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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated Enforcement Guidance for employers regarding the use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. The guidance tightens the criminal background screening process, but does not prohibit employers from retaining the right to consider criminal reports.

The use of criminal background checks has been a hot button issue with the EEOC over the last several years. The Agency’s concern is that the use of arrest and conviction records in the hiring process and for other employment decisions has a disparate impact in screening out minorities. http://www.eeoc.gov/eeoc/newsroom/release/10-1-09b.cfm

The Agency has long taken the position that a “policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law.” In issuing the new guidance, the EEOC noted it is not changing its fundamental position on the use of criminal records. Rather, the EEOC views the Enforcement Guidance as a more in-depth analysis of the issues, in light of recent technological and other changes in hiring and employment. http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

The new Enforcement Guidance provides key takeaways for employers who use criminal records in hiring and in other employment decisions.

1. Targeted Screening Process. To establish that use of arrest and conviction records is “job related and consistent with business necessity,” employers should develop a screening process that considers “at least the nature of the crime, the time elapsed, and the nature of the job.”
   • The screening process should then provide an “opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.” The EEOC envisions the “individualized assessment" would consist of:
     • Notice to the individual that he/she was screened out because of a criminal conviction;
     • An opportunity for the individual to demonstrate that the exclusion should not be applied; and
     • Consideration by the employer as to whether the additional information warrants an exception and shows that the policy as applied is not "job related and consistent with business necessity."
2. Federal Law Restrictions. The Enforcement Guidance states that federal laws and regulations that restrict or prohibit employing individuals with certain criminal records provide a defense to a Title VII claim.
3. State and Local Law Restrictions. On the other hand, state and local laws or regulations prohibiting employment of individuals with certain types of criminal convictions are preempted or “trumped” by Title VII if those laws require conduct that would be an “unlawful employment practice” under the federal law.
4. Employer Best Practices. The EEOC’s guidance provides some practical examples of steps employers can take to implement “best practices” when considering criminal record information in hiring and employment decision making. The EEOC’s advice includes:
   • Develop a written policy and procedures for screening applicants and employees regarding criminal conduct.
   • Train managers, hiring officials, and decision makers on how to implement the policy and procedures.
   • Limit inquires regarding criminal records to those that are “job related for the position in question and consistent with business necessity.”
   • Keep information regarding applicant and employee criminal records confidential.

What’s the bottom-line for employers? The new Enforcement Guidance does not prohibit the use of criminal records in hiring or employment decision making. It does make clear, however, that employers should be able to show how the use of criminal records is “job related and consistent with business necessity.” To do that, employers should:

• Review their criminal background check processes to evaluate whether those processes are consistent with the EEOC guidance.
• Develop a written hiring policy and a targeted screening process that considers job-related factors.
• Use an individualized assessment when criminal background information is discovered to ensure the screening process is job-related and consistent with business necessity for the specific situation.
• Review job applications to ensure inquiries regarding criminal activity are “job-related and consistent with business necessity.”
• Train managers, recruiters, and others on the applicable federal and state law and EEOC guidance.

In the continuing struggle between an employee’s privacy rights and the employer’s right to access company provided computers and other electronic devices, the Illinois Court of Appeals recently weighed in with regard to a matter involving the alleged violation of the Stored Communications Act (SCA), 18 USC 2701, et seq.

In Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 2011 Ill. App (2d) 101257, plaintiff, the employer’s former food director, sued her former employer and two of its employees for “intentionally” accessing her personal email account and reviewing personal emails despite the fact that the account was accessed from the employer’s computer.  At the time in question, plaintiff was out on a disability leave related to sexual harassment claims she had previously made, and the employer, through its employees, accessed plaintiff’s computer and her emails to ensure that no work-related emails and orders were going unaddressed.

In reviewing plaintiff’s work computer, however, it was discovered she maintained a work-related account through Comcast, and a separate personal account through AOL, both of which were located on her work computer.  The employee reviewing her emails admitted to reviewing both the work account and the personal account, and ended up printing out 36 emails that were personal in nature, and unrelated to work in any manner.  She then shared these 36 emails with her supervisor.  The deposition testimony of the employee defendant also revealed that no work emails were printed.

