Federal contractors may want to start preparing for proposed changes to the regulations issued by the U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), in connection with federal contractors' affirmative action obligations.  OFCCP expects to have new final regulations in place during 2012, which will increase federal contractors' obligations regarding veterans and disabled individuals, as well as modify the documentation required during compliance evaluations.

Proactive steps that covered employers should consider taking include:

1. Review outreach and recruitment efforts, particularly with agencies representing disabled individuals and veterans.  Documentation should be kept of all outreach efforts, as well as any responses.
2. Invite applicants to identify themselves as covered veterans.
3. Check whether all non-executive job openings are being posted with the appropriate state employment delivery service and maintain documentation of postings.
4. Review handbooks and employment policies regarding leaves of absence and reasonable accommodations.
5. Analyze current data collection systems to determine whether there are any issues with collecting the additional information in the OFCCP's proposed Scheduling Letter and Itemized Listing:  (a) employment activity will be required to be submitted by job group and job title; and (b) individual compensation data will need to be submitted for all employees, including such information as gender, race/ethnicity, job title, EEO-1 category, job group, date of hire, base salary, wage rate, hours worked, and other compensation, such as bonuses, incentives, commissions, merit increases, locality pay, and overtime.
6. Analyze compensation data to determine if adjustments need to be made to eliminate any potential problematic pay disparities.

The proposed Itemized Listing requires covered employers to provide the OFCCP with individualized compensation data for all employees, which will enable the OFCCP to run a variety of analyses.  Covered employers should keep in mind that the OFCCP may not have appropriate measures to safeguard this sensitive data from Freedom of Information Act requests.  Before submitting any compensation data, covered employers should take steps to protect such information.

On May 14, 2012, a federal district court judge invalidated new regulations intended to streamline union representation elections, finding that the National Labor Relations Board lacked a proper three-member quorum when it voted on the controversial final rule in December of 2011.  The final rule, which has commonly been referred to as the "ambush" or ""quickie" election rule, went into effect on April 30, 2012.  The same federal district court judge had previously denied a request for a stay of the final rule, stating that he intended to issue a decision on the merits of the case by May 15.

Judge James Boasberg of the U.S. District Court for the District of Columbia found that the required three members necessary to establish a quorum were not present when the rule was adopted on December 16, 2011 because Member Hayes failed to participate in the final vote.  Hayes had previously voted against initiating the rulemaking process and against proceeding with the final rule.  Because of this prior opposition, the two other members issued the final rule without Member Hayes' participation.

Judge Boasberg rejected the Board's argument that Member Hayes had "effectively indicated his opposition" and that his participation in the final vote was not necessary.  In rejecting this argument, Judge Boasberg cited to an unlikely source:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters -- even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid.

 Judge Boasberg further reasoned that Member Hayes could not be counted toward a quorum particularly because no one on the Board reached out to him to ask for a response, as is the agency's usual practice where a member has failed to vote.  Judge Boasberg stated that if Hayes had affirmatively expressed his intent to abstain or acknowledged receiving notification that the final rule had been circulated, he may have been counted in the quorum; however, because none of those things happened, Judge Boasberg found that Member Hayes failed to "show up -- in any literal or even metaphoric sense."  Because the Board failed to meet the quorum requirement, Judge Boasberg refused to address the plaintiffs' challenge to the final rule on various procedural and substantive grounds.

It remains to be seen whether the newly constituted Board -- complete with three controversial and challenged recess appointees -- will be assembled to take final action on the "quickie" election rule.  In his decision, Judge Boasberg noted that nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if the Board desires to do so.  In addition, an appeal of Judge Boasberg's decision is likely.  If a new vote on the rule is held, it is likely that the rule will once again be challenged.

The Board has announced that, at least for now, all union representation elections based on petitions filed on or after April 30, 2012 will proceed under the old rules.

In an extremely important decision for employers, the United States Court of Appeals for the D.C. Circuit held that an employer can only be cited by OSHA for up to six months following the occurrence of an error or omission in its injury and illness record-keeping logs.  In so holding, the Court restored the plain text of the Occupational Safety and Health Act (the "Act"), which provides that "no citation may be issued . . . after the expiration of six months following the occurrence of any violation."  OSHA regulations require employers to maintain their injury and illness logs for five years from the end of the calendar year that those records cover.  Relying on that regulation, OSHA had a longstanding practice of issuing citations up to five years following an alleged record-keeping violation.  For the first time, an appeals court held that this practice is contrary to the explicit statute of limitations contained in the Act.

