Following last year’s controversial moves in Wisconsin and Ohio to limit the right of public sector employees to collectively bargain, and yesterday’s signing of Indiana’s right-to-work law, on February 1, state lawmakers introduced a series of bills in the Arizona senate that, if passed, would be the country’s most comprehensive package of laws limiting public sector employees’ union rights. Unlike Wisconsin, which sought to limit the subject matter of public sector collective bargaining, but not forbid it entirely, the proposed Arizona legislation (SB 1485) would prohibit the state from recognizing any union as the bargaining agent for any public employees, and from engaging in any collective bargaining with any public sector employee union. (Arizona, as a right-to-work state, does not bargain with state employees, but currently permits other units of government, such as school districts and local governments, to collectively bargain). The proposed legislation also would prohibit dues check-offs, except where the employee provides an annual written authorization (SB 1484 and SB 1487), and would ban any payment to public employees for time spent doing union-related work (SB 1486). The proposed laws also would allow taxpayers to bring a special action lawsuit against a state agency or political subdivision if collective bargaining occurs. Not surprisingly, the proposed legislation drew the ire of unions and state Democrats, who have vowed to fight the bills. Stay tuned for further developments.
Governor Daniels Signs Bill Making Indiana the 23rd Right-to-Work State
Posted in LaborLast week we reported that the Indiana House of Representatives passed legislation that would make Indiana the 23rd state to adopt a law that prohibits employers from forcing employees to become members of a union or to pay union dues. Today, Governor Mitch Daniels signed the bill into law after it passed the Senate, making Indiana the twenty-third right-to-work state.
Indiana is the first state in the heavily industrialized Midwest “Rust Belt” to have a right-to-work law, and the first state in more than ten years to enact right-to-work legislation.
Click here to read Governor Daniels’ statement regarding the law. We’ll continue to follow and report on this issue as it develops.
NLRB Shows No Sign of Relenting in Scrutiny of Social Media Policies
Posted in Labor
For several months, we have been following the National Labor Relations Board’s (NLRB) increasing scrutiny of employer social media and communications policies that, the agency feels, impair employees’ rights to complain about wages and working conditions – rights enjoyed by nearly all employees (not just unionized employees) under the National Labor Relations Act (NLRA). [See NLRB Judge Issues First Ever Ruling in Social Media Line of Cases and NLRB Judge Rules that Employee’s Comments on Facebook Were Not Protected] Several prominent cases have attracted national attention, wherein the NLRB found social media policies that prohibited disparaging comments about supervisors and working conditions on social media sites to be unlawful.
Recent guidance issued by the NLRB signals that the agency will continue to scrutinize employers’ social media policies. On January 25, 2012, the Acting General Counsel of the NLRB issued a 35-page Operations Management Memo confirming the agency’s position that broad social media policies that impair employees’ ability to complain about wages or working conditions run afoul of the NLRA. However, the Memo also makes clear the NLRB’s position that an employee’s comments on social media generally are not protected if they are mere gripes not made in relation to group activity among employees. The Acting General Counsel asks in the Memo that the agency’s regional offices continue to send social media cases to his attention so the agency can track their progress and formulate a consistent approach. Approximately 75 such cases have been forwarded to his office to date.
Employers are encouraged, if they have not already done so, to review their social media, blogging, and other communications policies with counsel to ensure that they are compliant with recent NLRB guidance. Employers should also exercise caution before disciplining or terminating an employee solely for opinions expressed on social media, especially if those opinions touch on working conditions, wages, or other terms and conditions of employment.
Indiana Set to Become 23rd Right-to-Work State
Posted in Labor, State Law
On Wednesday, January 25, the Indiana House of Representatives passed legislation that would make Indiana the 23rd state to adopt a law that prohibits employers from forcing employees to become members of a union or to pay union dues. Despite strong opposition from House Democrats, which included numerous proposed amendments and intentionally absenting themselves to limit debate and block voting on the bill, the legislation is anticipated to be signed into law, as the Indiana House and Senate are Republican-controlled; Governor Mitch Daniels also is a Republican.
Assuming it passes and is signed, which could be as soon as before the February 5 Super Bowl in Indianapolis, Indiana would be the first state in the heavily industrialized Midwest “Rust Belt” to have a right-to-work law. The last state to adopt right-to-work legislation was Oklahoma, more than 10 years ago.
OSHA Alert – February 1 Deadline for OSHA 300-A
Posted in Litigation, OSHAThe OSHA Standard for Reporting and Recording Occupational Injuries and Illnesses, 29 C.F.R. § 1904, requires that certain employers track work related illnesses and injuries of their employees throughout the year, and post the summaries of those injuries from the previous year from February 1 to April 30. OSHA’s deadline for employers to post their annual summary of injuries and illnesses is February 1, 2012. Click here to read the GT Alert.
Holiday Pay Revisted
Posted in LaborA recent EAT decision has looked at the tricky area of a workers’ entitlement to holiday pay and the ability to carry over holiday from one year to the next. The case considered whether a worker who neither took, nor tried to take, holiday entitlement during a number of years’ absence was entitled to statutory holiday pay. The EAT concluded he was not.
