The National Labor Relations Board has New Guidelines for Earlier Union Elections Referred to as "Ambush Elections" - Are You Ready?
On April 30, 2012, the National Labor Relations Board (NLRB) implemented new rules that will speed up the union election process from petition to election and reduce an employer's opportunity to raise challenges to the process. This should invigorate unions in their organizing agenda. Pro-business groups have given these rules the apt name, "Ambush Elections," and view the changes as an Obama administration payoff for the support of Big Labor. There is no question that the changes will tilt the playing field in the unions' favor and make it more difficult for employers to win elections and remain union-free.
The revised NLRB rules do not specify how soon an election will be held. However, the Rule states the following:
- Notice of Hearing will go out on the same day as the petition (scheduled within 7 days or 5 working days).
- Postponement will seldom be granted (14 days will be maximum if extraordinary circumstances can be proven)
- Issues of eligibility will not be litigated (unless 10% of group affects eligibility).
The NLRB does not give a date certain for the scheduling of the election but, as discussed below, it appears that the current schedule of an election within 42 days from filing of a petition will become somewhere within 15 to 25 days when this new procedure is implemented and better understood.
Why should this matter to you? These changes will dramatically reduce the amount of time you will have to respond to a union's effort to organize your employees. Organizing campaigns are begun in secret, and the employees hear only one side of the story until the organizing campaign "goes public." Unfortunately, for many employers, their first notice of an organizing campaign is notice that a petition for an election has been filed with the NLRB. Under these changes, the time between the petition filing and the election - your time to counter the union's sales pitch - will be reduced from 6 weeks to as few as 15 days.
Under the pre-April 30, 2012 rules that existed for decades, if a union were to file a petition seeking to represent your employees, the election would likely be held approximately 42 days - or 6 weeks - after the filing of the petition. During those 6 weeks, you would have the opportunity to share information and opinions with your employees so they would have both sides of the story before casting their vote for or against the union. You would also have the opportunity to raise important issues at a pre-election hearing and in briefs, such as whether certain employees are supervisors not eligible to vote, whether certain groups of employees must be excluded from or included in the bargaining unit, or whether there should even be an election at all. Once a decision has been issued on these important pre-election matters, the election would be scheduled within at least 25 days.
Unions have not been successful enough in organizing employees, so they are looking for an unfair advantage. As you will recall, the unions and President Obama sought, without success, the right to the “card check” law. This is an alternative. The Obama NLRB intends to deliver in the form of changes that eliminate pre-election hearings in most cases, defer voter eligibility questions until after the employees already have voted, eliminate briefs and briefing periods in those rare cases in which pre-election hearings take place, postpone appeals and objections for a single post-election appeal, eliminate the 25-day waiting period between a pre-election decision and the election, and eliminate pre-election appeals except in "extraordinary circumstances." The new rules will even eliminate post-election appeals in many cases by making them discretionary and allowing the NLRB to summarily reject appeals that, in the NLRB's view, "do not present a serious issue for review."
Can you answer "yes" to these six questions?
- Do your employees today know why your organization is non-union and do your employees understand why a union will not help your organization?
- Is your organization prepared to meet the challenge of the union organizer on short notice and with a limited set of tools at your disposal?
- Have you assessed your organization's vulnerability to an organizing effort?
- Are your supervisors and managers trained to observe and report early signs of union organizing to maximize your time for response? Do you know the issues of not only why unions organize but also who is eligible and who your excludable supervisors are and other issues?
- Do you have a plan of action in place to quickly, accurately and lawfully communicate with employees in the event you are targeted for organizing?
- Have you pre-educated your workforce regarding basic information about unionization and your organization's position regarding unions so that you aren't starting from square one when and if you receive notice of a campaign?
If there are gaps in your preparedness, now is the time to implement preventive strategies and tactics to neutralize the unfair advantage that Big Labor has purchased from Washington. In order to be successful under this new regime, employers must be ready to hit the ground running before a petition is filed.
If you have any questions about how these new rules will affect your workplace, or any other employment law question, please contact me at 414-988-8403 or via e-mail at: tpk@kclegal.com
Congratulations to Shawn McTaggart with Westland Insurance Services Inc. for being the winner of our $50 Applebee’s gift card drawing! Also, thank you to those of you who entered our drawing after reading our February article.
