Today, the U.S. Court Court for the D.C. Circuit struck down a rule proposed by the NLRB that required employers to post workplace notices describing employees' rights to form a union or face a possible unfair labor practice charge.  You can read the decision, National Association of Manufacturers v. NLRB, or click here for a summary of the decision posted at Workplace Prof Blog.  Click here for links to our earlier posts on this topic.

More to come...

The NLRB’s new notice-posting requirement is one step closer to reality as the United States District Court for the District of Columbia has, in National Ass'n of Manufacturers v. National Labor Relations Board, dismissed a claim by various business groups claiming that the NLRB had overstepped its rulemaking authority in requiring the notice. 

While an appeal has been promised, as the rule currently stands, employers will be required to post notices apprising workers of their right to unionize by April 30, 2012 – less than two months from now.  In short, the required notice will inform employees that they have the right to bargain collectively with their employer for improved wages and working conditions, to form, join and assist a union and to refrain from any of these activities.  The notice must be posted in the workplace in conspicuous locations readily seen by employees, including all places where notices concerning personnel rules or policies are customarily posted.  If at least 20% of the workforce is not proficient in English, the notice must also be posted in the appropriate foreign language.  In addition to the physical posting, the rule requires covered employers to post the notice on an employer internet or intranet site if personnel rules and policies are customarily posted there.  Sample notices (including in English and Spanish) are available here. 

This rule applies to all employers subject to the National Labor Relations Act, whether they have a unionized workforce or not.  Thus, while the notice need not be posted until the end of April, even those employers with non-unionized workforces should prepare ahead of time by conducting management training regarding the notices and unionization generally to ensure that managers and supervisors are sufficiently educated to communicate employers’ positions on unionization in a lawful manner.

The DOL-drafted forms expire on January 31, 2012.  New forms, which have been submitted to the United States Office of Management and Budget, are not likely to be approved before the old forms expire.  Nevertheless, under the law, expired forms may continue to be used while new forms are awaiting approval.

But – and this is important – the soon-to-expire forms do not include the “safe harbor” language under the Genetic Information Nondiscrimination Act, which tells employees and their medical providers that they should not provide “genetic information” when responding to a request for certification. 

(i) An individual’s genetic tests;

(ii) The genetic tests of that individual’s family members;

(iii) The manifestation of disease or disorder in family members of the individual (family medical history);

(iv) An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or

(v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

The specific “safe harbor” language that should be included with any request for FMLA certification (or any request for medical information) to employees or their medical providers is as follows:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other  entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

Genetic information may be obtained by an employer without violating GINA when it requests family medical history to comply with the certification provisions of the FMLA, state or local family leave laws, or pursuant to a policy that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave.  In this circumstance, the above-quoted “safe harbor” language is not required (but may be included). 

This is not a change in the law.  However, given the questions that have come up regarding the use of expired DOL forms, we thought it was an opportune time to remind our readers of GINA, and how to best protect themselves from inadvertent violations.

The NLRB has postponed the implementation date for its new notice-posting rule three more months – from January 31, 2012 to April 30, 2012. The rule would require businesses to post notices apprising workers of their right to unionize. This is the second time the NLRB has postponed its implementation, this time doing so at the request of a federal court presiding over a case started by various business groups that are challenging the legality of the rule. The NLRB recognized that the three-month postponement will “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” You can read our previous posts regarding this rule here, here, and here, and the NLRB’s latest press release here. We will continue to update you as events unfold.

The start of a new year often means new laws for California employers to follow, and new administrative burdens for them to bear.  The start of 2012 will be no exception.  Effective January 1, 2012, California employers must comply with California’s new Wage Theft Protection Act, Labor Code Section 2810.5.  This new California law, which is similar to the New York Wage Theft Protection Act, requires employers to provide certain employees with a written notice containing the following wage-related and employer information:

Private employers must provide notice to newly-hired employees who are not exempt from the overtime provisions of the Fair Labor Standards Act or the California equivalent. If, after hire, the employer changes any of the above-referenced information, the employer must provide the non-exempt employees with a new notice within seven days, either in the required form or in a wage statement compliant with California Labor Code §226. Notice need not be provided to employees exempt from the overtime provisions of federal and state law or to non-exempt employees who are both covered by a collective bargaining agreement and who earn at least 30% more than the California minimum wage per hour.

The Labor Commissioner will be publishing a notice template later this month for employers to use.

Of course, it would not be a new California law if there were not new or increased penalties associated with it. Here, the Wage Theft Act adds or increases existing civil and criminal penalties, in some instances allowing liquidated damages and attorneys’ fees, and extends the applicable statute of limitation to three years.

As discussed in a recent blog entry, New York has enacted a similar law, with similar requirements and penalties.

The new year is nearly upon us. California and New York employers should act now and consult counsel as needed, to prepare the required notices and to develop an administrative process to manage compliance.

This alert serves as a reminder that the New York Wage Theft Prevention Act requires employers to provide annual pay notices to all of their employees (whether full-time or part-time, exempt or non-exempt) between January 1 and February 1, 2012.  For seasonal employees who are not working during this period, employers must provide annual pay notices to these employees as soon as they return to work from their time away. 

Employers operating in California should also be aware that California recently passed its own Wage Theft Prevention Act, which goes into effect on January 1, 2012 and which is similar in many respects to New York’s Act.  We will detail the California’s Act’s requirements in a separate alert.

As the compliance deadline nears, employers are well advised to seek the advice of employment counsel for assistance complying with both the New York and California Wage Theft Prevention Acts.

Click here to read the full alert.