The employer, relying principally on its computer usage policy that clearly stated that employees had no expectation of privacy in its technology resources, argued that the employees at issue did not intentionally and without authorization access plaintiff’s personal email account because they innocently came upon the personal emails while conducting a legitimate business search.

The appellate court disagreed.  It found the fact that employees knew plaintiff’s work account was Comcast and not AOL, the amount of time spent reviewing the personal emails, and the fact that personal emails were the only ones printed created a fact issue as to whether plaintiff’s personal email account was intentionally accessed without authorization.

Employer Takeaway

This case shows that despite robust computer usage policies and disclaimers regarding expectations of privacy, employers still need to be careful in accessing and reviewing employee email.  Conferring with counsel beforehand is advised when there is a question as to whether communications are personal or business in nature irrespective of the policies in place.

It’s no secret that defined-benefit pension plans have struggled with funding issues over the past several years.  Lower-than-anticipated investment returns and extremely low interest rates, combined with demographic shifts resulting from retirees living longer and workers holding off on retirement, have left many defined-benefit pension plans with fewer assets than are needed to meet their accrued obligations.  Perhaps no group of benefit plans has suffered more from these issues than multiemployer pension plans.

Multiemployer pension plans (sometimes referred to as Taft-Hartley plans) cover collectively-bargained employees and are defined-benefit retirement plans jointly sponsored by representatives of the union and participating employers.  Under federal rules passed in 2006, multiemployer pension plans experiencing funding issues or problems with liquidity must notify participants and companies of this status.  If a multiemployer pension plan is in critical status under these rules, it may be forced to reduce benefits and discontinue lump-sum distributions (to the extent permitted under the plan).  Plans in critical and endangered status must also adopt programs, which may include requiring employers to increase contributions, to restore financial health.

Underfunded multiemployer plans present a significant legal liability if the plan terminates (commonly referred to as a “mass withdrawal”) or a participating employer terminates or reduces its participation below a permitted level (resulting in a “partial withdrawal” or a “complete withdrawal”).  This so-called withdrawal liability is based on a pro-rata portion of the plans’ unfunded liability.  Many multiemployer plans are in such bad shape that the potential withdrawal liability can be significant.  Further problems arise because the liability is jointly and severally shared by the participating company and its affiliates.

So, what can you do to protect your company?  If your company or one of its affiliates participates in a multiemployer plan, you should immediately obtain information regarding the present funding status of the plan and your potential withdrawal liability so that you can consider your available options.  Even if you have received notice from your multiemployer plan that it is in critical or endangered status, there may still be steps that you can take now before withdrawal liability is incurred to reduce your exposure.

Employment lawyers don’t often get a chance to write about pop superstars, but as it turns out the Fair Labor Standards Act is providing just such an opportunity.

In December 2011, Lady Gaga’s personal assistant, Jennifer O’Neill, filed a lawsuit against Lady Gaga’s touring company claiming that she is owed more that $350,000 in unpaid overtime under the Fair Labor Standards Act and New York State Labor Law. 

What’s the crux of the dispute?  

Well, really it’s not much different than those faced by many “more traditional” employers.  The former personal assistant claims that she was misclassified as an “exempt” employee when she was actually non-exempt.  As a result, she alleges that she is owed over 7,000 hours of overtime compensation for time that she spent attending to Lady Gaga at “stadiums, private jets, fine hotel suites, yachts, ferries, trains, and tour buses.”  

The assistant further alleges that, under state law, she was denied breaks and even sleep time as she handled Lady Gaga’s every need, such as ensuring she had towels after showering and that her chosen outfits were available.

Could the personal assistant be exempt?

Possibly. The Fair Labor Standards Act does recognize that an executive assistant to a business owner or senior executive who is paid a salary and who customarily and regularly exercises discretion and independent judgment in matters of significance rather than adhering to prescribed procedures or specific instructions may be exempt as an “administrative” employee. This exemption generally applies only to the highest level of assistant who has significant autonomy making decisions about such things as responses to non-routine correspondence and handling meetings.  The determination of whether Lady Gaga’s assistant fits this category will depend on what her duties actually entailed.  In other words, was she involved in the decision to have Lady Gaga arrive at the 2011 Grammy Awards in an egg or did she just help Lady Gaga get into the egg?

