District Court Issues Opinion on NLRB Notice Posting Requirements

On March 2, 2012 the U.S. District Court for the District of Columbia issued a 46 page opinion responding to separate actions brought by the National Right to Work Legal Defense and Education Foundation and the National Association of Manufacturers.   You may recall from previous blog postings that the actions were brought in response to the National Labor Relations Board’s Final Rule on “Notification of Employee Rights under the National Labor Relations Act”.   This Rule was divided into three Subparts.   Subpart A contained notice posting provisions.  Subpart B contained enforcement provisions and Subpart C contained ancillary provisions. 

The Notice Posting Requirement required that employers post an eleven-by-seventeen inch poster alerting employees to their rights to organize under a union, form a union, join a union, assist in a union, bargain collectively as a union, discuss wages and benefits with co-workers or a union, strike, picket, or make the choice to “not” do any of these activities.  Employers would also be required to post a translated notice where 20% or more of the workforce is not proficient in English and to post the notice on internet sites currently used for employee communications.

The Enforcement Provisions stated that an employer’s failure to post the employee notice “may be found to interfere with, restrain or coerce employees” in the exercise of their rights guaranteed by the National Labor Relations Act.  Under the terms of the Proposed Rule, after an investigation and an attempt to persuade the employer to post the notice a formal complaint could be issued, triggering a hearing before an Administrative Law Judge.   Under the new rule, the employer would be ordered to cease and desist the unlawful conduct. The employer could also face additional remedies.   As part of this Subpart, the Board would be able to toll the statutory six month statute of interpretations for an employee who has filed a complaint and consider and employer’s knowing and willful refusal to comply as evidence of unlawful motive. 

The court held that the NLRB properly issued Subpart A of the rule requiring private sector employers to post the notice informing employees of their rights and can consider and employer’s knowing and willful failure to post the notice as evidence of unlawful notice.   However, the court also held that the NLRB cannot issue a rule automatically deeming an employer’s failure to post the notice as an unfair labor practice and cannot equitably toll the statute of limitations in unfair labor practice actions against employers who opt not to post.   Any case brought against an employer for not posting the notice must be decided on the individual facts and circumstances in each case. 

It is not known if either side will appeal the court’s ruling so as of now - Private sector employers are required to post the required notice in the workplace by April 30, 2012.   Posters can be ordered or downloaded from the NLRB website. The development of Employer Right’s Posters, countering the required NLRB posters, are a service offered by Capozzi & Associates.   Contact our firm for more information. 

Policy Honoring Racial Preferences of Residents Deemed Illegal by 7th Circuit (So what about gender related preferences?)

In a decision by Judge Williams dated July 20,2010 it was found that a work environment at a nursing home which included a written policy of not allowing a black nursing assistant to provide care for a resident who did not want care from black assistants was hostile and abusive.     This may be quite obvious to many readers, but this case decided in 2010 was based on facts that took place in 2006 – 42 years after the Civil Rights Act of 1964 was enacted!

I bring this case to your attention for two reasons.  First, to reinforce that state specific policies related to the privacy rights of residents to choose their health care providers do no “trump” federal regulations related to discrimination in employment, care and services.  Second, to address an issue that has plagued long term care facilities for many years – the issue of sex discrimination in the health care setting.    

This case compares the two by stating that privacy interests that are offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race.   Just as the law tolerates same sex restrooms or same sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same race providers.

The employer in this case argued that under state law a resident had a right to choose a personal attending physician and other providers of services.  This created a conflict between state and federal law.  When two laws conflict, one state and one federal, the Supremacy Clause dictates that the federal law prevails.  The Court found that the employer should have taken reasonable efforts to inform residents, prior to admission, of their non-discrimination policies, secure the residents consent, attempt to reform the resident’s behavior and assign staff based on race-neutral criteria that minimize the risk of conflict.   And even if all of these measures do not fully guarantee racial harmony, they exemplify “reasonable” measures that the employer can take.

With regard to the difference between these measures and varying treatments of residents based on gender, the court found that the line of cases cited in this case taken together hold that gender may be a legitimate criterion- a bona fide occupational qualification for accommodating a patients’ privacy interest.   For more on Title VII cases permitting sex discrimination see Jennings v. NY State Office of Mental Health (786 F.Supp 376 (S.D.N.Y 1992), Fesel v Masonic Home of Del., Inc. (447 F.Supp 1346) and Backus v Baptist Med. Ctr. (510 Supp. 1191). 

