Category Archives: legislative

Yes, a ‘Cantankerous Jerk’ Can Be Fired

177030950 -- angry bossCan a person be lawfully terminated just for being a hard-core grump? Yes, says the U.S. Court of Appeals for the Ninth Circuit in the case of Matthew Weaving v. City of Hillsboro.

Weaving, an officer with the Hillsboro (Ore.) Police Department, was cited several times over a period of years for conflicts with fellow employees. A formal report — issued after a departmental investigation of an officer’s grievance about him — concluded he was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (That’s quite a list.)

Based on the investigation, which also found Weaving had created a hostile work environment and did not possess the emotional intelligence to work in a team environment, he was fired Dec. 11, 2009, after three years with the force.

He sued under the Americans with Disabilities Act, claiming he had been diagnosed with attention deficit hyperactivity disorder, and this condition caused his work conflicts and limited his ability to work or interact with others (a requirement of his job).

He contended his ADHD was a disability, which a district court upheld, but the appeals court reversed. (For everything you ever wanted to know about Weaving’s contention and how both courts viewed the ADHD/ADA issue, see both links above.)

Considering Weaving’s argument that ADHD falls under the ADA, I thought I’d share several earlier blog posts from some of us at HRE that delve into other expansions of, or attempts to expand, the definition of disability under the law.

This one, by David Shadovitz, delves into an appeals court ruling establishing that temporary impairments are now allowed under the law so long as they’re severe enough.

This post, by Mark McGraw, also gets into the temporary-condition allowance, in a different lawsuit, and mentions the American Medical Association’s new definition of obesity as a disease, adding exponentially to the ranks of the disabled.

And this from me a few years back highlights an informal letter issued by the Equal Employment Opportunities Commission warning that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

Meanwhile, in this latest case, employers have good reason to breathe a sigh of relief, says Myra Creighton, a partner with Atlanta-based Fisher & Phillips. The case, she told me, “upholds the principle that employers can enforce their employee-conduct standards governing personal interaction without worrying that the employee will blame his or her bad behavior on his or her disability.”

The ruling doesn’t, however, rule out ADHD as a disability if the plaintiff can prove the condition limits his or her ability to work.

As the Practical Law piece in the first link above puts it, the Ninth Circuit majority held “that the employee’s condition … did not rise to the level of disability [and argued] that a different holding … would open employers to potential liability each time they take an adverse-employment action concerning a hostile employee.”

The dissenting minority, however, it says, notes that “employers are [still] left in the complicated position of having to determine whether an individual, who has been properly diagnosed with ADHD, should be deemed disabled or just a jerk.”

 

 

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Getting Out the Vote

Business groups are looking to make a difference in November’s midterm elections.

As a recent piece on the The Hill website reports, “Heavyweight groups such as the National Retail Federation, the National Federation of Independent Business, the National Association of Manufacturers, the Associated General Contractors of America and BIPAC are among those seeking to increase engagement in the political process this year.”

According to The Hill, more than 90 companies and industry groups are taking part in the Employee Voter Registration Week (which ends today), including the American Forest & Paper Association, Anadarko Petroleum, Caterpillar, eBay and a slew of state-level organizations.  Their hope is to break the gridlock and get employees registered and involved.

About 54 percent of American voters went to the polls two years ago, compared to around 38 percent in the 2010 midterms.

David French, the senior vice president of government relations at the National Retail Federation who discussed the initiative at a press conference the other day (see video), notes that …

“Any of these races could be decided by a few hundred votes, so a strong turnout from the business community could make the difference between a candidate who understands our concerns and a candidate who’s tuned to other voters’ interests.”

As The Hill piece explains, “trade groups and corporations will not be instructing their members and employees how to vote or who to vote for … but will be providing information about deadlines, how to register and where to vote.”

I asked Littler Shareholder Michael Lotito (who is based in San Francisco, but always keeps a watchful eye on what policymakers are up to in Washington) to share his thoughts on the significance of this effort.

