Shawe Rosenthal - Management's Workplace Lawyers

HIGHLIGHTS FOR THE MONTH OF OCTOBER 2007

By: Teresa D. Teare

“No-Match” Regulations Placed On Hold

Card Check Recognition Can Be Overturned By A Decertification Vote Within 45 Days

FMLA Leave and Holidays

Strike Replacements and At-Will Disclaimers

Limiting Provisions To The Duration Of The Collective Bargaining Agreement

RECENT DEVELOPMENTS

“No-Match” Regulations Placed On Hold

A federal judge halted the imminent crackdown on U.S. companies employing illegal immigrants. Finding that implications on employees and employers alike would be “staggering,” the judge issued an order suspending President Bush’s plan to pressure employers to fire more than 8 million workers with suspect Social Security Numbers.

Facts of the Case: The Bush administration was seeking to curtail illegal immigration in the United States by stopping illegal labor. As we reported in our August E-Update, the Department of Homeland Security (DHS) issued changes to federal regulations regarding no-match letters sent by the Social Security Administration (SSA) to employers. The proposed changes could crack down on employers who “knowingly” employ illegal immigrants. Under the new rules, an employer violates federal immigration laws if the “no-match” letters are ignored and the employer fails to take corrective steps within 90 days of receipt of the letter. In response to the proposed regulations, and before the rules went into effect, an unusual coalition of the AFL-CIO, the American Civil Liberties Union, and the U.S. Department of Commerce filed for injunctive relief in late August 2007. The United States District Court for the Northern District of California issued a temporary restraining order in September 2007, preventing the regulations from being implemented until after a preliminary injunction hearing.

The Court’s Ruling: Following the hearing, the court, in American Federation of Labor v. Chertoff, granted the plaintiffs’ request for a preliminary injunction. The court determined that if the regulations were implemented, the DHS and SSA would seek to mail no-match packets to 140,000 employers in which they would identify mismatched social security numbers for an estimated 8.7 million employees. The court found that employers would bear significant expense in complying with the rule’s 90-day timeframe. The court also recognized that legal employees could be irreparably harmed if unable to resolve a mismatch in the short 90-day timeframe permitted.

The court recognized that there were serious questions about whether the DHS’s issuance of the rule was “arbitrary and capricious.” Specifically, the DHS provided no reasoned analysis for reversing its previously held position that no-match letters were insufficient to put employers on notice that the employee was not authorized to work. The court found that DHS may have exceeded its authority by reassuring employers that following the safe harbor provision before terminating an employee would immunize them to liability under the Immigration Reform and Control Act’s anti-discrimination provision. Finally, the court found error because DHS did not conduct an analysis regarding the rule’s significant effect, if any, on small businesses. For these reasons, the court found that the plaintiffs raised serious questions regarding the enforceability of the rules and a preliminary injunction was necessary to protect those who it would affect, pending a full trial in which these issues would be considered and decided.

Lessons Learned: For now, employers will not have to act within 90 days of an issuance of a no-match letter from the SSA. Employers must continue, however, to properly review applicant’s employment eligibility documentation in compliance with the established protocols of the I-9 Form.

Card Check Recognition Can Be Overturned By A Decertification Vote Within 45 Days

In Dana Corp., the National Labor Relations Board modified the “recognition-bar” doctrine to address the recent growth of card-check (in which a union obtains cards from employees indicating their support for that union) and other voluntary recognition agreements. Under this doctrine, an employer’s voluntary recognition of a union based upon a demonstrated majority status immediately barred an employee or rival union from filing an election petition with the Board “for a reasonable period of time” after recognition had been granted.

The Board found that the current recognition-bar doctrine had to be modified to provide greater protection for employees’ statutory right of free choice and to give proper effect to the preference for resolving questions concerning union representation of employees through a Board secret-ballot election, rather than through voluntary recognition agreements such as card-checks. Thus, no election bar will be imposed after a card-based recognition unless:

• Employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and

• 45 days pass from the date of notice without the filing of a valid petition.

The Board requires the employer or the union to promptly notify the Board’s Regional Office, in writing, of the grant of voluntary recognition. The voluntary recognition itself must be in writing, describe the unit and set forth the date of recognition. Additionally, a copy of the written recognition must accompany the party’s notice to the Regional Office.

Upon receipt of such notice, the Board’s Regional Office will send an official NLRB notice for the employer to post in conspicuous workplace locations throughout the 45-day period, advising employees of the recognition as well as informing employees of their statutory right to be represented by a union of their choice or by no union at all. The notice must also advise of the employees’ right, within 45 days of the notice being posted, to file a decertification petition supported by at least 30% of the unit employees or to support another union’s election petition based upon a similar 30% or more showing. Only if the notice requirement is satisfied, and no petition is filed during the 45-day window period, will the recognized union’s majority status be presumed for a reasonable period of time to enable the parties to negotiate a collective bargaining agreement.

