Labor, Employment, & HR Law:
Recapping 2011 & Preparing for
the Year (2012) Ahead
Aaron L. Zandy, SPHR, Esquire
407-418-2300
azandy@fordharrison.com
What Happened & What’s Next
• 2011 - A Year In Review
• 2012 - An Election Year
• Employment Regulations to Watch in 2012
• Employment Cases to Watch in 2012
• Active & Aggressive Administrative Agencies
2011 - A Year in Review
What Happened Last Year (2011)?
January
• EEOC reported most charges ever in 2010 (retaliation
surpassed race for first time)
• DOL issued guidance on “lactation accommodations” in
Patient Protection & Affordable Care Act (“Obamacare”)
• Genetic Information Nondiscrimination Act GINA) took
effect
• Supreme Court - Title VII anti-retaliation provisions
extend to fiancés & other significant others who engage in
protected activity (Thompson v. North American
Stainless)
What Happened Last Year (2011)?
March
• EEOC issued Final Rule interpreting Americans with
Disabilities Act Amendments Act (ADAAA)
• Supreme Court - employer could be liable under a
“cat’s paw theory” for decisions influenced by
supervisor with unlawful motive (Staub v. Proctor
Hospital)
April
• Supreme Court - arbitration of class claims was
consistent with Federal Arbitration Act (AT&T v.
Concepcion)
What Happened Last Year (2011)?
• OFCCP issued a Proposed Rule regarding obligations
of federal contractors to recruit & hire veterans
• NLRB filed complaint against Boeing for opening
production line in South Carolina, alleging unlawful
attempt to avoid union due to prior strike
May
• DOL launched “wage &hour recordkeeping app”
What Happened Last Year (2011)?
• NLRB sued Arizona & South Dakota over
constitutional amendments that protect rights
of employees to have secret ballots in union
elections
• OFCCP proposed changing scheduling letter it
sends to federal contractors being audited
(require detailed individualized information
employee compensation, etc.)
What Happened Last Year (2011)?
June
• NLRB issued a Proposed Rule providing for
“quickie elections” & union’s immediate access
to employee contact information
• Supreme Court - sex discrimination case could
not proceed as a class action unless members of
class have so much in common they could be
treated as “one” (Walmart v. Dukes)
What Happened Last Year (2011)?
• Supreme Court - upheld Arizona statute that
sanctioned employers for knowingly or
intentionally employing aliens (not preempted
by IRCA) (US Chamber of Commerce v.
Whiting)
July
• DOL issued Proposed Rule on “persuader”
reporting rules for attorneys & consultants
who advise companies in union elections
What Happened Last Year (2011)?
August
• NLRB Chair Wilma Liebman’s term expires - issues requirement that employers governed by
NLRB post notices informing employees of
“right to join union”
• NLRB - approved a job-based bargaining unit
to make it easier for employees to organize in
health care industry (Specialty Healthcare &
Rehabilitation Mobile)
What Happened Last Year (2011)?
September
• IRS announced “independent contractor amnesty”
program - provides tax breaks to employers who selfreport & convert from IC to employee
• EEOC files 21 ADA lawsuits in 6 weeks
• ALJ rules NLRA not violated by employer who
terminated salesman who posted photos & snarky
comments on Facebook about kid who test drove a
vehicle into a pond (Karl Knauz Motors)
What Happened Last Year (2011)?
October
• NLRB delayed effective date of notice posting
requirement until January 31, 2012
November
• NLRB Craig Becker recess appointment due to expire
on December 31, 2011, leaving NLRB with only 2
members & unable to act (Board delegated authority
to litigate & seek injunctions & authority to certify
election results to GC of NLRB)
What Happened Last Year (2011)?
• NLRB approved a resolution to go forward with its
“quickie election” proposal
• President Obama signs VOW to Hire Heroes Act of 2011
which amends & expands USERRA, amends IRS Code to
provide tax credits to tax-exempt companies & creates new &
expanded education, training & transition programs for
veterans within the DOL & VA
December
• OFCCP issued a proposed rule which would require
contractors to establish goals of 7% disabled workforce
• NLRB withdrew complaint against Boeing
What Happened Last Year (2011)?
