Sixth Circuit Rejects Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees.  Walden v. General Electric Int’l, Inc. No. 24-5141 (6^th Cir. 10/24/24).   The plaintiff could not show that he was qualified for the promotion when he continued to fail the test.  The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement.  The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not.   The  Court also rejected his speculative arguments that the younger employees did not complete the test by themselves. 

According to the Court’s opinion, the plaintiff had worked tool and die maker for decades, then accepted a job as machine operator with the defendant employer.  He later applied for a tool maker position which required at least five years of experience and promised the job to the qualified applicant with the most seniority.  However, the employer had agreed with the union several years earlier to require a passing 85% score on a written test which was jointly developed.  The plaintiff failed the test with only an 80% score (which had been rounded up), while two younger applicants passed with 100% and 92%.  The next month, the union and employer agreed to have a local community college develop and administer the test, which now had written and hands-on components.   They also lowered the passing score to 70%.   However, the plaintiff only received a score of 51%, which the other, younger applicant received a score of 69.6%, which was rounded up to 70%.  The plaintiff filed an EEOC charge, Unfair Labor Practice charge and sued bother the employer and the union.

The Court also rejected each of his arguments attacking the job posting and testing requirement. 

First, he asserts that taking the test was not actually a requirement because GE’s job posting did not mention it. But the posting says that it’s not exhaustive. After the posting lists certain minimum qualifications and a job description, a disclaimer states that any “classifications and definitions are merely for purposes of identification and general description and do not purport to be all inclusive or exhaustive of the actual requirements of any job so classified or defined.”  . . . . [He] parses these terms finely, arguing that the non exhaustive “classifications,” “definitions,” and “requirements” differ from “qualifications,” and so we should not read the disclaimer to apply to the posting’s “qualifications.” This argument fails because the posting on its face does not use these divisions strictly. For example, it states outside the paragraph labeled “Qualifications” that candidates must also have “satisfactory performance on their present job.” Id. That’s clearly a minimum qualification. And in any event, we have noted that “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to implement a testing requirement, multiple witnesses described how it did so, and the company made [him] aware of that when he applied.

The Court also refused to treat the job posting as a contract, which must be construed within its four corners under the parol evidence rule:

But though the CBA was a contract, the job posting was not. The CBA required GE to hire qualified candidates based on seniority, but it did not dictate which qualifications GE could set in the first place. Contract rules do not apply to discerning GE’s intentions with the job posting.

[He] probably means to say that the posting was an offer, one that he “accepted” by applying with the most seniority. But the posting wasn’t even that. At best, it was an invitation to be considered, or in contract-law terms, an invitation to offer, since nothing would have obliged GE to take any candidates.

The Court also rejected his argument that 80% should have been a passing score because the employer is entitled to set its own standards and he could not show that the employer had ever used a lower standard.  It also rejected his argument about subjective grading since not all answers perfectly matched the grading key verbatim and it also benefitted him at times since not all of his answers perfectly matched the answer key.

Yet he fails to acknowledge that GE graded the tests for substantive accuracy, not a verbatim match. [The supervisor] stated that he used his “professional judgment based on decades of relevant employment at GE Aviation, to determine when answers were substantively correct, even if they did not exactly match the language set out in the answer key.”

Finally, it rejected his argument questioning whether the younger employees completed the first test by themselves because the photocopies of the test had different levels of darkness in the written answers, some being dark black and some being gray.   This was particularly true when the other employee authenticated his test sheet and the plaintiff did not have any expert or other evidence to contradict that authentication. 

It’s true that a few of [one employee’s] letters appear more grey while the rest appear black, but the same is true of the other tests in the record. When we look at those tests, the same slight differences in color gradation show up. Keep in mind that we can see only digital copies of the original documents on our electronic docket. To support some alternative, nefarious explanation that would account for all the tests, [the plaintiff] would have to claim (and provide evidence) that [the supervisor] rigged each one, not just [his]. This [the plaintiff] has not done. That a bit of color was lost in electronic translation does not support an inference of discrimination.

