Category Archives: Labor and Employment Law

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, 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.

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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.

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