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Court Upholds NLRB Posting Rule but Invalidates Enforcement Provisions
Readers of our newsletter know the contentious history of the National Labor Relations Board's (NLRB) new requirement that most private employers post a notice of employees' rights to organize and join a union. Initially scheduled to take effect November 14, 2011, the NLRB has extended the posting deadline twice - the current effective date of the posting is April 30, 2012.
This controversial rule has prompted business groups, including the National Association of Manufacturers (NAM) and the US Chamber of Commerce, to file a lawsuit to enjoin the posting rule. Earlier this month, a federal court in the District of Columbia held that the NLRB partially exceeded its authority when it issued the new rule. The court upheld the posting requirement but invalidated most of the rule's enforcement mechanisms.
Specifically, the court struck down the provisions of the rule that (1) would have characterized an employer's failure to post the notice as an unfair labor practice, and (2) would have eliminated the statute of limitations for employees to file a complaint if the employer failed to post the notice. However, the court held that the NLRB may determine that failure to post the notice is unlawful in a specific case (e.g., refusal to post the notice in the face of a union organizing drive).
NAM plans to appeal the decision and will seek to prevent the rule from going into effect until completion of the appeals process. However, because neither the court nor the NLRB have delayed the rule's April 30, 2012 posting deadline, employers should plan to post the required notice by that date.
We will keep you updated on this important issue. Please contact us if you have questions about the posting requirement or any other labor relations issue.
To print a free copy of the 11x17 inch notice (in English and several other languages), or to read the Board's Fact Sheet, visit the NLRB website.
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Employee's Pre-Eligibility FMLA Request Protected
An assisted living facility employee notified her employer that she was pregnant and would need leave under the federal Family and Medical Leave Act (FMLA). At the time of her notice, the employee was not yet eligible for FMLA, although the requested leave would have occurred after she was eligible. Before notifying her employer of her pregnancy and intent to take leave, the employee received favorable performance reviews. After giving notice, the employee was harassed by her supervisors, put on a performance improvement plan, and ultimately fired. The employee sued her former employer for interference and retaliation under the FMLA.
The lower court ruled the employee was not protected by FMLA because she was not yet eligible for FMLA at the time she was fired. The federal appeals court reversed because the employee would have met the eligibility requirements at the time of her leave. To protect employers, the law requires employees to provide 30 days advance notice of foreseeable leave. Therefore, the court held that employees must be protected by the law before a future triggering event, like childbirth. The court reasoned that to find an employee is not protected by FMLA prior to eligibility for leave would create a loophole that would allow employers to retaliate against employees before they become covered under the law.
This case serves as a reminder that an employee's eligibility for FMLA is determined by the date the leave begins, not the date the leave is requested. Although this case is in the Eleventh Circuit, courts in the Ninth Circuit (which covers Oregon and Washington) have reached the same conclusion (as have courts applying Oregon and Washington family leave laws).
Please contact us if you have questions about leave under FMLA or state leave laws. You can also obtain more information about FMLA and obtain compliance assistance materials on DOL's website. |
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Calling All CEOs, Owners, Presidents, and Executive Directors!
Two sessions remain in our CEO Roundtable Breakfast Series. This dynamic series offers a unique opportunity to share ideas with your peers in a candid, small group setting.
The Triple Bottom Line (TBL) - People, Profit, Planet
Facilitator: Paul Spindel, UEA Trainer and Consultant
Thursday, April 5
This contemporary philosophy uses an expanded spectrum of values and criteria for measuring organizational success.
- How will (or how does) your organization manage its TBL?
- What are steps your organization will undertake to improve?
- Do you see a priority among people, profit, and planet? Or do you need all three legs of the stool to stand?
Rewarding and Retaining Key Talent
Facilitator: Paul Barber, MBL Group LLC
Thursday, May 10
With an improving economy, there will be increased pressure to reward and retain key talent. How can private companies compete when equity is not an option?
- How does your organization balance profit with rewards?
- How do you build retention into your compensation program?
- What are the pros and cons of the core incentive models?
Roundtable sessions will be held at the Multnomah Athletic Club, 1849 SW Salmon Street, in downtown Portland. The sessions will run from 7:30 to 9:30 a.m., with breakfast and networking opportunities from 7:00 to 7:30. The cost for each session is $100.
Please RSVP to Reese (503) 595-2095 or email umta@unitedemployers.org.
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Requiring High School Diploma Must be Job-Related under ADA
Under the Americans with Disabilities Act (ADA), an employer's requirement that applicants have a high school diploma must be job-related and consistent with business necessity, according to an Equal Employment Opportunity Commission (EEOC) opinion letter. A qualification standard (e.g., high school diploma) meets this standard if it accurately measures the ability to perform the job's essential functions (its fundamental duties). An employer will not be able to make this showing if the essential functions can easily be performed by someone who does not have a high school diploma. However, if the diploma requirement is job-related and consistent with business necessity, yet effectively screens out a disabled applicant who is unable to graduate because of a learning disability, the employer may have to allow individual applicants to show they are qualified for the job in some other way (i.e., able to perform the essential functions of the job with reasonable accommodation). This guidance is part of a broad effort by the EEOC to reduce barriers to employment and may signal agency plans to step up enforcement in this area. Please call us if you have questions about your hiring practices or any employee relations issue!
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Upcoming Classes Need training? We've got you covered! To learn more about any of the workshops listed here, or to register, visit our website. Drug-Free Workplace Tuesday, April 3 9:00 - 11:00 a.m. First Aid/CPRWednesday, April 11 9:00 a.m. - 1:00 p.m. Supervision EssentialsSession 1: Role of the Supervisor Wednesday, April 25 8:00 a.m. - Noon Session 2: Communicating Effectively Wednesday, May 2 8:00 a.m. - Noon Session 3: Decision Making Wednesday, May 9 8:00 a.m. - Noon Session 4: Performance Management Wednesday, May 16 8:00 a.m. - Noon Session 5: Building Productive Teams Wednesday, May 23 8:00 a.m. - Noon
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