• One day before NLRB issued final rule on “quickie
elections”, Chamber of Commerce sued to block the
rule
• President Obama announced he would make recess
appointments to NLRB of Sharon Block (DOL’s
Deputy Assistant Secretary) & Richard Griffith (GC
of Operating Engineers Union) to restore quorum
• NLRB postpones notice posting rule until April 30,
2012
EEOC - Total Charges
99,947
99,922
95,402 93,277
79,896
80,840 84,442 81,293 79,432
2000
Race
Sex
2002
Natl. Origin
2004
Religion
75,428
75,768
2006
Retaliation
Age
82,792
2008
Disability
2010
EPA
Gina
2011 Charges
Federal Court Employment Litigation
22,138
2008
24,190
2009
26,549
26,700*
2010
2011
* estimate
Federal Court FLSA Litigation
6,120
6,785
6,900*
5,210
23.5%
2008
25.2%
25.5%
23.7%
2009
2010
2011
* Estimated
2011 Florida FLSA Lawsuits per District*
Middle District - 530
Northern District - 43
Southern District - 1,071
* As of October 24, 2011
2012 - An Election Year
What Happens During An Election Year
• Partisan atmosphere & election year make
meaningful legislative changes unlikely
• We will, however, hear a lot of grand ideas,
read about “fancy titled” bills & legislation
aimed at voters, & we will probably hear hotly
debated issues pertaining to labor,
employment, & HR law
What Happens During An Election Year
• Maybe Congressional hearings on Workplace
Democracy & Fairness Act, which aims to
block the NLRB’s push to streamline union
elections (passed House on November 30th)
• Variety of regulatory measures in 2012 could
impact the HR World
• Supreme Court rulings in 2012 could also
have a major impact on the HR World
Employment Regulations to
Watch in 2012
Employment Regulations to Watch in 2012
• NLRB Notice Posting Rule (Pending)
• NLRB Union Election Rule
• EEOC Rule on “Reasonable Factors Other
Than Age” under the ADEA
• US DOL Persuader Activity Rule
• OSHA’s I2P2 Rule
NLRB Notice Posting Rule (Pending)
• December 2010 - NLRB issued a Notice of Proposed
Rulemaking that requires employers to notify employees of
NLRA rights by posting a notice (approximately 6 million
employers)
• Notice includes selective information about employee rights
that favor or promote unionization (“right to join”)
• Lawsuits filed in Washington, D.C. & South Carolina federal
courts
• Rule initially slated to take effect on November 14, 2011, was
delayed twice, & set for an effective date is April 30, 2012 (due
to legal challenges) and has now been POSTPONED pending a
ruling on an appeal
NLRB Notice Posting Rule (Pending)
• NLRB revised proposed rule:
- Not required to distribute notice by email, voice mail,
text messaging or related electronic communications
- May post notices in black & white or color
- Clarified requirement for posting in foreign languages
• Final rule issued by 3-1 vote on August 25, 2011 1,944 pages
NLRB Notice Posting Rule (Pending)
- Must be 11x17 (can be downloaded in a 11x17 PDF or
two 8½ x 11 pdfs & tape together)
• www.nlrb.gov/poster
- Must post in conspicuous place
- Must translate if 20% of workforce not proficient in
English (some translation versions available)
- Must post the notice on an intranet or internet site if
personnel rules & policies are customarily posted there
- Employer may post own notice (in addition)
NLRB Quickie Election Rule
• June 21, 2011 - NLRB proposed rule containing wide
range of amendments to streamline union elections
• Rule drew 65,000 public comments, & sole Republican
board member, Hayes, considered resigning to block it
• November 30, 2011 - knowing it would likely lose quorum
when Becker’s term expired, NLRB voted to draw up a
final rule that implements a narrower version of rule
• December 21, 2011 - NLRB adopted final rule, & made it
effective April 30, 2012 for all representation cases filed
after April 30th (NOW IN EFFECT!!!!!)