TAKE NOTE

FMLA Leave and Holidays. The Court of Appeals for the First Circuit, in a case of first impression, held that in calculating an employee’s FMLA leave, full holidays can be counted against the employee’s leave, even if it is intermittent leave. In Mellen v. Trustees of Boston University, the employee, who requested week-blocks of intermittent leave to care for her ailing mother, argued that she was denied the full number of FMLA days owed her because three holidays (Labor Day, Veteran’s Day, and an internal holiday) were counted as part of her twelve week entitlement. The employee asserted that because she was taking intermittent leave, only the days she actually missed from work, and not holidays, should be counted against her. The appellate court held that if a holiday occurs within an FMLA leave week, it has no effect and the amount of leave used does include the holiday. The court reasoned that there should not be any advantage to an employee who takes off five weeks but designates it as “intermittent” versus an employee who takes off the same five weeks but designates it as “continuous” leave.

Strike Replacements and At-Will Disclaimers. In Jones Plastic & Engineering Company, the National Labor Relations Board reversed its prior position when it held that at-will disclaimers in employment applications, handbooks and agreements will not preclude a finding that replacement employees were hired as permanent replacements. The Board reinforced the general rule that economic strikers who unconditionally offer to return to work are entitled to immediate reinstatement unless the employer can show a legitimate and substantial business justification for refusing to reinstate them. Such justification can be that the employer permanently replaced economic strikers as a means of continuing business operations during a strike. At the end of a strike, therefore, an employer is not required to discharge the replacement employees if it made assurances to those replacements that their employment would be “permanent.” The Board held that status of the replacements as “permanent” was not affected by the Company’s normal employment practices, clearly set forth in employment documents such as the handbook, including offering employment to all employees on an at-will basis.

New York Wage Law. In New York state, employers are now required by law to provide a commissioned salesperson with a written agreement that provides (1) a description of how wages earned and payable shall be calculated; (2) the employee’s entitlement, if applicable, to a recoverable draw and how it will be reconciled; and (3) a description of how wages shall be paid in the case of termination of employment by either party. The agreement must be in writing; signed by both the employer and the commissioned salesperson; and kept on file by the employer for a period of not less than three years. If an employer cannot produce such a written agreement at the request of the state Labor Commissioner, it will be presumed that the commissioned salesperson’s declaration regarding the terms of employment are, in fact, the agreed terms.

Obesity and the ADA. In Greenberg v. Bellsouth Telecommunications, an installation and maintenance employee sued his former employer, alleging that the company terminated him on the basis of a disability – obesity – in violation of the ADA. Under company policy, employees in jobs that required climbing could weigh no more than the safe load limit of the equipment used in their work groups. The employee, whose weight exceeded the limit, was given a weight loss timetable. The employee did not lose the required weight in the time given (50 pounds in 25 weeks) and was given two months to find another job. The Court of Appeals for the Eleventh Circuit held that the employee was not disabled because he did not show that he had an impairment that substantially limited him in one or more major life activities. The employee was not “substantially limited” in the “major life activity” of caring for oneself, as he bathed and dressed himself and could perform household chores. Second, he was not “substantially limited” in the “major life activity” of working, as he could not show that “at a minimum ...[he was] unable to work in a broad class of jobs.” Thus, the employee was not entitled to the protections of the ADA.

EEOC Phony Email. Recently, the EEOC issued a warning that a phony e-mail to employers is being circulated under the subject “Employer Liability for Harassment.” This “phishing” e-mail contains links where the recipient can allegedly access details of a fake discrimination claim. The fake e-mail contains the following message:

This is an automated email that confirms the registration of harassment complaint #number...this harassment complaint can lead to law enforcement action. You can download and print a copy of this complaint to keep for your personal records here...Our staff will keep you updated regarding the status of our investigation...To check the status of your complaint access:

The EEOC reminds employers that its policy is to notify an employer of the filing of a charge of employment discrimination using the United States mail system and not via e-mail. Consequently, if a company receives an e-mail notification which purports to advise of the filing of an EEOC charge of employment discrimination, the EEOC urges users to delete it immediately.

ADA Amendments. The ADA Restoration Act of 2007 was recently introduced in both houses of the U.S. Congress, and seeks to amend the Americans with Disabilities Act of 1990 to broaden its definitions of “disability” and define additional terms such as “mental impairment” and “physical impairment.” Supporters of the bill believe that since the passage of the ADA, courts have too narrowly defined “disability” so that many disabled persons are not afforded its protection. The bill has gained momentum in the House of Representative with 232 sponsors to date and it is currently in the House subcommittee on Health. There has been little action on the bill in the Senate.

TOP TIP

Limiting Provisions To The Duration Of The Collective Bargaining Agreement

The National Labor Relations Board, in Hacienda Hotel, Inc., ruled that a dues-checkoff obligation, by which employers automatically deduct union membership dues from the pay of employees who authorize the deduction, may cease after the collective bargaining agreement (CBA) expires if the CBA explicitly limits the dues-checkoff provision to the “duration of the agreement.” The Board found that, based on this specific language, the parties intended that dues-checkoff would not survive expiration of the agreement, unlike other provisions in the CBA that contained more general durational language.

Thus, unionized employers would be wise to include language in the CBA explicitly limiting dues-checkoff to the “duration of the agreement,” which would thereby shield them from having to continue the practice upon expiration of the CBA.

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.

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