Archive for November, 2011

NLRB Adopts Scaled-Down Proposal to Speed Up Elections

The National Labor Relations Board today voted to adopt new rules designed to speed up elections on union representation. Under the proposal, which was long in the making, the time in between when employees request a vote and the election is held would be shorter.

Neither labor nor management got all that they wanted. The new rules do not require employers to provide union organizers with the e-mails and addresses of employees.

You can read the NLRB Chairman’s explanation of the new rules here.

Expect the NLRB to stay in the limelight as Republicans in Congress debate proposals to clip the agency’s wings, by, for example, forbidding its continued proceedings against Boeing over its decision to relocate a plant to South Carolina, a right-to-work state.

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EEOC, Atlanta Clothier Settle Pregnancy Discrimination Charges

Some employers still don’t get it that it’s illegal to discriminate against a female employee because she is pregnant. How else to explain an Atlanta-based clothier’s decision to settle an Equal Employment Opportunity Commission lawsuit alleging it illegally reduced the hours of a pregnant worker?

According to the EEOC, D&K Suit City and its corporate parent DDK Inc. has agreed to pay $20,000 to settle allegations that it reduced the hours of employee Linda Bell and subsequently fired her.

The consent decree settling the suit, in addition to  the monetary relief, includes provisions for equal employment opportunity  training and reporting and posting of anti-discrimination notices. In the lawsuit and consent decree, D&K Suit City,  LLC and DDK, Inc., denied any liability or wrongdoing.

For a refresher, remember that the Pregnancy Discrimination Act requires equal treatment of pregnant workers in all terms and conditions of employment, including leave.

So it should be a no-brainer that an employer not single out a female employee for negative treatment because of her pregnancy.

Read more about the case.

New Jersey Case Tests Limits on Requiring Participation in Pre- and Post-Abortion Care

Nurses at the University of Medicine & Dentistry in New Jersey have sued the school over its announcement that they will have to help with abortion patients before and after the procedure.

According to the suit filed in the U.S. District Court in New Jersey, the university reversed its long-standing policy exempting employees who refuse based on religious or moral objections.

The was brought by 12 nursess who work in the hospital’s same-day surgery unit. Citing state and federal law, the plaintiffs allege that the reversal violates New Jersey’s law protecting nurses and other health-care workers who have moral objections to participating in abortions. In addition, federal laws, such as the Church Amendment, require health-care facilities that receive taxpayer money to permit workers to refuse on ethical grounds.

Separate federal regulations, known as “conscious” protections, allow doctors and nurses who have ethical or religious objections to opt out of performing abortion or sterilization procedures.

The university argues that “no nurse is compelled to have direct involvement in, and/or attendance in the room at the time of, a procedure to which he or she objects based on his/her cultural values, ethics and/or religious beliefs.”

But the nurses argue that they should not have to assist in any part of an abortion case, including pre- and post-care.

On Nov. 3, the court entered a preliminary injunction barring the hospital from requiring teh nurses to undergo training to care for abortion patients.

A hearing in the case is pending on Dec. 5.

Pa. Settlement Could Boost Drive for Right-to-Work Laws

The National Right to Work Foundation is touting its role in helping an employee of Coca-Cola get his job back after he refused to pay his full union dues. The incident occurred in Pennsylvania, which does not have a right-to-work law.

In right-to-work states, an employee cannot be forced to join a union or pay union dues.

The foundation, which ideally would like to enact a national right-to-work law, said that Keith Smiesko of Saxonburg won $3,356.46 from Teamster Local 585 union officials and $819.54 from Coca-Cola after he was illegally fired from his job for exercising his rights under the Foundation-won Supreme Court precedent in Communication Workers v. Beck, which allows workers to refrain from full-dues-paying union membership.

Here’s a portion of the foundation’s press release on the case:

“Earlier this year, Teamster Local 585 union officials ordered Smiesko – who had refrained from full union membership and dues payments – to immediately pay full union dues for the previous three years along with additional union initiation fees without ever notifying him that he was being charged for their so-called “representation.” Union officials illegally threatened Smiesko with job termination if he did not pay.”

“Smiesko refused to pay, and Teamster Local 585 union officials demanded that Coca-Cola fire him.  Coca-Cola complied with the union bosses’ demand. With Foundation assistance, Smiesko then filed federal unfair labor practice charges against the union and company with the National Labor Relations Board (NLRB) regional office in Pittsburgh.

