Wednesday, January 3, 2018
New Year and New Ohio Minimum Wage Poster
Tuesday, February 9, 2016
Sixth Circuit Affirms Dismissal of Race Discrimination Claims Where Newly Hired Co-Workers Were Paid More and Had More Job Related Education and Experience
Friday, January 10, 2014
NLRB Notice Posting Rule Is Finally Put to Rest for Most Employers
Wednesday, January 2, 2013
Happy New Year and New Minimum Wage
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).
Wednesday, April 18, 2012
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.
Friday, March 2, 2012
Federal Court Upholds NLRB Posting Requirement, But Not Presumption of ULP
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.
Tuesday, December 27, 2011
NLRB Again Delays Imposition of New Notice Requirements
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.
Thursday, October 6, 2011
NLRB Delays New Posting Requirement Until 2012
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.
Monday, August 29, 2011
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.
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.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.