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.
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!
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.
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.
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.
I continue to be amazed (although I know I should not be) by the number of times we read or hear about some inappropriate photo posted on Facebook or MySpace, and the impact that the photo has on somebody’s employment.
I have previously written that the Internet is a public place, but today we got another reminder. President-elect Obama’s chief speechwriter had a few embarassing pictures on his Facebook site for only two hours, which still was long enough for them to be viewed and distributed.
The pictures showed the speechwriter, Favreau, with a cardboard cutout of Hillary Clinton, Obama’s soon-to-be Secretary of State. It is likely that the emergence of the photos will have at least some impact on this young man’s employment.
Kids, please remember – the Internet is a public place.
I previously wrote that President-elect Obama is certain to make a mark on the employment law landscape. An article at the New York Law Journal also has a nice summary of several more detailed employment law changes that Obama is likely to seek.
Notably, the author alleges that Obama would seek to expand the FMLA to provide authority for leaves of absence for other purposes, including parents’ attendance at childrens’ school activities. Also, according to the Author, Obama supports a federal mandate that all employers provide a minimum number of paid sick days.
With respect to labor laws, in addition to what I previously wrote about the proposed elimination of the secret ballot union election, Obama has proposed limiting the definition of “supervisor” under the National Labor Relations Act so that more persons would be considered part of a union.
The author also makes one other very good point. Ignoring all of the legislative efforts to be expected, President-elect Obama also is likely to appoint at least one Justice to the United States Supreme Court. A change in the Court could also have a significant impact on labor and employment law.
Stay tuned, folks….