Posts Tagged ‘NLRB’

Help Your Company Remain in Compliance in 2017

Tuesday, November 1st, 2016

CAI’s 2016 Triad Employment Law Update was attended by nearly 200 HR professionals seeking information and updates on federal and state laws and regulations facing North Carolina employers.  HR experts from CAI along with attorneys from Costangy Brooks Smith & Prophete LLP presented on a variety of topics of significance to North Carolina employers. 2016_telu_header_2

A few highlights from this year’s conference:

  • On December 1, 2016, the Overtime Rule goes into effect and raises the threshold to $913/week or $47,476 per year; $134,004 for highly compensated employees. Be sure you fully understand the differences between an employee and an independent contractor.  The USDOL and NCIC have signed an agreement to oversee compliance with various regulations and work together to reduce employee misclassification, among other things.
  • Review your handbooks regularly.  Many employee handbooks contain a policy or language that may trigger a complaint by the NLRB. Ensure that your policies are not too broad or too vague, as this will leave them open to interpretation.
  • Regarding enforcement protections for LGBT, the EEOC states that employers must comply with federal law, even if state law conflicts or offers no protection for this group. LGBT charge filings and resolutions are on the rise as more employees become aware that they can file claims.  For further clarification, you can view the EEOC Fact Sheet on protections for LGBT workers here.
  • Workplace bullying can be physical, physically threatening or non-physical.  In North Carolina, there are currently no laws against workplace bullying but employers should not tolerate bullying on any level.  High turnover, low productivity, lost innovations and difficulty hiring quality employees can all result from workplace bullying.
  • According to ADAAA, employers have an obligation to engage in good faith in the interactive process to determine if an employee has a disability and whether there are reasonable accommodations that can be implemented. Reasonable accommodations under the ADAAA can include assistive devices, change in assignments, service animals and telecommuting.  Many employers have found individuals with disabilities to be productive and loyal employees.
  • Employers may use bonuses to satisfy part of the new standard salary level test. The DOL allows nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the standard salary test requirement. Such bonuses include, for example, nondiscretionary incentive bonuses tied to productivity or profitability (a bonus based on the specified percentage of the profits generated by a business in the prior quarter.)
  • North Carolina law does allow employers to test job applicants and employees for drug or alcohol impairment and regulates the procedures that employers must follow in implementing such testing. State law does not require employers to drug test, but it does regulate those employers who voluntarily choose to implement a drug-testing program.
  • Don’t put a non-compete clause in an employee handbook.  Have a standalone non-compete or employment agreement with a non-compete provision. When developing a non-compete, keep in mind that the narrower in geographic scope the better.  Be sure to have your job candidate sign this agreement before or on the first day of employment with your company.
  • Penalties for non-compliance of the ACA are $1,000 per enrollee for willful failures.  However, good faith compliance efforts can excuse penalties. The DOL has more information on their website.
  • Title VII prohibits religious discrimination and requires reasonable accommodations as it pertains to religion. Broadly defined, religion includes “Ultimate ideas” about “life, purpose, and death.”
  • Under FMLA an employee who has given birth is entitled to 12 weeks of leave.  Mothers who return to work and are breastfeeding must be provided breaks to express milk and have access to a clean, safe, private place for this purpose.
  • As November 8th nears, employers may want to consider allowing employees some paid time off to vote, if there is insufficient time for the employee to vote outside of working hours. Although there is no statute in North Carolina that mandates time off to vote, terminating an employee for taking time off to vote could be the basis for tort action for wrongful discharge. Employers should encourage their employees to exercise their right to vote.

More than 1,100 North Carolina employers trust CAI to help them minimize liability and maximize employee engagement, contact CAI at 919-878-9222 or email leeann.graham@capital.org to learn more about the many ways we can help you.

 

Key Learnings from 5 Different Areas of State and Federal Employment Law

Thursday, May 22nd, 2014

PPT Slide ELLU 2014More than 430 HR professionals and company executives attended CAI’s 2014 Employment and Labor Law Update. Participants traveled to the McKimmon Center in Raleigh for the two-day event on May 14 and May 15 to receive the latest updates in state and federal law.

Knowledgeable attorneys from Ogletree Deakins, as well as an expert from CAI, shared important changes in the law at the conference. Topics the presentations covered included workplace investigations, FMLA, wage and hour issues, the ADA, and more.