The final five answers on [that employee’s] test similarly provide no evidentiary basis for questioning the test’s integrity. Though the writing appears in grey, that alone would not permit a reasonable jury to infer that [he] did not complete the test. Perhaps if GE claimed that [he] wrote only with a black pen, and a few answers appeared in red ink, then a court could conclude from the document’s face that a jury could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th 563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a document with multiple redlines and electronic comments could be authenticated). Not so here. GE’s position is not that [he] couldn’t have used different writing utensils, say, a pen on the first sitting and a pencil on the second. It’s merely that [he] completed the test. So nothing [the plaintiff] gives us contradicts GE’s position.

                   . . .

[The plaintiff’s] argument, at bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he] would have to prove that the document is what he claims it is—the work, in relevant part, of someone other than [that employee]. And since GE has put forth [that employee’s] testimony recognizing the handwriting, [the plaintiff] has to convince us that he would have something in response. He doesn’t. He gives us nothing concrete to work with, such as an expert analysis or another handwriting sample for comparison, that could contradict the sworn testimony of [the employee and the supervisor].

As for the second test, the Court rejected his argument that the younger employee did not meet the minimum qualifications because he had been a tool shop supervisor and not a regular employee.

The Court also rejected his claims against the union for refusing to take his losing case to arbitration. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

New Year and New Ohio Minimum Wage Poster

For those of you who took an extra long holiday weekend, the new year also brings an adjustment in your payroll systems to reflect a 15 cent increase in Ohio’s minimum wage to $8.30/hour and (probably in February) to reflect reduced payroll withholdings at the federal level.  The New Year also brings the requirement to update your Ohio minimum wage posters in your break rooms and electronic handbooks.   I’m always surprised at how many employers remember to adjust their wages but not their posters.   So, finish your cup of coffee and print out the poster from this link:  http://www.com.ohio.gov/documents/dico_2018MinimumWageposter.pdf

And we’ll see if (or how long) I can stick with my New Year’s resolution to blog a couple times each week like in my youth.  (Yes, I’m a luddite that still prefers the web and emails to Facebook, Instagram, Texting or Twitter . . . . . .)

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Dismissal of Race Discrimination Claims Where Newly Hired Co-Workers Were Paid More and Had More Job Related Education and Experience

Last week, the Sixth Circuit affirmed an employer’s summary judgment on race discrimination claims challenging common pay and promotional practices. Woods v. FacilitySource LLC, No. 15-3138 (6^th Cir. 2-3-16).  The Court also clarified what constitutes a Charge of Discrimination.  In affirming dismissal of the claims, the Court found that it was not discriminatory for the employer to pay new hires – with higher and more job-related college education – more than long-time employees without a college education or with only a fine arts degree.   The Court also recognized that when an employer fails to post promotional openings for Senior Account Managers, a plaintiff need not prove that he applied for a promotion in order to challenge promotions that were given to those outside his protected class.  Nonetheless, the Court found that individuals with higher levels and/or more job-related education and prior job experience were more qualified for those promotions than the plaintiffs.  Finally, while the Court found that a plaintiff – who was the only African-American manager - identified inappropriate racial comments and racial insensitivity in the workplace, it was not severe or pervasive enough to constitute a hostile work environment.   

According to the Court’s opinion, one of the plaintiffs was the employer’s only African-American supervisor and the other plaintiff was his domestic partner who alleged that he was discriminated against because of his association with the other plaintiff.  They had been hired in 2005 at approximately $10/hour, had been promoted to the positions of Account Manager and were making approximately $42,000/year at the time that they filed their Charges.  Of the 26 other Account Managers, all but one was hired after them, 12 were hired after 2010 and most were paid significantly more than them, including 11 of the newly hired managers.   The employer defended the higher salaries paid to the other Account Managers on the basis that the market after 2010 was competitive and that they needed to increase the level of college education and prior management experience required for the positions and the starting salaries.  While the plaintiffs conceded the fairness of paying more for greater education and experience, they felt that their salaries should have been increased as well to reflect their greater seniority with the employer.   During pre-trial discovery, the employer discovered that one of the plaintiffs had made misrepresentations on his job application about having a high school diploma (which he lacked) and voluntarily leaving a job from which he was actually involuntarily terminated (when he had similarly lied on a job application).