Lotito sees it as a counter weight to what the American Federation of Labor does in getting out the vote through registration drives and email solicitations.

“Businesses have been largely quiet in this regard,” he says. “But often, the employees would benefit from hearing from their employer as to how the positions of candidates and state and local propositions may impact the company and, either directly or indirectly, the employees who depend on the company.  Many companies are not engaged in this process, not even encouraging their people to register and vote, let alone modify work schedules on election day to make sure people can vote.”

Lotito also suggests that HR might want to be more than just a bystander in this regard. “Let HR be the leader for the identification of issues, how those items will impact the company, which candidates (regardless of party) advances those interests, and then advising how a person can register to vote, obtain absentee ballots and go to the polls on election day.”

At the end of the day, it’s probably going to be tough to know how much of an impact any of this will have, but with voter turnout for the midterms being as pitiful as it is, it would seem to me that any effort to get citizens more engaged (if I can borrow a word from the HR lexicon) in our electoral system should be viewed as a good thing.

In case you’re wondering, the midterms are November 4—so, if you haven’t yet, mark it down.

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Bullying Touches All Races and Roles

467291571 -- bullying2A fairly comprehensive — and concerning — report on bullying was released by CareerBuilder on Thursday, showing office bullying knows no partiality when it comes to who the victims are.

The survey of 3,372 U.S. full-time, private-sector employees, conducted by Harris Poll on behalf of Chicago-based CareerBuilder, shows 28 percent of respondents have felt bullied at work and 19 percent of them left their jobs because of it.

More importantly, while the prevalence of bullying is higher among certain minorities and workers with lower incomes, the study finds workers in management roles, those with post-secondary education and other workforce segments are not immune.

“One of the most surprising takeaways from the study was that bullying impacts workers of all backgrounds regardless of race, education, income and level of authority within an organization,” says Rosemary Haefner, vice president of human resources at CareerBuilder.

“Many of the workers who have experienced this don’t confront the bully or elect not to report the incidents,” she says, “which can prolong a negative work experience that leads some to leave their jobs.”

Here’s how the percentages of respondents who say they are currently being bullied break down in the study:

Job Level

  • Management (manager, director, team leader, vice president and above) – 27 percent
  • Professional and technical – 21 percent
  • Entry-level/administrative and clerical– 26 percent

Highest Level of Education Attained

  • High-school graduate – 28 percent
  • Associate’s degree – 21 percent
  • Bachelor’s degree or higher – 23 percent

Compensation Level

  • Earning less than $50,000 – 28 percent
  • Earning $50,000 or more – 19 percent

And here’s what I found to be a pretty interesting breakdown as well, the varying ways bullying victims felt bullied on the job:

  • Falsely accused of mistakes he/she didn’t make – 43 percent,
  • Comments were ignored, dismissed or not acknowledged – 41 percent,
  • A different set of standards or policies was used for the worker – 37 percent,
  • Gossip was spread about the worker – 34 percent,
  • Constantly criticized by the boss or co-workers – 32 percent,
  • Belittling comments were made about the person’s work during meetings – 29 percent,
  • Yelled at by the boss in front of co-workers – 27 percent,
  • Purposely excluded from projects or meetings – 20 percent,
  • Credit for his/her work was stolen – 20 percent, and
  • Picked on for personal attributes (race, gender, appearance, etc.) – 20 percent.

And you might find this surprising. I did. Comparing the public and private sectors, workers in government were nearly twice as likely to report being bullied (47 percent) than those in the corporate world (28 percent).

Meanwhile, as David Shadovitz reported back in July, the nation’s road to anti-bullying legislation at the state level — starting with Tennessee — appears to be a slow one, despite the fact that 28 states have introduced such legislation this year.

In fact, as Mark McGraw posted on this blog a little later that month, one of those states — New Hampshire — went in the opposite direction, when its governor — Maggie Hassan — vetoed the bill pending there because its definition of abusive conduct was too broad.

