Archive for August, 2011
The National Labor Relations Board today issued a final regulation that will require nearly all private-sector employers to post a notice advising employees of their rights under the National Labor Relations Act. According to the NLRB press release, the final rule is expected to be published in the Federal Register on August 30 and will take effect 75 days after publication. The NLRB states that the required notice will be available at no charge from regional offices or can be downloaded from its website on or before November 1.
This rule was initially proposed last Spring. The NLRB received over 7000 comments regarding the proposed rule. According to the press release, the final rule does reflect some modest revisions suggested by the comments submitted in response to publication of the proposed rule.
With the exception of agricultural, railroad, and airline employers, nearly every employer in the country will be expected to comply with the final rule. There are some minor exceptions for very small entities that have a negligible impact upon interstate commerce, and the United States Postal Service has been exempted from coverage because of the unique requirements it is subject to pursuant to the National Labor Relations Act. The final rule is quite similar to a rule published by the Department of Labor that requires federal contractors to post a notice of employee rights under the NLRA. Federal contractors that comply with the DOL rule will not have to post a separate notice pursuant to the NLRB rule.
Employers will be expected to publish the notice where other federal notices are posted in the workplace. In addition, employers that distribute personnel policies and procedures by means of Internet or Intranet sites will be required to post the NLRB notice there also. If 20% or more of the workforce speaks a foreign language, the employer must also post a notice in that language. According to the NLRB press release, the NLRB will make available notices in various languages.
One obvious consequence of posting this notice is that your employees will be better informed about their rights to organize. This suggests that it is more important than ever to know the signs of union organizing activity and what steps you can — and cannot — take in response to union organizing efforts.
Article courtesy of Worklaw Network firm Elarbee Thompson Sapp Wilson (www.elarbeethompson.com)
The National Labor Relations Board’s Acting General Counsel released a report detailing the outcome of investigations into 14 cases involving the use of social media and employers’ social and general media policies. In releasing the document, Acting General Counsel Lafe Solomon said, “I hope that this report will be of assistance to practitioners and human resource professionals.”
Each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.
Lesson for HR That Works Members: The NRLB and present administration continue to do everything possible to socialize the workplace. According to these cases any time an employee complains about conditions of employment and involve other employees they are clearly protected. It seems to make little difference how rude they are and whether they slam the company or its management. I have no doubt some of these companies got advice from counsel that termination was proper. I’m sure many of the “overbroad” policies were drafted by counsel too. It is a tricky area and a trap because the law changes almost daily. While much of it seems a bit insane (i.e. getting away with calling your boss an asshole on a public website and worse), it is the law. As an additional note, since some of the employees complained about health or safety type matters they may also be protected by whistleblower and similar laws. Bottom line: Get some advice before terminating anyone who does anything with social media and make sure your policies are not overbroad.
Looks like the new benefits information form has been drafted in rough. Take a look at it here http://www.healthcare.gov/news/factsheets/labels08172011b.pdf. Once the comment period expires and any adjustments are made it will be finalized and put into place beginning 2012. Here’s what I believe: benefit providers and their client companies should already be providing this level of information to employees…at the minimum. It’s a great outline to follow for training on benefits. Maybe even provide a quiz afterwards to reinforce the learning and make sure they “get” what you want them to get.
Fact is, employers need to get a bang for the benefit buck. The best way to do that is with constant education around those benefits.
Two La Nopalera restaurants in Jacksonville, Florida, and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments issued by the U.S. District Court for the Middle District of Florida. The agreements resolve a lawsuit based on an investigation by the Wage and Hour Division that alleged violations of the Fair Labor Standards Act. “All workers deserve to be paid fairly, and the Labor Department will hold accountable employers that take advantage of their employees,” said Secretary Solis. “We want workers to know we will defend their rights to compensation for all hours worked, and we want companies that play by the rules to know we will take action against those that use illegal tactics to gain a competitive advantage.” Read the News Release
The Equal Employment Opportunity Commission has filed suit against insurer United Insurance Co. of America, accusing it of disability discrimination for withdrawing a job offer to a recovering drug addict in a methadone treatment program.
According to the lawsuit filed in U.S. District Court in Raleigh, N.C., in Equal Employment Opportunity Commission vs. United Insurance Co. of America, Craig Burns applied for a job as an insurance agent and representative at the Raleigh office of Chicago-based United Insurance, a Unitrin Inc. unit that provides life and accident and health insurance.
The insurer extended a job offer, conditional on his passing a drug test.
Mr. Burns is a recovering drug addict who has been enrolled in a methadone treatment program since at least 2004, according to the lawsuit.
His drug test showed the presence of methadone in his system. When United Insurance asked for a copy of his methadone prescription, he provided a letter from his treatment provider explaining his participation in the program. United then withdrew its job offer, according to the lawsuit.
Violation of ADA
The suit filed Tuesday alleges that the job withdrawal was due to Mr. Burns’ disability and violated the Americans with Disabilities Act.
