Labor & Employment Newsletter - Spring 2013
D.C. Circuit Nixes NLRB Posting Requirement
By: David M. Stevens, Esq.
In a long-awaited decision, the U.S. Court of Appeals for the D.C. Circuit has struck down the National Labor Relations Board’s mandate that all employers covered by the National Labor Relations Act post a notice of employee rights under the law. This article examines the controversy surrounding the Board’s unprecedented posting requirement and the impact of the D.C. Circuit’s decision.
As readers of past issues of this newsletter will recall, in 2011 the National Labor Relations Board (“NLRB”) issued a regulation mandating that all employers subject to the National Labor Relations Act post a notice summarizing the rights of employees under that statute. The notice, which was drafted by the NLRB, includes information regarding employees’ rights to form or join a union and instructs employees about remedies available for certain employer conduct prohibited by the statute. The regulation generated significant controversy, both because a notice-posting requirement was unprecedented in the more than seventy-year history of the NLRB and because the notice posting requirement would apply to nearly all U.S. employers regardless of whether or not their employees were unionized.
The regulation became the subject of court challenges immediately upon its adoption by the NLRB. The Board twice delayed the scheduled implementation date of the regulation due to the pending litigation. In the first judicial decision on the issue, the U.S. District Court for the District of Columbia issued a ruling on March 2, 2012, upholding the NLRB’s authority to require employers to post the notice. Yet the court found that a related portion of the rule –declaring that the failure to post the notice would itself be considered an unfair labor practice – exceeded the NLRB’s authority.
The groups leading the challenges to the posting requirement subsequently petitioned the Court of Appeals for the D.C. Circuit to issue an emergency injunction to keep the posting requirement from taking effect pending an appeal of the District Court’s decision. The D.C. Circuit granted the requested injunction on April 17, 2012. The fate of the notice posting requirement has thus been on hold for the last year as the D.C. Circuit considered the legality of the NRLB’s action.
On May 7, 2013, the D.C. Circuit issued its opinion, which struck down the notice posting requirement. Although much of the argument on this issue focused on a statutory provision granting the NLRB the authority to issue certain regulations necessary to implement the Act, the D.C. Circuit focused its analysis on another portion of the Act – Section 8(c). Section 8(c) was added to the National Labor Relations Act as part of a group of amendments passed in 1947, and directs that an employer’s expression of views or opinion on workplace issues cannot be considered a violation of the Act, or considered as evidence in support of any other violation. The D.C. Circuit deemed that the mandated notice (and the associated penalties for failing to post it) amounted to a violation of an employer’s right under Section 8(c) to express, or refrain from expressing, an opinion.
Takeaway for employers: The D.C. Circuit’s decision represents a significant blow to the NLRB’s efforts to require employers to post a notice advising of the rights protected by the National Labor Relations Act and the potential benefits offered by collective bargaining. The NLRB may seek to have the case reheard by the entire D.C. Circuit, or may petition for review by the Supreme Court. Additionally, challenges to the notice posting rule remain pending in other federal courts. It appears, however, that the notice posting requirement is unlikely take effect at any time in the near future.
Employers Now Required to Use Revised Form I-9 When Verifying Employment Eligibility
By: Peter D. Guattery, Esq.
On March 8, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) published a revised Employment Eligibility Verification Form I-9, which contains some slight modifications to the familiar form used by employers when verifying the eligibility of newly hired employees to work in the United States. While employers were given a sixty-day grace period to begin using the revised form, as of May 7, 2013, the failure to use the revised form will subject an employer to statutory penalties. This article examines the revisions made to Form I-9.
Employers have long been required to complete U.S. Citizenship and Immigration Services (USCIS) Form I-9 upon hiring any new employee. Completion of the form requires the employer to review identification documents in order to confirm that the individual being hired is eligible for employment in the United States. On March 8, 2013, the USCIS issued a revised version of Form I-9 which must be used by employers in lieu of the existing version of the I-9.
The most visible aspect of the revision is that Form I-9 has been expanded from one to two pages. The instructions published in conjunction with the form have also been significantly expanded. Section One of the form, which is to be completed by the employee, has been revised to include additional fields, such as for the employee’s telephone number and email address. The remaining substantive content of Form I-9 remains unchanged, as does the list of acceptable documents that may be used to verify employment eligibility.