The silver lining there, McGraw says, is that both the governor and the bill’s sponsor acknowledge workplace bullying is a problem that needs to be dealt with.

My guess is the people in that camp far outweigh those questioning the problem’s seriousness. CareerBuilder’s certainly in the former. So what’s it gonna take to get more laws on the books?

 

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Drug Testing Index Reverses Direction

Most employers may have zero tolerance when it comes to drugs in the workplace, but if we’re to believe the latest data from Quest Diagnostics in Madison, N.J., fewer job candidates and workers are taking such policies to heart these days.

200273910-001For the first time in more than a decade, the percentage of positive drug tests among American workers in Quest Diagnostics’ Drug Testing Index increased, climbing to 3.7 percent in 2013 from 3.5 percent in 2012 (based on 7.6 million urine drug tests), according to Quest. The increase was fueled primarily by a rise in positive tests for marijuana and amphetamines.

As you might expect, the two states that have passed recreational-use marijuana laws—Colorado and Washington—experienced the greatest jump in marijuana-positivity rates, climbing 20 percent and 23 percent between 2012 and 2013, respectively. For the general workforce in all 50 states, the increase averaged 5 percent.

But it should also be noted that those two states experienced dramatic increases in marijuana-positivity rates prior to legalization at the end of 2012. From 2009 to 2010, Colorado experienced a 22-percent increase and Washington a 10-percent decline in positivity. From 2011 to 2012, Colorado experienced a 3-percent increase and Washington an 8-percent increase in positivity.

Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions, says he’s not sure why the steep increases and declines in those two states preceded the legalization of marijuana. “It is possible that relaxed societal views of marijuana use in those two states, relative to others, may, in part, be responsible for the recent increase in positivity rates,” he says. “Yet this doesn’t explain why both states also experienced steep rises—and declines—in positivity in recent years.”

In light of these findings, Quest says it will be paying close attention to how the data evolves over the next year or two.

But what “we do know,” he adds, “is that workforce positivity for marijuana is definitely on the rise across the United States.”

In addition to these findings, Quest reports that use of amphetamines showed an increase across all three specimen types and oxycodone positivity declined 8.3 percent between 2013 and 2012 and 12.7 percent between 2012 and 2011 in the combined U.S. workforce. (In fact, four states actually experienced double-digit declines in oxycodone-positivity rates in both 2013 and 2012: Florida, Massachusetts, New Jersey and Ohio.)

Of course, the rise in positivity rates could be aberration. After all, it’s just one year — and hardly the kind of move employers need to get worked up about. But that said, it’s still something they’re probably going to want to keep a close eye on, especially if more states decide to follow in the footsteps of Colorado and Washington and pass laws legalizing the recreational use of marijuana.

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Breaking Down the Latest EO

Just a few days ago, my colleague, Michael O’Brien, posted an item on a letter written by the HR Policy Association, and sent to U.S. Department of Labor 490613709Secretary Thomas Perez, that expressed HRPA’s concern over President Obama’s use of executive orders. Well, it didn’t take long for the administration to respond yesterday with one more EO, this one requiring federal contractors to disclose their labor-law violations during the past three years.

The president’s latest such order, named Fair Pay and Safe Workplaces, states …

For procurement contracts for goods and services, including construction, where the estimated value of the supplies acquired and services required exceeds $500,000, each agency shall ensure that provisions in solicitations require that the offeror represent, to the best of the offeror’s knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and Executive Orders … .”

According a White House Fact Sheet, the EO will “ensure that the worst actors, who repeatedly violate the rights of their workers and put them in danger, don’t get contracts and thus can’t delay important projects and waste taxpayer money.”

Federal agencies, the Fact Sheet states, will require prospective contractors to disclose labor-law violations involving 14 covered federal statutes and equivalent state laws, including those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil-rights protections.  Agencies will also require contractors to collect similar information from many of their subcontractors.

“Contracting officers will take into account only the most egregious violations, and each agency will designate a senior official as a Labor Compliance Advisor to provide consistent guidance on whether contractors’ actions rise to the level of a lack of integrity or business ethics,” the Fact Sheet explains.

The White House reports that the “vast majority of federal contractors have clean records.” But it also references a 2010 Government Accountability Office report that found almost two-thirds of the 50 largest wage-and-hour violations and almost 40 percent of the 50 largest workplace health-and-safety penalties issued between FY 2005 and FY 2009 were at companies that went on to receive new government contracts.

In case you’re wondering, the Department of Labor estimates that there are roughly 24,000 businesses with federal contracts, employing about 28 million workers.

Other provisions in the EO include requiring contractors to “give their employees information concerning their hours worked, overtime hours, pay and any additions to or deductions made from their pay, so workers can be sure they’re getting paid what they’re owed” as well as directing the General Services Administration to develop a single website for contractors to meet their reporting requirements—for this order and for other contractor reporting.”

Mickey Silberman, a managing shareholder in Jackson Lewis’ Denver office, wrote in a blog post yesterday that the EO’s provisions don’t come as a huge surprise, with one exception—a section prohibiting contractors and subcontractors from requiring that new employees enter into pre-dispute mandatory arbitration agreements. “Many employers require employees to sign arbitration agreements at the outset of employment,” he writes. “This provision of the EO is a ‘game changer’ that government contractors and subcontractors must review and determine how to respond.”

It is possible, Silberman continues, that employers “will bring litigation challenging this provision of the EO.”

Littler Shareholder Michael J. Lotito, co-chair of Littler’s Workplace Policy Institute, shared with me similar sentiments. Government contractors are easy targets for more and more regulation, Lotito said. “The EO process engaging in these types of rules and regulations has been challenged on different grounds and will most certainly be again over the next several months. Even assuming the intent is sincere behind the proposals, they are subject to such abuse.”

Lotito added that “one always has to wonder how much of this is about politics and generating interest in the base between now and November.”

Guess we’ll have to wait to see if Silberman and Lotito’s predictions eventually come to pass. But there’s at least one thing we do know for sure—the Obama administration is showing no signs of letting up on its efforts to issue EOs targeted at the workplace.

 

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A Setback for Anti-Bullying Efforts?

bullyEarlier this month, HRE Editor David Shadovitz reported on Tennessee Gov. Bill Haslam’s signing of the Healthy Workplace Act, which made the Volunteer State the first in the Union to pass legislation aimed at putting an end to on-the-job bullying.

In that piece, Shadovitz pointed out that 28 states have introduced anti-bullying legislation this year. Experts, he said, predict other states will soon take similar measures, adding that New York and Massachusetts appear the most likely to pass anti-bullying laws applying to private-sector employers. (The Tennessee law only affects the practices of state and local government agencies.)

While some states may soon follow in Tennessee’s footsteps, it seems that New Hampshire took a step in the opposite direction this week.

On Monday, Gov. Maggie Hassan vetoed a bill geared toward protecting New Hampshire state employees from abusive work environments, saying the bill was “well-intentioned but unworkable,” according to the Concord Monitor.

The measure—which state lawmakers passed after current and former state workers said they had experienced bullying behavior at work—would have required state departments and agencies to develop policies to address harassment, the Monitor reports.

Hassan, however, found the legislation’s definition of abusive conduct to be overly broad, which she says could make even routine employee interactions potential causes of action. The bill “also attempts to legislate politeness, manners and the interpersonal relationships of co-workers,” she said, contending the law would lead to a significant spike in lawsuits and subsequently hamper productivity.

Conversely, bill sponsor Rep. Diane Schuett feels a failure to put anti-bullying laws in place yields roughly the same end result, with respect to employee output.

“[Bullying] undermines the efficiency within state government if you end up with one or two employees being harassed on the job, either by another employee or a supervisor, and you end up with the entire agency being aware of it and feeling like they have to pick sides.”