The Court's decision was unanimous, and none of the judges thought very highly of OSHA's arguments to extend the statute of limitations to five years for record-keeping violations.  The Court stated that OSHA was "heroically attempt[ing]" to "tie this straightforward issue into a Gordian knot," and was "kick[ing] up" a "cloud of dust . . . in an effort to lead us to [the Secretary of Labor's] interpretation."

While employers may still be cited beyond the six-month statute of limitations if violations are continuing or ongoing, this decision will have a significant impact on OSHA's enforcement of employers' record-keeping obligations.  OSHA has 90 days from the date of the decision to file a petition for writ of certiorari to the Supreme Court if it wishes to appeal the Court's decision.

As we noted in our June 17, 2010 blog post, social networking sites have become a popular tool for employers seeking information about job applicants during the hiring process.  However, employers' efforts to obtain information that enables them to access their employees' and applicants' private social media web sites have recently been subject to increased scrutiny by New York State and Federal legislators.

On April 13, 2012, New York State Senator Liz Krueger sponsored and introduced a bill that would prohibit employers, as well as their agents or representatives, from requiring employees or job applicants to disclose log-in names, passwords, or other means for accessing a personal account or service through an electronic communications device.  This includes information such as private social media account log-in names and personal e-mail account passwords.  This proposed legislation would also prohibit employers from discharging, disciplining, or otherwise penalizing an employee, or failing to hire an applicant, based on the refusal to provide information that would enable the employer to access personal accounts or services through an electronic communications device.  The New York Attorney General would have the authority under the proposed legislation to enjoin employers from committing such unlawful practices, and employers could be subject to a $300.00 fine for a first offense and a $500.00 fine for each subsequent offense.

This proposed legislation comes just weeks after U.S. Senators Charles Schumer (D-NY) and Richard Blumenthal (D-CT) sent open letters to the Equal Employment Opportunity Commission and the U.S. Department of Justice urging the agencies to investigate employers' practice of requiring applicants to provide Facebook and e-mail passwords as a condition for job interviews.

Efforts to enact legislation similar to the New York bill are currently underway in several states.  In fact, Maryland recently became the first state to enact legislation that prohibits employers from requiring that employees or applicants disclose user names, passwords, or other means for accessing a personal account or service through an electronic communications device.

As we indicated in our June 17, 2010 blog post, employers should be careful even when viewing publicly available information regarding applicants on social media web sites.  Because Facebook and other similar web sites potentially contain a plethora of information about job applicants that employers cannot consider during the hiring process (e.g., race, national origin, religion, marital status, sexual orientation, etc.), employers should exercise caution in using social media web sites to screen applicants.  Employers who choose to use social media in the hiring process should promulgate a clear policy and procedure for utilizing this tool, and should closely follow the developments in this area of the law.

The U.S. Court of Appeals for the D.C. Circuit issued an Order today granting an injunction precluding the National Labor Relations Board from implementing its notice posting rule, pending appeal of a lower court decision upholding the validity of the rule.  The notice posting rule was scheduled to go into effect on April 30, 2012, but employers will not be required to comply with the rule until the D.C. Circuit Court of Appeals has had the opportunity to determine whether the NLRB exceeded its authority under the National Labor Relations Act by issuing the rule.

In its Order granting the injunction, the D.C. Circuit Court of Appeals noted that the NLRB voluntarily postponed implementation of the notice posting rule during the pendency of the proceedings before the U.S. District Court for the District of Columbia, which seemed to undercut the NLRB's argument that the rule should take effect during the pendency of the appeal.  The D.C. Circuit Court of Appeals also noted that the NLRB indicated an intent to cross-appeal the portion of the District Court's decision that invalidated certain enforcement provisions of the rule, which created some uncertainty regarding the manner in which the rule will be enforced.

Prior to the issuance of this injunction, U.S. District Courts in two separate jurisdictions had issued conflicting decisions regarding the validity of the notice posting rule.  The U.S. District Court for the District of Columbia held in March that the NLRB had the authority to require employers to post the notice, but did not have the authority to issue a blanket rule that failure to post the required notice will be considered an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges in situations where an employer fails to post the required notice.  However, the U.S. District Court for the District of South Carolina held on April 13, 2012 that the NLRB did not even have the authority to require employers to post the notice.  In its Order granting the injunction, the D.C. Circuit Court of Appeals cited the recent U.S. District Court for the District of South Carolina decision.