So, what’s a poor pop superstar to do to avoid such claims?

Again, what any employer should do.  Evaluate the actual job duties of each position and how the employee is paid to determine if the position falls within the one of the FLSA exempt categories or whether the position should be classified as non-exempt.  Making such determinations isn’t always easy, so seek appropriate counsel if necessary.

Continuing its recent trend of limiting – rather than expanding – the availability of public policy wrongful discharge claims, the Ohio Supreme Court earlier this year clarified what the phrase “clear public policy” means.  Although the Court’s latest pronouncement on this topic may not stem the tide of public policy claims employers face, it nonetheless provides another means of defense against them.

In Dohme v. Eurand Am., Inc., the company’s facilities administrator sued the company claiming that the termination of his employment violated public policy.  The company, on the other hand, claimed that it terminated the facilities administrator’s employment due to his insubordination.  In particular, the company sent an e-mail to all employees in advance of an insurance adjuster’s inspection that alerted employees that the facility would be inspected and that only certain employees of the company were to have contact with the adjuster.  The facilities administrator was not one of the designated employees.  Nonetheless, the facilities administrator told the adjuster that “he might want to find out what happened with” a fire inspection report allegedly removed from the company’s computer system.  After learning of the facilities administrator’s communication with the adjuster, the company terminated the facility administrator’s employment.

In his lawsuit, the facilities administrator purported to identify a clear public policy favoring fire safety in the workplace.  He did not, however, specify any particular provision of law on which he based his public policy wrongful discharge claim.  The Ohio Supreme Court concluded that the facility administrator’s claim failed due to his failure “to articulate, by citation to its source, a specific public policy that [the company] violated when it discharged him.”  In so doing, the Court rejected the lower court’s attempt to fill in that gap in the facilities administrator’s claim, noting that “[t]here may be valid reasons for a plaintiff’s failure to identify and assert a specific public policy or a specific source for that public policy.”  (Although we would not presume to speak for the Court, one such reason for a plaintiff to fail to identify a specific source for a public policy claim may be that, where a statute, for instance, already provides an adequate remedy for the harm claimed, piggyback public policy claims fail as a matter of law.)  The Court therefore determined that the company was entitled to judgment in its favor on the public policy claim.

So what does this decision mean for employers?  At a minimum, it gives employers a defense against amorphous statements of public policy that are nearly impossible to defend against – the “public policy” against lying, for example.  In addition, by forcing plaintiffs to specifically identify their public policy source, the decision allows employers to evaluate whether the claim is subject to dismissal on some other legal ground, such as the availability of an adequate statutory remedy or a plaintiff’s failure to satisfy procedural prerequisites for bringing the claim.  In any event, the decision helps employers avoid further erosion of the employment-at-will doctrine by the so-called public policy exception.

Agreements requiring employees to arbitrate any claims they may have against their employers arising from their employment can save both time and money.  Courts, however, will review such agreements very carefully to ensure that they do not unfairly disadvantage employees by, among other things, denying them remedies or procedural tools that would be available to them in traditional litigation before a court.  As a recent case demonstrates, courts will also review arbitration agreements to be sure they satisfy basic principles of contract law.

In Domin v. River Oaks, Inc.pdf, the employee signed an arbitration agreement that stated, in part:

I understand and voluntarily agree that any disputes regarding the terms of this pay plan or my employment or termination from employment…will be resolved exclusively in accordance with binding arbitration….Although I understand that signing this arbitration agreement is not required as a condition of my employment, I desire to take advantage of the benefits of arbitration and understand that I give up the right to trial by jury….

The employer later terminated the employee’s employment, and the employee filed suit claiming sexual harassment.  The employer asked the court to stay the lawsuit pending arbitration.  The court, however, found the employee’s argument regarding lack of consideration for the arbitration agreement to be persuasive and ordered the employer to proceed with the litigation.

