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As we have previously reported here and here, the National Labor Relations Board’s (“NLRB”) new rules governing union representation elections go into effect today, April 14, 2015. Congress passed a resolution disapproving the new “quickie” or “ambush” rules, but President Obama vetoed it. While lawsuits have been filed in Texas and the District of Columbia challenging the new rules, at this point no court has halted their implementation. Thus, absent late-breaking developments, employers need to be prepared for this brave new world.

Under the new rules, elections will be expedited. Disputes over the unit selected by the union will be resolved in a hearing normally scheduled for no more than eight days after the filing of the petition. Moreover, the employer must identify all of its concerns with the group of employees targeted by the union in a “statement of position” filed the day before the hearing, or those arguments will be waived. Excelsior lists must be provided more quickly, and elections will be held within 10 to 25 days after the filing of the petition.

The bottom line: by design, employers will not have adequate time to prepare a campaign to educate their employees about the issues that will arise if they vote for union representation. Thus, it is imperative that all employers evaluate their risks of union organizing activity, and do what you can now to prepare ahead of time.
Continue Reading Are You Ready to be Ambushed? NLRB’s New “Quickie Election” Rules Become Effective

The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments regarding procedures for handling employee whistleblower complaints under the Affordable Care Act (ACA), Section 1558. This part of the ACA added a new Section 18c to the Fair Labor Standards Act (FLSA), which protects employees from retaliation for exercising certain rights under the ACA, including (1) receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange, (2) reporting a violation of consumer protection rules under the ACA (which, for instance, prohibit denial of health coverage based on preexisting conditions and lifetime limits on coverage), and (3) assisting or participating in a proceeding under Section 1558.

The interim final rule states the time frames and procedures for bringing a whistleblower complaint under Section 18c and covers the investigation, hearing, and appeals processes. An employee has 180 days from the date of the alleged retaliation to bring a whistleblower complaint to the Secretary of Labor. Where a violation is found, remedies can include reinstatement, compensatory damages, back pay, and reasonable costs and expenses (including attorneys’ fees). If the employee brought the complaint in bad faith, an employer may recover up to $1,000 in reasonable attorneys’ fees.…

Continue Reading OSHA Issues Interim Final Rules on Whistleblower Protection Provisions Under ACA

Last week, we reported that several senators had introduced new amendments to the Age Discrimination in Employment Act ("ADEA") to make it easier for plaintiffs in age discrimination cases to prove their claims.  U.S. Senators aren’t the only ones busy refining federal age discrimination laws – on March 30, 2012, the Equal Employment Opportunity…

 The NLRB gave organized labor a meaningful gift just before the holidays by issuing a final rule adopting new election case procedures that will likely result in more and faster union elections, and probably also result in more employers having unionized workforces.  The new rule becomes effective on April 30, 2012.

The New Year:  Out With The…

At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act.  In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred…