NLRB Posting Deadline Now Delayed

After I posted the information on the NLRB final rule called “Notification of Employee Rights under the National Labor Relations Act”, the NLRB issued a statement on its website that:

The National Labor Relations Board has 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, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

So, the NLRB still intends to implement the rule.  Curiously, the NLRB made no mention of the federal court litigation challenging the rule.

NLRB Posting Rule and Current Status

On August 25, 2011 the National Labor Relations Board (NLRB) issued a final rule called “Notification of Employee Rights under the National Labor Relations Act”. The rule was to be effective 75 days from publication, putting the effective date as either November 9, 2011 or November 14, 2011 (the NLRB put out a press release creating some confusion on the effective date).

In summary, the rule requires covered employers to notify employees of their rights to engage in organized activities (concerted activity) and apprises such employees of their rights to raise complaints concerning terms and conditions of employment. For instance, the notice states that employees have a right to:

• Organize a union to negotiate concerning wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing over wages, benefits, hours, and other working conditions.

• Discuss terms and conditions of employment or union organizing with co-workers or a union.

• Take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice requires employers subject to the NLRA to post a notice in 11x17 format much in the same way that other rights have to be posted, such as wage and hour and EEO notices. However, it also requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Employers are not required to distribute the posting by email, Twitter or other electronic means, however.

Failure to post the notice may be treated as an unfair labor practice (ULP) under the NLRA. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an ULP case involving other alleged violations of the NLRA. Note that the NLRA, and this rule, apply to private employers that have an impact on interstate commerce. The NLRA specifically excludes public employers, railway and airline employers, and people who are employed as agricultural laborers. The law covers a retail or service establishment with annual gross receipts of at least $500,000. It also covers manufacturing companies that ship at least $50,000 worth of goods across state lines, or that purchase at least $50,000 worth of goods from out of state.

A copy of the poster can be found here.
But, the rule is being challenged in a U.S. District Court in Washington, DC. If successful, the lawsuit would block the notice positing requirement.  But for now, employers should presume that they are to comply with this rule.

ICE turning up the heat

Last week, the U.S. Immigration and Customs Enforcement ("ICE") announced a new initiative targeting over 1000 employers in all 50 states.  This initiative will include site visits for document inspections.  According to ICE, "the inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny".  Essentially, this means that ICE is stepping up its efforts to audit employers.  Any company is potentially subject to being audited. 

Over the past few years there has been a shift from seeking to punish undocumented workers to the pursuit of employers that knowingly hire undocumented workers or who fail to comply with immigration laws.  This trend began with employer audits in July 2009, when ICE announced more than 650 firms were being investigated. Another 1,000 notices were issued in November 2009, with 200 more in March and an additional 500 notices of inspection in September 2010.

A concern for employers should be ensuring the form I-9 is properly completed each time it hires a new worker.  The I-9 form is used to verify that a worker is authorized to work in the U.S. and is to be completed within three days of initial hire.

If an employer fails to properly complete an I-9 or does not retain I-9s for all employees, it can be subject to ICE enforcement. Civil fines for violations range from $100 to $1,100 for each violation, and fines for substantive violations - employing an unauthorized worker - range from $375 to $16,000.

In line with the previous blog posting, conducting a self-audit to identity and correct any violations is the best way to avert violations.  If your company is contacted by ICE, you should contact counsel immediately.

No surprise: EEOC charges way up

The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.

A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.

A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.

Weighing in On Weight Discrimination

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

Restrictive Covenants

With the economy lagging, and jobless rates still hovering at around 10%, many employers are finding that having employees sign a restrictive covenant agreement is a good idea.  Restrictive covenants can take several forms, including a covenant not to compete (non compete), a confidentiality provision, a covenant not to solicit co-workers to leave their employ and a covenant not to solicit customers.  In many instances, an employer will include one or move restrictive covenants in an employment agreement.

In Georgia, the general rule is that a restrictive covenant in an employment agreement is enforceable when it is limited in scope, duration and geographic territory.  Determining a reasonable scope, duration or geographic territory is usually a case-by-case analysis.  Restrictive covenants that lack reasonable scope, duration or a geographic territory are ordinarily deemed unenforceable.  In an employment context, Georgia courts may not "blue pencil" an agreement, meaning they cannot rewrite the restrictive covenants to scale back the duration, if it's too long, for example. Instead, restrictive covenants tend to be an all or nothing proposition; either they are written properly under Georgia law or they are unenforceable in their entirety.

So, employers looking to retain customers, protect confidential information, and who want to retain valued employees should consider having counsel draft a restrictive covenant agreement for all employees.  Continued employment may be sufficient consideration for signing the agreement, so there's no problem with asking an existing employee to sign one.

Obviously, the value of a well-written restrictive covenant agreement is to deter and prevent any employee who is laid off or quits from going down the street to a competitor with the promise to bring on the company's customers or to bring other staff with them.  In addition, a confidentiality provision can prevent a former employee from taking customer lists, pricing and other sensitive data to a competitor. 

Also, since the job market is tight, some former employees will stop looking for another job and will instead start their own business, essentially becoming a new competitor.

In short, if a company wants to hold onto its market share or to valued employees and customers, having employees sign a restrictive covenant agreement makes good business sense.

Pitfalls of Monitoring Emails

Most employers have established a policy regarding surveillance in the workplace. Typically, this type of policy states that the employees have no expectation of privacy and that telephones, internet use and emails may be monitored. In Georgia, an employer is permitted to monitor phones, email and internet use. However, case law is beginning to emerge that interpets when an employer may cross a line in interfering with an employee's privacy, such as where an employee uses a private email address for communications while using a company-owned computer, posting on social networking sites such as Facebook, etc.

A New Jersey case is illustrative of the challenges and evoluation of legal issues in this electronic age.  In Stengart v. Loving Care Agency, the New Jersey Supreme court held that an employer was not permitted to read e-mails between an employee and her lawyer, even though she sent them using her work computer. The case is interesting because ordinarly, since the computer belonged to the employer, it had a right to monitor activity on such computer and therefore there was no invasion of privacy.

In addition, most company policies addressing surveillance do not specifically mention whether the use of a personal email address would be prohibited or would be subject to monitoring. And, the email communication was between the employee and her attorney, which raises other issues, such as the attorney-client privilege.

Steingart was using a personal, password-protected web-based e-mail account. She also thought that the e-mails, sent to her attorney (and related to a potential employment discrimination suit against her employer) were private. When Steingart later filed a discrimination suit against her employer, the employer retrieved the emails and attempted to used them as evidence, but the court refuse to allow them into evidence.

“[The employee] plainly took steps to protect the privacy of those e-mails and shield them from her employer. She used a personal, password-protected e-mail account instead of her company e-mail address and did not save the account’s password on her computer. … In addition, the e-mails bear a standard hallmark of attorney-client messages. They warn the reader directly that the e-mails are personal, confidential, and may be attorney-client communications,” the court said.

The court also found that the employee “had a subjective expectation of privacy in messages to and from her lawyer discussing the subject of a future lawsuit. In light of the language of the policy and the attorney-client nature of the communications, her expectation of privacy was also objectively reasonable.”

So, it is important that employers clearly set forth when employees do not have an expectation of privacy and that all modes of communication made from company telephones, BlackBerrys, PDAs, email accounts or from a company-owned computer may be subject to search and that no expectation of privacy exists in using such modes of communication.