Stoel Rives Law Firm : Stoel Rives World of Employment : Disabilities, FMLA, Military Leave, NLRA : Western United States

As a friendly reminder, employers must update two key employment forms this month.  As of March 8th, employers must begin using the most recent FMLA poster issued by the Department of Labor.  The updated poster reflects the DOL’s final rule concerning military related leave available under FMLA.  The DOL has also issued new FMLA forms to reflect these changes.  Also as of March 8th, employers must begin using the new I-9 Form issued by the U.S. Department of Homeland Security, Department of U.S. Citizenship and Immigration Services.  Unlike other recent versions of the form, this form has a three year shelf life as it will not expire until March 2016.  New instructions for the I-9 form have also been published to help guide employers.   

The new FMLA poster can be downloaded here:

http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf or http://www.dol.gov/whd/regs/compliance/posters/fmla.htm

Info & links to the updated FMLA forms are found here: http://www.dol.gov/whd/fmla/index.htm, http://www.dol.gov/whd/fmla/2013rule/, and http://www.dol.gov/whd/fmla/2013rule/militaryDate.htm

The new I-9 Form and instructions can be downloaded here:

http://www.uscis.gov/files/form/i-9.pdf

If you have any questions regarding the new forms or the changes to the FMLA, feel free to contact any member of the Stoel Rives LLP Labor and Employment Group.

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The NLRB’s new posting rule, which would apply to virtually all private sector employers, was scheduled to go in effect on April 30, 2012.  Yesterday, we blogged about a South Carolina federal trial court decision striking down the posting rule.  More good news for employers arrived today, as the United States Court of Appeals for the District of Columbia issued an emergency injunction preserving the “status quo” and delaying implementation of the NLRB’s posting rule until that Court of Appeals determines its validity.  The D.C. trial court had previously determined the posting rule was valid (contrary to the South Carolina case) but that its remedies were invalid.  Oral argument in the D.C. appellate case is currently estimated to occur in September 2012.  A copy of the D.C. Court of Appeals injunction decision is here.

We now have two courts that have stymied the NLRB posting rule.  It is still unknown whether the NLRB will appeal the South Carolina and D.C. Court of Appeals decisions.  But for now, absent an emergency appeal, it appears that the NLRB’s posting rule will, at a minimum, be delayed for several months.  We will keep you “posted” as developments occur.

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Update: A federal trial court in the District of Columbia has upheld the notice posting requirement in the National Labor Relations Board's (“NLRB”) recently issued final rule requiring nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act. To view the Court's decision, click here.  The court also held, however, that the rule’s main enforcement provisions, including making an employer’s failure to post a per se unfair labor practice, are invalid. Unless this decision is overturned or another court finds the rule to be invalid, the notice posting requirement will still take effect April 30, 2012. An appeal is likely in the District of Columbia case, and at least one other court challenge is pending in South Carolina.

For additional information regarding the NLRB's rule and posting requirement, including links to the rule and the poster employers must post, see our prior discussion on this topic by following this link.

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Your bulletin board full of required workplace postings just got more crowded. The National Labor Relations Board (“NLRB”) has issued a final rule that will require nearly all private sector employers, whether unionized or not, to post a notice to their employees about certain employee rights under the National Labor Relations Act (“NLRA”). The notice must be posted by no later than November 14, 2011 (now postponed until January 31, 2012, see update below).  The new rule is one of many new developments arising from the current NLRB’s implementation of the Obama administration’s labor policy.

This new notice is a form designed by the NLRB. Among other things, it contains:

·         A summary of employee rights under the NLRA, including the right to discuss wages and working conditions with co-workers or a union, form or join a union, take collective action to improve working conditions, and engage in other protected activities.

·         Examples of violations of those rights, and an affirmation that unlawful conduct will not be permitted.

·         Information about the NLRB, the NLRB’s contact information, and details on how to file an unfair labor practice charge with the NLRB.

·         A statement about the employer's obligation to bargain in good faith if a union has been selected by employees.

This new rule applies to almost all employers except public sector employers, very small employers below the NLRB’s jurisdictional standard for impacting interstate commerce, and other limited classes of employers outside of the NLRA’s jurisdiction. The NLRB may find that an employer’s failure to post the notice constitutes an unfair labor practice. The remedy for a violation may not be severe because the NLRB cannot impose fines – but much worse, a violation can be evidence of unlawful motive and prevent the running of the statute of limitations.

The full text of the actual required notice is available here. Private sector employers will be required to post this notice in conspicuous places, including where they customarily post other workplace notices. In addition, employers who customarily post personnel policies and rules on an internet or intranet site must include this new notice there or provide a link to the NLRB’s website section containing the notice. If an employer has employees working at another employer’s site, it will also need to determine whether it can post notices at that site if the other employer does not already have the notice posted. If 20 percent or more of an employer’s employees are not proficient in English and speak the same foreign language, the notice must also be posted in that language. The NLRB will provide translations in such circumstances. Copies of the required 11x17 posters will be available at no cost from the NLRB upon request, and will also be downloadable from the NLRB’s website, www.nlrb.gov. A federal contractor will be regarded as complying with the NLRB’s new posting requirement if it already posts the notice required of federal contractors by the U.S. Department of Labor. See our earlier discussion of those posting requirements here. 

