Don’t Buy (or Post) Those NLRB Posters Just Yet

Most employers have April 30, 2012 circled on their calendar.  That was the day a new rule from the National Labor Relations Board (NLRB) was to take effect requiring employers to post a notice of employees rights under the National Labor Relations Act . . . Not anymore.

The U.S. Court of Appeals for the District of Columbia issued an injunction last week preventing the rule from taking effect.  The Court ruled that a legal question needed to be resolved before the rule could take effect: does the NLRB have the authority to require employers to post such a notice?  Last week, a federal judge in South Carolina determined that the NLRB exceeded its authority when it approved the poster requirement.

For now, employers do not have to purchase the NLRB poster and those that have can leave them in the closet on April 30^th – but do not throw them away – this battle is far from over!  Check back here for updates on the NLRB poster rule and other important developments in employment law.

Retaliation Claims Continue Trending Upwards

In 2011 – for the second year in a row – there were more charges of retaliation filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) than any other type of charge.  Retaliation occurs when an employee suffers an adverse employment action, e.g. termination or demotion, because they complained about some impermissible employer activity.  Last year, 37.4% of all EEOC charges were based on retaliation; ten years ago retaliation only accounted for 27% of EEOC charges.

Generally speaking, retaliation claims are easier to prove than discrimination claims; a point not lost on the Plaintiffs’ bar.  Additionally, over the past few years court decisions have opened the door for even more retaliation charges to be filed.

Two 2011 decisions by the U.S. Supreme Court continued this trend.  In Thompson v. North American Stainless, LP, the Supreme Court held that it was impermissible retaliation for an employer to terminate the fiancée of a complaining employee, opening the door for third-parties to assert charges of retaliation.

In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court held that an employee’s oral complaint of a wage and hour violation was afforded the same protection as a written complaint.  This decision means employers must now also be mindful – and should keep records of – any oral complaints by employees that could lead to retaliation claims.

For more information on handling and preventing retaliation claims, please contact Theo Lu at (706) 259-2586 or click on the email link on his bio page.

The Three-Minute FMLA Quiz Every Human Resources Professional Must Pass

Three minutes, six questions.  That’s all it takes to discover whether you know what you MUST know about the FMLA. 

1. Does the FMLA apply to my company?
   Answer:  The FMLA only applies to employers with 50 or more employees.
2. Which employees are eligible for unpaid leave under the FMLA?
   Answer:  Employees who have been employed with the company for a total of 12-months, worked a minimum of 1,250 hours within the last 12-months, and work at a location with 50 or more employees within a 75 mile radius are eligible for FMLA leave.
3. How much leave unpaid FMLA leave are eligible employees entitled to?
   Answer:  Eligible employees are entitled to 12 weeks of unpaid, job-protected leave during a 12-month period.
4. When can an employee take FMLA leave?
   Answer:  Generally, there are three reasons (1) The birth or care of a newborn, and the placement of a child for adoption or foster care (both men and women are eligible); (2) the employee’s own “serious health condition” that makes the employee unable to perform their job; (3) to care for a spouse, child or parent with a “serious health condition”.
5. What is considered a “serious health condition”?
   Answer:  The FMLA defines a “serious health condition” as “"illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.”  While this definition is vague and open for interpretation, employers do have the right to request that the employee provide medical certification from a doctor when the employee requests FMLA leave for his or her own serious health condition, or the serious health condition of his or her parent, spouse or child.    
6. What does the FMLA require or prohibit an employer from doing?
   Answer:  When an eligible employee returns from FMLA leave, the employer must return them to the same position, or an equivalent position, with equal pay, benefits and perks.  An equivalent position must involve the same or substantially similar duties, responsibilities and authorities.  Covered employers cannot: (1) prevent eligible employees from taking FMLA leave; (2) consider FMLA leave as a negative factor in any employment action (hiring, firing, promotion or discipline); or (3) retaliate against  employees who request FMLA leave or complain about a violation of the FMLA.

Bonus Question – Are there special provisions for military families?
Answer:  YES!  The spouse, child, parent or next of kin of a “covered active duty” service member can take leave for a “qualifying exigency”.  A “qualifying exigency” is a specific activity arising out of the fact that a covered military member is on active duty, including issues related to short notice deployment, making financial and legal arrangements, arranging childcare, attending counseling, and post-deployment activities.

            Under the military caregiver provision, the spouse, child, parent or next of kin of a covered service member, including the National Guard or Reserves, can take leave to care for the service member who incurred a serious injury or illness in the line of duty.

            Employees taking leave under these provisions are entitled to a total of 26 weeks of unpaid, job-protected leave (including regular FMLA leave) during 12-month period.

This quiz is just a starting point.  There’s a lot more to the FMLA and compliance can be tricky.  So if you had trouble answering any of these questions or you’d like some additional guidance, please contact Theo Lu at (706) 259-2586 or click on the email link on his bio page. 

Most Employers are Required to Display New NLRB Poster

The National Labor Relations Board (“NLRB”) recently issued a new rule requiring most private sector employees to post a notice (“Notice”)  informing employees of their rights under the National Labor Relations Act (“NLRA”).  Pursuant to the rule, which becomes effective on November 14, 2011, the Notice must contain specific language informing employees of their right to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities.

The rule states that the Notice must be 11-by-17 inches in size, and it must be posted in all places where other employment-related notices are posted.  The Notice must be posted in English as well as a foreign language if the foreign language is spoken by 20% or more of the employer’s workforce (the NLRB will provide translations of the Notice in other languages).  Employers that typically post personnel rules and policies on an internet or intranet site should also post the Notice there, in addition to a physical posting. Employers are not required to distribute the posting by email, Twitter or other electronic means.  A copy of the Notice is available for download on the NLRB website at www.nlrb.gov. 

There is a chance that the rule will not go into effect on November 14, 2011 due to an increasing backlash against it.  Representative Scott DesJarlais of Tennessee recently introduced House Bill 2854 seeking to repeal the rule.  Additionally, the National Association of Manufacturers has filed a lawsuit against the NLRB in the federal district court in Washington, DC in an attempt to block the rule.   Due to these recent developments, we recommend that employers be prepared to post the Notice but refrain from posting it until the November 14, 2011 deadline in the event that the rule is successfully challenged.  

Employers: Tips for Avoiding Common Mistakes in Unemployment Hearings

Judy Poag, head of Minor, Bell & Neal's Employment Law Section, will present a free seminar to discuss tips for successfully managing your company's unemployment claims.  The seminar is scheduled for Thursday, September 1 at 12:00 noon.  Reservations are required and space is limited.  Please RSVP to Rhonda Long at 706.259.2586 or by email at rlong@mbnlaw.com.  Lunch will be provided.