Court Invalidates Portion of NLRB Posting Rule

Recently, I notified you that the National Labor Relations Board had issued a Rule requiring all Employers to post a Notice of Employee Rights under the National Labor Relations Act.  The Rule is scheduled to go in effect next month, when all Employers are required to post a Notice, in a similar manner in which other Labor Law Compliance Notices are posted.  If you have not yet made arrangements to bring your workplace into compliance, be sure to contact us soon.

More recently, however, the United States District Court for the District of Columbia has determined that a portion of the NLRB’s new Rule is invalid.  Various plaintiffs brought actions against the NLRB, alleging that the Board exceeded its authority when adopting the Rule and that it violated the First Amendment rights of those plaintiffs by requiring them to post the poster and communicate messages to which they objected.  The Court rejected the First Amendment argument, concluding that the contents of the poster constituted government speech, since the posters provided a message from the government rather than one that should be construed as coming directly from the Employer.  Also, the Court concluded that the NLRB did not exceed its statutory authority in requiring Employers to hang such a poster.

More importantly, though, the Court did invalidate two other provisions in the Rule, concluding that the NLRB did exceed its authority with respect to those provisions.  The Rule as adopted not only required Employers to hang the poster, but it also declared it to be an unfair labor practice if an Employer failed to do so.  In addition, the Rule declared that the statute of limitations would be tolled (i.e. the clock would not start running) during the time that the poster was not hung.

In short, the Court found that the NLRB did not have the power to impose these kinds of penalties with respect to Employers who do not comply with the posting Rule.  Certainly, it is not suggested that any Employer not comply with the posting Rule, but it is important to recognize that at least the United States District Court for the District of Columbia has concluded that an Employer will not be penalized so severely for even an inadvertent failure to comply with the Rule.

If you have any questions about the NLRB posting requirement, do not hesitate to contact our office.

Employers Soon to be Required to Post Notice of Employee Union Rights

Pursuant to a Rule from the National Labor Relations Board, most private sector employers are required to post notice of employee rights under the National Labor Relations Act.  This Act is what gives many private sector employees the right to form and join, or refrain from joining, labor unions.

The new rule requires that a poster be hung in locations similar to where other such notices (under the FMLA, FLSA, etc.) may be posted.  The Rule now goes into effect April 30, 2012, after the original effective date was postponed by the NLRB.

To get a free copy of the poster, you can download one from the NLRB website, or you can contact the NLRB to have one mailed to you.

Teacher Denied Paid Leave to Welcome Home Son Wounded in Afghanistan, Demonstrating Binding Nature of Collective Bargaining Agreements

A recent story from FoxNews.com, about a Massachusetts teacher who was denied additional paid leave to welcome home her son who was wounded in Afghanistan, illustrates a point of which many union members often lose sight when forming unions.  Union officials and members often are quick to argue that unions – and collective bargaining agreements – are necessary in order to prevent employers from being able to change the terms and conditions of employment unilaterally, or to prevent employers from providing certain employees with benefits or working conditions that are better than others.

In union organizing campaigns, however, I always argue that this rigid agreement can have unintended consequences that may be less than desirable for the employees.  In other words, giving employers the flexibility to treat different situations differently can actually be beneficial for employees.

In this case, the collective bargaining agreement provides for nine days of paid leave, which the employee had already exhausted.  She asked for three additional paid days to visit with her step-son who is returning from battle, and she was denied her request.  The school district’s stated reason for denying the request is that the CBA did not provide for any additional paid leave.

Let me absolutely clear about one thing – the stated purpose for this leave is something upon which we should place significant value and honor.  If there is a way this employee could be permitted to take time for this purpose, it would benefit all to seek it.

Let me also be clear about one other thing, though – the requested leave could not just be given by the district without causing the district to violate the law.

If the contract provides for a fixed number of paid leave days, then giving any more would be an illegal unfair labor practice just as it would be so to permit fewer.  If there is a bad guy here, it is not necessarily the district.  The problem here is that the rigidity ensured by a collective bargaining agreement is just that – rigid.  Employees and unions need to remember that this goes both ways.

Now, are there ways to accomplish this leave?  Sure.  Some exception could be carved out with permission of the union AND the board, but again that is not a decision that the board is permitted to make.  Also, there likely would be unpaid leave available pursuant to recent amendments to the FMLA.

While I absolutely sympathize with the difficulty created for this employee by the collective bargaining agreement in effect, it is important to understand the source of problems like the one here – it is the rigidity of the CBA, rather than intentionally unwilling employers.

NOTE:  My analysis is based, of course, on the facts as reported in the article, and I have not conducted an independent review of the CBA at issue.

Proposed NLRB Election Rule Changes – Position Statements

Last week, I commented that President Obama’s recent appointments to the National Labor Relations Board could mean significant changes for employers, particularly as it relates to union organizing by employees.  As one particular example, I referred to new election guidelines that have been proposed but that have not been enacted yet.  These new rules would make organizing campaigns faster and would make it easier for unions to launch and prevail in organizing campaigns.

Today, I will highlight the first of several notable rule changes, to explain why I say that.  Let’s look first at the proposal to require pre-election hearing position statements.