Below is some of the information, which covers five different areas of employment law, discussed at the conference:

Expect more aggressive investigative tactics from the EEOC:

  • The EEOC is making extensive requests for information not germane to the charge at hand
  • Increased threats and uses of subpoenas
  • Increased demand for on-site investigations
  • During on-site investigations, EEOC increasing demands to review signage, personnel files and make general employee inquiries unrelated to charge
  • Increased demands for on-site tours and witness interviews
  • Aggressive behavior in settlement negotiations

Enforcement Trends in Immigration Law:

  • There’s nothing random about audits from ICE
    • Most audits are lead-driven and are discovered by a tip-line complaint, local law enforcement data sharing, and federal agency data sharing
  • Avoid these common I-9 mishaps:
    • Using a wrong or outdated I-9 form
    • Not completing Section 1 or 2 in the specified time frame
    • A new hire did not sign Section 1
    • Someone else completes Section 1 but they do not have a Preparer or Translator Certification
    • Hire date is missing
    • Employer’s address is incomplete

Updates in the ADA:

  • Leave as a reasonable accommodation
    • Granting a leave of absence may be considered a reasonable and required accommodation under the ADA if no other sufficient reasonable accommodation is available
    • Maximum leave policies don’t satisfy the ADA. However, that doesn’t mean you can’t have one. You will just have to consider the ADA before discharging an employee for exceeding the maximum
    • An accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily in the run of cases”—in other words—if it appears feasible or plausible

Updates in NC Legislation—Bills of Interest:

  • House Bill 846: Job and Education Privacy Act– would prohibit employers and colleges from requiring individuals to disclose access information to personal social media and email accounts
    • Passed the house on May 16, 2013 and is in the senate; eligible for consideration in the 2014 session
  • House Bill 872: Protect NC Right-To-Work – declares it unfair trade practices for any contract to require a contractor or sub-contractor to use unionized labor. Contracts involving federal funds would be exempt
    • Passed in the House on May 2, 2013 and is in the senate; eligible for consideration in 2014 session

The NLRB is cracking down and scrutinizing company rules in several business areas, including social media:

  • Avoid the following in your company social media policy to stay on good terms with the NLRB
    • Prohibiting discussion of wages, benefits, and other terms and conditions of employment
    • Prohibiting anyone from sharing confidential information without clarifying the definition
    • Prohibiting “no-disparagement” or words of “negative impact”
    • Vague restrictions about inappropriate conversations
    • Prohibiting the use of trademarks or company logos

For additional information on CAI’s conferences, please go to https://www.capital.org/eweb/DynamicPage.aspx?site=cai&webcode=cai-training-conferences.

 

What You Need to Know from the 2013 Triad Employment Law Update

Tuesday, November 12th, 2013

TELU-HeaderCAI hosted its annual Triad Employment Law Update on November 5. The event was held at the beautiful Grandover Resort in Greensboro and more than 160 HR professionals and company executives attended the conference to obtain the latest updates in state and federal employment law.

The knowledgeable attorneys from Constangy, Brooks & Smith, LLP gave several presentations related to the most recent changes in regulations. Topics the attorneys discussed included termination procedures, off-duty conduct, new decisions from the NLRB, health care reform and immigration issues.

Below are several important takeaways from this year’s conference:

The NLRB and Social Media Policies

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under the NLRA
  • Policies cannot inhibit “protected concerted activity,” such as posting complaints
  • Board continues to issue policy guidance on a variety of social media cases
  • Recent rulings by NLRB’s administrative law judges have invalidated employer social media policies

Health Care Reform and Employee Benefits

  • The one-year penalty delay will allow employers to plan coverage issues more carefully, determine full-time employees, and project additional costs.
  • Do not put health care issues aside until next year – use this time to analyze, discuss, and plan to prevent surprises.
  • Suggested actions to take
    • Identify all common law employees (temps, interns, contractors, etc.)
    • Identify any possible variable hour or seasonal employees
    • Determine if plan provides “minimum value” and is “affordable”

Background Check Compliance

  • Employer can conduct own background check
  • If a consumer reporting agency is used to obtain consumer report, Fair Credit Reporting Act (FCRA), as amended by Fair and Accurate Credit Transactions Act applies (FACTA).
  • Steps an employer must take:
    • Notify employee in stand-alone written notice that it is obtaining a consumer report and get employee’s written consent
    • Give employee notice of proposed adverse action (along with copy of report and FTC summary or rights form)
    • Wait a reasonable period of time before taking adverse action and give notice of same to employee

