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NLRB Expands Duty to Respond to Union Requests for Information
Here's a new one: a union sends a written request for blatantly irrelevant information to an employer and the employer files the request in the "round file" or trash can. The union files an unfair labor practice charge for the employer's failure to respond. The employer wins, right? Wrong!
In a recent National Labor Relations Board (NLRB) decision, the Board held that the employer was obligated to timely respond to the union "in some manner," even if the request is admittedly irrelevant. In this case, even though the union conceded that the information sought was "bull****," the NLRB found the information sought was presumptively relevant because it concerned a unit of employees represented by the union. The employer had provided a 29-page response to a prior request for information, but responded to the supplemental request at issue in this case only after the union filed its charge with the NLRB. The employer's response came 4 ½ months after the union's request was made and 2 ½ months after the union filed its charge.
The Board held that the National Labor Relations Act (NLRA) requires a timely response even when the employer may be justified in refusing to provide the requested information. According to the Board, the duty to respond is part of the employer's obligation to act in good faith. Unfortunately, the Board did not offer any definition of what it considers a sufficiently prompt response time to satisfy an employer's obligation, although we can infer from the Board's decision that 4 ½ months is too long. Employers may get some satisfaction from the knowledge that the NLRB's ruling should apply equally to their own requests for information from unions. Contact us if you have questions about any labor relations issue!
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Employers Beware the EEOC!
The Equal Employment Opportunity Commission (EEOC) recently announced the agency's enforcement priorities for the coming year: claims under the Americans with Disabilities Act (ADA); employment discrimination against lesbian, gay, bisexual and transgender individuals; and pregnancy discrimination claims. Consistent with these priorities, the EEOC charged employers with discrimination in two recent cases:
- A restaurant employer was charged with discrimination after it instituted a policy of removing pregnant women from its Sunday schedule in an attempt to satisfy its male Sunday football customers. Restaurant management believed its male customers did not want to see pregnant women while they watched Sunday football games. The Sunday shift was one of the restaurant's most lucrative shifts and removal from Sunday shifts caused a pregnant employee a significant loss of income.
- A staffing company and its employer-client were both charged with discrimination when an employee was terminated from her shipping assignment because of the employer-client's fear that someone would accidentally injure the employee, who had a prosthetic leg.
Employers cannot discriminate against employees on the basis of their protected status, such as pregnancy or disability, even when the discriminatory act is based on an assumed or real customer preference or a fear of injury to the employee. Employers should develop and maintain policies and practices that focus on an individual's ability to perform their job. If you have questions about your responsibilities under state or federal disability or pregnancy laws, or need help drafting or updating a policy, please contact us!
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Heard on the Helpline:
When is FMLA Eligibility Triggered for a Temporary Employee Who Subsequently Becomes a Regular Employee?
If you answered "12 months after the employee becomes a regular employee, if she has worked 1,250 hours," you are probably wrong. UEA often receives calls from employers about navigating the intricate maze of state and federal leave laws. Many employers use temporary agency employees on a temp-to-hire basis. Employers can assess the temporary employee's work habits and skills to determine if the employee is suited for regular employment. Other employers may hire temporary employees for projects when longer-term staffing needs are uncertain, then later make the decision to hire the employees.
If you are directing the temporary employee's work, setting their hours, and making the decision on temp-to-hire, you are the temporary employee's employer (usually a joint employer with the temporary agency). When you convert the temporary agency employee to a regular employee, the time they worked as a temporary employee counts both toward the 12 month and the 1,250 hour requirement for FMLA eligibility.
For example, if you filled a position with a temporary employee on October 1, 2011 and converted her to a regular employee on January 15, 2012, the employee met the eligibility requirements for FMLA on October 1, 2012, assuming she also worked at least 1,250 hours during the previous 12-month period (including the time worked as a temporary employee).
Contact us if you have questions about employees' eligibility for leave under state or federal leave laws.
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W-2 Reporting of Health Coverage Begins in January
The Patient Protection and Affordable Care Act requires the cost of employer-sponsored group health coverage be included on employees' Form W-2. This new reporting is informational only - to inform employees of the cost of health coverage (employer-provided health coverage continues to be non-taxable). The requirement applies to W-2s issued in January 2013 (for 2012 tax year).
There are two key exceptions to the W-2 reporting requirement: (1) employers filing less than 250 W-2 forms in the prior year; and (2) employers that offer coverage through multi-employer health plans (such as UMTA Trust plans). The exceptions are available until further guidance is issued.
However, employers with UMTA Trust coverage, who also have employees who get coverage from non-Trust sources (e.g., if the group is nonbargained), will have to report on those employees.
The amount reported should include both the portion paid by the employer and the portion paid by the employee.
For more information about W-2 reporting of the value of health coverage, visit the IRS's website.
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Employers Must Comply with OSHA Hazard Communication Standard Updates
The federal Occupational Safety and Health Administration (OSHA) recently published updates to its Hazard Communications Standard. Revisions to the standard bring the United States into alignment with international law following the United Nations' adoption of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The modified standard provides chemical manufacturers, importers and employers with a single, international set of criteria for classifying chemicals and specifies hazard communication elements for labeling and safety data sheets. For more information about these changes and the required compliance dates, please visit OSHA online.
With the new standard on the horizon, employers must prepare for compliance. UEA can help! Join us on Wednesday, January 30 as safety expert--and former Oregon OSHA inspector--Allen Freauff covers two topics related to OSHA compliance in one 4-hour workshop:
- Changes to Hazard Communication Standards
- How to Complete an OSHA 300 Log
Visit the UEA website for details or to register.
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The Alphabet Soup of Employment and Labor Law
Employment law keeps changing, but we can help you stay on top of it! Join us on Jan. 22 for The Alphabet Soup of Employment and Labor Law, a one-hour webinar. UEA's own labor relations expert, Jim Frazer, and associate general counsel, Gina Delahunt, will recap important state and federal labor law developments from 2011 and 2012.
We will cover: at-will employment, handbook policies, Facebook firing cases, arbitration agreements, disability accommodation, unemployment discrimination, and much more. Click here for more information!
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