Charge of Discrimination.  The plaintiffs sent notarized letters (signed under penalty of perjury) to the EEOC and OCRC and completed intake questionnaires, but never signed or dated official Charge of Discrimination forms.  Instead, they requested and received right-to-sue letters from the EEOC and filed suit.  The district court found that they exhausted their administrative remedies because, among other things, the EEOC treated their letters and questionnaires as Charges, but the EEOC filed an amicus brief indicating that this factor was irrelevant. The Court agreed that the EEOC’s treatment of the letters and questionnaires was irrelevant, but still found that the plaintiffs had exhausted their administrative remedies because the plaintiffs had filed Charges giving notice of their allegations and requesting the agencies to take action.

Pay Discrimination.  The employer conceded that the plaintiffs had alleged a prima facie case because they were paid less than all of their fellow Account Managers.  On appeal, the employer contended that the other Account Managers were more qualified than the plaintiffs and were paid more on account of a factor other than race.  In particular, the employer increased the starting salary for the position in 2010 to reflect increased requirements for college and job-related prior experience.  This resulted in virtually all of the new hires being paid more than most of the existing Account Managers, including plaintiffs.  The Court found this to be a non-discriminatory reason: The plaintiffs’

belief that seniority should have been given equal or greater weight than educational and experiential accomplishments does not mean that the defendants were guilty of wage discrimination simply because they viewed other criteria as more germane to their salary-determination decision.

As for the other Account Managers hired before 2010 who were also paid more than the plaintiffs, the Court found that they similarly possessed greater education (i.e., college degrees) and more relevant job experience than the plaintiffs.  One of the plaintiffs did not even have a high school degree and the other had a fine arts degree, unlike business, marketing or communications majors who had higher salaries.   In other words, the court found that a fine arts degree did not justify the same amount of salary paid to co-workers with a marketing degree or business classes:

Clearly, skills gained from such a [fine arts] degree were not as immediately transferrable to Lorenzo’s job at FacilitySource as were those from the degrees obtained and courses taken by other individuals in management and business related subjects.

Promotions.  The employer promoted a few Account Managers in to Senior Account Manager positions.  Even though the plaintiffs did not apply for these promotions, the Court found this was unnecessary in light of the employer’s failure to post the positions:

[I]n failure to promote cases a plaintiff does not have to establish that he applied for and was considered for the promotion when the employer does not notify its employees of the available promotion or does not provide a formal mechanism for expressing interest in the promotion. Instead, the company is held to a duty to consider all those who might reasonably be interested in a promotion were its availability made generally known.

Nonetheless, the plaintiffs could not prevail because one of them lacked the requisite college degree and the other was less qualified than the individuals ultimately promoted due to their more relevant college courses.

Hostile Work Environment.  The plaintiff was able to identify race-based comments and that clients were rarely introduced to him during walk-arounds unless they were also African-American or specifically requested to meet with him. “When directed toward or used to describe an African-American employee, especially the sole African-American employee in a management position, such comments and conduct must be considered both inappropriate and racially insensitive.”  However, the plaintiff never explained how this conduct was so offensive that it interfered with his work.   He was ultimately fired because of dishonesty on his job application, not because of his job performance.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Notice Posting Rule Is Finally Put to Rest for Most Employers

On Monday, January 6, 2014, the NLRB announced that it had decided not to appeal to the Supreme Court the decisions of the D.C. and Fourth Circuit Courts of Appeal invalidating its controversial proposed rule from August 2011 to require most private sector employers to post notices informing employees of their rights under the NLRA.  The Board’s deadline to appeal the court decisions had been January 2, so the announcement was not a complete surprise.  Notwithstanding this development, the Board continues to legally post the notice on its website for employees to view and has also created a free mobile app (for iphone and Android users).  Moreover, these court decisions (finding that the proposed rule violated employers’ free speech rights under the NLRA) do not affect the obligation of government contractors to post the same notice under Executive Order 13496 because that Order was not promulgated under the authority of the NLRA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Happy New Year and New Minimum Wage