The NLRB fact sheet with further information about the rule is available here. There are likely to be legal challenges to the NLRB’s new notice posting rule, and at least one bill has already been introduced in Congress seeking to invalidate it. For now, employers will need to be prepared to comply with the new posting requirement. While already unionized employers will likely see little impact from the new rule other than the actual posting requirement itself, non-unionized employers may be faced with employees raising questions about their rights under the NLRA. Because such questions will invariably be directed toward their immediate supervisors, it is important for non-unionized employers to make sure that supervisors are properly trained regarding how to maintain a union-free environment without violating the NLRA. Non-unionized employers might also be tempted to post their own notice alongside the new NLRB poster, advising employees why a union is not needed. As with all such efforts, missteps can lead to challenges before the NLRB, so employers should consult with their Stoel Rives labor attorney.

UPDATE:  On September 14, 2011, the NLRB made available the poster that employers must post.  The link to that poster is here.  The NLRB recently postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers.  See here.  The new effective date of the rule, and the date by which the new notice must be posted, is January 31, 2012.

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The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009.  Is your workplace ready?  Employers will soon be required to post a notice stating that they do not discriminate on the basis of genetic information, under proposed regulations interpreting GINA.

If you don't already have one, click here to download the full "EEO is the Law" poster, which describes all of the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.  If you already have a copy of "EEO is the Law," then you can download and print the "EEO is the Law Supplement," which contains GINA information.  (If you don't want to print it yourself, or if you need the poster in Arabic, Chinese or Spanish, click here to order a copy from the EEOC.)

What else should employers do to prepare for GINA?  Here's a short, non-exhaustive list of things you can do to get ready:

• Add appropriate language to your EEO and anti-discrimination policies stating that you do not discriminate on the basis of genetic information;
• Review your employment applications and employee questionnaires to make sure you are not intentionally or inadvertently requesting information about an applicant’s/employee’s family medical history;
• If you need to get information about a family member’s illness for purposes of determining whether a request for leave qualifies for Family and Medical Leave Act or state law leave coverage, make sure it is limited to only what you need to know to make the determination;
• Determine whether incoming medical information you receive on an employee contains genetic information (defined as: genetic tests of an individual or his/her family members; the manifestation of a disease or disorder in family members of an individual, genetic services and participation in genetic research by an individual or his/her family member) and if so, maintain and treat the information as you would a confidential medical record for ADA purposes – i.e., maintained in a separate confidential medical file with proper limitations on disclosure.
• Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to a litigation discovery request, like a subpoena. If you require a court order compelling disclosure before releasing the information, this should protect you.
• If you are a self-insured entity, make sure that you do not request or require or use purchased genetic testing or information for purposes of underwriting or to determine an individual’s contribution/premium amounts. Note that you can use genetic test results for purposes of making a determination regarding payment, though.
• Also note that genetic information is included as “protected health information” for HIPAA purposes and should be treated accordingly.

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We don't need to tell you there's a recession going on, and that a recession means layoffs.  But we will remind you that layoffs may implicate the Worker Adjustment and Retraining Notification (WARN) Act - the federal law that requires employers to give 60 days' notice of certain mass layoffs and plant shutdowns. 

Sometimes giving 60 days' notice of a layoff just isn't possible, and the law makes exceptions in some circumstances.  A recent case from the Tenth Circuit Court of Appeals illustrates one of those exceptions.  In Gross v. Hale-Halsell Co., the employer successfully relied on the "unforeseeable business circumstances" exception to WARN.  In that case, the employer--a grocery wholesaler and distributor--was forced to lay off over 200 employees when its largest customer suddenly dropped its account.  The court held that the employer had no choice but to lay its employees off (the employer subsequently declared bankruptcy), and that it gave as much notice as was practicable under the circumstances. 

Notwithstanding the outcome of Gross, courts are notoriously reluctant to apply the WARN Act exceptions; before relying on an exception to bypass giving notice of a qualifying layoff or plant closure, it is probably a good idea to consult legal counsel.  There is also good, free information from our friends at the U.S. Department of Labor to help guide you through troubled times and to determine whether the WARN Act may apply to you.  Just click below to download the information:

• For a basic overview of the law, here's a basic WARN Act Fact Sheet.
• For more detailed information, download the Employer's Guide to the WARN Act (a great resource and our personal favorite)
• Next, if your layoff is caused by an "act of God," you might want to download the WARN Act Natural Disaster Fact Sheet
• And finally, you can read what the DOL is telling your employees:  the Workers' Guide to the WARN Act, and for Spanish-speaking employees, the Guía para el Trabajadores

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