There might well be some truth in both of those statements. Maybe the silver lining in the New Hampshire scenario is that the bill—which state lawmakers could revive by overriding the Governor’s veto—is at least on the table, with each side acknowledging that workplace bullying is a real and pervasive problem that must be addressed in some way, even if the legislation’s workability may be at issue.

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Streamlining the Workforce Development System

You can mark July 9 down in your books: Lawmakers from both parties in Washington found something they could agree on!

496666235In case you missed it, Congress passed on Wednesday the Workforce Investment and Opportunity Act, which revamps the nation’s workplace development program. The bill passed in the House by an overwhelming margin, 415 to 6, and is now on its way to President Obama, who is expected to sign it. (It passed in the Senate on June 25 by a 95 to 3 vote.)

­­­­­­­­­­­­­­­­­­­­­­­­­U.S. Secretary of Labor Thomas E. Perez issued the following statement regarding the passage …

Democrats and Republicans have come together on a bill that is good for workers, employers and the economy as a whole. It will help more people succeed in 21st century jobs and punch their ticket to the middle class. And it will help businesses hire the world-class, highly-skilled workforce required to compete successfully in the global economy.

“WIOA improves the workforce system, aligning it with regional economies and strengthening the network of about 2,500 American Job Centers, to deliver more comprehensive services to workers, job seekers and employers. The bill will build closer ties among key workforce partners—business leaders, workforce boards, labor unions, community colleges and non-profits, and state and local officials—as we strive for a more job-driven approach to training and skills development.”

As we reported in a June 30 story posted on HREOnline.com, the law aims to streamline the workforce development system by:

  •  Eliminating 15 existing programs.
  •  Applying a single set of outcome metrics to every federal workforce program under the Act.
  •  Creating smaller, nimbler and more strategic state and local workforce development boards.
  •  Integrating intake, case management and reporting systems while strengthening evaluations.
  •  Eliminating the “sequence of services” and allowing local areas to better meet the unique needs of individuals.

The legislation—a compromise between the SKILLS Act (which passed in the House last year) and the Workforce Investment Act of 2013—was endorsed by the Chamber of Commerce, which cited as positives the bill’s focus on “the continued leadership role of business, the clear language that promotes alignment of investments in education and training, and the increasing focus on outcomes.”

Of course, now the hard part begins. As James J. Parks, an attorney with Jaffe Raitt Heuer & Weiss, noted in our June 30 piece, “The problem you always have when you change anything in the government is the bureaucracy. Bureaucracy is a self-sustaining animal.”

But that said, there’s no denying that any effort to streamline the nation’s workforce programs and remove some of the much-dreaded inherent red tape should be viewed by the HR community as a good thing.

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Unemployment: Good News and Bad News

unemploymentThe jobs report for June, released today by the Labor Dept., has some welcome good news: Employers added 288,000 jobs last month, which is well above the rate of hiring recorded during the first five months of this year. The unemployment rate has ticked down to 6.1 percent, according to the DOL, which is the lowest it’s been since 2008, when the financial crisis hit.

This good news does not, of course, mean that we’ve finally left the economic doldrums behind. Two thirds of the jobs created in June were part-time, the DOL reports, and no doubt many of the employees who took those jobs would rather be employed full-time. As for the unemployment rate, that doesn’t include people who’ve simply given up looking for work. If these people were included in the official unemployment rate, it would actually be 9.6 percent instead of 6.1 percent, according to the Economic Policy Institute.

More distressing still (apologies for being such a gloom-meister right before the national holiday) is a new study from the Boston Consulting Group, which projects that the U.S. will be one of the few economies that is projected to struggle with high unemployment through 2030. It is expected to have a “worker surplus” equal to between 10 percent and 13 percent of its labor force in 2020 (between 17 million and 22 million people) and of 4 percent to 11 percent in 2030. The U.S. must “find ways to better utilize its workforce or it will continue to face relatively high unemployment,” according to the BCG report. “Improvements in training and education, as well as incentives for individuals and businesses to produce workers with the necessary skills and education, are needed to counteract this trend.”

