LEGAL NEWS You Can Use

05/2012:  NLRB Suspends Implementation of New Election Regulations 

Last month we informed members that effective April 30, new regulations promulgated by the National Labor Relations Board (NLRB) eliminate the opportunity for almost any hearing prior to representation elections. 76 Fed. Reg. 80138 (December 22, 2011.) Implementation of those regulations has now been placed on hold indefinitely.  This action follows a decision entered on May 14 by the United States District Court for the District of Columbia that invalidated the regulations where only two members of the NLRB actually voted on them.  In order for there to be a quorum and thus, authority for the Board to act, three members must be present.  The guidance document issued by the Acting General Counsel with relation to the new procedures has also been withdrawn.  At this stage, the NLRB is considering its response and will likely appeal the decision.  Once we have information about the final status of these regulations, we will update members via e-lerts, newsletters, and on our website.  In the meantime, employers having questions about any facet of labor law should contact our in-house counsel.

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05/2012:  Labor Union Bannering Activity May Be Unlawful

Many of our members have asked questions lately about the legality of banners being held up in front of a number of local establishments. Those banners are often held by two or three individuals on a public sidewalk or public right-of-way facing drivers as they pass by. Generally, the banners read “SHAME ON [business]” in large letters, flanked on either side by “Labor Dispute” in smaller letters. The banners are held stationary and those present do not appear to chant, yell, or march. The problem is that the signs have focused on non-union businesses with which the union has no actual labor dispute instead of the contractor performing renovation or repair work for the business with which the union does have an issue.  The short answer is that the banners are perfectly legal, no matter how reprehensible.

For over 60 years, this practice had been viewed as secondary picketing that is prohibited by the terms of the National Labor Relations Act (NLRA).  Picketing occurs when individuals carry signs or placards and patrol an area. The focus of picketing is to signal to employees, customers, venders, and other businesses the fact there is a dispute or the employer is non-union, which is meant to keep those parties away from the business. Picketing is considered speech “plus” and thus, may be regulated per First Amendment analysis. Secondary activity involves the application of pressure to a party with whom the union has no direct dispute in order to force capitulation by a party with whom the union has the primary dispute. The relevant inquiry in such cases is whether the union’s goal is to preserve the work of bargaining unit employees or whether it is other than the wages/ hours/terms and conditions of employment of the employees of the primary employer.   

A recent line of decisions from the National Labor Relations Board has departed quite radically from previous analysis of these circumstances. In United Brotherhood of Carpenters and Joiners of America, Local Union 1506 v. Eliason & Knuth of Arizona, Inc., 355 NLRB No. 159 (2010), the NLRB held that a union does not violate the law by displaying a large stationary banner announcing a “labor dispute” and seeking to elicit “shame on” the employer or persuade customers not to patronize the employer. Over vigorous dissent by two members of the five person Board, the majority of the NLRB held that the display constitutes neither picketing nor otherwise coercive non-picketing conduct and thus the NLRA’s prohibition on secondary strike or coercion simply does not apply here. This means that the secondary employer may not avail itself of the remedies, including injunction in limited circumstances that the NLRB may provide to stop this activity. 

Should members have further questions about picketing or other labor relations issues, they should feel welcome to contact our in-house counsel.

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04/25/2012: EEOC issues new guidance related to the use of criminal records in making hiring decisions

Title VI of the Civil Rights Act of 1964 prohibits employment discrimination based on race, national origin, religion, sex, pregnancy, age, disability, and veteran status. Criminal conviction is not among these a protected statuses, but as the Equal Employment Opportunity Commission (EEOC) points out in its most recent guidance dated April 25, 2012, discrimination claims may still arise when employers exclude job candidates based on criminal convictions. The agency’s updated view of these issues may require changes to our employer-member policies and practices.

The EEOC focuses on two forms of discrimination when considering hiring practices that utilize criminal records: disparate treatment and disparate impact. Direct discrimination, otherwise referred to as disparate treatment, occurs where individuals having similar skills and similar criminal histories are treated differently. The focus is whether a varying factor is race. If so, the implication is that the decision resulted from intentional racial discrimination or was infected by racial stereotypes about criminality.

The more difficult issue is whether the employer’s neutral criminal records policy or practice disproportionately affects minorities raising disparate impact claims. The EEOC cites a number of statistics to verify that racial minorities are incarcerated at a rate that is disproportionate to their representation in the general population. The Bureau of Justice Statistics’ data for 2010 shows that the imprisonment rate for African American men is seven times higher than the rate for Caucasian men. Data from 2001 shows that 5.9% of White males are expected to go to prison in their lifetimes. The statistic increase for Hispanic men at a rate of 17% and African American men at a rate of 32.2%. These statistics support the EEOC’s conclusions that excluding individuals from employment based on their criminal records has a disparate impact based on race and national origin.

Does this mean employers should stop considering applicants’ criminal histories?

It does not! It means that employers should continue to review applicants’ conviction records and determine whether the person poses a risk to safety, well-being, or financial security within the workplace on an individualized basis. In other words, the employer must be able to demonstrate that its practice or policy is job related and consistent with business necessity. Review of such records is an important screening step meant to assist the employer in avoiding the placement of an unfit individual in a position in which he or she may gain access to and harm a customer, client, patient, other third party, or co-worker. The extent of an employer’s duty to investigate an applicant’s appropriateness for a position depends on the risk of harm to others created by the particular job duties. The greater the risk of harm, the more extensive a background investigation should be.

What steps should an employer take?

Obtain conviction, not arrest records, generally within the last ten years. Arrests would only be relevant if the arrest is recent, final disposition is pending, and the charged conduct would require removal if convicted. Those employing individuals who earn less than $20,000 a year in Washington may only seek conviction history record for the prior 7 years. Law enforcement agencies, state agencies, school districts, and any businesses or organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults are exempt from the time limitations and are required to obtain full criminal histories.

1. Interestingly, the EEOC recommends that employers remove questions asking applicants about their criminal record from the job application. Instead, the agency urges employers to ask candidates about convictions and seek records when the individual is farther in to the hiring process. Inquiries should be tailored to ensure they are limited to records for which exclusion would be considered job related and consistent with business necessity.
2. Provide notice and request authorization pursuant to the Fair Credit Reporting Act (FCRA). That Act requires employers to provide full disclosure and receive a clear authorization from the applicant before obtaining a criminal history through a third party that regularly assembles or evaluates such information (consumer reporting agency) because these records are considered part of the individual’s consumer report.
3. Link specific criminal conduct to the risks inherent in the duties of a particular job. This will allow the employer to make sure its decision to exclude someone based on his or her record job specific and reasonably related to business necessity. Unless the employer is bound by federal or state law to disqualify individuals having certain conviction histories, automatic exclusion will not meet the EEOC’s standard. Generally, the following factors should be considered.
   
   • Nature and severity of any offense the individual is convicted of;
   • Time that has elapsed since commission, conviction, and completion of punishment; and
   • The nature of the job, meaning how much time an employee in the position spend with customers, clients, venders, or the public, whether those customers, clients, venders or members of the public would include children, the elderly, or vulnerable adults, and whether position is often left unsupervised.
4. Follow up. If the employer determines an applicant should be excluded, it must provide the individual notice of this fact and the record on which the employer relied if the information was obtained through a credit reporting agency. Generally, the EEOC additionally requires that the employer should conduct a further individualized assessment by allowing the applicant to explain why he or she should not be excluded in the particular case and the employer would then document why it had or had not changed its decision. Factors for consideration at that point include the details of the offense, number of offenses the individual has been convicted of, age of the person at the time of conviction, whether the same kind of work has been performed post-conviction elsewhere, employment history before and after conviction, rehabilitation history, and whether the individual is bonded.
5. The employer’s evaluation practice must be applied consistently, or any defense to disparate treatment or impact claims may be lost.

The EEOC’s new Enforcement Guidance includes a great deal of interesting information and the agency’s perspective. Members may review the Document and review more detailed hiring and screening materials on our website as well. Of course, if members have any questions, they are urged to contact our in-house counsel.

