As seen in the January, 30 2012 CT Law Tribune

There are seven substantive changes:

• A pre-election hearing is only “to determine if a question of representation exists” and thus related issues should be handled post election;
• Pre-election Hearing Officers have the authority to limit evidence about voter eligibility and inclusion;
• Pre-election Hearing Officers have discretion over what post-hearing briefs can be filed;
• Eliminates the recommendation that the Regional Directors should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, which provided the Board an opportunity to rule on a pre-election request for review before the election;
• Narrows the circumstances under which special permission to appeal to the Board will be granted; and
• Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides the Board has discretion as to whether to review any remaining post-election disputes.

On their face, the new rules merely limit the issues that can be resolved pre-election.  In fact, this streamlining will seriously limit employers’ opportunity to explain the downsides to unionizing because most elections will occur within two to three weeks of a petition being filed.  However, unions will continue to have as much time as they want to campaign before requesting an election.  This is the true unevenness of this labor playing field. 

Legislative and judicial challenges to the new rule are underway.  At least three lawsuits were filed in December.  They are being consolidated into one case.  The House of Representatives passed the Workplace Democracy and Fairness Act, which would require a 35-day period between the filing of an election petition and the representation election.  It would also require a two-week waiting period before a hearing on the petition could be held.  Senator Mike Enzi is threatening to overturn these rules by filing a challenge under the Congressional Review Act.  If all these challenges fail, the rule will go into effect on April 30, 2012.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Groups as varied as the Motor & Equipment Manufacturers Association, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have lodged legal challenges to the new poster.  The Motor & Equipment Manufacturers Association, for instance, argues the poster violates section 8(c) of the 1947 Taft-Hartley Act, a key employer-friendly amendment to the National Labor Relations Act.  Section 8(c) prevents the NLRB from attempting to take away employers’ rights to free speech even when unfair labor practices were also found.  Other claims include that the new notice-posting mandate unlawfully compels employers to promote the NLRB’s agenda and infringes upon the free speech rights in the United States Constitution, which protect employers from being compelled to deliver the Government’s message.  Despite these challenges, the NLRB claims all of these issues will be resolved by the updated April 30, 2012 effective date.

In other NLRB news, President Obama made three recess appointments to the Board, two Democrats and one Republican.  The new members are Sharon Block, previously the Deputy Assistant Secretary for Congressional Affairs at the Department of Labor; Richard Griffin, an attorney for labor unions such as the AFL-CIO and the International Union of Operating Engineers; and Terrence F. Flynn, a lawyer who specializes in the NLRB’s guiding law, the National Labor Relations Act.

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Checking job applicants’ credit as part of the screening process is a common practice, but it is declining.  In 2009, when only two states prohibited such inquiries, a survey by the Society of Human Resource Management reported that 60 percent of employers checked the credit of at least some prospective hires.  Only a year later, that rate dropped to 47 percent.  We expect that rate will continue to fall.  Simultaneously, employers are realizing that screening everyone is generally a poor idea.  For example, in 2010, only 13 percent of employers conducted credit checks on all prospective hires. 

Advocates of checking credit say it can help screen out irresponsible applicants and even future criminals.  A study by the Association of Certified Fraud Examiners found that the two most powerful indicators of potential fraud are living beyond one’s means and experiencing financial difficulties.  Even though not everyone with those indicators commits fraud, the information is valuable to companies who will suffer if they pick the bad apple.

Opponents argue a bad credit report may be a result of financial struggles that are not the employee’s fault, such as a serious illness in the family or a layoff.  Many credit reports contain errors and others may be flawed due to identity theft.  Some argue discrimination based on credit puts people in a catch-22 where they cannot pay their bills because they have no income, but they cannot find a job because of their poor credit.

Employers who check credit need to ensure they comply with applicable state laws and should consult with counsel to determine whether the exceptions for employees with financial access apply in their specific case.  Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Currently, home caregivers are exempt from overtime.  Under the proposal, caregivers who work more than 40 hours per week and don’t work directly for the family will receive overtime at one and a half times their hourly rate.  In many cases, caregivers will be entitled to pay – and overtime – while they sleep.  As a result, third-party providers will be priced out of the market.  The benefits of professional screening and training of in-home caregivers provided by third-party providers will become a thing of the past.   

Members of the public can submit their views on the proposed rules here  for the Department of Labor to consider in setting its final rules. 

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560. 

While Tradewinds’ conduct was clearly out of bounds, many employers wonder how much information to give when providing a reference.  A few states, like Illinois, provide immunity for references given in good faith.  But in most states, employers are stuck between a rock and a hard place.  Give negative information and face the possibility of a defamation suit; give neutral information about a problem employee and face the possibility of a negligent referral suit or maybe just a guilty conscience. 

Truth is usually an absolute defense to defamation, so stick to the truth.  Also, statements of opinion cannot give rise to liability.  But take note – simply calling something an opinion is not a shield.  Saying “In my opinion, John stole a company laptop” can get you in just as much trouble as saying “John stole a company laptop” if it’s not true.  Also, can you prove that “true” statement?  You fired Johnny for coming to work under the influence but you never had him tested.  Can you prove he was drunk? 

The safest route is to give only the bare facts: position held, dates of employment, and compensation.  Although your company can be sued by the new employer if you negligently withhold key information, this kind of lawsuit is rare and occurs most often when the former employer failed to disclose warning signs or history of violence.  However, if you believe a good corporate citizen should do more, you can, but check with counsel on the safest ways to do this. 

The good news is employers may give as much or as little information as they please, and are usually protected if the information is true.  Employers can help protect themselves by asking the employee to sign a release before you give a reference.  In fact, some states require this, so it is a good practice.  For more complicated situations, consult with an attorney to discuss how best to handle the issue.  Employers should have a clear reference policy that defines who is allowed to give references and what will be said. 

Brody and Associates regularly advises management on personnel matters, including employee reference policies and releases.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Pyramid, a construction company responsible for building a Super Stop & Shop in Canaan, Connecticut, recently agreed to pay $11.35 million to a temporary worker injured in a horrific accident.  In 2006, temporary worker Benjamin Wohlfert became paralyzed after plunging 25 feet from a forklift while following the orders of the foreman, Gerald Bates.  Bates’ supervisor at Pyramid had warned him against using that kind of forklift for elevating people.  Wohlfert and Bates were temporary workers employed by two different staffing agencies.

Typically, an employee can only collect through the workers’ compensation system and may not sue the employer in court.  But, because Wohlfert was not Pyramid’s employee, the workers’ compensation system did not preclude him from suing Pyramid.  Wohlfert also sued Bates and the company that employed him.  His total payout could exceed $23 million.  To top it off, Pyramid was fined for violating OSHA rules regarding the types of devices that can be used to lift workers.

How can your company avoid becoming the next Pyramid?  First, carefully consider the pros and cons of using independent contractors.  Several studies have shown that temporary workers carry a higher risk of occupational injury than their permanent counterparts.  Temporary workers often have less training and experience than permanent ones.  This is an especially important consideration if your industry is a hazardous one, such as construction.  If you choose to use temporary workers, make sure you provide appropriate training and supervision and that you comply with workplace safety requirements.  In addition, you may be able to claim the protections of the workers’ compensation system if the staffing agency has an alternate employer rider on its policy, which is designed to list you and cover you if a workplace injury occurs.  While eight-figure settlements are certainly not the norm, catastrophic injuries can occur in any workplace and those who use non-employee workers must know and manage the risks. 

Brody and Associates regularly advises management on all employment issues involving workplace safety matters, including OSHA compliance.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.