June 22, 2012

Poster Wars — the Saga Continues

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , , , at 2:16 pm by Tom Jacobson

The saga continues over the workplace poster requirement imposed by the National Labor Relations Board. As I have previously noted, in a lawsuit brought by the National Association of Manufacturers, the United States Court of Appeals for the District of Columbia has already issued an injunction temporarily blocking the requirement.

In a separate federal lawsuit brought by the United States and South Carolina Chambers of Commerce, another federal judge concluded that the rule is unlawful. However, the NLRB has now appealed that decision to the United States Court of Appeals for the Fourth Circuit. If the Fourth Circuit rules in favor of the NLRB, the split between the Fourth Circuit and the DC Courts of Appeal would set up the possibility of the issue ultimately being resolved by the United States Supreme Court.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, NLRB’s Posting Requirement Delayed Again, and NLRB’s Posting Requirement Blocked by Federal Court).

What you need to know: The NLRB’s rule, if eventually upheld, would require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The rule would also establish that an employer’s failure to post the notice “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [the] NLRA…“. However, because of the DC Circuit’s temporary injunction, the rule is not in effect, so employers are not  required to post the notice. The Fourth Circuit appeal will also shed more light on the issue. Stay tuned.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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April 18, 2012

NLRB’s Posting Requirement Blocked by Federal Court

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requirements, Posting Requrements tagged , , , , , , , , , , , , , , at 9:23 am by Tom Jacobson

The United States Court of Appeals for the District of Columbia issued on April 17, 2012 an injunction which temporarily blocks the posting requirement the National Labor Relations Board has been attempting to impose.  The order was issued in the National Association of Manufacturers lawsuit I noted in my previous article, NLRB’s Posting Requirement Upheld – but Weakened – by Federal Judge.  For more information about the appellate court’s injunction, see NLRB Union Poster Rule Delayed While Challenge Proceeds and Appeals court blocks National Labor Relations Board from requiring union posters at work sites.

For more information about the roller coaster history of this proposed rule, see my previous articles (A Post about Posters – New Workplace Posting Requirement Imposed by NLRBNLRB’s Posting Requirement Delayed, and NLRB’s Posting Requirement Delayed Again).

What you need to know: The NLRB’s rule would have required nearly all private-sector employers to post by April 30, 2012 a notice informing employees of their rights under the National Labor Relations Act.   However, because of this temporary injunction, those employers will not be required to post the notice, but this could change as the issue winds its way through the federal court system. Stay tuned.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

March 13, 2012

NLRB’s posting requirement upheld – but weakened – by federal judge

Posted in National Labor Relations Act, Posting & Notice Requirements, Posting Requrements tagged , , , , , , , , , , , , at 9:05 am by Tom Jacobson

A federal judge has ruled that part of the new poster requirement imposed by the National Labor Relations Board is valid, but other parts of the rule go too far.  As noted in my previous articles (A post about posters – new workplace posting requirement imposed by NLRBNLRB’s posting requirement delayed, and NLRB’s posting requirement delayed again), the posting requirement goes into effect on April 30, 2012, and it will require nearly all private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act. The notice can be downloaded from the NLRB’s website.

The National Association of Manufacturers has challenged the requirement in a lawsuit brought against the NLRB in the United States District Court for the District of Columbia. In a 46 page opinion issued on March 2, 2012 Judge Amy Berman Jackson ruled that the posting requirement itself is lawful.

However, Judge Berman Jackson also concluded that other parts of the NLRB’s rule went too far. Specifically, she ordered that the NLRB exceeded its authority when it tried to make any failure to post the notice an unfair labor practice (ULP). She also concluded that the NLRB’s rule went too far by tolling the statute of limitations (that is, extending the time for taking legal action) in any future ULP action involving a job site where the notice was not posted.

What you need to know: Unless is it completely overturned in court, withdrawn by the NLRB, or stopped by congressional action, this posting requirement will go into effect on April 30, 2012. Even though Judge Berman Jackson has weakened the requirement by declaring that “the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice,” the NLRB can still make the case that a failure to post is a ULP if the NLRB can “make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee’s exercise of his or her rights.” To reduce that risk, post the notice.

For more information about this issue, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 4, 2012

NLRB’s posting requirement delayed – again

Posted in Posting & Notice Requirements tagged , , , , , , , at 1:08 am by Tom Jacobson

The National Labor Relations Board has again delayed the effective date of its new employee-rights posting requirement.  The requirement, which initially was to have gone into effect on November 14, 2011 was postponed until January 31, 2012.  Now, the NLRB has delayed the mandate again, and the posters will not be required until April 30, 2012.

In a statement issued December 23, 2011 the NRLB said that it has agreed to postpone the effective date at the request of a Washington, DC federal court which is hearing a legal challenge to the rule. According to the NRLB, “[I]t has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.”

If the requirement ultimately withstands the pending legal challenges and goes into effect, most private sector employees will be required to post the notice which can be downloaded from the NLRB’s website.

For more information about this issue, please see my previous articles, A post about posters – new workplace posting requirement imposed by NLRB and NLRB’s posting requirement delayed, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

February 28, 2011

The specialist

Posted in Uncategorized tagged , , , , , , , , at 10:02 pm by Tom Jacobson

I am pleased to announce that the Minnesota State Bar Association has certified me as a Labor and Employment Law Specialist.  The certified specialist designation is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. Certified attorneys have demonstrated superior knowledge, skill and integrity in their specific field and can use the designation of specialist to advertise their credentials.

This Certification program is administered by the MSBA and has been approved by the State Board of Legal Certification.  The MSBA has been accredited as an independent professional organization for certifying attorneys as Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Specialists and Labor and Employment Law Specialists. This achievement has been earned by fewer than 3% of all licensed Minnesota attorneys.   More information about Certified Legal Specialists is at http://www2.mnbar.org/certify.

With over 16,000 members, the MSBA is the state’s largest and most influential voluntary organization of attorneys, providing continuing legal education and public service opportunities for lawyers, and assistance to the legal system.

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