NLRB Quickie Election Rule
• New time frames for conducing hearings are nor
explicitly established
• Compressed time frame for election (“quickie election”)
• Puts off employer challenges to the scope of a proposed
bargaining unit until after election
• Heightened standard for challenging narrow bargaining
units (Specialty Healthcare ruling)
• Challenges over whether employees are supervisors - &
are not eligible to vote in union elections - are also
deferred until after election, leaving open prospect of
ineligible voters casting ballots
NLRB Quickie Election Rule
• Uncertainty over supervisory status puts employers in
bind because they can only communicate message about
opposing unionization through supervisors (a violation
could overturn election results)
• Gives hearing officer authority to limit pre-election
hearings to issue of whether a question of representation
exists that should be resolved by election.
• Issues such as eligibility of voters will be determined after
election.
• Post-hearing briefs, which are currently permitted, will be
allowed only at discretion of hearing officer.
NLRB Quickie Election Rule
• Eliminate pre-election appeals by consolidating pre- & postelection appeals into a single post-election procedure
• Narrows circumstances for request for special permission to
appeal to Board prior to election being granted
• Permission will be granted only in extraordinary circumstances
when it appears issue addressed in appeal would otherwise
evade review
• Board review will remain available following election on all
issues for which permission to appeal was denied or not sought
• The NLRB’s FAQs can be found at:
http://www.nlrb.gov/news/nlrb-representation-caseamendments-take-effect-today
EEOC Rule on “Reasonable Factors Other Than
Age” under the ADEA
• November 16, 2011, the EEOC issued a draft final
rule clarifying the “reasonable factors other than age”
(RFOA) defense standard under the Age
Discrimination in Employment Act
• Rule aims to bring EEOC regulations in line with
Supreme Court rulings that said plaintiffs in ADEA
cases could rely on disparate impact theory & the
business necessity test (BNT) used to justify
employment practices in Title VII suits didn’t apply
when determining RFOA in age cases
• Final rule expected in first quarter of 2012
EEOC Rule on “Reasonable Factors Other Than
Age” under the ADEA
• BNT is an onerous burden for employers to meet &
it appears EEOC is trying to bring the RFOA test as
close to the BNT as possible while staying within the
Supreme Court precedent
• EEOC is making it harder for employers to use the
RFOA defense
• 2005 - Supreme Court rules that ADEA permitted
older workers to bring disparate impact claims over
employer policies (did not expand RFOA standard)
• 2008 - Supreme Court clarified that BNT had no
application when determining RFOA
DOL Persuader Activity Rule (Pending)
• Proposed in June 2011 to “combat significant
underreporting”
• DOL proposes to broaden the scope of reportable
activities by substantially narrowing its interpretation of
the “advice exemption” in Section 203(c) of the LaborManagement Reporting & Disclosure Act (LMRDA)
• Rule would broaden disclosure requirements to cover
lawyers for 1st time
• Adopts the plain meaning of the term “advice” as “an oral
or written recommendation regarding a decision or course
of conduct”
DOL Persuader Activity Rule (Pending)
• Reportable persuader activities would include where a
consultant engages in actions, conduct or communications
on behalf of employer that directly or indirectly persuades
workers concerning their rights to organize & bargain
collectively, regardless of whether or not consultant has
direct contact with workers
• An agreement would be reportable if consultant engages
in specific persuader actions, conduct or communications
regardless of whether advice is given, such as when a
consultant plans or orchestrates a campaign or program to
avoid or counter a union organizing or collective
bargaining effort
DOL Persuader Activity Rule (Pending)
• Under LMRDA, employers & labor relations consultants
or law firms representing employers must file disclosure
reports when the consultant is retained to persuade
employees with respect to union organizing or collective
bargaining
• One of the forms consultant has to file is a LM-21
• Objectionable by lawyers (attorney-client, financials, etc.)
& small businesses (no in-house consultants)
• Rule goes well beyond just persuader activities (training
managers, reviewing a speech or written materials, etc.)
