The NLRB’s (National Labor Relations Board) General Counsel has directed Regional Directors to include in every document settling an NLRB proceeding mandatory language where the employer in effect agrees in advance that if it is even accused of violating the agreement, all of the prior charges against it have merit. While the NLRB purports that this provision is an appropriate disincentive against violating agreements, in fact it seems most likely to discourage settlements by employers and/or serve as unfair leverage against them.

While the directive technically applies to all parties to a settlement agreement, as a practical matter it is employers who are most likely to be victimized by false accusations of breaching the agreement. Settlement agreements are entered into for many reasons. Often the employer makes a practical business decision to settle a disputed matter, even one involving allegations that are simply wrong, to avoid the cost and distraction of fighting the matter in the often unfriendly forum of the NLRB.

Source: www.btlaw.com

Coincident with the 20th anniversary of enactment of the Americans with Disabilities Act (ADA), the U.S. Department of Justice (DOJ) has completed its long-awaited rulemakings to revise its Title II and Title III regulations, and to adopt the July 2004 ADA Accessibility Guidelines (2004 ADAAG) promulgated by the U.S. Access Board as legally enforceable accessible design standards, which DOJ has designated the 2010 ADA Standards for Accessible Design (hereinafter 2010 Standards). This marks the first major revision to the Title II and Title III regulations, and the accompanying standards for accessible design, since they were originally promulgated on July 26, 1991.

DOJ publicly posted the final regulations to its website, www.ada.gov, on Monday evening, July 26, 2010, as President Obama was commemorating the ADA’s 20th anniversary at the White House. In his remarks, President Obama emphasized that the rulemakings were completed in a way that “makes sense economically and allows appropriate flexibility while ensuring Americans with disabilities full participation in our society.” Issuance of these regulations, which have not yet been published in the Federal Register, caps off a hectic regulatory day in which DOJ also issued four new Advance Notices of Proposed Rulemakings to establish accessibility requirements for websites, equipment and furniture, movie captioning and video description, and next generation 9-1-1 service.

Overall, the final revised Title II and Title III regulations, 28 C.F.R. Parts 35-36, adhere more closely to the proposed regulations issued in 2008 under the prior administration than had been anticipated. The revised regulations impact all entities covered by Title II (state and local governments) and Title III (places of public accommodation and commercial facilities), including a broad array of retail, hospitality, restaurant, education, lodging, service, entertainment, sports, recreation, medical and transportation facilities. The 2010 Standards address a vast array of building elements, including but not limited to new requirements for restrooms, reach ranges, sales and service counters, employee work spaces, signage, stairways, telephones, van accessible parking, judicial facilities, correctional facilities, recreational facilities and children’s play areas. The 2010 Standards also reduce the number of wheelchair locations required in assembly areas with seating capacities in excess of 500 and the number of assistive listening devices required.

Although in its 2008 Notice of Proposed Rulemaking DOJ had contemplated sending eight specific provisions in 2004 ADAAG back to the U.S. Access Board for further review, it ultimately decided not to do so and adopted 2004 ADAAG without change. DOJ also promulgated additional standards to clarify the requirements applicable to specific types of public accommodations. These supplemental standards address the following:

On Monday, July 26, 2010, the 20th Anniversary of enactment of the Americans with Disabilities Act (ADA) the U.S. Department of Justice (DOJ) issued four Advance Notices of Proposed Rulemaking (ANPRMs) under the Americans with Disabilities Act (ADA). The four new ANPRMs solicit public comment with respect to establishing accessibility requirements for the following: 1) websites through which places of public accommodation and state and local governments offer goods, services, programs or activities; 2) equipment and furniture; 3) movie captioning and video description; and 4) applying and enforcing Title II (state and local governments) and Title III (places of public accommodation) of the ADA. DOJ also is expected shortly to issue final regulations amending its current Title II and Title III regulations and adopting the July 2004 ADA Accessibility Guidelines promulgated by the U.S. Access Board as legally enforceable accessible design standards.

Source: www.btlaw.com

In what seems to be a developing trend, another state has restricted the use of credit checks for employment purposes. Effective July 1, 2010, it is unlawful, except under limited circumstances, for an Oregon employer to use credit history in making employment-related decisions. Specifically, the law makes it “an unlawful employment practice for an employer to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation or the terms, conditions or privileges of employment based on information in the credit history of the applicant or employee.”

The new law provides several exceptions. Specifically, the law does not apply to federally insured banks or credit unions, the employment of a public safety officer, or employers that are required by state or federal law to use individual credit history for employment purposes. The law also contains an exception allowing credit history to be considered if it is “substantially job-related” and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing. The statute does not define “substantially job-related,” however, so employers are encouraged to consult with counsel before relying on this exception to obtain and use credit check information on an applicant or employee.