Facebook: Double Trouble for Job Seekers and Employers? Privacy Concerns for Job Seekers and Discrimination Concerns for Employers
Facebook’s Privacy Settings May Not Be Enough
Most savvy job seekers know that they should keep their Facebook page set to private so that only their “friends” can see their status updates, photos and other personal information. However, that strategy may no longer offer enough privacy. The relatively recent practice by employers who either ask job candidates for their Facebook user name and password, or request that they log into their Facebook account on the employer’s computer during a job interview, is drawing interest from two members of Congress. Citing concerns about individual privacy and federal communication and employment laws, Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY) have asked the U.S. Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC) to launch an investigation into this practice. They will use the results of these investigations to introduce legislation to address these issues.
Coercive Tactics And Potential Violations Of Federal Communications Law
Some employers who make this request will advise the applicant that their participation is purely voluntary. But how voluntary is it when a job is riding on the individual’s “cooperation?” How likely is it that an applicant who refuses this request will continue on through the interview process and receive a job offer? In their letter to the DOJ, the senators write:
“. . . An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law.
". . . we must have an immediate investigation into whether the practice violates federal law – I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”
The senators’ letter to the DOL also requests that the agency investigate whether this practice violates the Stored Communication Act (SCA) or the Computer Fraud and Abuse Act (CFAA). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information. Requiring applicants to provide login information to secure social media websites and then using that information to access private information stored on those sites may be unduly coercive and, therefore, constitute unauthorized access under both the SCA and the CFAA. In two recent cases, when supervisors requested employee login credentials, and then accessed otherwise private information with those credentials, the courts found that those supervisors may be subject to civil liability under the SCA.
Employment Liability Concerns for Employers
Making a request for login credentials may be a double-edged sword for employers as it could expose decision-makers to discrimination lawsuits when an applicant’s Facebook page has been viewed but the applicant isn’t hired. While employers may think that seeing the information on an applicant’s Facebook page may help better assess the individual’s fit with the organization, determine how they will perform on the job, or raise red flags regarding the applicant’s suitability for the job (e.g., an applicant who applies for a job involving handling cash or other finance-related tasks has information on their Facebook page about their financial problems), employers will also have access to other information, such as religion, health, race, age, or genetic disposition, that should not be considered when making hiring decisions and which may be used to unlawfully discriminate against otherwise qualified applicants.
In their letter to the EEOC, Senators Blumenthal and Schumer say, in part:
“Facebook and other social networks allow users to control what information they expose to the public, but potential employers using login credentials can bypass these privacy protections. This allows employers to access private information, including personal communications, religious views, national origin, family history, gender, marital status, and age. If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.”
Proposed Legislation
Senators Blumenthal and Schumer plan to introduce legislation which would specifically ban the practice of employers asking current and prospective employees for their Facebook passwords. This legislation will be based upon the legal opinions requested from the DOJ and the EEOC. Blumenthal said this bill will have some exceptions, such as exemptions for some federal and local law enforcement agencies, or national security departments. He said there would also be an exception for private companies with government contracts for highly classified work.
As always, if you have questions about this or any other employment or labor law matter, please call or e-mail me at 414-988-8403 or tpk@kclegal.com
Posted 4/17/2012
Unlike the Cost of Gas, the Cost of Employment Litigation Has Gone Down:
Legislation Repeals Monetary Awards For Discrimination Cases in Wisconsin
Employers in Wisconsin, already faced with litigation costs to defend discrimination claims, will no longer be subject to paying compensatory and punitive damages to employees who prevail in their complaints under Wisconsin law. The recently passed Senate Bill 202 (SB 202) will restore the pre-July 2009 provisions of the Wisconsin Fair Employment Act (WFEA) and limit remedies to back pay, reinstatement or front pay, interest, costs and attorney fees.
The Wisconsin Fair Employment Act
Under the WFEA, it is unlawful for public and private employers to refuse to hire, discharge, promote, compensate, or otherwise discriminate against an individual, in any term or condition of employment, because of a person’s protected class. Protected categories include an individual's age, race, creed, color, disability, marital status, sex, sexual orientation, national origin, ancestry, arrest or conviction record, military service, use or nonuse of a lawful product off the employer's premises during non-working hours, or based on the use of unfair honesty or genetic testing. Remedies for individuals who prevail in their claims alleging violations of the Act include back pay, reinstatement or front pay, interests, costs and attorney fees.