Perfecting Termination Procedures

  • Some tips to consider:
    • It’s recommended to have someone of the same gender as the person being terminated included in the procedures for several reasons, such as safety and empathy
    • Terminating on Friday afternoon is not recommended because the terminated employee has many more opportunities to be in contact with family and friends after the work week, which might cause them embarrassment and frustration.
    • Don’t come off too apologetic and have policies and performance evaluations ready
    • Always cover how they will be able to collect their belongings if they are given the opportunity

Interviewing in the Hiring Process

  • Review the job description and make sure your questions match up to the duties and responsibilities
  • Avoid questions that might appear discriminatory or offensive
  • Avoid questions that could be construed as having illegal motivation
  • Structure interview questions and develop a scoring criteria
    • Consider using a licensed psychologist to help develop
    • Avoid telling applicants that they are hired during an interview
    • Don’t speculate about the possibility of employment, length of employment or otherwise
    • Remain consistent among applicants

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

3 Things Employers Need to Know About the NLRA

Tuesday, April 16th, 2013

NLRAHow familiar are you with the National Labor Relations Act (NLRA)? Do you have enough knowledge of the act to guarantee that your organization won’t make costly mistakes regarding your employees?  

According to nlrb.gov, the NLRA was enacted by congress in 1935 “…to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices…” Keeping up with the decisions based on interpretations of the act can be challenging. However, all employers should be familiar with the NLRA and know how related rulings affect their organization.

Here are three things all employers should know about the NLRA:

Not Just for Unions

Think the NLRA won’t affect you because there are no unions at your organization? Wrong! The NLRA is applicable to most private and non-profit employers whether they have a union presence or not (there are some exceptions). Because the NLRA affects most companies, it’s important to be aware of the most recent rulings dealing with the act.

The NLRB

The National Labor Relations Board (NLRB) enforces the NLRA. Five members, appointed by presidents, make up the board. Their jobs are to review the unfair labor practices they receive from unions or employers, and make decisions or rulings on the cases they investigate. The board analyzes the NLRA to determine its decisions. Though the group can’t change the elements in the NLRA, it can change how the law is interpreted and used.

Decisions from the Board are Law

Rulings made by the board have the effect of law, and board decisions can change often. Past rulings do not set precedents as they do in actual courts of law, so reverse rulings of decisions made by previous boards are not uncommon. For employers, this means that employment and labor law constantly changes.

Make sure your organization stays informed to avoid actions that may violate federal or state laws. Brian Hayes, former NLRB member and current Ogletree Deakins attorney, will present at this year’s Employment and Labor Law Update conference. During his sessions, he will share his views and give advice on the board’s recent rulings.

Please visit www.capital.org/lawupdate to review the full agenda of the conference, descriptions about the presentations and to register. Feel free to call 919-878-9222 or 336-668-7746 with any questions.

Photo Source: Kheel Center, Cornell University

7 Takeaways from the 2012 Triad Employment Law Update

Thursday, November 15th, 2012

Last Wednesday, Nov. 7, CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro. More than 160 HR professionals and company executives attended the conference to receive the latest updates in state and federal employment law.

Lawyers from Constangy, Brooks & Smith, LLP shared presentations with attendees on a number of topics related to recent changes in regulations. Some of the topics covered included updates from the new NLRB, best practices for immigration law compliance and changes from healthcare reform.

Below are seven key insights from the informative law update:

NLRB (National Labor Relations Board) Social Media Policy

  • Employees using social media to complain about their employers may be engaged in protected concerted activity under NLRA
      • Protected posts: seeking advice from coworkers, calling supervisors names, criticizing company actions
      • Unprotected posts: don’t involve other employees or individual gripes, criticizing the company’s clients and complaints to third parties
  • The board continues to offer policy guidance on a variety of social media cases

EEOC (Equal Employment Opportunity Commission) Issues Final ADAAA (American’s with Disabilities Amendments Act) Regulations

  • Eliminated “per se” list of covered disabilities
  • Rejects minimum duration rule that results in short term condition being a disability

New EEOC Regulation on Age Discrimination

  • November 16, 2011—EEOC approves final regulation
    • Now easier for plaintiffs to prove age discrimination in disparate impact cases
    • Facially neutral practices that adversely impact older employees is discriminatory unless employer can prove “reasonable factor other than age”