According to the D.C. Circuit Court of Appeals Order, briefing of the appeal is expected to be completed by June 29, 2012, and oral argument is expected to be scheduled in September 2012.

On April 13, 2012, the U.S. District Court for the District of South Carolina held that the National Labor Relations Board's rule requiring private sector employers to post a notice of employee rights under the National Labor Relations Act is invalid, because the NLRB did not have the authority under the NLRA to promulgate the rule.  There are now conflicting decisions of U.S. District Courts in two separate jurisdictions regarding the validity of the notice posting rule.  The U.S. District Court for the District of Columbia previously held that the NLRB had the authority to require employers to post the notice, but also found that certain enforcement provisions of the rule were invalid.

In the case filed by the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, the U.S. District Court Judge noted that the NLRA grants the NLRB authority to promulgate rules that are "necessary to carry out" the provisions of the NLRA.  The Judge held that the NLRB failed to demonstrate that the notice posting rule is "necessary" to carry out any provisions of the NLRA.

The decision of the U.S. District Court for the District of Columbia upholding the validity of the notice posting rule has already been appealed by the plaintiffs to the District of Columbia Circuit Court of Appeals, and it is likely that the NLRB will appeal the recent decision of the U.S. District Court for the District of South Carolina to the Fourth Circuit Court of Appeals.  If the two Circuit Courts of Appeals reach conflicting decisions, it is possible that the U.S. Supreme Court may eventually address the validity of the NLRB's notice posting rule.

The notice posting rule was scheduled to take effect on April 30, 2012.  At this point, it is not clear  whether the NLRB will suspend enforcement of the notice posting rule for employers across the nation pending appeal, or whether the NLRB will take the position that enforcement of the rule is suspended only for employers within the jurisdiction of the U.S. District Court for the District of South Carolina.  Stay tuned for further updates on this blog as they become available.

 

On April 5, the Occupational Safety and Health Administration ("OSHA") announced a new National Emphasis Program ("NEP") for inspecting nursing homes and residential facilities.  This is an important announcement, because for most employers, there are only a few reasons why OSHA may inspect an employer's worksite:  (1) the worksite's injury and illness rate places it within OSHA's Site-Specific Targeting program; (2) the occurrence of a work-related accident that causes a fatality or hospitalizes three or more employees; (3) a referral from another law-enforcement agency; (4) an inspector withesses a possible violation in "plain view" or from media reports; (5) an employee complaint; or (6) a follow-up from a previous inspection.

However, OSHA also has the authority to create regional and national emphasis programs for particular industries.  Using that authority, OSHA has announced that it will inspect nursing homes and residential facilities nationwide that had a Days Away, Restricted, or Transferred ("DART") rate in 2010 of 10.0 or more.  The directive implementing the NEP also states that each Area Office will inspect at least three nursing homes or residential facilities within its jurisdiction each year under this program.  Thus, nursing homes or residential facilities with a 2010 DART rate of 10.0 or more should consult with their safety personnel and legal counsel to prepare for the likelihood of an OSHA inspection.

The Third Circuit Court of Appeals recently held, in Haybarger v. Lawrence County Adult Probation and Parole, that supervisors may be subject to individual liability under the Family and Medical Leave Act ("FMLA").  Although this Third Circuit decision is not binding on U.S. District Courts in New York or the Second Circuit Court of Appeals, the decision potentially opens the door for plaintiffs in FMLA cases filed in New York to name individual supervisors as defendants in their lawsuits.

In Haybarger, the plaintiff, Debra Haybarger, was an office manager for Lawrence County Adult Probation and Parole.  Ms. Haybarger's supervisor was William Mancino, the Director of Probation and Parole.  Ms. Haybarger had Type II diabetes, heart disease, and kidney problems, which constituted serious health conditions under the FMLA and caused her to miss work frequently to seek medical attention.  Mr. Mancino allegedly expressed dissatisfaction with Ms. Haybarger's absences and wrote on her performance evaluation that Ms. Haybarger needed "[t]o improve her overall health and cut down on the days that she misses due to illness."  On March 23, 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period due to alleged performance problems, and subsequently recommended the termination of Ms. Haybarger's employment.  Ms. Haybarger's employment was terminated on October 4, 2004.

