NLRB Postpones Effective Date Of Employee-Rights Notice Rule Again

January 4, 2012 - On August 25, 2011, the National Labor Relations Board finalized a new rule that requires most private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act.  The rule was originally scheduled to take effect in November 2011; however, on October 5, 2011, the NLRB announced that it was delaying the effective date until January 31, 2012.  Now, the NLRB has delayed implementation again, this time at the request of the federal court hearing a legal challenge to the rule.  Barring further developments, the rule will take effect and employers will be required to post the new NLRB employee-rights notice on April 30, 2012.


Department of Labor Proposes Rule Change Extending Minimum Wage and Overtime Protections To Many Home Health Aides

December 15, 2011 - The Wage and Hour Division of the U.S. Department of Labor has proposed narrowing the "companionship services" exemption to the Fair Labor Standards Act minimum wage and overtime requirements.  In addition to narrowing the scope of services that would be considered "companionship," the new rule would limit the exemption to companions employed only by the family or household using the services.  Under the new rule, a third-party employer (even if it would be considered a joint employer with the household) would not be entitled to claim the exemption.

Once it has been formally published in the Federal Register, the proposed rule will be subject to public comment for a period of sixty days. 


Court of Appeals Affirms That Transgender Discrimination Is Sex Discrimination

December 6, 2011 - In 2005, the Georgia General Assembly's Office of Legislative Counsel (OLC) hired Vandiver Elizabeth Glenn (then known as Glenn Morrison).  In 2006, Glenn, who had been diagnosed with Gender Identity Disorder, informed her direct supervisor that she was transgender and would be transitioning from male to female.  In 2007, Glenn advised the same supervisor that she was changing her name and would begin presenting as a woman at work.  The head of OLC then terminated Glenn because her "intended gender transition was inappropriate, . . . would be disruptive, . . . some people would view it as a moral issue, and . . . it would make [her] coworker's uncomfortable."

Considering the question of "whether discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause" of the Fourteenth Amendment, the Eleventh Circuit Court of Appeals answered in the affirmative.  In so ruling, the Eleventh Circuit joined several other Courts of Appeals and a number of district courts (including one in Pennsylvania).

The court also concluded that Glenn had presented sufficient direct evidence to demonstrate that her gender non-conformity was the reason for her termination.  In a Title VII case, that alone would have been sufficient for Glenn to prevail.  Because Glenn was proceeding against a state employer under the Equal Protection Clause, however, the court also considered whether OLC had an "exceedingly persuasive justification" for the termination and found none. 

This case is an important reminder to employers - even in states and municipalities which do not specifically protect transgender individuals - that transgender discrimination may result in liability under federal law.



NLRB Postpones Effective Date Of New Notice Rule

October 13, 2011 - As we advised on August 25, 2011, the National Labor Relations Board finalized a new rule that requires most private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act, including their rights to organize a union; join a union; and discuss their wages, benefits and other terms and conditions of employment with co-workers or a union.  The Notice also identifies certain conduct in which it is illegal for an employer or a union to engage and informs employees of how to enforce their rights. 

The notice-posting rule was scheduled to take effect next month, but the NLRB has now postponed the implementation date by more than two months.  The new effective date of the rule is January 31, 2012.


Employers: Are Your Social Media Policies Up To Date?

October 4, 2011 - It is essential that employers with social media policies review those policies in light of recent guidance from the National Labor Relations Board, Office of the General Counsel.  For instance, according to a memorandum issued by the Office of the General Counsel, the following policies all could violate the National Labor Relations Act:  prohibiting employees from posting “private” or “confidential” information about other employees; prohibiting employees from using company information in a personal online profile; prohibiting employees from posting photographs showing the employer’s logo or stores; and prohibiting employees from posting “inappropriate” or “damaging” comments about the employer. 

Moreover, as one recent “Facebook firing” case demonstrates, once an unfair labor practice charge is brought and the NLRB gets involved, other seemingly innocuous policies also may come under fire.  For instance, an administrative law judge found last week that the following three policies unlawfully restricted employees’ rights under Section 7 of the National Labor Relations Act:

  • Courtesy:  Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the [company].
  • Unauthorized Interviews: As a means of protecting yourself and the [company], no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.” If you are asked questions about the [company] or its current or former employees, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the [company], immediately notify the General Manager or the President.
  • Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

If your social media or other policies restrict employees’ rights under the NLRA (or could reasonably be read to restrict employees’ rights) – even in a non-union workplace – you should take steps to update them.