News and Analysis
NLRB’s Notice Posting Upheld by D.C. Federal Judge
March 09, 2012On March 2, Judge Amy Berman Jackson ruled against the National Association of Manufacturers (NAM) in its lawsuit against the National Labor Relations Board (NLRB) regarding its employer posting requirement. The posting describes employees’ rights under the National Labor Relations Act and must be posted by virtually all employers by April 30 of this year. NAM’s suit challenged the NLRB’s jurisdiction to require the posting.
Judge Jackson ruled that the NLRB does have the authority to require employers to post the notice it finalized in August.
The poster rule not only requires an employer to put up the poster, but it also establishes that if the poster isn't put up that would be, in and of itself, an unfair labor practice. Additionally, under the current law there is a six month statute of limitations to bring an unfair labor charge before the Board. The rule, as issued, would allow this limitation to be waived in certain circumstances.
The judge, in her decision, said that although the Board can require the poster, it cannot create the unfair labor practice and cannot waive the statute of limitations.
NAM’s Joe Trauger, Vice President, Human Resources Policy, said, “Most concerning about this ruling is that it appears that if an employer does not post and an unfair labor practice complaint is subsequently lodged against them, the NLRB can use failure to post as evidence of anti-union animus.”
This week. NAM, joined by the Coalition for a Democratic Workplace, the National Federation of Independent Business and the National Right to Work, decided to appeal the decision and also filed a motion with Judge Jackson requesting the rule not take effect until the appeal is decided. NAM continues to believe the facts and the law are on employers’ side in the case.
Medical Marijuana Ballot Issues: A Concern for Manufacturers
March 09, 2012Two pending ballot issues propose amendments to the Ohio Constitution that would make it legal for certain individuals to grow, process, distribute, purchase, sell and use marijuana and related paraphernalia in Ohio for certain medical reasons. Both the “Ohio Alternative Treatment Amendment” and the “Ohio Medical Cannabis Amendment” have been approved by the Ohio Attorney General and the Ballot Board, meaning that both petitions are now eligible to be circulated throughout Ohio for signatures.
Writes OMA counsel, Bricker & Eckler LLC, in a memorandum developed for OMA members: “(B)oth Amendments would restrict, either expressly or indirectly, the ability of Ohio manufacturers to test and/or discipline their employees for using or being under the influence of marijuana in the workplace. Additionally, the Amendments would raise a variety of legal and practical uncertainties for Ohio manufacturers regarding testing and discipline for marijuana use. Although some of those questions may be answered through subsequent administrative regulations authorized under both Amendments, inevitably, there will be questions that will only be answered following expensive and time-consuming litigation.”
NAM Acts Against Various NLRB Rulings
February 24, 2012The National Association of Manufacturers (NAM), which brought suit against the National Labor Relations Board (NLRB) over its employer posting mandate, reports that it is waiting for a decision by the judge in the case. The mandate requires virtually all employers hang a poster that spells out employees’ rights under the National Labor Relations Act. Unless reversed or stayed, the posting rule is currently scheduled to go into effect April 30.
Separately, the Coalition for a Democratic Workplace, of which NAM is a leading member, filed a legal challenge in federal court to the NRLB's “ambush election” rule, which was finalized in December 2011 and goes into effect April 30. Currently the parties are exchanging reply briefs.
And late last week, the House and the Senate introduced Resolutions of Disapproval to the NLRB’s "ambush election" rule. NAM sent a support letter to the lead sponsors of the resolutions, Senator Enzi (R-WY), Ranking Member of the Senate Health, Education, Labor and Pensions Committee, and Congressman Phil Gingrey (R-GA).
According to NAM, the rule does not explicitly shorten the time frame for a representation election to take place, but it does strip employers of their rights to have their concerns, such as who will be eligible to vote in the election, heard through pre-election hearings. This change could effectively shorten the time frame for elections from an average of 38 days to 20 days. Congressional vote on these resolutions is likely to take place sometime in March.
Federal Court Rules Obesity is a Disability under the ADA
February 16, 2012A federal district court recently held that severe obesity is a disability under the Americans with Disabilities Act (ADA). In EEOC v. Resources for Human Development, Inc., No. 10-3322 (E.D.La. Dec. 7, 2011), the employee weighed over 500 pounds at the time of her termination. The EEOC brought suit on the employee’s behalf, alleging that the employer violated the ADA by terminating her. From OMA Connections Partner, Roetzel & Andress.
NLRB on Employee Use of Social Media
January 27, 2012OMA Connections Partner, Roetzel & Andress reported that the National Labor Relations Board (NLRB) Acting General Counsel, Lafe Soloman, issued a new report this week on unfair labor practice cases involving employee use of social media and employers’ social media policies. Memorandum OM 12-31 summarizes 14 recent social media cases reviewed by the NLRB’s Division of Advice.
Per Roetzel’s Emily Wilcheck: The report reveals that the Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity. The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful.
Do You Know What Your Employment Practices Liability Insurance Covers?
January 27, 2012You might be surprised to find out what your employment practices liability insurance (EPL) covers or, more importantly, what it does not cover. From OMA Connections Partner, Roetzel & Andress.
Are You Liable for Overtime Pay for Work You Didn’t Authorize?
January 26, 2012
OMA Connections Partner, GBQ Partners, reported on a Seventh Circuit Court of Appeals ruling in favor of an employer in a case where a former employee sought five years of overtime pay for working unauthorized overtime.
While federal wage and hour law, and most state laws, place the obligation on employers to pay non-exempt employees for all time they work, including unauthorized overtime, this case is significant in that it found in favor of the employer.
This case was unique in that the employer had no knowledge of the overtime worked; read GBQ’s tips for setting and enforcing overtime policy.
NAM Calls for Input to Employment Law Policy Position
January 20, 2012Joe Trauger, Vice President, Human Resources Policy, National Association of Manufacturers (NAM,) is calling for manufacturer input to NAM’s employee relations policy positions.
The draft policy with redlined changed proposed by policy staff can be viewed here. Trauger said, “… our main goal was to tighten up the language in order to better focus on those issues of concern to manufacturers.” The employee relations policy is scheduled for NAM board ratification in March.
Comments can be sent to Trauger by January 30.
Ohio Workforce Development: Lots of Programs, Spending Can’t Be Calculated
January 20, 2012A workforce development study committee in the Ohio House this week released recommendations arising from a series of 2011 hearings.
Chairman Timothy Derickson wrote: “The current workforce system does not adequately address the structural unemployment that we are facing today. Ohio has a significant population of workers with skills but not the right skills for available jobs. While supports need to continue for the chronically unemployed and displaced workers, greater emphasis needs to be placed on incumbent worker and the under-employed to insure workers have the skills needed for which businesses are hiring. The workforce system in Ohio must be responsive to industry demand and bridge short term skill gaps among workers to align job seekers with available jobs.”
A Legislative Service Commission (LSC) study conducted for the committee found 65 workforce programs across 20 different state agencies. LSC stated: “Total funding and expenditures for every specific workforce development program listed in this memorandum cannot be calculated. This is because, in some cases, an agency's workforce development programs are a component of a much larger program and a delineation of the particular workforce development expenditures is not available.”