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04/2012: Ninth Circuit Addresses Attendance as an Essential Job Function  

The Ninth Circuit Court of Appeals recently affirmed a summary judgment dismissal in favor of an employer in a reasonable accommodation claim under the Americans with Disabilities Act. In Samper v. Providence St. Vincent Medical Center, a neo-natal intensive care nurse in Portland, Oregon, sought an accommodation from her employer that would have allowed her an unspecified number of unplanned absences from her job. The court reasoned that attendance might be necessary because the employee must work as part of a team; the position requires face to face interaction with clients or other employees; or, the position requires the employee to work with items and equipment that are on site. The court observed, however, that regular attendance might not be an essential function for all positions, such as those that can be performed off site or deferred until a later day.

Considering this decision, employers should note that regular and reliable attendance may be considered an “essential function” of a position. Employers may need to work with employees in fashioning a reasonable accommodation when there are attendance issues, but there are limits to such accommodations, particularly when those accommodations compromise performance quality.

Click here to read the full article. 

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04/20/2012: NLRB Posting Requirement Delayed 

Last August, the National Labor Relations Board (NLRB) issued final regulations requiring that employers post notices designed to inform employees of their rights pursuant to the National Labor Relations Act (NLRA) to form, join, or assist a labor organization, engage in concerted activities for the purpose of collective bargaining, mutual aid, or protection, and/or refrain from these activities. The agency delayed the application of this posting requirement from November 14, 2011 to April 30, 2012. In the meantime, two cases, in two separate federal districts, reached hearing.  In the first case, decided on March 2 of this year, the federal district court for the District of Columbia upheld the regulations.  In the second decision, entered on April 13, the federal district court for the District of South Carolina found that the NLRB exceeded its authority by promulgating the poster regulations.  The March 2 decision has been appealed.  More importantly, on April 17 the United State Court of Appeals for the District of Columbia granted an injunction further postponing the effective date of the regulations while the appeal goes forward.  Subsequently, the NLRB has issued a statement noting that enforcement is delayed pending resolution of the issues before the courts. The case is set for oral arguments in September.  Until this matter is finally resolved, we will keep members apprised of any further developments through our newsletter, e-lerts, and website.

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New NLRB Election Rules Effective April 30, 2012

The National Labor Relations Board (NLRB) has issued regulations amending its election practices to eliminate a great deal of litigation that used to occur prior to representation elections. 76 Fed. Reg. 80138 (December 22, 2011.)  The changes allow elections to take place more expeditiously.  Specifically, the regulations redefine the scope of pre-election hearings, consolidate appeals into one revised post-election procedure, and eliminate waiting periods. As a result, disputes as to employee or supervisor status, and thus eligibility to vote, for example, must be left to be resolved after the election has occurred.  Our employer members should also be aware that the changes are not likely to have a significant impact on them as the number of union representation elections continue to fall.  In 2001, 4,145 petitions for representation elections were filed in the US and 2,645 elections were held.  In 2011, 2,036 petitions for representation elections were filed and 1,148 elections were held. NLRB: Election Petitions Filed by Unions (RC) 2001-1011.

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OSHA 300A Annual Summary Must be Posted by 2-1-2012

Employers of more than ten (10) employees must complete and post the OSHA 300A Annual Summary of Work Related Injuries and Illnesses by February 1, 2012 unless they are classified in a specific low hazard private sector retail, service, finance, insurance or real estate industry. A table setting out those exempt industries is available in a PDF format here.  The 300A summary should be based on the information recorded on the employer’s 2011 OSHA Form 300. An executive within the organization needs to certify and sign the summary, and then ensure it is posted from February 1 through April 30, 2012.

Forms and instructions may be obtained in a PDF format here. An Excel version of the forms may be obtained here.  The Washington State Department of Labor and Industries enforces this obligation.  The agency provides a great deal of detail in regard to record keeping and reporting at http://www.lni.wa.gov/wisha/rules/recordkeeping/default.htm .

If you have any questions about this posting requirement, please contact the Association's in-house counsel.