Employee Rights Poster Postponed Again

The National Labor Relations Board's rule requiring most private sector employers to post a prescribed notice advising employees of their rights under the National Labor Relations Act has been postponed again.  On April 17, the U.S. Court of Appeals for the District of Columbia Circuit issued an injunction pending appeal.  The injunction serves to preserve the status quo (no posting requirement) while the court resolves legal challenges to the rule.  Oral argument on the legal challenges is scheduled for the fall.

The National Labor Relations Board had previously agreed to postpone the original effective date of its employee rights notice-posting rule while the lower court considered legal challenges.  Following the lower court's decision, which is now on appeal, the rule had been scheduled to take effect on April 30, 2012.

(Note that the requirement under Executive Order 13496 that federal contractors post a different notice of employee rights is not affected by this ruling and remains in full force.)

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Association of Corporate Counsel

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NLRB postpones implementation of notice-posting requirement

On October 5, 2011, the National Labor Relations Board announced that it is postponing until January 31, 2012 implementation of its regulation that required most employers to post a notice to employees of their rights under the National Labor Relations Act.  In its press release, the Board stated it was taking that action “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

This move follows the filing of lawsuits in September by the U.S. Chamber of Commerce in South Carolina and the National Association of Manufacturers, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business in the District of Columbia seeking injunctions to bar the National Labor Relations Board from implementing the regulation.

As originally proposed, the rule would have advised employees only of their rights to unionize and engage in other protected activity.  The final rule lends some balance to those statements by adding that employees also have the right to refrain from engaging in such activities.  Employers must place 11 x 17 inch posters containing the prescribed language in the workplace and may need to publish the notices on the company intranet or internet site.  If 20 percent of workers are not proficient in English, the notices must also appear in the language used by the workers.

Failure to comply constitutes an unfair labor practice and may also suspend the six-month time limit for filing a charge.  Posters can now be downloaded from the Board’s website (www.nlrb.gov/poster), and will also be available in printed form from NLRB offices. 

The NLRB enforces the National Labor Relations Act which applies to employers based on type and volume of business.  Only the smallest of employers are not covered.

Proposed NLRB rules provide for “quickie” union elections 

Elections to determine union representation could be held as few as 10 days after a petition for an election is filed under rules the Board proposed in late June.  The comment period has ended and no date has been set for final Board action.  The controversial proposal reportedly generated more than 50,000 public comments and replies. 

The three-member majority said the rules’ purpose is to “fix flaws” in current procedures that cause unnecessary delay, allow wasteful litigation and fail to take advantage of modern technology.  The dissenting member described the purpose as “to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”  However the change is viewed, the proposed rules give employers less time to respond and fewer opportunities to appeal adverse decisions.

• A union typically files a petition for election with the NLRB when the union believes it has majority support.  Often, this is the first notice an employer has that its work force is being organized.  The proposed rules would require setting a pre-election hearing seven days after a hearing notice is served.   
• At the start of that hearing, the employer would be required to provide a comprehensive statement of position on issues including the Board’s jurisdiction over the petition; the appropriateness of the proposed unit; full names, work locations, shifts and job classifications of all individuals in the proposed unit; whose eligibility to vote the employer intends to contest and the basis therefor; any election bar; the type, dates, times and location of the election and eligibility period and all other issues the employer intends to raise at the hearing.
• Eligibility issues involving less than 20 percent of the unit would be decided after the election.
• Pre-election hearing decisions would not be appealable except in extraordinary circumstances, and appeals would not stay an election.
• Employers would be required to produce the final voter list two days after the direction of the election and include employee phone numbers and e-mail addresses on the final voter list.
• The NLRB would have the discretion to deny review of post-election rulings of the regional director.
• Post-election hearings would be set 14 days after ballots are tallied.

“Facebook firings” may violate National Labor Relations Act 

Mom’s advice that “if you can’t say anything nice, don’t say anything at all” is almost certainly unlawful if adopted as a company policy restricting employee use of social media under recent decisions and advice memoranda from the NLRB.

Policies that prohibit employees from depicting the company in any way without permission and from making disparaging remarks about the company or its employees violate employees’ rights to engage in protected concerted activities under the NLRA.  Disciplining employees for such activities also may violate the Act if by making such remarks, employees are engaging in protected concerted activities. 

Concerted activity includes formal and informal group activities and individual activities that logically grow out of collective concerns.  If (1) employees would reasonably construe the policy to prohibit protected activity; (2) the policy was created in response to union activity or (3) the policy was applied to restrict protected activity, the policy will violate the Act.  

Plainly egregious conduct such as sexual remarks is not protected and may be prohibited.  Factors to consider in determining whether misconduct forfeited the protections of the Act include:  (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, (4) whether the outburst was provoked by an employer’s unfair labor practice and (5) whether the conduct violated an employer policy.

Arizona law penalizing businesses for hiring illegal immigrants upheld

One of Arizona’s most contentious immigration laws, the Legal Arizona Workers Act of 2007, has withstood scrutiny by the U.S. Supreme Court.  Chamber of Commerce v. Whiting (May 26, 2011). This law allows the state to revoke the business licenses of employers who knowingly hire illegal immigrants and requires employers in the state to use E-Verify. The Court held that the licensing portion of the Arizona law was not preempted by federal immigration law but fell within the confines of the Immigration Reform and Control Act’s (IRCA) savings clause. IRCA reserves authority to the states to impose sanctions on employers through licensing and other similar laws for hiring illegal immigrants.  By adopting the federal government’s definition of what constitutes an “unauthorized alien,” the Arizona law took the path least likely to conflict with federal law.

The Court also found that Arizona’s requirement that employers in the state use E-Verify does not conflict with the federal government’s voluntary employment verification scheme because the consequences of not using E-Verify under the Arizona law are the same as the consequences under the federal program. In short, the consequence of not using E-Verify to verify the work authorization of new hires is forfeiture of an otherwise rebuttable presumption that an employer complied with immigration laws.

Federal and Colorado law requires government contractors to use E-Verify.  Efforts to pass legislation in Colorado to require other employers to use E-Verify so far have failed.

Employers need not pay additional consideration to existing employees to support non-compete agreements

An employer need not provide additional consideration to support a non-compete agreement entered into with an existing employee under the Colorado Supreme Court’s ruling in Lucht’s Concrete Pumping, Inc. v. Horner, et al. The Colorado Court of Appeal’s earlier ruling in the case required additional consideration on the basis that the employee would otherwise be in the same position as he was before he signed the agreement. The Colorado Supreme Court held that an employer’s continuation of an at-will employee’s employment constitutes adequate consideration. The court limited its ruling to the factual situation where an existing at-will employee is presented with a non-competition agreement by his employer and the employee has the option of either accepting the agreement in exchange for continued employment or rejecting the agreement and leaving the company. 

A non-competition agreement, like any other contract, must be supported by consideration. Courts have liberally interpreted what constitutes adequate consideration. For example, in this case, consideration may take the form of forbearance, where one party refrains from doing something that it is legally entitled to do. The Colorado Supreme Court reasoned that, because an employer may terminate an at-will employee at any time during employment, the employer’s forbearance from terminating the at-will employee in exchange for the employee signing a non-competition agreement constitutes adequate consideration.