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.

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.

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 -

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.

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.

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!