Obama “Recess” Appointments Likely to Have Significant Impact on Labor Union Organizing

It has been no secret that President Obama has enjoyed great support from organized labor and that he in turn supports efforts to make it easier for unions to organize workers. Recent appointments by Obama to fill three vacancies on the National Labor Relations Board are likely to usher in significant changes in the process for creating such workplace groups.

The President, with much fanfare Wednesday, made a “recess” appointment for the head of the new Consumer Financial Protection Bureau. (I put the term “recess” in quotes, because there appears to be some controversy about whether or not the Senate, which normally must approve of such appointments, was actually in recess).  With much less fanfare, though, Obama appointed three new members to the five-seat NLRB. The Board had two vacancies already, and a third vacancy was created when one member’s term expired at the end of 2011. With only two members on the 5-member board, no action could be taken.

Republicans in Congress seemed content that this Board could not act, but the appointment of three new members makes it not only possible that the Board will be able to act but also likely that it now will have enough votes to enact new union election rules that have been proposed, to union elections faster and easier for unions.

I will continue to monitor the status of those rules, which I will explain in more detail in a future post. Stay tuned, folks!

Congress Considers Bill to Amend Burden of Proof in Age Discrimination Claims

In June, the United States Supreme Court issued an opinion in the case of Gross v. FBL Financial Services, Inc., in which the Court clarified the standard for showing age discrimination under the Age Discrimination in Employment Act (ADEA).  In short, the Court said that a plaintiff that claims age discrimination must show that but for the employee’s age, there was no other reason the employer would have taken the adverse action complained of.

This “but for” standard is more difficult for a plaintiff to show than the “substantial and motivating factor” standard other discrimination plaintiffs must show in claims brought under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of gender, race, religion, national origin, etc.  Under the “substantial and motivating factor” test, a plaintiff need only show that the protected class was a substantial and motivating factor – even if not the only factor – that led to the adverse action.

To address the different standards found in Title VII and in the ADEA, some Members of Congress have introduced HR 3721, which would be known as the “Protecting Older Workers Against Discrimination Act” (POWADA).  This bill, if passed, would amend the ADEA to provide that a plaintiff can recover in an age discrimination claim if he or she can show that age was a “motivating factor for the practice complained of, even if other factors also motivated that practice.”

President Obama made it clear that his legislative agenda included amending various employment laws to assist plaintiffs in making these types of claims, and the Administration already can take credit for one new law that overturns recent Supreme Court precedent in the area of discrimination, so it would make sense that this bill could see some support.  It is too early to tell right now, though, so I will continue to keep you posted.

Obama signs FMLA Amendments Relating to Military Caregiver Leave

Thanks again to the FMLA Blog for a quick summary of this week’s amendments to the FMLA. As I wrote last year, the FMLA was amended previously to provide certain types of leave for employees dealing with various family matters involving service in the armed forces.

The new provisions that were signed into law by President Obama this week further to expand the number and type of circumstances in which FMLA leave can be taken for military related reasons.

Employers should be sure that their FMLA policies are up to date to reflect these new military leave requirements.

Third Circuit: Freedom of Speech No Longer Exists in Kindergarten Classrooms

The United States Court of Appeals for the Third Circuit has ruled that a public school district acted permissibly when it prohibited a mother from reading a few verses from the Bible during an “All About Me” unit, in which parents came to the classroom to share information about each student and, in some cases, to read a portion of that student’s favorite book.

In the case of Busch v. Marple Newtown SD (June 1, 2009), the Court ruled, essentially, that a district has a great deal of control over the speech that is permitted in that type of forum.  As the Courts have said before,

Unlike parks, streets, and other traditional public fora, elementary school classrooms are not places for unlimited debate on issues of public importance.  Most of the time, school classrooms are reserved for teaching students in a structured environment.  Public schools may take on characteristics of public fora by “intentionally opening” facilities for “public discourse.” But in classrooms, during school hours, when curricular activities are supervised by teachers, the nonpublic nature of the school is preserved.  Speech occurring during these activities may be regulated under standards different from those that would apply in public fora. (citations omitted).

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain.  In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

In this case, then, the Court ruled that the district could exert a great deal of control over speech in the kindergarten classroom, even though they did invite other parents to come into the classroom to speak to the class about each child’s interests.

It is important to note, though, that the Court in this case permitted the district to exercise rather significant discretion in determining what to allow and not allow.  For example, once Wesley had chosen the Bible as the favorite book that he wanted his mother to read for his “All About Me” presentation, Mrs. Busch selected a few verses from Psalm 118.  The Court noted the following:

[Mrs. Busch] selected verses 1 through 4 and verse 14 of Psalm 118 from the King James Bible:

1 Give thanks unto the Lord, for he is good; because his mercy endures forever.
2 Let Israel now say, his mercy endures forever.
3 Let the house of Aaron now say, that his mercy endures forever.
4 Let them now that fear the Lord say, that his mercy endures forever.
* * *
14 The Lord is my strength and my song, and is become my salvation.