OFCCP (Office of Federal Contract Compliance Programs) and Proposed Rule on Hiring Goals for Disabled

  • Proposed rule requires federal contractors to set a goal that 7 percent of each job group should be persons with disabilities
    • Require applicants to self-identify as disabled

Correct Your I-9s

  • In general, never do a new I-9,  no matter how bad the errors
    • Common errors that can be fixed: employee didn’t sign, employee didn’t date, employee didn’t fill in “A” number, employee didn’t fill in expiration date, employer didn’t fill in date of hire, employer didn’t fill in street address of company
    • Errors that can’t be fixed: not completing form within three days of hire and missing information from former employees

Avoiding Whistleblower and Retaliation Claims

  • Whistleblower: employer violation of law, rule or regulation
  • Retaliation: related to employee’s individual rights
  • The following are protected from retaliation:
    • current employees, former employees, job applicants and associates of those employees who engage in  protected activity
  • Three elements make up a claim:
    • Protected activity, adverse action and causal connection
    • Employee must have a good faith belief that there was a violation of a law when they engaged in protected activity (Title VII)

Effects of Healthcare Reform

  • Several mandates and changes become effective
    • Implementing external review processes
    • W-2 reporting of the value of employer provided health benefits
    • Summary of Benefits and Coverage (SBC) to be given to all participants at enrollment and at each subsequent annual open enrollment
    • Automatic enrollment for employers with more than 200 full-time employees will be required for new full-time employees, with an opt-out notice
    • Health flexible spending account limit will be $2,500

For further assistance on staying compliant with state and federal employment laws, please call a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

7 Updates on NLRB and OFCCP Proposed Rules and Posters

Tuesday, August 14th, 2012

Make sure your company is complying with recent changes in employment regulations and up to date on the newest proposals from the National Labor Relations Board (NLRB) and the Office of Federal Contract Compliance Programs (OFCCP). There are several rules “in limbo” right now due to delays or court challenges. Review the seven updates below to avoid costly fines:

1. The NLRB Poster Rule

The controversial NLRB poster highlighting the right to strike, pass out literature and join a union is on hold due to litigation. The final briefs were just filed with the federal court in Washington, DC. Oral arguments are set for September 11 in the case. No one can say when there will be an answer. In the meantime, the poster is not required. [Note: Federal contractors fall under older, different rules.]

2. The Micro-Unit Issue

The NLRB ruled in favor of the International Association of Machinists in the Nestle Dreyer Ice Cream case, allowing a “micro-unit,” or historically-small unit, to proceed to election. The union won the vote and the company has appealed. CAI is supporting the amicus brief by the National Association of Manufacturers (NAM) to prevent these “micro-units” from being carved out of facility-wide voting units. [Note: The IAM lost three prior elections in the broader, traditional voting unit.]

3. The Ambush Election Rules

The NLRB issued rules in December 2011 changing key provisions of their election procedures. The most controversial changes shorten the time between an election petition and voting day. Court challenges were filed on two theories: (1) the Board has no authority to do this by rulemaking and (2) there was no quorum during the Board vote on the rules. The district court ruled on May 15 that there was no quorum (since only two Board members voted) and the Board agreed to “temporarily” suspend these rules. On July 29, the Board asked the court to reconsider its order because a third Board member was arguably “present” for the vote. No court has yet ruled on the Board’s authority to issue the rule in the first place. About 150 election petitions were processed under the new rules before they were suspended.

4. The USDOL Persuader Rules

The US Department of Labor (USDOL) issued proposed rules to broaden the definition of a “persuader” in union election campaigns. In summary, the revisions could require disclosure of the costs and sources of any activity that could affect an employee’s vote, such as management training to help supervisors do a better job. There is no recent activity on this and it is unlikely we will see a final rule before the elections. The American Bar Association is now officially opposed to the rules.

5. Congressional Attempts to Override Recent Rulings

There is activity in the US House of Representatives to legislatively override the NLRB ambush election rules, the USDOL persuader rules and the micro-units case. The bill has made it through “markup” and into the assigned Committee. It is hard to see how passage by the House would have any impact given the vote count in the Senate and the need for Presidential approval.

