*By Jonathan J. Downes
On May 7, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) delivered another blow to the National Labor Relations Board (“NLRB”). This time, the D.C. Circuit issued an opinion vacating the NLRB’s notice-posting rule issued in August 2011, in National Association of Manufacturers v. National Labor Relations Board, No. 12-5068 (D.C. Cir. May 7, 2013). In January, in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the D.C. Circuit ruled that President Obama’s “recess appointments” to the NLRB were unconstitutional, calling all NLRB decisions since at least January 2012 into question.
As Zashin & Rich, Co., L.P.A. explained in an April 2012 alert, the NLRB issued a rule in August 2011, requiring all employees subject to the National Labor Relations Act (“NLRA”) to post a notice in the workplace and, where applicable, on-line, informing employees of their rights under the NLRA (the “posting rule”). The union-friendly posting informed employees that, among other things, employees had the right to form, join, or assist a union, to file unfair labor practices (“ULP”), and strike or picket. The posting rule also provided that an employer’s failure to post the required notice was an unfair labor practice (“ULP”), would serve as evidence of unlawful motive in other ULP charges, and could extend the period of time for employees and unions to file ULPs.
Employer groups filed two suits challenging the posting rule – in the U.S. District Court in the District of Columbia and U.S District Court in South Carolina. On March 2, 2012, the D.C. District court held that the NLRB possessed the authority to issue the posting rule but that its enforcement mechanisms were unenforceable. However, the D.C. District Court also held that the NLRB could consider an employer’s “knowing and willful” failure to post these notices as evidence of an unlawful motive in other ULP investigations. The employer groups appealed to the D.C. Circuit. After the D.C. District Court decision, the U.S. District Court in South Carolina held, in Chamber of Commerce of the United States v. NLRB, that the NLRB did not have the authority to issue the notice-posting rule. Following the South Carolina decision, the D.C. Circuit granted an injunction staying implementation of the posting rule.
In its decision issued this week, the D.C. Circuit struck down the posting rule on grounds that it violated the principles of the First Amendment expressed through Section 8(c) of the NLRA. Section 8(c) provides that the “expressing of any views…shall not constitute or be evidence of an unfair labor practice” so long as the expression contains “no threat of reprisal or force or promise or benefit.” The D.C. Circuit explained that 8(c) “merely implements the First Amendment, in that it responded to particular constitutional rulings of the NLRB,” and explained that, “[A]lthough 8(c) precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the [posting rule] does both.”
Specifically, the D.C. Circuit held that “[T]he right to disseminate another’s speech necessarily includes the right to decide not to disseminate it. First Amendment law acknowledges this apparent truth: ‘all speech inherently involves choices of what to say and what to leave unsaid.’” In this instance, the Court’s analysis led it to conclude that the NLRB could not force employers to tell employees that they had the right to organize a union and under penalty of violating the NLRA.
The D.C. Circuit stopped the NLRB’s posting rule – for now. However, employers can assume that the NLRB will appeal the posting rule decision to the U.S. Supreme Court – as it did with the recess appointment ruling. Although the NLRB has extended its impressive streak of losses in the D.C. Circuit, and other federal courts, the legal battle is not over. Z&R will keep you updated on any legal developments involving these and other legal matters involving the Board as they occur.
*Jonathan J. Downes, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Jonathan (jjd@zrlaw.com) at 216.696.4441.
Tuesday, May 14, 2013
Wednesday, May 8, 2013
In With the New: Starting Today, Employers Must Use Newly-Revised Form I-9
*By Helena Oroz
On March 28, 2013, the United States Citizenship and Immigration Services (USCIS) released a revised Form I-9. This revised form includes clearer and more detailed instructions for completion, more space to fill in information, and new fields for an employee’s email address, telephone number, and foreign passport information (if applicable).
As of today, May 7, 2013, USCIS will no longer accept previous versions of Form I-9, and employers must use the revised Form I-9. The revision date of the new Form I-9 is printed in the lower left corner of the form. Employers should immediately verify that they are in fact using the correct Form I-9 with a revision date of March 28, 2013, for all new employees. Employers need not complete a new Form I-9 for existing employees if a properly-completed Form I-9 is already on file for them.
The revised forms are available online at www.uscis.gov/i-9. Employers should note that, while USCIS’s website contains forms in both English and Spanish, Spanish-speaking employers and employees may only use the Spanish version for reference. They will still need to complete and retain the English version of the form.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
On March 28, 2013, the United States Citizenship and Immigration Services (USCIS) released a revised Form I-9. This revised form includes clearer and more detailed instructions for completion, more space to fill in information, and new fields for an employee’s email address, telephone number, and foreign passport information (if applicable).
As of today, May 7, 2013, USCIS will no longer accept previous versions of Form I-9, and employers must use the revised Form I-9. The revision date of the new Form I-9 is printed in the lower left corner of the form. Employers should immediately verify that they are in fact using the correct Form I-9 with a revision date of March 28, 2013, for all new employees. Employers need not complete a new Form I-9 for existing employees if a properly-completed Form I-9 is already on file for them.