The court confirmed that, for an arbitration provision to be valid and enforceable, the basic contractual elements must be present: offer, acceptance, and consideration.  Consideration is the quid pro quo that supports a contract and makes it enforceable:  “If you will do this, I promise to do that.”  As the court noted, if signing the arbitration agreement had been a condition of employment (which it was not) or if the arbitration agreement had required both the employer and the employee to submit any claims to arbitration (which it did not), the employee’s claim would be before an arbitrator rather than a federal judge.  Indeed, the court found that the only party promising to do anything was the employee.  As a result, the arbitration agreement was not an enforceable contract and the employer must now defend employment-related claims in a forum it thought it would be able to avoid.

As this case shows, it is crucial to ensure that arbitration agreements satisfy the basic requirements for a valid contract and include the additional safeguards courts have imposed to protect employee rights.  Otherwise, your arbitration clauses may result in protracted litigation regarding the enforceability of the arbitration agreement rather than an expedited arbitration decision that resolves the dispute once and for all.

In our January 10, 2011 Alert, Inch by Inch, Row by Row--NLRB Looks to Facilitate Organizing in Non-Acute Health Care Facilities, we advised you that the National Labor Relations Board was re-evaluating how it determines an appropriate bargaining unit in non-acute health care facilities.   In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (Member Hayes dissenting…again), the Board found that Certified Nursing Assistants (CNAs) may comprise an appropriate bargaining unit without including other nonprofessional employees.  In doing so, the Board overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”

The Board historically has taken a more flexible approach to what constitutes an appropriate bargaining unit for unionization of non-acute health care facilities, opting to evaluate appropriate bargaining units on a case-by-case basis. See 29 CFR § 103.30(g). Under this case-by-case approach, the Board has typically applied a “pragmatic” (sometimes called “empirical”) community-of-interest standard, grouping employees by, among other things, similarity of wages and hours, extent of common supervision, frequency of contact with other employees, areas of practice, and patterns of bargaining in a non-acute care setting.

The practical result of this approach has been the frequent certification of broader bargaining units of all non-professional service and maintenance employees, such as dietary aides, cooks and clerks. The Board’s rationale in certifying such broader bargaining units has been that non-acute health care facilities that provide long-term care rather than medical treatment of a specific illness are more functionally integrated than acute health care facilities, where the division of labor is far more explicit. Under this rationale, non-acute health care facilities’ broader focus on the day-to-day general well-being of patients and staffing models that involve employees of varying skill levels working interchangeably in providing services justified such bargaining units.

In Specialty Healthcare, though, the Board scrapped this approach and announced that it would use its “traditional” community-of-interest test.  In evaluating the appropriateness of a unit under the traditional community-of-interest test, the Board considers variables such as similarity of wages, benefits, skills, training, contact with other employees, interchange of employees, supervision, and other terms and conditions of employment.

Notwithstanding the Board’s purported new reliance on the “traditional” community-of-interest test, the Board’s application, as noted by Member Hayes in his dissent, is a much different standard.  In concluding that a unit comprised only of CNAs was an appropriate unit, the Board majority accepted the petitioned-for unit (CNAs only); applied the traditional community-of-interest test to show that those employees (CNAs only) did, in fact, share a community of interests; and then put the burden on the employer to show that other employees shared an “overwhelming” community-of-interest with the CNAs to justify inclusion of the other employees in the unit.

A legitimate concern is that this Board will use whatever community-of-interest standard it has articulated to create a proliferation of bargaining units in non-acute care settings.  That is, given this Board’s application of the community-of-interest test here, it seems clear that a non-acute care employer (indeed, any employer other than an acute care facility) could be subject to multiple smaller, fractured bargaining units resulting in increased bargaining obligations, and corresponding increased inefficiencies.  And, as the Board’s theme seems to be finding ways to make it easier for unions to organize workers, it should be no surprise that it is easier for unions to organize smaller units than larger units.