In addition to the monetary settlement, Smiesko was reinstated to his job with Coca-Cola, and union and company officials agreed to post a notice in the workplace for workers who may want to exercise their Foundation-won rights to refrain from full-dues-paying union membership.

“No worker should ever be extorted by union bosses to join or pay dues to a union in order to get or keep a job,” said Mark Mix, President of National Right to Work. “Pennsylvania desperately needs Right to Work protections for its workers to strip from union bosses the power to compel workers to give up some of their hard-earned money in order to provide for their families.”

You can read more about the case on the foundation’s website.

D.C. Council Member Proposes Added Ex-Offenders to Protected Groups Under Human Rights Law

Should persons who have committed crimes and served their time be protected from discrimination in employment?

A member of the Washington, D.C. council–who is himself an ex-offender-thinks so.

D.C. Council member Marion Barry, who served a jail sentence for drug possession, has proposed the legislation to amend the city’s Human Rights Act.. If his legislation is adopted, an employer would be allowed to inquire about a criminal record only after a “conditional offer” of employment has been made. If an employer rescinds the offer based on a past arrest, he would have to submit documentation explaining why the applicant could not work in that job.

The Human Rights Act already prohibits city agencies from asking about someone’s arrest record on an application or during an initial job interview.

For comparison’s sake, Title VII of the 1964 Civil Rights Act, the main federal antidiscrimination law, does not directly prohibit making employment decisions based on a person’s arrest record or status as an ex-offender. However, the Equal Employment Opportunity Commission looks wearily on no-arrest or no-conviction rules, because they may tend to exclude members of a particular racial group from consideration for employment.

So it’s important for an employer to have a business necessity for adopting such policies. Needless to say, a bank does not have hire a person who has been convicted of embezzlement.

But that doesn’t mean that an embezeller could not be considered for a job that doesn’t involve handling money.

The point is that job applicants should be considered on their individual merits, and not lumped together into a category such as ex-offenders.

Feds Postpone Implementation Date for New Disclosure Requirements Under Health Care Reform Law

Fellow blogger Christine Roberts has a must-read post on the government’s decision to postpone implementation of new summary benefit coverage reporting requirements under the health care reform law.

Under the Patient Protection and Affordable Care Act  and proposed regulations issued in August 2011, the original compliance deadline was March 23, 2012.

As Roberts noted, the proposed regulations included a form tailored for fully-insured plans.  Employers with self-funded plans argued for a different template for them.

The IRS, DOL, and Department of Health and Human Services heard their pleas and decided to postpone implementation of the new reporting requirement.

The details are set on in a government frequently answered questions sheet.

Roberts’ blog has more on this and why it’s a big deal for plan sponsors, insurers and benefits brokers, as well as a link to background information on the reporting requirement.

Massachusetts Judge: Wage Law Protections Not Limited to In-State Workers

An employee doesn’t have to work in Massachusetts in order to claim the protections of the state’s Wage Act, a Massachusetts Superior Court judge ruled this month.

The judge said that the protections may extend to out-of-state employees with ties to the state.

In this case, a former sales employee of a small, failed Massachusetts company sued three former executives personally in Massachusetts, alleging they owed him more than $100,000 in commissions he earned prior to the company’s failure. The executives argued that Massachusetts law did not apply because the employee lived and worked in Florida. The court disagreed and held that the Wage Act “was designed to regulate the actions of Massachusetts employers, regardless of where their employees work.”

The following activities established “more than sufficient contacts” with the Commonwealth to afford the employee the protection of the its Wage Act, the judge said:

  • The salesman conducted his business largely via the internet, which the Massachusetts employer paid for;
  • His business cards listed the company’s Massachusetts address, phone number and fax number;
  • He had customers in Massachusetts and visited them about 20 times over two years;
  • He was in daily contact with his supervisor in Massachusetts;
  • All sales paperwork was generated in Massachusetts;
  • All customer purchase orders were sent to Massachusetts, invoices were then sent to customers from Massachusetts and customers sent their payments to Massachusetts.

If this decision stands, it would expose Massachusetts employers to the law’s provisions for officer liability, mandatory triple damages, attorneys fees and costs.

In light of this decision, out of state employers may want to consider taking steps to avoid the type of “sufficient contacts” with Massachusetts that might expose them and their officers to unfavorable liabilities and penalties under the Massachusetts Wage Act, advises the McDermott Will and Emery law firm.