessed here: http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2806.pdf

We will continue to monitor the Board’s proposed rule as it progresses through the administrative rule-making process.

"S" is for silver (not tinsel) and succession

I read an interesting article on Knowledge@Wharton concerning "The Silver Tsunami"--older workers who were once feared to be exiting the workplace so quickly that the labor force coming behind wouldn't be able to supplant them. Those older workers are now staying in the workforce longer due to dwindling retirement options, and the article discusses the benefits of capitalizing on the industry knowledge these employees have to offer.

When coupled with a report from the Society for Human Resource Management dwelling on the lack of succession planning in companies, it seems like the perfect time to capture the willingness of older workers to stay, or come, out of retirement. For many employers who don't have a succession plan in place, one would think that keeping people who want to be in their organizations would be a high priority. Additionally, if the opportunity to bring back someone with institutional knowledge presents itself, a company without a strong succession plan would be wise to consider opening the fold.

Most employers would like to consider themselves desirable to workers--and workers have indicated a strong pull for being in an environment where training and progression are opportunities, not concepts alone. Although budget strings remain tight, investing in a succession plan that recognizes your current human capital and focuses on how to get the most value from it would not be time wasted. Current economics point to some shaky times remaining--and a succession plan not only benefits the business but also can instill confidence in your employees that you see a future for the company and they are part of it. Finally, we all hope that we can retire one day, and those ahead of us on the age scale are no different. Eventually, the Silver Tsunami will leave the labor force--and where will that leave you?