The Equal Pay Enforcement Act (Wisconsin Act 20)
SB 202 was introduced specifically to restore the provisions of the WFEA by repealing the additional remedies provided in the Equal Pay Enforcement Act (Wisconsin Act 20), a bill which took effect on July 2, 2009. The Equal Pay Enforcement Act was created to give workers more avenues to press charges by allowing individuals to plead their cases in the less costly, more accessible state circuit court system, rather than just in federal court. It also provided stronger penalties for employers who were found guilty of discrimination by allowing Complainants who received findings of discrimination, and who pursued all administrative and judicial appeals, to file an action in state court to obtain additional damages in the form of compensatory and punitive awards. These additional awards would have ranged from $50,000 to $300,000, subject to limits based on the size of the employer, plus additional costs and attorney fees.
Senate Bill 202
SB 202 repeals the additional remedies provided by the 2009 Equal Pay Enforcement Act. Under the new law, employees who file claims with the Wisconsin Department of Workforce Development (DWD) alleging that they were discriminated against in employment or subjected to unfair honesty or genetic testing, in violation of the WFEA, will no longer be able to file a lawsuit in state court to obtain additional awards in the form of compensatory and punitive damages if they prevail in their agency-based claims. Following in the steps of the Senate, on February 21, 2012, the Assembly voted to pass SB 202 by a margin of 60-35 with the vote following party lines. The Senate previously approved the bill on November 3, 2011, with all 17 Republican members voting in favor of the legislation and all 16 Democrats opposing it.
Wisconsin business organizations, including the Wisconsin chapter of the National Federation of Independent Business, strongly supported the legislation, which reduces litigation costs for Wisconsin employers, allowing them to invest in their businesses and retain or hire more employees. However, opponents of SB 202 claimed that this bill hurts all Wisconsin workers, but especially older employees, many of whom are highly skilled but have been unemployed due to the downturn in the economy, and women. The Wisconsin Alliance for Women’s Health estimates that families in the state lose more than $4,000 per year due to unequal pay. Based on 2010 U.S. Census data, two-thirds of Wisconsin households are headed by single women and women in Wisconsin earn 75 cents for every dollar that men make—an average of $11,201 less per year than men.
Impact of the Law
Governor Walker is expected to sign the bill into law soon and it will become effective one day after signing. In a unique twist, SB 202 will not only apply to all future cases filed after the bill becomes law, but also to pending complaints in which a decision has not yet been issued by an Administrative Law Judge (ALJ) at the DWD or, if an ALJ’s decision has been appealed, by the Labor and Industry Review Commission (LIRC), by the date the law takes effect. Compensatory and punitive damages remain potential remedies for claims made under federal law that are pursued in state or federal court.
Krukowski & Costello, S.C. provided guidance to the co-sponsors of the bill and business organizations that supported the legislation. If you have any questions regarding the legislation and its impact on discrimination claims, please call me at 414-988-8404 or send an e-mail to me at tpk@kclegal.com.
Posted 3/19/12.
Love’s Labor Lost: Legal Challenges to President Obama’s NLRB Recess Appointments
As anticipated, business groups have begun filing legal motions challenging the legality of President Obama’s recess appointment of three members to the National Labor Relations Board. The motions, filed in federal district court in Washington, D.C. on January 13, 2012 by The National Federation of Independent Business (NFIB) and the National Right to Work Foundation (NRWF), claim that President Obama’s appointments are illegal because they circumvented the Senate confirmation process. The NFIB’s challenge called the action a "brazen circumvention of the Congressional appointment process." The challenges are part of the prior lawsuit filed against the NLRB to prevent the Board from requiring businesses to post information advising workers of their right to form a union.
U.S. Department of Justice Upholds Appointments
Prior to the challenges, the U.S. Department of Justice issued a memorandum outlining its legal opinion supporting President Obama’s appointments. In its report, the Justice Department said that the president had authority to make such appointments because the Senate was on a 20-day recess. Republicans have argued that the Senate was not in a “self-declared recess” because it held several pro forma sessions during this time period and, therefore, the Constitution’s Recess Appointments Clause does not apply, invalidating the appointments. However, the pro forma sessions, some of which simply had one member of the Senate present, were not sufficient to establish that the Senate was in session and able to exercise its constitutional authority to advise and consent to normal presidential nominations, according to the Justice Department.
The Recess Appointments Clause
Central to the debate will be interpretation of the language of the Constitution’s Recess Appointments Clause, which states:
“The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Argument will center around the meaning of two key words, “happen” and “recess,” which are not clearly defined. Analysis of the definition of these two words has been explored by the University of Pennsylvania’s Program on Regulation, and is explained below:
Happen
If “happen” means “happen to arise,” then the President can only fill positions that first become vacant during a Senate recess. If “happen” means “happen to exist,” then the President can fill any vacancies that still exist during a recess. The interpretation of these words is crucial because only one of the President’s three recess appointments to the NLRB fills a vacancy that arose after senators left for the holiday break.