With the holidays officially over, it’s a new year and a new minimum wage for employees in Ohio.   As of yesterday, the minimum wage for Ohio employees rose to $7.85/hour.   According to §34a of Article II of the Ohio Constitution and Ohio Revised Code §4111.14, the FLSA governs who is considered to be an “employer” subject to Ohio’s minimum wage law (except that §34a also explicitly covers the state and all political subdivisions as well).   The official 2013 Ohio Minimum Wage poster – which should now be hung conspicuously in all Ohio workplaces (that are subject to the law under Ohio Revised Code §4111.09) -- indicates that employers which gross less than $288,000 are not subject to Ohio’s minimum wage and can pay only the $7.25 federal minimum wage.    Tipped employees (i.e., those who customarily receive more than $30/month in tips) are entitled to only $3.93/hour.  Individuals who are not covered – or who are exempted -- by the federal and state minimum wage laws get paid only what they negotiate by contract.

Determining who is covered and who is exempted by the minimum wage laws sometimes requires a law degree and great patience to dig through ad hoc amendments to statutes and regulations.  Ohio Revised Code §4111.14 summarizes §34a in more detail, but still incorporates by broad reference the coverage provisions of the FLSA.  Section 203 of the FLSA provides that an “employer” ” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization“ and an “employee means any individual employed by an employer” with certain exceptions. (For instance, agricultural and domestic workers are generally exempt but the federal Department of Labor has been working to significantly curtail the domestic exemption and had been working to restrict the agricultural exemption as well).   Section 206, however, which generally governs the federal minimum wage requirements, provides that employers are only required to pay the minimum wage to employees who are “engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce.”  There are additional exceptions to this rule as well (as well as other ad hoc amendments that are beyond the scope of this posting).   

Unless an employer can prove that its enterprise – or a particular employee -- is exempt from the minimum wage laws, it is prudent to assume that the employer and/or the employee are covered.   In the last quarter of 2012, a Central Ohio employer found itself liable for $15,996.52 in unpaid minimum wages, $581.40 in unpaid overtime, and $33,155.84 in damages.  Goodman v. Cleland, 2012-Ohio-5044.  The court rejected the employer’s attempt on appeal to show that it was not subject to the overtime wage provisions.  Instead, the court treated the not-an-employer-under-the-statute argument as an affirmative defense – with the burden of proof on the employer.  (This case is a little confusing because the appellate court discusses at ¶ 23 the trial court’s refusal to consider the argument in a motion to dismiss because it was not specifically designated as an affirmative defense in the employer’s answer to the complaint even though the defendant denied being an employer under the statute.  Nonetheless, the appellate court then finds in the same paragraph that the employer waived the argument by failing to raise it again at the summary judgment stage). 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Posting Rule Postponed Again

Yesterday, the United States Court of Appeals for the District of Columbia Circuit granted an emergency motion for an injunction pending appeal in the National Association of Manufacturers v. NLRB, No. 12-5068 and the NLRB announced that it will comply with the stay and file a cross-appeal. As reported here last month, the District Court had upheld the NLRB’s new requirement for most private sector employers to post a notice of employee rights under the National Labor Relations Act (NLRA), but simultaneously concluded that the enforcement actions which the NLRB intended to take to enforce the new requirement were outside its authority under the NLRA. The new posting requirement was to begin at the end of this month on April 30, 2012. An appeal was filed by the NAM and it sought to enjoin the new posting requirement pending the appeal. The NRLB objected to staying the posting requirement, while also indicating that it might appeal the portion of the decision denying its enforcement powers. (In the meantime, a federal court in South Carolina rejected the NLRB’s authority to require employers to post the notice). The Court of Appeals ultimately concluded that because the posting requirement had been stayed by the NLRB since August during the pendency of the district court litigation, staying it another six months or so while the appeal progressed was advisable to maintain the status quo.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Federal Court Upholds NLRB Posting Requirement, But Not Presumption of ULP

[Editor's Note: The posting requirement has again been stayed pending appeal of this decision to the Court of Appeals.]

