Employment Law Newsletter

In an earlier issue we advised that the National Labor Relations Board (NLRB) had issued a final rule requiring most private-sector employers to conspicuously post a notice of employee rights to unionization in the workplace. The posting requirement was to take effect on November 14, 2011, but in October the NLRB postponed the posting requirement until January 31, 2012.

Since then there have been several legal challenges to the NLRB’s authority to compel employers to post a notice of unionization rights. Recently, a federal judge hearing one of the challenges advised the NLRB that she needed more time to consider the parties’ briefs and oral arguments before deciding the case, and would enjoin the implementation of the posting requirement if the NLRB did not voluntarily extend the effective date. On December 23, 2011, the NLRB announced that it would adjourn the effective date of the posting requirement a second time, to April 30, 2012. The extension will give the courts additional time to thoroughly review whether the NLRB exceeded its delegated authority in the rulemaking process.

Employment Law Newsletter

The NLRA posting requirement discussed above is only one of several recent actions taken by the NLRB that serve as a sober reminder that even in non-unionized workplaces, private sector employees have statutory rights under Section 7 of the NLRA to engage in concerted activity for, among other things, “mutual aid and protection.”

In its January 3, 2012, ruling in (NLRB Case 12-CA-25764), the Board considered whether a requirement that employees execute arbitration agreements that waived employees’ rights to any judicial forum in favor of arbitration, and further, prohibited the arbitrator from fashioning a collective or class action, violated employees’ Section 7 rights to engage in concerted action for mutual aid and protection. The Board concluded that such arbitration agreements unlawfully restrict employees’ rights to collectively pursue employment-related claims, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. Some commentators view this decision as a repudiation of the U.S. Supreme Court’s 2011 decision in , which held that the FAA pre-empted California state law barring arbitration agreements from prohibiting class-action lawsuits.

Employment Law Newsletter

For decades federal contractors have been dealing with the Office of Federal Contract Compliance Programs’ (OFCCP) requirements designed to promote workplace equality for women and minorities in the workplace. Recently, the OFCCP announced proposed regulations under Section 503 of the Rehabilitation Act of 1973 that would extend, and in certain respects, expand those obligations to promote opportunities for disabled workers.

Rule Highlights

Employment Law Newsletter

Periodically, we remind employers that they cannot effectively defend sexual harassment claims if they fail to implement and enforce a sexual harassment program that includes well-publicized policies prohibiting unlawful harassment, periodic training of supervisory personnel in the sexual harassment policy, and clear monitoring and investigative procedures reasonably designed to identify and remediate sexual harassment in the workplace. A New Jersey Appellate Court recently hit that message home when it reinstated a claim against an employer who could not establish the aforementioned elements of an effective anti-harassment program.

In , plaintiffs appealed the trial court’s dismissal of their hostile work environment claim under the New Jersey Law Against Discrimination arising from alleged acts by a fellow employee. The trial court concluded that despite the evidence showing that the plaintiffs were exposed to sexual harassment in the workplace, the County could not be vicariously liable because the offender was not a supervisor, the County had a sexual harassment policy in place providing for a complaint procedure, the plaintiff’s invoked the complaint procedure, and the ensuing investigation resulted in a finding that the allegations could not be sustained.

Employment Law Newsletter

By now most employers know that the wage payment mandates of the FLSA may require an employer to compensate employees for unauthorized work time when the employer “suffers or permits” the employee to work and receives the benefit of the employee’s services. However, a federal appeals court recently issued a decision that may give employers some ammunition in defending claims for unauthorized work.

In , the 7th Circuit Court of Appeals denied the plaintiff manager’s attempt to secure compensation for regularly reporting to duty 15 to 45 minutes before the start of her shift to engage in activities such as reviewing employee schedules, distributing materials to subordinates’ workstations, cleaning work areas and preparing prototypes for production.