Employees asserting violations of the law may file an administrative complaint with the Oregon Bureau of Labor and Industries or a private lawsuit. Employees who prevail may recover lost wages and attorneys fees, among other remedies.

Hawaii and Washington have enacted similar laws, and a bill providing similar prohibitions has passed in Illinois and is currently awaiting Governor Pat Quinn’s signature.

Source: www.btlaw.com

On Nov. 9, 2010, the EEOC published its final regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) – 18 months after the EEOC published its proposed regulations for public comment. The final regulations will take effect on Jan. 10, 2011.

GINA is designed to prohibit the improper use of genetic information. Title II of GINA prohibits employers from using individuals’ genetic information when making hiring, firing, placement or promotion decisions (Title I addresses group health plans and health insurers). Genetic information includes information obtained from the genetic tests of an individual or a family member, or an individual’s family medical history. While GINA generally bars employers from obtaining the genetic information of employees or applicants for employment, there are some exceptions to this general rule. For example, employers do not violate the law when they inadvertently acquire an employee’s genetic information via casual “water cooler” conversations.

Source: www.btlaw.com

The National Labor Relations Board (NLRB) appears intent on administratively adopting the key provisions of EFCA. For example, increasing the remedies against employers for unfair labor practices was a major component of EFCA. On Oct. 25, the NLRB imposed just such a measure. Specifically, the NLRB held that daily compound interest will be added to back pay and other monetary awards. See Kentucky River Medical Center, 356 NLRB No. 8.

This decision dramatically changes Board precedent. The NLRB has ordered interest on back pay for 50 years. But until now interest has not been compounded—let alone compounded on a daily basis. And unlike typical employment law cases where pre-judgment interest is awarded on a case-by-case basis, the NLRB’s new policy applies “categorically wherever a back pay award is appropriate.”

Source: www.btlaw.com

On July 7, 2010, the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration issued an interim rule requiring federal contractors to make certain disclosures regarding first-tier subcontract awards. In particular, the rule requires contractors to report first-tier subcontract awards expected to be $25,000 or more and, for certain larger government contractors, to report the executive compensation of the top five executives of both the contractor and subcontractor. (A “first-tier” subcontract is one made directly with the company contracting to the federal government.) In turn, this information will then be made available to the public. The interim rule is an outgrowth of the Federal Funding Accountability and Transparency Act of 2006, which required the Office of Management and Budget to create a free, public website containing full disclosure of all federal contract award information.

Source: www.btlaw.com

Effective July 1, 2010, it is an unlawful employment practice for an employer to obtain or use for employment purposes, information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation or the terms, conditions or privileges of employment based on information in the credit history of the applicant or employee.

Oregon has enacted and Hawaii and Washington have enacted similar laws. Contact your office’s Labor and Employment Law department for additional information.

Source: www.btlaw.com

As I recently discussed during our weekly team meeting, staffing services have become increasingly more important to the clients we serve. In a business economy where both employers and those seeking employment are focused on “best matches,” our responsibility is to place the right people in the right jobs; while we assist in client strategies to maximize each client’s investment in our services.

Receiving over 20,000 hits daily to our website reinforces our appreciation of the need for a continuing conversation with the public we serve. It is our belief that successful staffing solutions occur when thoughtful people continue to do excellent things.

Dr. Rae Pearson, President Alpha Rae Personnel

It’s a new paradigm in the employee, employer workplace. Employers recognize that more the 250 million people are active Facebook users. More than 346 million people read blogs; Twitter has more than 4 million registered users and You Tube reports more than 100 million users per month. Simply put people are more connected than ever and that connectivity does not exclude the workplace. Subsequently, the rules of the game for social media in the workplace need to be clearly defined and articulated to employees.

As a solid first step, each company will need to establish a social media policy to inform employees what is expected. Key issues to address are:

1. Employees using social media during work hours.
2. Legal issues in web based applications, such as posting discriminatory comments, divulging proprietary information, negatively impacting a company's or client's reputation.
3. Reasons for disciplining employees, or taking adverse employment actions.
4. Definition of the National Labor Relations Act which protects employees who engage in "concerted activity" which includes the right to discuss the terms and conditions of their employment with co-workers and non employees. Additional federal and state laws which protect employees who address for example employer related fraud or security concerns.
5. Alignment of social media use with established company policies.
6. Use of a disclaimer separating an employee's personal opinion from that of the company.

Once the policy is established and publicly posted, employees should be encouraged to post questions or comments to promote full understanding and compliance.

Source: www.btlaw.com