This morning, the United States District Court for the District of Columbia upheld in a 46-page opinion most of the NLRB’s regulation requiring employers to post a notice of employees’ rights under the NLRB. However, the Court ruled that an employer’s failure to post the notice, by itself, could not constitute an independent unfair labor practice and, surprisingly, that an employer’s failure to post the mandatory notice could not operate to toll the six-month statute of limitations to file an unfair labor practice charge. National Association of Manufacturers v. NLRB, Case No. 11-629 (D.D.C. 3-2-12):

The Court holds that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to cost to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The Court found that the notice posting requirement was permissible under Section 156 of the NLRA, which provides in relevant part that ““The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by [this subchapter], such rules and regulations as may be necessary to carry out the provisions of this subchapter.” The Obama Administration argued that “employees cannot exercise their rights without knowledge of what those rights are, and they submit that the rule simply mandates that employers inform employees of those rights, which furthers the purposes of the Act.”

The Court found the portion of the new NLRB regulation which made it an unfair labor practice for an employer to fail to post the mandatory notice violated sections 158(a) and 160(a) of the NLRA, “in which Congress specifically defined and limited the conduct that could constitute an unfair labor practice.” While the NLRA does not attempt to enumerate every conceivable action which could constitute an unfair labor practice, the NLRA did place some limits on what the NLRB could declare as an ULP:

Section 160(a) empowers the Board “to prevent any person from engaging in any unfair labor practice (listed in section 158 of [title 29]) affecting commerce.” 29 U.S.C. § 160(a). This section has been interpreted as limiting the unfair labor practices that the Board may prohibit to only those enumerated under section 158. Local 357, International Brotherhood of Teamsters v. NLRB, 365 U.S. 667, 676 (1961) (“Where, as here, Congress has aimed its sanctions only at specific discriminatory practices, the Board cannot go farther and establish a broader, more pervasive regulatory scheme.”); see 76 Fed. Reg. at 54,032 (concession by the Board that section 160(a) “specifically limits the NLRB’s powers to preventing only the unfair labor practices listed in [section 158] of the Act.”).

Failure to post the mandatory notice cannot reasonably be found to interfere with, obstruct or hamper employees’ NLRA rights as “interfere” is commonly understood.

Second, section 158(c), which prohibits the Board from construing “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form” as an unfair labor practice or as evidence of an unfair labor practice “if such expression contains no threat of reprisal or force or promise of benefit,” also suggests that Congress had a narrow reading of the word “interfere” in mind. . . . Since Congress prohibited the Board from considering an employer’s express statement of its views to be an unfair labor
practice, it follows that it did not intend that an employer’s mere failure to supply information would be designated as one.

Importantly, the Court found that an employer’s failure to post the mandatory notice is not irrelevant to whether there has been an unfair labor practice:

The Court points out that nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it. But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights. The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.

The Court also rejected the new regulation’s provision tolling the six-month statute of limitations to file an ULP Charge:

This provision not only extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, it applies to all unfair labor practice actions against employers where the notice was not posted. The Court concludes, as in the case of the unfair labor practices provision, that Congress did not leave a gap for the agency to fill with respect to the statute of limitations. Instead, in section 160(b), Congress plainly mandated a short time period during which an aggrieved person must file a charge. 29 U.S.C. § 160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . . .”). The challenged provision of the rule upends that requirement.

While the Court noticed the applicability of equitable tolling, it refused to apply legal precedent under Title VII and the ADEA to the NLRA because, unlike the NLRA, those statutes specifically contained a notice-posting requirement and, in Title VII cases, the tolling is only applied on a case-by-case basis. In contrast, the NLRB’s regulation does not apply to consideration of individual circumstances in automatically tolling the statute of limitations and does not put the burden of proving equitable tolling on the plaintiff/government.

Finally, the Court rejected the First Amendment argument in that the employer was not being forced to state anything by posting a government-embossed poster.

