Tennessee Department of Labor Issues E-Verify Guidlines

The Department of Labor and Workforce Development released guidelines today to govern implementation of the Tennessee Lawful Employment Act.  The TLEA requires Tennessee's employers to use the state's new E-Verify system to confirm that they are hiring and employing individuals who are legally permitted to work in the United States.   In connection with the release of the new guidelines, DOL Commissioner Karla Davis said "[t]his online verification process is designed to be convenient for employers and only takes a few minutes to complete."  

The Tennessee Department of Labor oulined the law's provisions as follows:

Signed into law by Governor Bill Haslam on June 7, 2011, the Tennessee Lawful Employment Act requires verifying the employment eligibility of all newly hired employees through the online E-Verify program (www.uscis.gov/everify), or requesting all newly hired employees to provide one of the following identity and employment authorization documents as required:

• A valid Tennessee driver's license or photo identification
• A valid driver's license or photo identification from another state where the license requirements are at least as strict as those in Tennessee
• A birth certificate issued by a U.S. state, jurisdiction or territory
• A U.S. government issued certified birth certificate
• A valid, unexpired U.S. passport
• A U.S. certificate of birth abroad
• A report of birth abroad or a citizen of the U.S.
• A certificate of citizenship
• A certificate of naturalization
• A U.S. citizen identification card
• A lawful permanent resident card

The law also requires employers to obtain and maintain a copy of one of the above listed identity/employment authorization documents for all non-employees as well. A “non-employee” is defined as any individual, other than an employee, paid directly by the employer in exchange for the individual’s labor or services.

The employment verification provisions referenced above will be phased in as follows:

• All state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than January 1, 2012
• All private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than January 1, 2012
• All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than July 1, 2012
• All private employers with six to 199 employees must register and utilize E-Verify or request and maintain an identity/employment authorization document from a newly hired employee or non-employee no later than July 1, 2013

The Tennessee Department of Labor does have the authority to impose penalties for non compliance. For a first violation, $500 for each employee or non-employee not verified, for a second violation, $1,000 for each employee or non-employee not verified, and $2,500 for a third violation.

The private employer must submit evidence of compliance within 60 days of the final order. If the employer fails to submit such documentation, then the commissioner has the authority to suspend the private employer's license until the employer remedies the violation.

Any lawful resident of Tennessee or any employee of a federal agency may file a complaint alleging a violation of the employment verification provisions of the Act. If there is satisfactory evidence of a violation, the Commissioner of the Tennessee Department of Labor and Workforce Development will conduct an investigation.

 

The Tennessee Department of Labor's website with this information is available here.

Holidays Were No Vacation At NLRB

Happy New Year!  The National Labor Relations Board was very busy at the end of the year, despite the holiday season.  And judging from the Board's gift to employers (in the form of a rule for expedited union elections), it appears the Board believes that employers have been naughty, not nice.  Here is a brief recap of what has been happening at the Board while many were enjoying egg nog and a warm fire.

On December 21, 2011, the Board approved on a 2-1 vote, a sweeping new rule changing its election procedures.  According to the Board, the new election procedures will "reduce unnecessary litigation and delays."  Chairman Mark Gaston Pearce and Member Craig Becker, both Democrats, voted in favor of the rule.  Republican Member Brian Hayes dissented.  The final rule was published in the December 22, 2011 Federal Register, just before the Christmas weekend.  The Board was pressured to act before the end of 2011 when Member Becker's recess appointment ended and the Board lost its 3-member quorum necessary to take official actions.  The expedited election procedures will become effective on April 30, 2012.  The new procedures are expected to make it easier for unions to organize employees and will representation elections.

Meanwhile, the Senate attempted to avoid a recess that would permit the Obama Administration from making further recess appointments to the Board.  Undeterred, on January 4, 2012, President Obama announced three recess appoints to the Board: two Democrats and one Republican. Democrat Sharon Block was serving as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Democrat Richard Griffin was most recently employed as General Counsel for International Union of Operating Engineers (IUOE). According to the Board's press release, Griffin also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  The Republican appointee, Terrence F. Flynn currently serves as Chief Counsel to Republican Board Member Brian Hayes.

These recess appointments are sure to face a legal as critics of the appointments argue that they violate the advice and consent clause of the U.S. Constitution because the Senate was not in recess when the appointments were made.  The Republican contingent in the Senate made it clear that they would not approve President Obama's appointments and took steps to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, which limited any recess to two days.  Traditionally, the President has not made recess appointments during recesses of less than ten days. If the recess appointments stand, the Board could operate with a quorum through the remainder of 2012.

NLRB Postpones Deadline To Post Notice Of Rights

The National Labor Relations Board has again postponed the effective date of its new rule requiring covered employers to post notices informing employees of their rights under the National Labor Relations Act.  The effective date of the rule is now April 30, 2012. 

The Board previously postponed the effective date of the notice posting requirement from November 14, 2011 to January 31, 2012 "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." (See Board's Press Release here.)

The most recent delay of the effective date to April 30, 2012 is the direct result of a lawsuit filed by the National Association of Manufacturing and other employer groups that challenges the validity of the new rule.  During oral argument in the case, the judge asked the Board to delay implementation of the requirement to allow her time to rule in the case before the requirement went into effect.  According to a press release from the Board (available here), the Board "has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule."

As it currently stands, most all private sector employers will be required to post the notice on by April 30th, unless the rule is invalidated by the court before that time.  We will continue to monitor the Board's actions and the litigation seeking to invalidate the posting requirement.

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.

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.

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.