Takeaway for Employers: Although the revisions to the Form I-9 are relatively minor, use of the revised form became mandatory as of May 7, 2013. Failure to use the new version of the form will be treated by USCIS as a failure of compliance, exposing employers to a range of civil, and potentially criminal, penalties. Employers can obtain the revised I-9 form at the USCIS website. In viewing any Form I-9, an employer should look for the publication date in the lower left-hand corner of the form. The new Form I-9 has a publication date of March 8, 2013.
Employers should take note that there is no requirement that the revised Form I-9 be completed by current employees for whom a properly completed Form I-9 is already on file, unless an event occurs which necessitates re-verification under the provisions of the Immigration and Nationality Act. To the contrary, an unnecessary verification can expose an employer to liability under the Act’s antidiscrimination provisions.
End of Maryland Legislative Session Brings New Law Addressing Employers' Obligation to Pregnant Employees
By: Kevin C. McCormick, Esq.
The Maryland legislative session typically includes the introduction of a number of bills affecting the relationship between employers and their employees. This article notes several such bills that were considered – but failed to pass – in the most recent session and examines a newly enacted law creating additional obligations for employers with pregnant employees.
On April 8, 2013, at the stroke of midnight, Maryland’s General Assembly adjourned for the year. All in all, Maryland employers fared fairly well through this legislative session. The General Assembly considered, but ultimately did not enact, bills that would have: required Maryland employers to provide paid sick leave (HB 735);, increased the minimum wage from $7.25 to $10.00 per hour over a three year period (SB683); allowed for an award of attorney’s fees in a broad array of cases (HB 130); and allowed individuals who remain unemployed following separation from employment to void a covenant not to compete signed with their former employer (SB51).
There was, however, one piece of legislation that passed late in the session that will be of concern for Maryland employers. . The new law, which takes effect on October 1, 2013, requires Maryland employers with 15 or more employees to treat an employee’s pregnancy in much the same manner as they treat a disability covered by the Americans with Disabilities Act and provide the pregnant employee with an accommodation, unless doing so would impose an undue hardship on the employer. At the heart of this new legislation is the requirement that employers provide the same type of employment policies and practices to pregnant employees that they provide to other employees for other types of conditions. This provision was the direct result of a Fourth Circuit Court of Appeals decision (Young v. United Parcel Service, Inc. 4th Cir. No. 11-2078, January 9, 2013) that found that, even though the employer had provided various types of short term leave to employees who were injured on the job or satisfied other criteria, the employer was not required to provide the same benefit to a pregnant employee.
Under the new legislation, if an employee requests a reasonable accommodation, then the employer “shall explore” with the employee all possible means of providing the reasonable accommodation, including (1) changing the employee’s job duties, (2) changing the employee’s work hours, (3) relocating the employee’s work area, (4) providing mechanical or electrical aids, (5) transferring the employee to a less strenuous or less hazardous position, or (6) providing leave.
If an employee requests a transfer to a less strenuous or less hazardous position as a reasonable accommodation, the employer shall transfer the employee for a period of time up to the duration of the employee’s pregnancy if:
- the employer has a policy, practice or collective bargaining agreement requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position or
- the employee’s health care provider recommends the transfer and the employer can provide the reasonable accommodation by transferring the employee without:
- creating additional employment that the employer would not otherwise have created,
- discharging any employee,
- transferring any employee with more seniority than the employee requesting reasonable accommodation, or
- promoting an employee who is not qualified to perform the job.
An employer may require an employee to provide a certification from the employee’s health care provider concerning the medical advisability of a reasonable accommodation to the same extent a certification is required for other temporary disabilities. That certification form must include the date the reasonable accommodation became medically advisable, the probable duration of the reasonable accommodation and an explanatory statement as to the medical advisability of the reasonable accommodation.
Covered Maryland employers must also post in a conspicuous location and include in any employee handbook information concerning an employee’s rights to reasonable accommodations and leave for a disability caused or contributed to by pregnancy. As with other employment statutes, the new legislation expressly provides that an employer may not interfere with, restrain, or deny the exercise of any right provided under the law.
This legislation was signed into law by Governor O’Malley on May 16, 2013, and will take effect October 1, 2013.
Takeaway for employers: Although many of the employment-related bills introduced in the most recent legislative session did not become law, the newly enacted pregnancy-related statute will require new action by Maryland employers to ensure that internal procedures are in place to comply with the law and properly review and respond to requests for accommodation by pregnant employees.