As previously reported herre, the NLRB’s requirement that employers post the notice of NLRA rights becomes effective on April 30, 2012.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Again Delays Imposition of New Notice Requirements

Just in time for Xmas, the NLRB announced on Friday that it was delaying again the new requirement for employers to post notice of employees' rights under the National Labor Relations Act. The new requirement is being challenged in federal court and the court requested the NLRB to postpone the new requirement. The new deadline is April 30, 2012.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB Delays New Posting Requirement Until 2012

[Editor's Note: Just in time for Xmas, the NLRB announced that the new requirement would be delayed yet again (at the request of a federal court hearing an employer challenge to the new rule) until April 30.]

Yesterday, the NLRB announced that it was delaying from November 14 until January 31, 2012 the new requirement for employers to post a notice explaining employees' rights under the National Labor Relations Act. The reason given is to give the NLRB time to reach out and educate small and medium sized employers as to who is and is not subject to the NLRA.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

NLRB to Require Employers to Post Notice of Employee-Union Rights

[New Editor's Note: On December 23, 2011, the NLRB announced again that it was postponing the implementation of the new posting requirement from November 14 until April 30, 2012. In April 2012, the NLRB announced that it was postponing the requirement pending resolution of an appeal to the D.C. Circuit Court of Appeals.]

[Editor's Note: As expected, the final rule was published in the Federal Register on August 30, 2011. The poster has been available on the NLRB website since September 14, 2011.]

On Tuesday, Federal Register is expected to contain a rule adopted on Thursday by the NLRB requiring all employers subject to the National Labor Relations Act (i.e., which does not include states, federal government, unions, political subdivisions, employers subject to the Railway Labor Act, etc.) to post a notice in a conspicuous place of employee rights under the NLRA. A copy of the form notice eventually will be available on the NLRB website. Government contractors may continue to post the notice required by the DOL instead of the NLRB notice. When the entire workforce is not proficient in reading English, a separate notice must be posted in any language spoken by 20% of the workforce. The rule will take effect 75 days after it has been published in the Federal Register (i.e., November 14) and will be codified at 29 C.F.R. Part 104.

In addition to posting the required notice physically, "an employer must also post the required notice on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means. An employer that customarily posts notices to employees about personnel rules or policies on an intranet or internet site will satisfy the electronic posting requirement by displaying prominently – i.e., no less prominently than other notices to employees -- on such a site either an exact copy of the poster, downloaded from the Board's Web site, or a link to the Board's Web site that contains the poster. The link to the Board's Web site must read, "Employee Rights under the National Labor Relations Act."

The rationale for the posting requirement is that most employees are not aware of their rights under the NLRA. This has been attributed to the declining union membership, a failure of high school civics teachers, and greater number of immigrant employees. The NLRB refused to include on its poster all employee rights, such as the right to vote to decertify a union, etc.

Employers who fail to post the notice can face three adverse consequences. The NLRB will treat the posting failure as an unfair labor practice (subject to a cease and desist order) and may treat it as evidence of anti-union animus (on other allegations). In addition, the NLRB may toll the six-month limitations period for an employee to file an ULP Charge for the period during which the employer failed to post the employees' notice of rights.

Not all small and/or non-profit employers are subject to the NLRA and should consult with their attorney to confirm whether they are required to post the NLRB notice.

The new rule is already being challenged as beyond the statutory authority of the NLRB. The text of the notice has been subject to some criticism because the listed rules are not equally applicable to all employees as stated because of differences in how the law is applied in different regions and industries. The text provides as follows:

EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, andabout the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.



• Form, join or assist a union.
  


• Bargain collectively through representatives of employees' own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.



• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
  


• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.



• Strike and picket, depending on the purpose or means of the strike or the picketing.
  


• Choose not to do any of these activities, including joining or remaining a member of a union.
  

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in nonwork areas, such as parking lots or break rooms.


• Question you about your union support or activities in a manner that discourages you from engaging in that activity.


• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.


• Threaten to close your workplace if workers choose a union to represent them.


• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.


• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.


• Spy on or videotape peaceful union activities and gatherings or pretend to do so.
  

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.


• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.


• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  


• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  


• Take adverse action against you because you have not joined or do not support the union.
  


• If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
  

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency's Web site: http://www.nlrb.gov. You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired. If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB's Web site or by calling the toll-free numbers listed above.

The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.