After her discharge from employment, Ms. Haybarger filed a lawsuit against Lawrence County Adult Probation and Parole and Mr. Mancino.  Part of her lawsuit included a claim against Mr. Mancino in his individual capacity for an alleged violation of her rights under the FMLA.  The U.S. District Court for the District of New Jersey granted summary judgment to Mr. Mancino with respect to the FMLA claim against him in his individual capacity, but the Third Circuit reversed and remanded the case back to the District Court.

The Third Circuit examined the definition of "employer" under the FMLA, which includes "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer."  The Third Circuit also reviewed the Department of Labor's regulations implementing the FMLA, which provide that "individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA."  Based on the text of the statute and the regulations, the Third Circuit concluded that "liability for FMLA violations may be imposed upon an individual person who would not otherwise be regarded as the plaintiff's 'employer.'"  Although the employer at issue in the Haybarger case was a public agency, the Third Circuit's analysis appears to apply equally to individual supervisors at private employers as well.

The Third Circuit also held that there was a genuine dispute of material fact regarding whether Mr. Mancino exercised sufficient authority over Ms. Haybarger's employment to qualify as an "employer" under the FMLA, and remanded the case back to the District Court for a jury trial.  The Third Circuit applied an "economic reality" test to determine whether a reasonable jury could determine that Mr. Mancino qualified as Ms. Haybarger's employer under the FMLA.  Citing to a Second Circuit Court of Appeals case in the context of a Fair Labor Standards Act ("FLSA") claim, the Third Circuit examined the following factors in applying the "economic reality" test:  (1) whether the individual had the power to hire and fire the employee; (2) whether the individual supervised and controlled employee work schedules or conditions of employment; (3) whether the individual determined the rate and method of payment; and (4) whether the individual maintained employment records.  Based on these factors, the Third Circuit concluded that a reasonable jury could find that Mr. Mancino acted as Ms. Haybarger's employer under the FMLA.

Employers in New York should be aware that plaintiffs who allege a violation of their FMLA rights may name individual supervisors as defendants in their lawsuits.  Employers should take this opportunity to train their supervisors regarding their obligations under the FMLA.  Employers should also remind their supervisors that their actions could result not only in liability for the employer, but also potentially in liability for themselves.

In a recent decision that will likely have positive implications for similarly-situated public employers across New York State, the Appellate Division for the Second Department reversed a lower court ruling and held that the City of Yonkers' refusal to reimburse new employees for their statutorily-required Tier V retirement plan contributions was not arbitrable.  The appellate court also issued a permanent stay of arbitration.  The City of Yonkers ("City") was represented by Bond, Schoeneck & King in the litigation.

The dispute arose in connection with the 2009 enactment of Article 22 of New York's Retirement and Social Security Law ("Tier V").  Among other changes, Tier V provides that those who join the Police and Fire Retirement System ("PFRS") on or after January 10, 2010 must "contribute 3% of their salary towards the . . . retirement [plan] in which they are enrolled."  Prior to the enactment of Tier V, the City and the Yonkers Fire Fighters ("Union") were parties to a collective bargaining agreement which expired on June 30, 2009.  Like many other firefighter contracts in the state, the contract required the City to provide a "non-contributory" retirement plan to its firefighters.

In late 2009, the City hired several firefighters who, because of a "gap" in the law, had the option of joining the PFRS as either members of Tier III or Tier V -- both contributory (3%) tiers.  In an attempt to apply the terms of the expired contract to relieve its Tier V members of the statutorily-required 3% member contribution, the Union filed a grievance and sought arbitration based upon the contractual obligation to provide a non-contributory requirement plan.  The Union relied on an exception in the law creating Tier V, which provides that members of the PFRS need not join the contributory Tier V if there is an alternative retirement plan available to them under a collective bargaining agreement that "is in effect on the effective date" of Tier V.  The appellate court found that the Union's reliance on this exception was misguided, because the collective bargaining agreement at issue had expired on June 30, 2009 and, therefore, was not "in effect" as of January 10, 2010, the effective date of Tier V.

The Union also asserted in its grievance that even if their new members were not eligible to join the non-contributory plan, the City was nevertheless obligated under the collective bargaining agreement to pay the new members' 3% contributions.  The appellate court found that this claim was not arbitrable because Civil Service Law Section 201(4) and Retirement and Social Security Law Section 470 prohibit the negotiation of changes to benefits or fund payments related to a public retirement system.