This is one area where our do-nothing Congress (which currently has a sky-high approval rating of 16 percent) might actually do something: As Kecia Bal reported this Monday on HREOnline, the Workforce Innovation and Opportunity Act would reauthorize and amend the Workforce Investment Act with the intention of making it easier for states and local communities to match unemployed workers with the skills and training needed by today’s companies. As we’ve learned the hard way, there’s no magic wand that will solve our current unemployment problem, but maybe if we make better use of our existing resources so that jobs requiring specialized skills no longer go begging even as so many Americans have gotten too discouraged to look for work, we can at least make some serious progress.

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Employers Missing ADA Coverage in FMLA Cases

Employers are missing half of Family and Medical Leave Act cases involving employees’ serious illnesses that should also have been reviewed for Americans with Disabilities Act eligibility.

462011275 - disability and gavelThis according to Chicago-based ComPsych, in this report issued last week, June 24 to be exact, titled The Risk of Non-Compliance With ADA. The report breaks down by certain industries the percentage of FMLA cases that need ADA review, yet are being missed.

They include: retail at 13.2 percent, health services at 10.9 percent, manufacturing at 6.8 percent, public administration at 6.7 percent, trades at 6.5 percent and professional services at 5.9 percent.

These numbers, says Matt Morris, a vice president and licensed attorney at ComPsych, are “significant.”

“A common mistake employers make,” he says, “is to deem an FMLA leave request as ineligible, then not review it for ADA purposes.”

The potential consequences of such oversight “can be severe,” says Morris, “since one ADA misstep can lead to an investigation of the employer’s entire leave practices.” Hence the rash of recent ADA class-action lawsuits by the Equal Employment Opportunity Commission, he adds.

Indeed, the EEOC is coming off a record 2013 in terms of ADA penalties paid out by employers, a whopping $109.2 mill. Here are just three of the most sizable payments: $6.2 million by Sears Holding Co. involving 235 plaintiffs, $3.2 million by SuperValu involving 110 plaintiffs and $20 million by Verizon.

I asked Morris for a good example of an ineligible FMLA leave that would be covered under the ADA. Here’s what he said:

An employee has been at the company for six months and breaks his leg. He needs time off for rehab and to recoup, but is denied FMLA leave because he hasn’t been employed long enough. In this case, the employer should still review for ADA accommodation.”

Basically any ineligible FMLA leave for the employee’s own health condition (obviously not for baby bonding, etc.) has the potential to be an ADA leave, he tells me. “Although a ‘serious health condition’ under the FMLA and a ‘disability’ under the ADA are both two different standards, they are each very likely applicable to a health condition that forces someone to be out of work,” says Morris. And while the FMLA requires an employee to have been employed for 12 months and worked 1,250 hours in the last 12 months in order to be eligible, the ADA has no such standard. So, an ineligible FMLA employee still may have an ADA disability.

Perhaps the most common ADA misstep is waiting for an employee to “raise her hand” to request an ADA accommodation specifically or by name, Morris says. Courts have been clear that the “notice requirements under the ADA are nearly identical to those under the FMLA,” he says, but employers often don’t recognize that requests for FMLA leave are “hidden” requests for an accommodation — i.e., leave — under the ADA.

Interestingly, he tells me, employers all share a common misstep, which is that the company created and tried to enforce a standard policy — strange, in part, because generally this is exactly what HR tries to do: create uniformity and equality.

“But … they don’t consider whether the leave should be continued on a case-by-case basis,” says Morris. Maybe the more important thing is to note how easily one mistake can turn into something broader. What can happen — and, in fact, has been the way most of these cases start, he says — is:

1) The employee has an adverse action taken against her (usually, she’s fired).

2) She files a charge of discrimination with the EEOC (such charges are free to file, don’t require a lawyer, and often list several bases on which the employee believes she was discriminated against — for instance, race, sex, religion and then disability).