Recess
If “recess” only refers to “intersession” recesses, which are annual breaks between sessions of Congress, then the President would have only one opportunity a year to make recess appointments. On the other hand, if “recess” refers to both intersession and “intrasession” recesses, which are generally breaks of at least three days that typically occur around national holidays, then the President would have six or seven chances throughout the year to make recess appointments.
The interpretation of these words is key because, in its memorandum cited above, the Department of Justice defended the constitutionality of the recess appointments by arguing that pro forma sessions do not interrupt an “intrasession” recess.
We will continue to monitor the litigation pending against the NLRB on both the board appointments and employer posting issues. If you have read this article and want to be entered into a drawing for a $50 gift card to Applebee’s restaurant, just send an e-mail with the word “recess” in the subject line to mkt@kclegal.com by March 1, 2012. As always, if you have questions about this or any other employment or labor law matter, please call or e-mail me at 414-988-8403 or
tpk@kclegal.com.
It’s All In The Timing: President Obama’s Recess Appointments to the NLRB
President Obama, on January 4th, took advantage of the U.S. Senate’s recess to appoint three controversial and previously blocked nominees to the vacancies at the National Labor Relations Board (NLRB). These appointments restore the Board’s quorum and enable it to issue decisions. The new Board members are:
- Sharon Block is Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. She also previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from and as an attorney in the appellate court branch. Prior to government service she was in private practice. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
- Terrence E. Flynn currently serves as Chief Counsel to NLRB Board Member Brian Hayes. He previously was Chief Counsel to former Board Member Peter Schaumber. Prior to joining the NLRB, Flynn was in private practice. He holds a B.A. degree from the University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
- Richard Griffin is the General Counsel for the International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Mr. Griffin also served as a member of the board of trustees of the IUOE’s central pension fund and as a counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
Recess Appointments
Article II, Section 3 of the U.S. Constitution provides:
"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
President Obama’s recess appointments will be in effect until January 4, 2014 unless they are approved by the Senate for a longer term or are dismissed by a legal challenge. The U.S. Constitution requires that appointments of senior federal officials must be confirmed by the Senate before the appointee assumes office; however, while the Senate is in recess, the President can act alone by making a recess appointment. This is what President Obama did. However, recess appointments are not final. An individual who is appointed during a recess must have his or her nomination approved by the Senate by the end of the next session of Congress or the position becomes vacant again. Unless confirmed or challenged, these recess appointments will be in effect until January 4, 2014.
Recess appointments are nothing new. Beginning with George Washington, presidents have made many recess appointments, including Supreme Court Justices William Brennan and Earl Warren, as well as Secretary of State Lawrence Eagleburger following James Baker’s resignation. According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments.
Legal Challenge
Senate republicans are challenging the constitutionality of the appointments by claiming that Congress was not actually in recess, that they had been holding pro forma sessions. A pro forma session occurs when a local member of Congress reports to Capitol Hill to quickly gavel in and out of session every three days to keep the legislative session active. At the heart of the legal challenge is how long the Senate must be in recess for such appointments to be valid and whether the pro forma sessions were legitimate sessions or merely a sham to prevent recess appointments. This issue will be presented to the courts because the Constitution does not specify a minimum length of time the Senate must be in recess before the president can make a recess appointment. In fact, President Theodore Roosevelt was one of the most liberal of all recess appointers, making several appointments during one-day Senate recesses. White House legal counsel asserts that the appointments are valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete," and that the Senate was for all intents and purposes recessed. The president has maintained that congressional gridlock justified his recess appointments. There is little case law on this subject so the dispute will likely move quickly through the lower courts and come before the U.S. Supreme Court for a final decision.
In the meantime, the NLRB has been restored to full power and will be able to make decisions on cases before it. Key issues before the Board include:
- Social media communication: Because all employees covered by the National Labor Relations Act (NLRA) have the right to join together in the workplace, the NLRB is evaluating whether and how employees can be disciplined for posting messages regarding work concerns on Facebook.
- Rights to organize and collectively bargain: Two major cases pending before the Board involve whether graduate student employees can form a union and whether taxi drivers are independent contractors. Both decisions could ultimately impact thousands of workers beyond those bringing the charges.
