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

Once again, employers are being given an old line: we are from the federal government and we’re here to help you . . . with your office decorating. Shortly after his inauguration, President Obama issued Executive Order 13496 (the “Order”). The Order directed that all federal contractors post a notice to their employees advising the employees of their rights under the federal labor laws. The Order required the United States Department of Labor to prepare implementing regulations, including the text of the posting. After a year’s work, the Department has completed its work, and the required poster is now available. Federal contractors and all subcontractors must begin posting the required notice by June 19, 2010.

 Posting requirements are not new for federal contractors. In the 1980s, the first President Bush required contractors to post a notice advising employees of their rights to refrain from supporting unions’ political activities (the so-called “Beck” notices named after the U.S. Supreme Court case addressing the issue). President Clinton issued an executive order rescinding the Beck poster requirement; the second President Bush then reinstated the posting obligation. No surprise – in the Order President Obama again rescinds the obligation to post the Beck notice.

The new poster is available from the Department of Labor’s website here. The poster generally advises employees about their rights to engage in protected concerted activity under the National Labor Relations Act, as well as their right to refrain from engaging in that activity. The poster also describes the industries and employees that are not subject to the NLRA. Generally, the poster does a fair job of describing employee rights, and unlawful actions by both employers and unions. Of course, a single 11-inch by 17-inch poster cannot describe all of the complexities that have developed in the 75 years of NLRA enforcement. For example, health care employers should note that the poster does not even attempt to address the special rules applicable to various union activities in patient care areas.

The obligation to post the notice applies to all federal contracts that are above the “simplified acquisition threshold” applicable to federal contracts. Generally, the simplified acquisition rules are applicable to contracts with a total value less than $100,000. These provisions of the federal acquisition regulations are sometimes complex, and employers with questions as to their coverage should consult their attorney.

Federal contractors are required to include a contract provision requiring posting of the notice in all subcontracts, with a value of more than $10,000. Thankfully, in the final regulations the Department backed off its original proposal that subcontracts had to include the full text of the poster; now contractors can satisfy their obligations in this regard by incorporating the regulation by reference. Contractors should note that among the requirements of the contract clause is the obligation for subcontractors to include the provision in their contracts with their subcontractors; the Department’s regulations thus expressly require all businesses performing work on the federal contract to post the notice, regardless of their subcontract “tier” or whether the subcontract might itself be under the simplified acquisition threshold.

The poster must be physically displayed in the normal “conspicuous places” other employment related posters are located. The notice must be posted at all locations on which work on the federal contract is performed or is being allocated to the federal contract. When a substantial portion of the workforce does not speak English, the notice must be posted in the language spoken by those employees. When the employer routinely provides employees notices by electronic means, the employer must do so in this instance as well, typically by providing a link to the Department of Labor website.

What is a federal contractor or subcontractor to do?

For federal contractors or subcontractors that are already ubiquitously unionized, the poster may not cause any substantial headaches. Indeed, reminding unionized employees that there are certain things their union cannot do, as the poster plainly does, may not be a bad thing. For federal contractors or subcontractors that are not currently unionized, however, substantial issues are raised – especially if the employer wants to remain union-free. The new poster may raise employees’ awareness of their rights under the NLRA. It should also raise union-free employers’ attention to a systematic union avoidance program:

• Nothing in the Executive Order or the Department’s regulations prevents an employer from posting its own notice, right alongside the newly required poster.

• Employers should remind employees that it is official company policy that the employer does not believe a union is necessary or appropriate.

• The employer should remind employees of the advantages they enjoy by being union-free.

• If the company has not reviewed its nonsolicitation and nondistribution policy, it should be reviewed promptly to make sure that all of its provisions are in compliance with the law. If the company does not have a nonsolicitation and nondistribution policy – implement one!

• Make sure that your nonsolicitation and nondistribution policy, and any other policies or practices that might impact employees or others engaging in union organizing, are applied in a fair and nondiscriminatory fashion.

Of course, before undertaking any these actions, federal contractors or subcontractors should consult with their labor law attorney.  

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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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As previously reported in the Stoel Rives World of Employment, new Family and Medical Leave Act (FMLA) regulations will take effect January 16, 2009.  The DOL has now published six new optional forms contemplated by the new regulations, and as promised, the Stoel Rives World of Employment has them for you right here (just click on the form number to download):

1. Employee’s Serious Health Condition (WH-380E)
2. Family Member’s Serious Health Condition (WH-380F)
3. Notice of Eligibility and Rights and Responsibilities form (WH-381)
4. Designation Notice to Employee of FMLA Leave (WH-382)
5. Certification of Qualifying Exigency for Military Family Leave (WH-384)
6. Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385)

And as if that's not enough, there's a new mandatory FMLA poster to put up in your workplace, which you can download here:  2009 FMLA Poster.  As you know, every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions - this new poster will meet those requirements. 

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