The Board’s aggressiveness in removing perceived barriers to union organization of employees is unparalleled.  Now, more than ever, it is essential for union-free employers to proactively insulate their workplace against the threat of unionization. Non-union employers must be very aware of the potential for unionization of their workforce and take steps to minimize the likelihood that this will occur, including putting in place policies prohibiting organizing efforts during working time, preventing access to your workplace by outside parties, and training supervisors to recognize incipient unionism.

As if there weren’t already enough postings required for workplaces, the NLRB has now joined the party.  On August 25, 2011, the NLRB issued a final rule that requires employers to inform employees of their rights under the National Labor Relations Act.  Employers have until November 14, 2011 to post the required notice.

Who Must Post What?

The rule applies to the majority of employers covered by the Act, regardless of whether the employer has any union employees.  As the NLRB noted previously, the rule is designed to capture the “great majority” of small businesses in the United States.

The notice must contain a detailed listing of employees’ rights under the Act.  In fact, the NLRB previously provided a sample of the proposed notice.  Given that the sample poster provided in the NLRB’s proposed rule seemed to be little more than a pro-union appeal to employees, the final rule specifically notes that employers are free to post their own notice emphasizing an employee’s right to refrain from union activity.  Employers should do so, if only to highlight that employees have no obligation to join a union.

The posting must be at least one 11-inch by 17-inch poster or two 8.5-inch by 11-inch posters taped together.  The notice must be posted in English, but if more than 20% of employees are not proficient in English, the employer must also provide the posting in the language spoken by those employees.  The NLRB will provide a free copy of the poster, in English and other languages, on or before November 1, 2011.

The notice must be posted conspicuously, including in all places where notices to employees are customarily placed.  Electronic posting on an internet or intranet is required, too, if an employer customarily posts policies in those places.  Employers need not, however, distribute the posting via email, Twitter or other electronic means.

Sanctions for Failing to Post

The NLRB will treat a failure to post as an unfair labor practice charge under the Act, which normally will mean only that the employer will be required to post the notice.  The NLRB may also extend the 6-month statute of limitations for filing unfair labor practices against employers who fail to post the notices.  Most importantly, willful failure to post notices may be considered evidence of unlawful motive in unfair labor practice cases.

Look for a PDF copy of the poster here when the NLRB makes it available.  Since employers have other posting requirements, adding one more page should not be too onerous.  Just post it and avoid the inevitable headaches of noncompliance.

For more information on this Final Rule, please see the McDonald Hopkins Alert "NLRB issues final rule requiring employers to post notice of employees' rights."

As we recently reported, opponents of changes to Ohio’s Public Employees’ Collective Bargaining Law (popularly known as S.B. 5) recently succeeded in collecting the signatures necessary to place the issue of overturning S.B. 5 on the 2011 November ballot.  We also noted that polling from the Quinnipiac University Polling Institute indicated that 56% of respondents favor repeal, while 32% support keeping the law in place. 

Tuesday night, Wisconsin voters in six state senate districts went to the polls to vote on the proposed recall of six Republican state senators who voted in favor of similar (arguably, more aggressive) public bargaining reform proposed by Wisconsin Governor Scott Walker and passed by the Wisconsin State Assembly amid much partisan rancor.  Republicans retained four of the six seats contested, narrowly averting the loss of a third seat that would have tipped the Wisconsin Senate majority in favor of the Democrats. 

Given the significant role of organized labor in pushing for the recall elections, much commentary will no doubt be devoted to characterizing Tuesday night’s Wisconsin election results as a public rebuke of advocates for public employee collective bargaining – and tea leaves will be read for what the Wisconsin election results mean for the prospects of S.B. 5 in Ohio.