The revised forms are available online at www.uscis.gov/i-9. Employers should note that, while USCIS’s website contains forms in both English and Spanish, Spanish-speaking employers and employees may only use the Spanish version for reference. They will still need to complete and retain the English version of the form.
*Helena Oroz regularly counsels employers on employment law compliance, including Form I-9 compliance, auditing, and best practices. For more information about recent changes to the Form I-9 or related questions, please contact Helena (hot@zrlaw.com) at 216.696.4441.
Tuesday, May 7, 2013
The NLRB Muddies the Waters of "Confidential" Employer Investigations
*By Patrick J. Hoban
All employers know that many employees who have claims of workplace harassment and/or discrimination want assurances that their complaints and the employer’s investigations will be kept confidential. In its ongoing war on longstanding employment practices and as a continuation of its radical re-interpretation of the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has further muddied the waters for employers.
The NLRB General Counsel (“GC”) recently released an advice memorandum reiterating the NLRB’s position that an employer’s blanket rule enforcing the confidentiality of employee investigations violates the NLRA. The memorandum, issued in Verso Paper, NLRB Case No. 30-CA-089350, states that an employer may only lawfully discipline employees for divulging information related to a workplace investigation if the employer demonstrates “a legitimate and substantial business justification” for “interfering with” employees’ rights under Section 7 of the NLRA.
Verso Paper maintained a “Code of Conduct” which, among other things, prohibited employees from discussing ongoing investigations. The policy required employees to “maintain the investigation and [their] role in it in strict confidence.” The Policy further stated that employees who breached this prohibition “may be subject to disciplinary action up to and including termination.”
The GC concluded that this rule was overbroad and violated the NLRA. Because Section 7 grants employees the right to discuss discipline or disciplinary investigations involving their fellow employees, the GC reasoned that this prohibition infringed upon employee rights. As a result, employers may only lawfully restrict employee communications concerning workplace investigations if they demonstrate the need to maintain confidentiality on a case-by-case basis. The GC explained that an “[e]mployer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”
This advice memorandum is the NLRB’s clearest statement that employer policies which require employees to keep their knowledge of and participation in workplace investigations confidential under threat of discipline run afoul of the NLRA. Strangely, the NLRB’s policy is at odds with guidance from the Equal Employment Opportunity Commission (“EEOC”) requiring employers to take steps to assure employees who complain of workplace harassment and/or discrimination that their complaints will be handled confidentially.
In light of the NLRB’s position, and until a court rules on its legitimacy, employers should review blanket confidentiality policies and must prepare to justify enforcing confidentiality requirements concerning workplace investigations if challenged. At the same time, employers must also continue to ensure that employees who complain of workplace harassment and/or discrimination are assured that their confidential information will be protected.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
All employers know that many employees who have claims of workplace harassment and/or discrimination want assurances that their complaints and the employer’s investigations will be kept confidential. In its ongoing war on longstanding employment practices and as a continuation of its radical re-interpretation of the National Labor Relations Act (“NLRA”), the National Labor Relations Board (“NLRB”) has further muddied the waters for employers.
The NLRB General Counsel (“GC”) recently released an advice memorandum reiterating the NLRB’s position that an employer’s blanket rule enforcing the confidentiality of employee investigations violates the NLRA. The memorandum, issued in Verso Paper, NLRB Case No. 30-CA-089350, states that an employer may only lawfully discipline employees for divulging information related to a workplace investigation if the employer demonstrates “a legitimate and substantial business justification” for “interfering with” employees’ rights under Section 7 of the NLRA.
Verso Paper maintained a “Code of Conduct” which, among other things, prohibited employees from discussing ongoing investigations. The policy required employees to “maintain the investigation and [their] role in it in strict confidence.” The Policy further stated that employees who breached this prohibition “may be subject to disciplinary action up to and including termination.”
The GC concluded that this rule was overbroad and violated the NLRA. Because Section 7 grants employees the right to discuss discipline or disciplinary investigations involving their fellow employees, the GC reasoned that this prohibition infringed upon employee rights. As a result, employers may only lawfully restrict employee communications concerning workplace investigations if they demonstrate the need to maintain confidentiality on a case-by-case basis. The GC explained that an “[e]mployer may not avoid this burden by asserting its need to protect the integrity of every investigation, but rather must establish this need in the context of a particular investigation that presents specific facts giving rise to a legitimate and substantial business justification for interference with the employees’ Section 7 right.”
This advice memorandum is the NLRB’s clearest statement that employer policies which require employees to keep their knowledge of and participation in workplace investigations confidential under threat of discipline run afoul of the NLRA. Strangely, the NLRB’s policy is at odds with guidance from the Equal Employment Opportunity Commission (“EEOC”) requiring employers to take steps to assure employees who complain of workplace harassment and/or discrimination that their complaints will be handled confidentially.
In light of the NLRB’s position, and until a court rules on its legitimacy, employers should review blanket confidentiality policies and must prepare to justify enforcing confidentiality requirements concerning workplace investigations if challenged. At the same time, employers must also continue to ensure that employees who complain of workplace harassment and/or discrimination are assured that their confidential information will be protected.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
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