3) If the EEOC determines that, in that one case, the disability policy had a uniform cutoff — what it calls an ‘inflexible’ policy — it then uses its subpoena power to request the names of all employees who were subject to that policy (fired because they crossed that inflexible line).

4) The EEOC then sues on behalf of all, or most, employees subject to the policy and suddenly there are hundreds of plaintiffs.”

Thus far, this has only arisen because the policy was clear (“if you take more than X amount of time on leave, your job will not be protected”), but even if employers are detecting the right employees [for FMLA leave], they still have to have the expertise to apply such ADA standards as “reasonable accommodation,” “undue hardship” and “significant limitations (of a major life function)” appropriately.

So what should you be keeping top-of-mind? Here’s Morris’ caution:

Employers have been pining for three to four years for additional guidance from the EEOC on how to conduct the interactive process (how to determine a ‘reasonable’ amount of time, etc.). Chances are, given indications from the EEOC itself, the guidance will not come soon. Until then, employers will still be held responsible for appropriately applying these vague standards to a host of factors (e.g., What does the employee do? Could others help? Are there other jobs she could do? How long will the disability last? Are there things [you] can do to help reduce the time?)”

Hope this is helpful.

 

 

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Still Time to Chime in on NLRB’s Email Decision

99274052--gavel and hourglassYou still have time to offer input into a National Labor Relations Board decision that bars employees from using their employer’s email for union-organizing purposes, according to this notice from the Society for Human Resource Management.

The NLRB invited briefs back on April 30 pertaining to its interest in reconsidering its decision in the Register Guard case. Even if you missed it, you have until June 16 to submit your position in writing.

For background, here is an earlier synopsis of the initial ruling from Littler and here, from the National Legal and Policy Center, via the Before It’s News website, is an even-more-detailed one, with history and background on other cases that impact this one. It notes that, in 2007 …

… by a 3-2 margin along party lines [with the three Republicans forming the majority], the NLRB concluded that a Eugene-Ore.-based newspaper, The Register Guard, owned by Guard Publishing Co., was within its rights in stipulating that its e-mail and other employee-communications systems ‘are not to be used to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.’ Management, concluded the board, had the authority to apply that rule to an affiliate of the Communications Workers of America to which a number of newsroom employees belonged. The majority opinion held [that]: ‘[E]mployees have no statutory right to use the[ir] employer’s e-mail system for Section 7 purposes.” The ruling, however, wasn’t a complete victory for the employer. It held that Guard Publishing’s disciplinary action against an employee-CWA representative was unlawful to the extent that it punished that person’s purely informative [as opposed to advocacy] use of company e-mail. The board remanded the case to a District of Columbia circuit court, which upheld the ruling [Guard Publishing v. NLRB, 571 F.3d 53 -- D.C. Cir. 2009].”

Not surprisingly, there are politics involved, according to the NLPC:

Its partial victory notwithstanding, organized labor has been smarting over Register Guard these last several years. All the more frustrating, from their standpoint, is the fact that the ruling was handed down on the last day in office of then-NLRB Chairman Robert Battista, a Republican. With a 3-2 Democratic majority since last summer — after more than a half-decade of operating short-handed — plus the guidance of pro-union current General Counsel Richard Griffin, a reversal is now within their grasp.”

If the NLRB reverses its decision, “which is likely given its current 3-2 pro-union majority,” the NLPC says, “it would be handing unions a potent organizing tool, and more broadly, restricting employer property rights.”

If you’re really in an amicus-brief-submitting frame of mind, here is another invitation to submit briefs to the NLRB. In this case, the board is inviting briefs “to afford the parties and interested amici the opportunity to address [its] joint-employer standard, as raised in Browning-Ferris Industries (Case 32-RC-109684).

Among the issues raised by the NLRB in this one is whether the parties and amici believe the NLRB should adhere to its existing joint-employer standard or adopt a new standard. Those briefs are due on or before June 26.

 

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