As an initial matter, let’s not forget that, while we are all citizens of what our friends on the coasts endearingly refer to as “flyover country”, Wisconsin and Ohio are two different states with their own distinctive and differing politics.  Setting aside that quibble, however, here are a couple of take-aways from Tuesday night’s Wisconsin results:

1. The Fight Over Public Employee Collective Bargaining Rights Has Become A Proxy for More Conventional Party Politics.  As much as we labor law wonks enjoy a spirited public debate over state employee bargaining laws, the campaigns leading up to Tuesday night’s recall elections focused on a variety of issues otherwise circulating in the current national discourse from entitlement reform to corporate tax rates.  In the end, it seems likely that Tuesday night was about showing strength for one preferred partisan agenda or the other, rather than competing visions of public employment.
2. The Referendum on S.B. 5 Will Likely Be Fought Along Similar Lines.  As we noted previously, the polling on S.B. 5 was very much a mixed bag.  While a strong majority favored repeal, similar majorities favored mandatory minimums on public employee health care and pension contributions and basing pay on merit rather than seniority. Whether the dueling S.B. 5 campaigns try to parse these divergent voter sentiments or simply focus on making the referendum a litmus test on the two parties’ competing national agendas remains to be seen – but partisan pie fighting tends to be an easier sell than nuanced debate over public employee rights.

More polling on S.B. 5 will be no doubt be in the offing in the wake of the Wisconsin results.  We will report further as the campaigns continue.

On May 26, 2011, the United States Supreme Court upheld an Arizona statute regarding the employment of unauthorized aliens.  The Arizona law requires employers within the state to use the federal government’s E-Verify program to check the work authorization status of employees and imposes licensing sanctions against employers that “knowingly or intentionally” employ unauthorized aliens.  In upholding the Arizona law, the Court determined that states were free to act in this area under the terms of the federal Immigration Reform and Control Act (IRCA).

On June 29, 2011, in the wake of the Supreme Court’s decision, House Bill 286 was introduced in the Ohio House of Representatives.  The bill, which was sponsored by 14 lawmakers, seeks to amend Ohio law to include provisions similar to those included in the Arizona statute.

Highlights of the bill include:

• A prohibition against knowingly or purposefully employing unauthorized aliens;
• A good-faith affirmative defense for employers;
• A requirement that employers use the federal government’s E-Verify program to check employee work authorization status;
• A complaint investigation procedure administered by the Attorney General of Ohio;
• Exclusive reliance on the federal government’s determination of an alien’s immigration status; and
• Penalties that can include termination of all unauthorized aliens and probationary periods for employers. 

If passed, this bill could require employers to change their employment verification processes significantly.  We will keep you posted.

In the face of the failure of the Employee Free Choice Act, the Liebman-led NLRB has taken it upon itself to overhaul the union election process.  According to the NLRB, the changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representations,” despite the fact that in FY 2010, the median timeframe for conducting initial elections was 38 days and 95% of all elections were conducted within 56 days.  As Member Hayes said in his dissent, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation process takes too long.  It is that unions are not winning more elections.” 

The proposed changes to the current election process include:

The Petition and Pre-Hearing Process

• Petitions would be filed electronically.
• At the time of filing, the union would have to serve the petition on the employer.
• At the time of filing, the union would have to submit its showing of interest in support of the petition.  The showing of interest must demonstrate that a “substantial number of employees wish to be represented” (it’s unclear what happened to the 30% requirement for RC cases; other petitions such as RD maintain that requirement; thus, it is equally unclear what the proposed “substantial number” language means).
• At the time of filing, the union would have to also file a Statement of Position (discussed below)
• The possible use of “electronic signatures” by employees to show interest is left open for consideration.
• The hearing date would be set 7 days after the petition date.
• The current “Notice of Election” issued at the time of the notice of hearing would be changed to an “Initial Notice to Employees of Election” and would be required to be posted.

Statement of Position

• The union at the time of filing a petition, and the employer, no later than the hearing date, would have to submit a Statement of Position.
• The Statement of Position would replace the Commerce Questionnaire.
• The employer would be required to include:  (a) a position on the NLRB’s jurisdiction; (b) the appropriateness of the petitioned-for unit; (c) the existence to any bar to conducting the election; (d) any proposed exclusions from the petitioned-for unit (by name of person, job classification and reason); (e) position on the type of balloting; (f) position on the date, time and place of the voting; and (g) designation of a representative for service.
• In addition to the Statement of Position, the employer would have to include a list of all individuals employed in the petitioned-for unit, including work location, shift and job classification for each worker (unless the employer contends the petitioned-for unit is not appropriate, in which case, it must submit a list of employees in “the most similar unit the employer concedes is appropriate”).  The list filed with the Region must also include the employees’ contact information – address, telephone number and e-mail.
• Failure to submit a Statement of Position would preclude a party from “raising any issue, presenting any evidence, cross-examining any witness concerning any issue, and presenting argument concerning any issue” that the party failed to timely raise in its Statement of Position. 
• Eligibility or exclusion of individual employees would not be waived and may be addressed through the challenge process (it is unclear how this does not run afoul of the Act’s requirement that the Board determine the scope of a unit before an election).
• If eligibility and/or exclusion issues exceed 20% of the petitioned-for unit, a hearing would be conducted regarding the issues.
• The Statement of Position would be unnecessary if the parties enter into an election agreement.

