The NLRB has pushed back the deadline from January 31, 2012 to April 30, 2012 the deadline to implement the required posting of the Notice of Employee Rights pursuant to the NLRA. The delay came days after Judge Jackson, the District Court Judge assigned to the case in the D.C. Circuit, stated in oral argument that the case is a complicated one and asked the Board to delay the implementation because she needs more time to examine the issues involved. A second lawsuit was filed in South Carolina, and argument is scheduled for January 11, 2012.
Alabama Employment Law Blog
Yesterday, I published a blog entry advising that the State of Alabama had asked the 11th Circuit to stay oral arguments scheduled the last week of February/first week of March to in light of the U.S. Supreme Court agreeing to hear an appeal on Arizona’s immigration law. Today, the 11th Circuit announced that it would not stay the appeal pending a Supreme Court decision. I anticipate the oral arguments will be held as scheduled, although the written decision may be delayed until after the Supreme Court hears oral arguments and/or issues a written decision on the Arizona law.
As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year. 2012 will continue to bring many changes in the employment arena, including the following:
Immigration Law: HB 56. A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012. All employers are required to use E-Verify on or before April 1, 2012. At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns’ orders enjoining parts of HB56. In light of the Supreme Court’s decision to accept an appeal of Arizona’s law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward. I will continue to post on my blog as the case winds it way through the courts.
NLRB. A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012. I summarized the poster requirements in a prior blog entry.
11th Circuit issues 2 new discrimination decisions. In August, 2010, I posted an entry entitled "The Case that Never Ends". Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment. The court previously held in favor of Tyson. Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000. Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism. The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery. The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon.
The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder. Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder. He/she began working for the Georgia General Assembly’s Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female. Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition. The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim. On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination. It should be noted that the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women’s clothing."
Theft by Employees. 2 articles caught my attention today concerning theft by employees. This continues to be a problem for all employers. First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility, pleaded guilty to stealing over $600,000 of computer software. Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000.
In New York, 3 employees stole almost $58,000 of lingerie from a Victoria’s Secret Store. An internal investigation reveals that the thefts occurred over the last 6 months. Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet…They exaggerated a lot, trust me. They must have charged like full price for everything, and doubled the sales tax". He admits that he only pocketed $800 during the 6 month crime spree.
This past Friday, the IRS announced the standard mileage rates for 2012. They are as follows:
55.5 cents per mile for business travel.
23 cents per mile for medical or moving purposes.
14 cents per mile in services for charitable organizations.
The business rate is unchanged from the 2011 mid year adjustment, while the medical and moving rate has been reduced by .5 cents per mile. These rates are effective as of January 1, 2012.
The US Supreme Court announced today that it will hear arguments on Arizona’s controversial Immigration Bill. The 9th Circuit Court of Appeals had struck down several provisions of the law, including a provision that makes it a crime not to carry alien registration papers, the provisions that make it a crime for an illegal immigrant to solicit or apply for work, and the portion that requires a police officer to determine the immigration status of a person arrested if there is reasonable suspicion to believe that he or she is in the country illegally. These provisions are similar to provisions in HB56, the Alabama Immigration Bill. It is expected that oral arguments will be held in April, and a decision on the Arizona law should be issued by the end of June. Although this appeal only applies to the injunction issued to stop the implementation of parts of Arizona’s law, I anticipate that the Supreme Court’s decision will provide guidance to Alabama, and other states, that have enacted immigration laws over the last several years.
The National Labor Relations Board currently consists of 3 members: 2 Democrats and 1 Republican. At the present time, 2 seats are vacant. The Republican member has threatened to resign so that there would not be a legal quorum, but has not done so. This past June, the NLRB published proposed amendments, which would make it quicker and easier for unions to organize in the workplace. On November 30, the NLRB, on a 2-1 vote along party lines, approved a Resolution to proceed with the new rules. The Resolution is not the law, but is a summary of what will soon be published as the Final Rules. In light of the fact that the Republican member’s term expires on December 31, causing the NLRB to lose the ability to have a quorum, I anticipate that their will be a hard push to publish the Final Rules before year end. The changes that will speed up the union election process are:
Pre-election hearings can be limited by the hearing officer to whether a question of representation exists. With limited exceptions, this means that disputes concerning voter eligibility would be determined after the election.
The hearing officer will have to give express permission for parties to file post-hearing briefs.
The right to seek review of any rulings made concerning the appropriate bargaining unit and related items will not be allowed until after the election has taken place and the ballots counted.
The current regulations which provide a minimum of 25 days from the time the regional director directs an election to the time of the election itself, will be rescinded. This time period provided an opportunity for the NLRB to rule on a request for review if filed.
Permission to directly appeal to the NLRB will require a showing of "extraordinary circumstances".
The NLRB’s review of a regional director’s or judge’s resolution of post-election disputes will be discretionary after both stipulated and directed elections.
The NLRB has posted an Explanation of Resolution on it’s website.
Practice pointers. With private sector union membership at an historically low rate of 6.9%, labor organizations are pushing these changes to speed up the election process to deny employers the opportunity to educate their workforce as to the pros and cons of unionization. For employers, now is the time to determine if there is any discontent in the workplace, and if so, try to address the issues. If approved, which I think they will be, unions will once again begin campaigning to unionize as many workplaces as possible. With the Republican member dropping off the Board as of December 31,the NLRB will not have enough members to obtain a quorum, and the Democratic majority expects to vote before year end.
Tomorrow, I will be speaking at Cumberland Law School’s 18th Annual Employment Law Seminar. The topic of my speech is "Stupid Is As Stupid Does", which relates to the many stupid things people do on social media that gets them fired, suspended, arrested or is just plain stupid. Among the many social media snafu’s that I will be talking about are:
Ex-Congressman Anthony Weiner and his sexting which led to his resignation
A lawyer who told a judge she needed a continuance due to her fathers death, and ended up going on vacation, posting about it on Facebook, and the judge finding out about it
A journalist who was terminated due to a twitter post that showed her holding a sign at an Occupy Wall Street protest, when she was supposed to be covering the protest
A German girl who posted her home address for her 16th birthday party on Facebook, forgot to mark it private, received over 16,000 RSVP’s, canceled the party and had to have over 100 police at her house to keep keep the 1,600 people who showed up anyway.
Several nurses and staff members at a California hospital who were suspended or fired for taking pictures of a 60 year old patient who had his throat slashed so severely that he was almost decapitated, and posting the pictures on Facebook.
The gay Rutgers University student who killed himself after his roommate took a video of him having gay sex and then posting it on line.
And, as reported yesterday by the TheEagle.com, the CFO of Texas A & M’s athletic department making what he thought were anonymous posts on TexAgs, a popular website for Aggie fans, about the school’s president, calling him a "putz" and an "unqualified puppet". Another poster on TexAgs researched the screen name used by the CFO and found that he had previously identified himself as the CFO of the athletic department in a prior post. Stupid is as stupid does.
Practice pointer. Whenever posting on a social media site, one must always assume that you are not anonymous, anyone in the world may see it, and there are serious ramifications for posts that are not appropriate. With a single click, one can be suspended, fired, embarrassed, arrested, or lead to someone else killing committing suicide..