The Month’s Hottest Employment Law Stories in Review

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  1. New NLRB Notice – Unless challenges are successful, most of you have yet another mandatory poster in your very near future.  The NLRB issued a final rule on August 25, requiring subject employers to post a notice effective November 14, 2011 to make employees aware of their rights under the NLRA and the avenues of recourse for perceived or actual violation of those rights.  In the final rule, the failure to post is deemed an unfair labor practice, can toll the statute of limitations for filing a charge against the employer and in the case of a “willful” failure, can be evidence of unlawful motive in related ULP case(s).  You will not have to post if you [1] are the U.S. Post Office; [2] are a state or political subdivision; [3] are a labor organization; or [4] are a federal contractor who’s already posting a similar notice under E.O. 13496 (see 29 CFR Part 471), since that poster will serve as the model for this new one.  You will have to post where such notices are normally displayed and on your Intranet, if that is your normal method of communicating with employees.  Do not make the common mistake of assuming that this does not apply to your organization if you have no labor unions.  The press release, with links to full text of the final rule and the E.O. 13496 poster, can be found at www.nlrb.gov/news/board-issues-final-rule-require-posting-nlra-rights.
  2. Social Networking – Do your employees’ scurrilous Facebook and YouTube postings about the organization, their managers and/or their co-workers have you all a-Twitter? Your immediate reaction might be to make such discussion, videos or pictures cause for immediate termination of employment, but take a deep breath and read this first.  As mentioned in prior a prior update, the NLRB has been more than hinting its position that much of this venting is protected concerted activity under the NLRA, where terms and conditions of employment are at issue, and overbroad employer policies and/or practices will run afoul of that protection.   And their position is becoming clearer, with the issuance of a  memorandum from the NLRB’s Acting General Counsel and a case which went to a full hearing.  The August 18 memorandum summarizes the Board’s view in 14 cases involving employer attempts to corral social networking and contact with the media inside (and outside) of their workplaces and can be found at www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases. The September 2 case is the first decided by an ALJ on this subject, awarding reinstatement and backpay to five employees who were discharged over their Facebook postings which were critical of each other and their employment conditions.  It can be found at www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfully-discharged-employees-following-fac.  Stay tuned, as the boundaries of these communications develop and inform what should (and should not) be in your social networking policy.
  3. I-9 Documentation – The U.S. Department of Justice Office of Special Counsel has delivered a (surely unwelcome) $290,400 civil penalty reminder that failures to properly handle the I-9 process are not mere paperwork violations.  In this case, a Missouri employer was found to have required specific and excessive documentation from non-U.S. citizens and foreign-born U.S. citizens.  In order to satisfy the I-9 process, prospective employees only to have produce one document from List A (since it has a picture of the individual which proves identity and also proves authorization to work in the U.S.) or a document from List B (proves identity) coupled with a document from List C (proves authorization to work in the U.S.).  Employers should not specify which documents they will accept as proof and should not demand additional documents when the I-9 requirement has already been met.
  4. OSHA App – Not to be outdone by the DOL’s wage and hour app, OSHA has rolled out one which combines heat index data from NOAA with the individual’s location to determine a heat risk index and suggest protective measures to be taken, to prevent heat-related illness.  For now, the app is only available to Android users, with iPhone and Blackberry versions to follow.  Check it out at www.osha.gov/SLTC/heatillness/heat_index/heat_app.html.  Here’s hoping our heat wave is over and this app is not needed until next year!
  5. WARN – A U.S. Bankruptcy Court ruled that an affiliate with an indirect ownership interest in a shuttered business was part of the “single employer” under the federal WARN plant closing law and could be liable for severance payments owed to employees under WARN.  The five-factor test for being a “single employer” was not fully satisfied but the court found that the “de facto exercise of control” prong was decisive in this case.  D’Amico v. Tweeter Opco, LLC (U.S. Bankruptcy Court (DE) 7-11).