Hearings

• The NLRB’s goal is to minimize any pre-election hearings.
• As discussed above, hearings regarding employee eligibility or exclusion would be deferred to the challenge process unless they exceeded 20% of the petitioned-for unit.
• Hearings would be required to continue day-to-day absent extraordinary circumstances.
• Pre-election Board review would be eliminated, thus the prior restriction of setting an election no sooner than 25 days after a direction of election would be eliminated.
• Briefs could be filed only with permission of the hearing officer; the Board does not believe that briefs are needed in every case.
• The Regional Director could direct an election to take place with a decision to follow, no later than the tally of ballots (that is, a hearing does not necessarily mean more time before an election).
• A Final Notice of Election would still have to be posted (and sent electronically, if that is a customary means of communication), and would be transmitted to the employees electronically by the Board where they have e-mail addresses.
• The Final Notice would be required to be posted 2 days before the election (instead of 3 days).

Excelsior List

• In addition to names and addresses, the employer would have to provide telephone numbers, e-mail addresses (it is unclear whether work or home or both), work location and shift for each employee.
• The employer would have to provide the list in electronic format (it is unclear whether .pdf is sufficient).
• The employer would be required to serve the list on the union and the Board at the same time.
• The list must be served within 2 days (instead of 7 days) of entering the election agreement or the direction of election.

Post-Election

• All requests for review would be postponed until after the election.
• If objections are filed, the objections and the evidence would have to be submitted in 7 days.

Blocking Charges

• The Board has invited comments on whether it should do anything to address organized labor’s abuse of blocking charges, and poses several questions to that effect, but does not propose a rule. 

The Effects and Concerns for Employers

• Stipulated elections could be conducted in about 20 days from the date of the petition.
• Disputed elections could be conducted as soon as 30 days from the date of the petition.
• The shortened time frame results in severe limits on how the employer can educate employees about their decision and as a result, employees are deprived of the opportunity to make informed decisions.
• There appears to be significant due process issues whereby an employer has 7 days to preserve every legal issue or it is forever waived.
• Certain provisions of the proposed rules appear to be inconsistent with the Act.
• Because virtually all of the litigation is shifted to post-election, employers will be put in a perpetual “damned if you do, damned if you don’t” situation if they lose the election, but challenge the results, and make changes to terms and conditions of employment in the interim.

Interested parties have 60 days to file comments.  A public hearing is set for July 18 and 19.

In Jurys Boston Hotel-356 NLRB No. 114.pdf, the National Labor Relations Board (NLRB) recently decided that regardless of whether or not an employer enforces its handbook policies, the mere existence of a policy deemed unlawful by the NLRB may have a significant impact. Indeed, the NLRB served up a not so gentle reminder of the importance of regularly reviewing and updating your employment policies.

Pursuant to a neutrality agreement, the employer recognized the union, UNITE HERE, and signed onto a master contract in 2004. In 2006, following the expiration of the master contract, an employee filed a petition for a decertification election.

Six weeks after the petition was filed, and nine weeks before the election, the union filed an unfair labor practice charge alleging that seven rules in the employer’s handbook were unlawful. Included among the alleged unlawful rules were: (a) a non-solicitation/non-distribution rule; (b) a non-loitering, non-use of hotel premises for personal use policy; and (c) a grooming policy that prohibited the wearing of emblems, buttons, or badges not part of the uniform.