Busch testified she chose these verses because (1) she and Wesley frequently read from the Book of Psalms; (2) she thought the children would like Psalms because they are similar to poetry; and (3) she desired a reading that did not make reference to Jesus, which she worried might upset some people given what she perceived in the past as hostility in the school district towards her Christian beliefs. She also testified that she intended to read the verses to the students without explanation and that, if asked questions about the reading, she would respond that “it was ancient psalms and ancient poetry and one of Wesley’s favorite things to hear.”

Additionally, the Court found as a matter of fact that

Other parents also participated in their children’s “All About Me” weeks by reading stories to the class, sharing snacks, and doing crafts. Among the stories read by parents were: The Grinch Who Stole Christmas, The Jolly Roger, and Green Eggs and Ham. Reilly also keeps a library of books from which she periodically reads to Wesley’s class. Among those books are several about holidays, including: Bear Stays Up for Christmas, Froggy’s Best Christmas, The Wild Christmas Reindeer, Ten Timid Ghosts on a Christmas Night, Christmas Trolls, The Best Easter Eggs Ever, Easter Bunny’s On His Way, The Night Before Easter, Hooray for Hanukkah, The Magic Dreidels, and The Hanukkah Mice.

Additionally, one parent, Linda Lipski, visited Reilly’s [the teacher’s] class twice during the year to give presentations on Hanukkah and Passover that were planned in advance with Reilly. During Hanukkah, Lipski brought in a menorah and a dreidel and read “a Blue’s Clues Hanukkah story.” Later in the year, during the Passover holiday, Lipski “read The Matzoh Ball Fairy to the students and then offered them matzoh ball with chicken soup.” Reilly set up Lipski’s presentation by discussing Easter and Passover. She also discussed Christmas and Kwanzaa as part of the winter holiday unit in the social studies curriculum, and recalled a picture of a Christmas tree hanging in the classroom at the time of the Hanukkah presentation.

Presumably, the only distinction that the District could make between those permitted books and the Bible was that the Bible is considered to be scripture and, therefore, presumably could be considered proselytizing.  Despite opening the classroom forum for those books, though, the district was found to be acting within its discretion to limit the Bible reading.  This reflects the Court’s view that the mother’s free speech rights were so limited in that classroom that certain speech could be prohibited while other non-school-sponsored speech was still permitted.

The mother has indicated that she may be considering an appeal to the US Supreme Court, which is not obligated to hear the case.  Unless and until the Supreme Court reverses this decision, schools have a great deal of discretion, I believe, in regulating speech in this context.  As with all of these types of freedom of speech cases, each situation is very fact dependant, and you should consult legal counsel when making decisions like this.

Pennsylvania Legislature Considers Expansion of Human Relations Act

The PA State House currently is considering legislation to expand the coverage of Pennsylvania’s Human Relations Act.  The Act, originally adopted in 1955, prohibits certain types of discrimination that is based on a person’s race, color, religious creed, ancestry, age or national origin.

The new Bill, PA House Bill 300, would add sexual orientation and gender identity or expression to the protected classes.  Currently, neither PA state law nor federal anti-discrimination law prohibit discrimination on these bases.  Just under half of the states, however, include some protection for sexual orientation and/or gender identity.

The new law defines the term “sexual orientation” as “actual or perceived heterosexuality, homesexuality or bisexuality.”  The term “gender identity or expression” is then defined as “actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.”

Just like the rest of protected classes already addressed by the law, this change would apply to discrimination in employment, housing and public accommodations.  It would not have any formal impact on other types of rights, such as the right to marry, etc.

The definitions are obviously rather broad, however, and could serve to expand significantly the scope of the Act.  Time will tell whether there will be support for the legislation, which was narrowly approved by the House State Government Committee and now is before the Appropriations Committee.  Stay tuned for more updates, as this bill moves its way through the General Assembly.

Obama Signs First Bill – An Employment Law Change Already

I previously wrote about the impact that an Obama Administration would have on employment law.  In that article, I mentioned that Obama had vowed to sign legislation that in effect would overturn a recent Supreme Court decision that precluded a female employee from bringing an equal pay claim, since she did not bring the claim within the requisite time limit from the initial decision by the employer to begin allegedly discriminating against her with respect to her pay.

President Obama kept that promise, when he signed his first piece of legislation this week, the Lilly Ledbetter Fair Pay Act of 2009 (named for the plaintiff in the case he sought to overturn).  The new law declares that discriminatory pay arrangements are to be considered continuing violations that occur each time the employee receives his or her pay.  This makes it much easier for plaintiffs to meet the statute of limitations.

In her case against her former employer, Ms. Ledbetter claimed that, some time ago, she was given an unfairly low salary.  She alleged that the violation occurred each time she got a paycheck that was lower than what she claimed it should have been, meaning that she could file a claim any time within 180 days of receiving one of the paychecks.  Instead, the Court found that the alleged discrimination occurred when she originally was given a lower salary, meaning that her claim had to be filed within 180 days of that original event or was lost forever.

The fact that this was President Obama’s first bill signing means little or nothing from a legal perspective, but it does perhaps signal the new administration’s focus on expanding worker rights.  Only time will tell whether or not the next four years will continue in that direction.