  6. FLSA – One employer dodged an FLSA retaliation claim bullet, but the outcome may prompt an amendment to the statute to prevent a recurrence.  Plaintiff had sued her former employer for wage and hour violations under the FLSA.  Plaintiff then accepted a job with Employer B, but the offer was contingent on a security clearance.  When Employer B learned of the pending claim, job offer evaporated.  Plaintiff sues Employer B for FLSA retaliation but the court says FLSA protects employees, not applicants (unlike most discrimination statutes, which expressly refer to both employees and applicants for employment).  The Fourth Circuit affirmed the dismissal but found the outcome “problematic” if other employers do the same, perhaps tacitly inviting Congress to foreclose that possibility by amending the retaliation provision of the FLSA.  Dellinger v. Science Applications International Corporation (4th Cir. 8-11).
  7. E-Verify – The E-Verify self check service that launched in AZ, ID, CO, MS, VA and DC on March 28, 2011 has been expanded to 16 additional states, effective August 15.  The additions are CA, LA, ME, MD, MA, MN, MO, NE, NV, NJ, NY, OH, SC, TX, UT and WA.  The option to check yourself in Spanish has also been added to the system.  The press release announces USCIS’ intention to go nationwide by the spring of 2012.  The idea is that employees can check the info DHS USCIS and SSA have on file for them, identify and correct any mismatched data and avoid delays in a subsequent hiring process with an employer who uses E-Verify.
  8. Harassment – As often happens, what occurs after a claim of harassment can be more damaging to an employer than the harassment itself.  In response to a retaliation claim, jurors awarded  more than $5.4 million ($4 million was punitive damages) to a manager who was fired after he confronted the male CEO of the company who had allegedly groped, kissed and verbally harassed the manager’s 29-year old female secretary.  The manager went to the CEO, to ask that he apologize for his actions.  Instead, an investigation ensued (good!) and ended with the conclusion that the manager should be fired for going to the CEO instead of reporting the incident to HR (bad!).  The company’s harassment policy said, as most do, that complaints can be made to others in addition to the HR department.  Tran v. U.S. Mineral Products Corp (C.D. Cal. 6-11).
  9. Multi-State Items – Here are some hot topics for you multi-state employers:
    1. Kansas – The Sunflower State beefed up penalties on employers who misclassify employees as contractors, to add misdemeanor charges being filed on top of already available civil penalties.
    2. Louisiana – Effective August 15, employers will be protected from penalties for referring for employment, recruiting, hiring or employing unauthorized aliens so long as the employer used the federal E-Verify system.
    3. New York City – Mayor Bloomberg signed the Workplace Religious Freedom Act into law on August 31.  The law, which took effect immediately, encourages employer accommodation of employees’ religious observances or practices by making it more difficult for an employer to prove that such request is an “undue hardship.”  The prior version of the law allowed employers to deny observances or practices that were “inconvenient” but now they must show that the requested accommodation requires “significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).”
    4. North Carolina – NC will take a staggered approach to requiring that employers of more than 25 employees use the federal E-Verify system on all new hires.  The first phase takes effect October 1, 2011 and applies to county and municipal government entities.  The second phase takes effect on October 1, 2012 and applies to private sector employers of 500+ employees.  The third phase takes effect January 1, 2013 for private employers of 100 to 249 employees and the final phase takes effect July 1, 2013 for those with 25 to 99 employees.
    5. South Carolina – Two company owners were found personally liable for an employee’s unpaid wages and a third minority owner was released only because he “lacked the authority to make any decisions regarding the payment of wages.”  A neurologist claimed $780,000 in unpaid salary, under a state law that allows for treble damages plus court courts and attorneys’ fees.  The two found liable were a 40% owner, who acted as executive manager, and a 20% owner.  Liability was based on their handling of finances and payroll for the company.  Allen v. Pinnacle Healthcare Systems LLC.
    6. Wisconsin – Effective Nov. 1, 2011, WI has its first “conceal carry” law which will create a licensing system for individuals to carry guns.  The new law  allows businesses to ban guns from their premises via a prominent posting at the entrance, but also allows employees to have weapons in their personal vehicles, on their employer’s parking lot.  If you’d  like more details, there’s a helpful FAQ posted by the State DOJ at www.doj.state.wi.us/dles/cib/ConcealedCarry/ccw_frequently_asked_questions.pdf.

HR Legal brief updates are provided by:

Audrey E. Mross

Labor & Employment Attorney

Munck Carter LLP

amross@munckcarter.com

www.munckcarter.com

HR Legal Briefs are provided to alert recipients to new developments in the law and with the understanding that it is guidance and not a legal or professional opinion on specific facts or matters.  For answers to your specific questions, please consult with counsel.

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