“The effect of the practices complained of…has been to deprive (Mr.) Burns of equal employment opportunities and otherwise adversely affect his employment status because of his disability,” according to the EEOC suit, which seeks back pay, compensation, punitive damages and injunctive relief.
A Unitrin spokeswoman said the company does not comment on ongoing litigation.
Article courtesy of www.businessinsurance.com.
The Jewish Community Center of Greater Washington (JCCGW) will pay $100,000 to a hearing-impaired assistant teacher to settle a disability discrimination lawsuit. The U.S. Equal Employment Opportunity Commission (EEOC) charged the JCCGW with violating the Americans with Disabilities Act for not providing reasonable accommodation to the teacher. Instead, the teacher was demoted to a lower-paying position and then fired due to her hearing impairment.
Click here to read more.
The U.S. Equal Employment Opportunity Commission (EEOC) has sued the Children’s Hospital Association for discriminating against a job applicant who needs an accommodation for her disability. The applicant was offered a job with the Colorado Children’s Healthcare Access Program, but the offer was withdrawn because of her fibromyalgia. Under the Americans with Disabilities Act employers must provide reasonable accommodations to an employee with a disability.
Click here to read more.
The National Labor Relations Board has unanimously found that the Santa Claus engaged in multiple unfair labor practices during a union organizing campaign by a group of disgruntled elves, and ordered North Pole Productions to offer reinstatement to eight fired elves, among other remedies.
Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejecting arguments that the elves’ actions were not protected because in part they chose to blast Santa on numerous websites geared towards children. The decision largely upholds a 2007 ruling by Administrative Law Judge William G. Kocol, which Santa had appealed.
“The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against the elves because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct,” the decision states.
The union organizing campaign began in the winter of 2006 after a number elves resigned to protest what they claimed was interference with their reporting of what they claimed were “Grinch-like” working conditions generated at the North Pole facilities. An election petition was filed in the winter of 2006 by the International Brotherhood of Elves, Reindeer and Santa’s Helpers, and the employees voted overwhelmingly in favor of the Union. Santa rejected the union vote claiming “I’ll be dammed…I mean darned… that I’m going to kowtow to a bunch of disgruntled elves who were the worst performers in the shop. Yeah I work ‘em hard but it’s the dreams of millions of kids I’m worried about. This is my shop and I plan to run the way I have since the beginning”. The decision covers the period following the petition filing.
The Board ordered Santa to cease and desist from the illegal activity, and to take the following affirmative remedial steps: offer reinstatement to eight elves, including six who hung a banner from a footbridge urging children to cancel their Christmas plans and two others who were ostensibly fired for ‘complaining about rushed work conditions’; rescind discriminatory evaluations of four union supporters; rescind suspension notices sent to eleven elves; and make all discriminated elves whole with back pay awards.
Chairman Liebman and Member Becker also ordered that Santa read, or be present at the reading of, the complete NLRB notice to be posted.
How Santa intends to respond to this ruling has not yet been disclosed.
Return to Work (RTW) and Stay at Work (SAW) programs are part of a business’ strategy to retain valued employees and to enhance the productivity of its workforce. “The goal of a return-to-work program, sometimes called a transitional duty program, is to make job changes or provide job accommodations that return individuals to work who are absent for workers’ compensation or disability-related reasons.”
As with workplace accommodation programs, a RTW program should have clear written policies articulating each party’s responsibilities. Accurate job descriptions including the physical demands of particular essential functions should also be developed. This helps everyone in the process (e.g., doctors, rehabilitation staff, and accommodation specialists) understand the job requirements. A good understanding of the job demands and the employee’s limitations and abilities is the starting point for determining if effective job accommodations will enable the employee to return to or stay at work while still recovering from injury. Effective job accommodations insure that the employee returns to work as soon as possible without risk to the employee or employer.
Of the employers who called JAN for technical assistance, most (82%) were doing so to retain a current employee. Thus, most of JAN’s publications contain accommodation solutions that could be generalized to a RTW or SAW situation. JAN also offers a number of examples specific to RTW.
Situation – A warehouse employee was transitioning back to work with lifting restrictions after being injured by falling boxes of product.
- Provide overhead structure for lifting devices;
- Place frequently used tools and supplies at or near waist height;
- Provide low task chairs, stand/lean stools, and anti-fatigue mats;
- Provide compact lifting devices to push and pull supplies and tools from storage;
- Make wheelchairs, scooters, industrial tricycles, or golf carts available; and
- Provide aerial lifts, rolling safety ladders, and work platforms.
The full publication, Fact Sheet Series: Job Accommodations for Return to Work is available for download. If you need additional guidance in identifying a device, or need information on where to buy the device, please call one of JAN’s Consultants.
Below are resources to learn more about developing your company’s RTW or SAW program:
- U.S. Department of Labor’s Office of Disability Employment Policy Return to Work Toolkit
- Disability Management Employer Coalition (DMEC)
- Return to Work Matters
- Society for Human Resource Management (SHRM) Disability Employment Resource Page (available to nonmembers and members alike)
- Louis E. Orslene, MPIA, MSW, Co-Director, The Job Accommodation Network (www.askjan.org)