6. OFCCP Disability Rulemaking

The OFCCP (part of USDOL) issued a Notice of Proposed Rulemaking December 9, 2011 seeking comments on a possible rule to set a seven percent national “utilization goal” for hiring of disabled employees. No action has yet been taken to put the rule in place. The NAM and its allies just sponsored a study by the Center for Corporate Equality assessing the costs and issue raised by the Proposed Rule. That study has been sent to OFCCP and to the Office of Management and Budget, which must assess the cost of employer implementation. We do not expect action before the November election.

7. NLRB Sues Hyatt Hotels for At-Will Statement in Handbook

The NLRB filed a complaint against Hyatt Hotels in February for maintaining a handbook statement on at-will employment. Apparently, the Board does not object to defining “at-will” employment, to reserving the right to change rules at any time, or to saying that nothing in the handbook alters at-will status. The Board does object to seeking an employee acknowledgement form and signature where the handbook stated that at-will status could not be changed by any manager other than the President or COO. The Board viewed this as waiving the right to seek a union to bargain away those terms. This is common language in handbooks to prevent an employee from alleging a mid-level manager made a promise of employment for a fixed term or for “life.” The Board said since a union contract could alter that language, the employer’s statement was “overly broad” and violated the law. Hyatt agreed to change the wording before it went to court. This is just the latest in a string of questionable interpretations of handbook language by the NLRB. As a result, it has become difficult to predict what part of a typical employee handbook will be challenged next.

If you have questions regarding any of the issues mentioned in this article, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558

6 Things to Know about the NLRB’s Notification of Employee Rights from the 2012 Employment and Labor Law Update

Tuesday, May 15th, 2012

On May 2 and May 3 CAI hosted its annual Employment and Labor Law Update at the McKimmon Center in Raleigh. More than 390 HR professionals and company executives participated in the two-day event. Experienced lawyers from Ogletree Deakins updated the audience on the most recent developments in state and federal employment law and how they affect North Carolina employers. Topics discussed at the conference included the ADAAA, conducting investigations, healthcare reform, E-Verify and more.

Participants were concerned and surprised by some of the recent changes from the NLRB, which attorney John Burgin shared. Burgin explained that the recess board under President Obama’s administration currently has a 3-2 pro-union majority, and the board’s effects are shaping how employers and employees can interact with each other. Here are six things you need to know about the NLRB and its Notification of Employee Rights:

1.       Notification of Employee Rights              

  1. Originally effective November 14, 2011 but implementation was delayed indefinitely by U.S. Court of Appeals on April 17, 2012
  2. The National Labor Relations Act (NLRA) requires most private employers to post employees’ rights
  3. All employers under jurisdiction of the NLRB are included, but the act excludes government, agricultural, railroad and airline employers
  4. Ruling applies to employers of unionized and non-unionized workforces

2.       Foreign Language Notice

  1. Where 20 percent or more of a workforce is not proficient in English, employers must post the Notification of Employee Rights in the language employees speak
  2. If workforce includes two or more groups constituting of 20 percent, employers must physically post information in each language or post notice in the language spoken by the largest group and distribute the notice to each employee in appropriate language

3.       Electronic Posting of Notice

  1. If an employer “customarily communicates” with employees about personnel rules or polices electronically, the employer is required to post the Notification of Employee Rights as prominently as other electronic notices to employees
  2. The information on the electronic version must be the exact copy of the NLRB’s poster or a link to the NLRB website that contains a copy of the poster must be present

4.       Under the NLRA, it is illegal for an employer to:

  1. Prohibit an employee from talking about or soliciting for a union during non-work time hours or from distributing union literature during non-work time hours, in non-work areas
  2. Prohibit an employee from wearing union hats, buttons, t-shirts and pins in the workplace except under special circumstance
  3. Question an employee about his or her union support or activities

5.       Responses to Posting Notification

  1. Employers still have the same rights under Section 8(c) to share their position and opinions in non-coercive manners
  2. Employers may inform employees about their rights to refuse to support a union—written or verbal

6.       Notification Options

  1. If it is eventually approved, consider the following options when posting the Notification of Employee Rights:

a.      Post the new notice

b.      Post the new notice and your own side notice

c.      Post the new notice and train supervisors on expectations and compliance

d.      Post the new notice and conduct meetings with employees to  build positive employer-         employee relationships

If you have additional questions regarding the NRLB and posting of the Notification of Employee Rights, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: avrene