- Mandatory arbitration agreements: Mandatory arbitration agreements require parties to resolve employment disputes through binding arbitration rather than taking their disputes to court. A case pending before the Board alleges that enforcement of a mutual arbitration agreement by the employer denies employees their right to engage in concerted activity under the NLRA.
If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at:
mailto:tpk@kclegal.com. Thanks.
Posted 1/9/2012.
Win/Win: Immediate Tax Credits For Employers Who Hire Veterans
October data from the Bureau of Labor Statistics reveals that more than 850,000 veterans were looking for work, most of them from service duties post-9/11. Further, an additional one million U.S. troops will be seeking work when they return home from Iraq and Afghanistan between now and 2016. As part of the American Jobs Act, on November 21, 2011, President Obama signed into law a bill to help both unemployed veterans and employers. The bill received unanimous support from both the House (422-0) and the Senate (95-0).
The Returning Heroes Tax Credit will provide tax credits to firms that hire unemployed veterans. The amount of the tax credit increases based on the length of time that the veteran has been unemployed:
- Veterans out of work at least one month: a credit of 40% of the first $6,000 in wages up to $2,400
- Veterans out of work at least six months: a credit of 40% of the first $12,000 in wages up to $5,600
The Wounded Warriors Tax Credit will increase the existing tax credit for firms that hire veterans with service-connected disabilities who are searching for work, as well as those who have been unemployed for a significant length of time. The tax credits are:
- Disabled veterans looking for work: a credit of 40% of the first $12,000 in wages up to $4,800
- Disabled veterans out of work at least six months: a credit of 40 percent of the first $14,000 in wages up to $9,600
The tax credits go into effect immediately, which gives employers a financial incentive to hire applicants with military experience. White House officials estimate that the tax credits alone could help create more than 25,000 jobs for veterans in the next few years.
Other Provisions
The bill also expands an education and jobs retraining program for unemployed veterans. It will provide an extra year of GI Bill benefits for 100,000 unemployed veterans of all ages to retrain them for jobs in “high-demand sectors,” which is worth about $1,300 per month to cover the cost of classes, certification and living expenses. This program is anticipated to begin on July 1, 2012 and initially will be limited to 45,000 veterans.
Not So Fast: Waiting Period For Unemployment Benefits Begins January 1
When the Wisconsin Legislature passed a bill in August 2011 that authorized the state to use federal funds to extend unemployment insurance benefits by 13 weeks, it also included a provision to establish a one-week waiting period for new claims for unemployment benefits. That measure goes into effect on January 1, 2012.
So, how does this requirement actually work and how will it affect employers who implement more than one layoff during a year in which employees return to work for a period of time between layoffs? Below is a summary of how the one-week waiting period will work:
Summary of Requirements
- During the first week of a given employee's "benefit year," the employee will not receive any unemployment benefits.
- The one-week waiting period will apply only once during a given employee's benefit year.
- The one-week waiting period will only apply to a given employee's benefit year that starts on or after January 1, 2012.
- A given employee's "benefit year" is a total of 52-weeks -- an employee's benefit year starts the week of claimed benefits and includes the next 51-weeks after that (regardless of how many subsequent weeks of unemployment occur during this time period).
Remember that you have to take into consideration when a benefit year begins for each employee when determining when there is a waiting period for benefits will begin.
If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at:
mailto:tpk@kclegal.com. Thanks.
Posted 12/15/2011.
Legislative Update
A number of pieces of legislation have been introduced this year that, if passed, would impact employers. Most important is the new poster required by the NLRB, which has been discussed in detail in prior issues. Below is an update that was issued on October 5, 2011 delaying the implementation of the bill.
I. NEW: Implementation of NLRA Posting Delayed
The National Labor Relations Board has postponed the date by which employers are required to post its new notice advising employees of their rights under the National Labor Relations Act by more than two months. The new effective date is January 31, 2012. The delay was implemented to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
According to the NLRB, the decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.
II. The Electronic Employment Eligibility Verification and Illegal Immigration Control Act (HR 483)
This bill would establish a toll-free telephone or electronic media-based employment eligibility verification system to ensure that all workers in the United States are legally able to work. The system would be required to:
(1) provide verification or tentative non-verification of an individual's identity and employment eligibility within three days of an inquiry, and
(2) provide, in the case of tentative non-verification, a secondary process for final verification or non-verification within 10 days
Among the provisions of the bill, If passed, it would require the Commissioner of Social Security to develop a process for comparing names and social security numbers against appropriate databases in response to employer inquiries, and also require development of a process for comparing names and alien identification or authorization numbers and to investigate uses of the same social security number that suggest fraud. It would also provide immunity from civil or criminal liability for a person or entity who takes action in good faith reliance on verification system information. In addition, it would set forth employer verification requirements with respect to an affirmative defense to liability for employment of unauthorized workers, including revision of attestation and retention of verification form provisions. There would be limits on the collection and use of data from the verification system. It would also expand the employment eligibility verification system to include: (1) previously hired individuals, and (2) recruitment and referral.