As of the date of this blog post, the New York Court of Appeals is considering a motion filed by the Union for leave to appeal the decision.  Regardless of whether our state's highest court chooses to hear the case or not, this issue is sure to surface again.  Governor Cuomo's recent deal with the Legislature to establish a Tier VI in the various state retirement systems includes, among other things, a sliding-scale of increased employee contributions based upon annual salary (beginning at 3% and topping out at 6%).  Thus, in some ways, the already high -- and very costly -- stakes have doubled.

On March 7, 2012, the U.S. District Court for the District of Columbia denied a request made by the National Association of Manufacturers and other business groups to prohibit the NLRB from enforcing its rule requiring employers to post a notice of employee rights under the National Labor Relations Act, pending their appeal of the District Court's March 2, 2012 decision upholding the rule.

The District Court held that there would be no irreparable harm to employers if the NLRB's notice posting rule were permitted to become effective prior to the issuance of a decision by the U.S. Court of Appeals for the District of Columbia regarding the appeal, because the posting of the notice only makes employees aware "of the rights that they are already guaranteed by law."  The District Court further stated:  "If the Court of Appeals ultimately determines that the Board exceeded its authority in promulgating the Rule, the employers can take the notice down."

Accordingly, although an appeal of the District Court's March 2 decision has been filed, employers are required to post the notice beginning on April 30, 2012.

On February 22, 2012, the Equal Employment Opportunity Commission ("EEOC") released its Strategic Plan for 2012-2016.  The EEOC listed as a top priority increasing the number of systemic discrimination lawsuits against employers.  Systemic cases allege a pattern or practice of discrimination or class discrimination.  The basis of a systemic case is that the alleged discrimination affects a group of individuals rather than one particular individual.  Merely by way of example, a systemic case may involve such allegations as a preference for younger workers in the hiring process, a sick time policy which results in the failure to accommodate individuals with disabilities, or a glass ceiling preventing the advancement of women within the organization.

In its Strategic Plan, the EEOC announced that it will devote more of its resources to finding and prosecuting systemic discrimination cases.  Apparently, the EEOC intends to maximize the bang for its litigation buck.  By suing employers in cases involving a large number of affected employees, the EEOC will be poised to extract larger monetary awards against employers.  In each of the four years of the Strategic Plan, the EEOC states that systemic cases will be an increasing percentage of its litigation docket.

Employers need to be aware of the EEOC's focus on systemic discrimination.  With this internal push to sue systemic discrimination cases, the EEOC almost certainly will seek to expand otherwise routine, single-complainant investigations in the hope of discovering facts to support systemic allegations.  This is especially so if the discrimination charge involves a company rule or policy which arguably impacts many employees and not only the complaining party.  As a proactive measure, a prudent employer should review its policies and practices to ensure compliance with EEOC guidelines and regulations, and to reduce the risk of a systemic discrimination lawsuit.

On March 2, 2012, the U.S. District Court for the District of Columbia issued a decision in the lawsuit filed by the National Association of Manufacturers ("NAM") and the National Right to Work Legal Defense and Education Fund ("NRTW") challenging the notice posting rule promulgated by the National Labor Relations Board ("NLRB").  The Court held that the NLRB had the authority to require employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA"), but did not have the authority to issue a blanket rule that failure to post the required notice will be considered an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges in situations where an employer fails to post the required notice.

Although the Court determined that the NLRB exceeded its authority by promulgating a blanket rule that an employer's failure to post the required notice will in all cases constitute an unfair labor practice, the Court held that the NLRB is nevertheless free to determine on a case by case basis whether an employer's failure to post the notice interfered with employees' exercise of their rights under Section 7 of the NLRA.  The Court stated that 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 exercise of his or her rights."

In addition, the Court also upheld the portion of the rule providing that the NLRB may consider an employer's failure to post the required notice as evidence of the employer's unlawful motive in unfair labor practice cases where motive is an issue.  The Court found that the NLRB had the authority to issue this portion of the rule because the rule "does not make a blanket finding that will govern future individual adjudications or create a presumption of anti-union animus wherever an employer fails to post the provision."  Therefore, although some of the NLRB's enforcement tools were struck down by the U.S. District Court for the District of Columbia, there could still be significant negative consequences to employers who fail to post the required notice.

It is not clear at this point whether the plaintiffs or the NLRB intend to appeal the Court's decision, or if an appeal will result in a delay of the effective date of the notice posting rule.  Accordingly, employers should be prepared to post the required notice by the April 30, 2012 effective date.