Since the hotel had opened in 2004, the employer issued the handbook, including the disputed policies to all employees. It was undisputed that the employer did not enforce the disputed rules. Further, the union received copies of the handbook as part of the new hire orientation. At no point prior to the filing of the charges, however, did the union object to the handbook.

Three weeks after the union filed the charges, the employer issued a memo to its employees explaining that it had no intention of interfering with employees’ rights under the National Labor Relations Act (NLRA) and amending several of the rules.

The union lost the election by one vote and filed objections to the election based upon the employer’s maintenance of the alleged unlawful work rules. A hearing was held and the NLRB hearing officer ruled that the maintaining of rules that were not enforced did not interfere with the election.

In a 2-1 decision (Member Hayes, dissenting, again), the NLRB overturned the hearing officer’s decision and ruled that the mere maintenance of the unlawful rules tended to interfere with employee free choice, and therefore tainted the election – even though they were never enforced; even though the union had known of the rules for over two years before it objected; and even though the employer attempted to cure any defects three weeks before the election took place. The NLRB ordered a second decertification election.

By Brendan Fitzgerald and Miriam Rosen

After weeks of mediation failed to produce a new Collective Bargaining Agreement (CBA), the National Football League Players Association (NFLPA) has dissolved as a union.   Now playing offense, the NFL players are now taking their labor battle with the NFL to court.

On Friday, March 11, 2011, the NFLPA filed paperwork to dissolve as a union. Running the “dissolution” play frees the players to challenge the lockout in court.

Later on March 11^th, 10 NFL players, including MVP quarterbacks Tom Brady, Peyton Manning, and Drew Brees, did just that.  The players filed a lawsuit against the NFL asking the court to enjoin the lockout and, for good measure, seeking treble damages for alleged federal antitrust violations. The antitrust claim based on the 1890 Sherman Act, a federal antitrust law that limits monopolies and restrictions on commerce, alleges that the league's policies on the draft, salary cap, free-agent restrictions along with the lockout are evidence of an anti-competitive restraint on trade.

The suit is also a not-so-sneak attempt to keep this labor dispute before U.S. District Court Judge David Doty, who has issued a number of union-friendly rulings recently, including siding with players regarding the owners' negotiation of TV contracts as lockout insurance.

Despite the players' suit, at 12:00 am Saturday, March 12, 2011, NFL owners locked out the players when the league’s CBA expired.  In an attempt to lobby for public support for the lockout, Commissioner Roger Goodell published an open letter to NFL fans detailing the NFL’s final proposal that the union rejected.

So, what are the players’ chances of scoring with their lawsuit?

The injunction play is a long shot.  An injunction is a court’s most drastic remedy and is a very high bar for the players to reach.   In fact, the request for an injunction is not expected to be successful because the players likely cannot show: (a) that they are likely to suffer irreparable harm in the absence of an injunction or (b) that an injunction is truly in the public’s interest.

Even if the players can’t get the court to issue an injunction, the players’ antitrust litigation is really their most powerful offensive weapon for pressuring the owners for a more advantageous deal. The owners know that they are vulnerable on the antitrust issue and are unlikely to risk taking that issue to trial.  In fact, last year, in American Needle v. NFL.PDF, a unanimous U.S. Supreme Court rejected the NFL’s claim that it was not a monopoly that is subject to antitrust litigation.

The NFL players aren’t going into this without a playbook.  During the 2004-05 season, the National Hockey League (NHL) players were locked out by team owners.  The NHL players never decertified or dissolved their union, continued negotiations, and eventually caved to the owners’ biggest demands in order to resume playing and collecting paychecks.  By dissolving and filing an antitrust suit, NFL players are clearly signaling that they learned from the NHL players’ mistakes in dealing with their lockout.

The players’ suit, however, will not be a quick fix and is only the next down in this high-profile labor war between the owners and players. It is likely that the litigation will drag on for months and may jeopardize the 2011-12 NFL season.

Is there a silver lining for NFL fans watching from the sidelines?  Well, in a way. This labor dispute will have lots of offensive and defensive plays -- unfortunately, they just won’t be on the field.