Employer Requirements
Under the Act, there would be (1) voluntary employer verification using such system two years after enactment of this Act for previously hired individuals, (2) mandatory employer verification three years after enactment of the Act by federal, state, and local governments, and the military for employees not verified under such system working at federal, state or local government buildings, military bases, nuclear energy sites, weapons sites, airports, or critical infrastructure sites, and (3) mandatory employer verification six years after enactment of this Act for all employees not previously verified under such system.
III. Living American Wage (LAW) Act of 2011 (HR 283)
If passed, the LAW Act would: 1) Adjust the federal minimum wage every 4 years so that a person may earn an annual income at least 15% higher than the federal poverty threshold for a family of two; 2) set the wage at a level high enough to allow two full-time minimum wage workers to earn an income above the national housing wage; and 3) allow Congress, any state or U.S. territory or possession, any Indian tribe, or local or state government to establish a higher minimum wage requirement than that established in this Act.
IV. Protecting Jobs From Government Interference Act (HR 2587)
HR 2587 was introduced on July 19, 2011 by Rep. Tim Scott of South Carolina in response to the NLRB complaint against the Boeing Co. for its decision to place an assembly line at a non-union plant in South Carolina. The NLRB claims that Boeing's decision was illegal retaliation for prior strikes by unionized worker's at the Company's operations in Washington state.
On September 15, 2011, the House proceeded with 10 minutes of debate on the Bishop (NY) motion to recommit with instructions. The instructions contained in the motion seek to require the bill to be reported back to the House with an amendment prohibiting the Act from limiting the National Labor Relations Board's authority to order an employer to maintain or restore jobs within the United States that have been or will otherwise be outsourced to a foreign country in violation of the National Labor Relations Act. The bill was then Received in the Senate on September 15, 2011 and placed on Senate Legislative Calendar.
If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at:
mailto:tpk@kclegal.com. Thanks.
Posted 11/03/2011.
New Poster Advises Employees Of Their Right To Unionize
The National Labor Relations Board (NLRB) issued a ruling on August 25, 2011 that requires all employers subject to the National Labor Relations Act (NLRA) (including manufacturers and virtually all other private sector employers) to inform employees of their right to unionize. The rule is scheduled to be posted in the Federal Register on August 30, 2011, and will take effect 75 days later, on November 14, 2011. The ruling requires employers to post a notice in all locations where notices are usually posted, including electronic posting on employee intranet sites.
The 11x17” poster, which will be available soon, will be provided to employers at no cost. The poster can also be downloaded from the NLRB’s website and printed in color or black and white. Translated versions of the poster will be available and those versions must be posted at workplaces where at least 20% of employees are not proficient in English. Once the NLRB poster is available, all private sector employers should take steps to have the poster put up this fall. Although there will be no monetary fines assessed, failure to post the notice by November 14 is considered an unfair labor practice.
This latest ruling is largely in answer to the ongoing decline in union membership seen over the past 30 years. Unions, which rely on member dues to keep afloat and pay big salaries to union leaders, need to boost membership to stay alive. Today, less than seven percent of private sector workers are unionized compared to the 1980s when approximately 20 percent of the workforce was comprised of card-carrying union members. Although the number of union elections conducted increased by 26 percent from 2009 to 2010, the win percentage held steady at 69 percent. Although unions have been devoting substantial financial resources to organizing activities they have not achieved the results they are seeking and have been turning to legislation and rule-making to help their cause. By informing all employees of their right to unionize, unions hope there will be more certification elections with a win for the union.
To keep your workplace union-free it is important to understand why employees to seek out unions. Simply put, employees who are worried about job security, who feel that their concerns have fallen on deaf ears, who think they are not being treated fairly, who were passed up for a promotion or who believe they are not being fairly compensated for their work, are prime targets for unions. It may be time to audit your workplace policies and practices and identify any areas in which your organization may be vulnerable to a union organization effort.
If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at:
mailto:%20tpk@kclegal.com. Thanks.
Posted 09/02/2011.
If you have any questions or comments, please contact me at 414-988-8404 or via e-mail at: tpk@kclegal.com
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