OSHA’s I2P2 Rule
• “Injury & Illness Prevention Programs” (I2P2)
• Not yet proposed - expected to be pushed out prior to
2012 presidential election
• Rule would require companies to locate & address
workplace health & safety hazards
- OSHA has not updated “permissible exposure limits”
(chemicals, noise) & implementing I2P2 rule could
absolve OSHA from the need to do that & place
burden on employers to identify hazards
OSHA’s I2P2 Rule
• Could be very expensive - research &
implementation of safe guards
• Impact to small & mid-size companies more so
than larger companies
Employment Cases to Watch in 2012
Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC
• Decided January 11, 2012
• Addresses “ministerial” exception to the application
of employment discrimination laws
• First time Supreme Court acknowledged existence of
“ministerial exception”
• Reversed 6th Circuit decision ruling that teacher
could not be treated as a “minister” because her
duties were not primarily involved in teaching of the
faith & that she had no role in spreading faith or in
church government
Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC
• Court refused to establish a bright-line test for
deciding who qualifies as a minister
• Decision only bars discrimination suits by ministers
against religious employers & not lawsuits by lay
employees against religious employers
• Court noted that it didn’t express an opinion on
whether this exception would bar “other types of
suits, including actions by employees alleging breach
of contract or tortious conduct by their religious
employer.”
Patient Protection & Affordable Care Act
(“Obamacare”)
• U.S. Supreme Court Cases:
- Nat’l Fed. Of Independent Business v.
Sebelius, Case No. 11-393
- U.S. Dept. of Health & Human Servs. v.
Florida, Case No. 11-398
- Florida v. U.S. Dept. of Health & Human
Servs., Case No. 11-400
Patient Protection & Affordable Care Act
(“Obamacare”)
• Reviewing constitutionality of PPAC
• Court will consider whether law’s mandate
that individuals buy health insurance or pay a
penalty is constitutional or not
• PPAC will have huge impact on employer’s
bottom line - cost of health care & insurance
for employees
• 5 ½ hours for oral argument (very unusual)
Michael Shane Christopher v. Smithkline
Beecham Corp., Case No. 11-204
• Supreme Court will consider whether FLSA
outside sales exemption applies to
pharmaceutical sale representatives (PSR)
• PSRs are legally prohibited from closing sales
(so are they selling?)
• Review of 9th Circuit ruling affirming an
Arizona court’s finding that exemption applies
to a class of drug sales representatives
Michael Shane Christopher v. Smithkline
Beecham Corp., Case No. 11-204
• Court’s ruling would have greatest impact on
pharmaceutical industry but could have far
reaching consequences for employers
• Will be first time the Court has ruled on scope
of any “white collar” exemptions to FLSA
• Language will likely be used & relied upon in
all other industries
D. R. Horton, Inc. v. Michael Cuda (NLRB)
• NLRB could be at odds with Supreme Court
when it rules on whether an employee
arbitration agreement that includes a class
action waiver constitutes a ULP under NLRA
• Supreme Court came out in favor of waivers in
April (AT&T Mobility LLC v. Concepcion)
ruling that Federal Arbitration Act preempts
state laws that invalidate class action
arbitration waivers
D. R. Horton, Inc. v. Michael Cuda (NLRB)
• Cuda tried to submit class action accusing Horton of
misclassifying superintendents as exempt under the
FLSA
• Horton objected citing employee agreements barring
arbitration of collective claims
• ALJ ruled in favor of Horton but General Counsel to
the NLRB took exception to the decision
• Awaiting decision … will likely end up at Supreme
Court
Active & Aggressive
Administrative Agencies
Federal Agencies
• DOL requested $12.8 billion discretionary budget
authority in FY 2012 & 17,848 full-time equivalent
employees
• W&H requested $240,937 million in FY 2012 & total
of 1,677 FTEs
- Budget includes new multi-agency Misclassification
Initiative that will “strengthen & coordinate Federal &
State efforts to enforce labor violations that result from
the misclassification of employees as ‘independent
contractors’ & to deter such violations in the future.”
Federal Agencies
• Request of $15,223,000 & 107 FTEs will
support field investigator training activities &
an additional 3,250 investigations to industries
with higher rates of violations:
-
Construction
Child care
Home health care
Grocery stores
-
Janitorial
Business services
Landscaping
Poultry/meat processing
Questions & Answers
Labor, Employment, & HR Law:
Recapping 2011 & Preparing for
the Year (2012) Ahead
Aaron L. Zandy, SPHR, Esquire
407-418-2300
azandy@fordharrison.com