The consequences of this EAT decision are as follows:
a) a worker has to give notice to their employer that they want to take holiday – otherwise they don’t get holiday or, it follows, holiday pay;
b) workers that do not use their holiday entitlement (and have not requested to take it) during a leave year will lose their entitlement at the end of that year;
c) the position regarding workers on long term sick leave is slightly different, however. Workers can choose to take their holiday entitlement (and be paid for it) or request that the holiday entitlement be deferred to a later period. If no holiday is requested, it will lapse at the end of the leave year.
The decision applies only to statutory holiday (granted under the Working Time Regulations) although by extension, it is likely to apply to any additional contractual holiday (unless there are provisions to the contrary within the employee’s terms and conditions). As part of their decision, the EAT also confirmed that there is no obligation on an employer to inform a worker of their right to request holiday.
Whilst this decision does help employers in many ways, it raises other questions – what is long-term sick leave, for example? This EAT decision also directly conflicts with another recent EAT decision, which is currently being appealed. We will provide a further update once the Court of Appeal rules in this area – currently anticipated to be at the beginning of 2012.
Furthermore, a related ECJ case has determined that there can be a limit to the length of time an employee on long-term sick leave can carry over untaken holiday. In this particular case, a 15 month limit specified in a collective agreement was considered reasonable and enforceable. Employers should consider, therefore, imposing time limits for employees on long-term sick leave to take holiday. This could help avoid (expensive) claims for holiday pay after several years of absence. Note that it is not yet clear, however, whether periods shorter than 15 months would be permissible.
President Obama makes three recess appointments to fill NLRB vacancies
Posted in Labor
Today, the White House announced the recess appointments of three nominees to fill vacancies at the NLRB. After Member Craig Becker’s recess appointment expired yesterday, the Board lost its quorum and was unable to issue decisions under the Supreme Court’s decision in New Process Steel. The Board has not had five Members since August 2010. We are monitoring developments at the Board and will report on them as they occur.
The biographies of the new Board Members from the White House’s announcement are as follows:
Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
US Department of Labor Extends Deadline for Filing of VETS-100/100A Reports
Posted in LegislationEmployers that are required to file VETS-100/100A reports with the US Department of Labor have been given an extra 15 days to file reports for 2011. (Reports originally were due September 30, 2011, but the deadline previously was extended to December 30, 2011 due to technological issues on the Department of Labor’s report-filing website). Under the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA), federal contractors and those contractors that are covered by VEVRAA’s affirmative action provisions must report each year the number of employees in their workforces, by job category and hiring location, who are qualified covered veterans, as well as the number of new hires that are covered veterans. In general, an employer is subject to the reporting requirements if it is party to a contract or subcontract in the amount of $100,000 or more ($25,000 or more if entered into before December 1, 2003) with a department, agency, or other “instrumentality” of the United States for the purchase, sale, or use of personal or nonpersonal services. More information is available here.
NLRB Postpones Effective Date of Rule Requiring Posting of Notice of Rights
Posted in UncategorizedUpdating the ongoing saga in the NLRB’s recently-passed rule that would require almost all employers to post a notice in the workplace advising employees of their rights under the National Labor Relations Act, i.e., to form, join, and assist a union, on December 23, 2011, at the request of the federal court judge assigned to hear multiple challenges to the Board’s rule, the Board voluntarily postponed the rule’s effective date (for a second time) until April 30, 2012. It is anticipated that, prior to that date, the court will rule on whether the Board has the authority to require the notice posting, and whether it can impose certain consequences, summarized here, if an employer fails to comply. We will continue to monitor and report on developments, but for right now, employers do not need to post the notice on January 30, 2012, as was originally required.
NLRB adopts controversial amendments to union election case procedures
Posted in Labor, Uncategorized
We’ve been following the NLRB’s proposed amendments to the rules and regulations governing union election cases over the past few weeks. Today, the Board voted 2–1 to adopt the Chairman’s proposed amendments, which significantly limit employer’s rights before the Board. Before, employers had the absolute right to insist on a pre-election hearing to litigate the appropriateness of the proposed bargaining unit, supervisory status, and other issues. Now, hearings will be limited only to those issues—as determined by a hearing officer of the Board (who is not a judge)—to be relevant to the question of whether an election should be conducted. The amendments also limit parties’ rights to appeal regional-level election case determinations. Click here to read a more detailed summary of the changes in our prior post.
The final rule will be published in the Federal Register tomorrow and will take effect April 30, 2012. The amendments are already being challenged in court. On December 20, 2011, the United States Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the United States District Court for the District of Columbia challenging the Board’s adoption of the rule. Click here to read the Chamber’s lawsuit.
We will continue to monitor these amendments and the challenges to them in the courts. Stay tuned.
Join the Discussion on Facebook
View GT's LinkedIn Profile
Follow GT on Twitter
Subscribe to this blog via RSS