White House Announces Recess-Appointments to Serve as Members of the National Labor Relations Board

The National Labor Relations Board website reported today that President Obama announced his intent to recess appoint the following three individuals to serve as Members of the National Labor Relations Board.

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

The last day of Member Craig Becker’s service was Tuesday, Jan. 3. With the expiration of his appointment, the Board dropped to two members, Chairman Mark Gaston Pearce and Member Brian E. Hayes. The Board was last at its full five-member strength in August of 2010.

Staffing Regulation

Mandatory Overtime:

Not an Answer to Your Staffing Problems                                              

Signed into law on December 18, 2008 and effective July 1, 2009, the Prohibition of Excessive Overtime in Health Care Act limits the circumstances under which a PA health care facility can mandate overtime to only two – unforeseeable emergent circumstances and completion of a patient procedure already in progress.   This new law is applicable to all health care facilities: general and special hospitals, rehabilitation hospitals, hospice, ambulatory surgical facilities, long term care nursing facilities, inpatient drug and alcohol treatment facilities and cancer treatment centers. 

The American Nurses Association’s position is now and has always been that “Mandatory overtime is one of the many workplace issues that may be contributing to nurses leaving the workforce. Concern for the long term effects of overtime leading to fatigue includes potential for diminished quality of care, errors or near misses, as well as the negative impact on the care-givers health.”  But with unemployment rates exceeding 10% in some states and health care being designated a growth industry in this economy, health care facilities are stilling finding it difficult to staff nursing positions due to high turnover rates, poor performance and lack of qualified candidates.    As a result, overtime is soaring as patient care needs continue to be met for the population that is aging now at the highest growth rate ever.  

Overtime can be an answer to your problems but only if used appropriately and in accordance with the Act.  In addition to emergent circumstances (defined as an act of terrorism, a natural disaster or widespread disease outbreak), the law allows mandatory overtime for unexpected absences, discovered at or before the start of a scheduled shift, which could not be prudently planned for by an employer, and which would significantly affect patient safety.   Mandatory overtime can be used in these circumstances but it needs to be the option of last resort.   The health care facility must attempt to fill the vacancy with regular hours, per diem and agency before resorting to mandatory overtime hours.   They must exhaust all reasonable efforts to obtain staff in any other way possible. 

The law also allows overtime by agreement between the facility and the staff.   An employee may “accept” work in excess of their originally agreed upon number of hours.   And although an employee who works a consecutive 12 hours shift is entitled by law to 10 hours of off duty time, they may also waive the requirements voluntarily.  

The Act does not define “mandatory” but hospitals should be cautious when implementing “voluntary” overtime sign- up sheets or other methods of identifying staff to cover call offs and vacations which may be perceived by employees as being a mandatory condition of their employment.   

REGULATORY UPDATE

Recent Changes in Social Security

Some information was recently released by the U.S. Social Security Administration which may have gone unnoticed at your organization.   To help keep you and your staff up to date on those changes that may affect your operations, some key points are listed below. 

·         Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012.

·         A 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011.

·         For some beneficiaries, their Social Security increase may be partially or completely offset by increases in Medicare premiums.

·         In January 2012, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $110,100 from $106,800.

·         Of the estimated 161 million workers who will pay Social Security taxes in 2012, about 10 million will pay higher taxes as a result of the increase in the taxable maximum.

·         A new way for members of the public to participate in open and transparent government invites people to provide direct feedback on rules and regulations by emailing RegsReview@ssa.gov.

Stay up to date on press releases and news from the Social Security Administration at www.ssa.gov.

Social Media Update - Comments Legally Protected as Concerted Activity

Social Media Update – Comments Legally Protected as Concerted Activity           The U.S. Chamber of Commerce released a survey recently indicating that the National Labor Relations Board has reviewed more than 129 cases involving social media in some way.  As a result of these cases there have been 7 settlements, 2 Board decisions and 10 memoranda issued by the General Counsel.   A significant percentage of these cases involved non-union employers with no union activity.   The most common issue – overbroad employer policies restricting an employee’s use of social media.  NLRB General Counsel in a memorandum dated 5/5/2010 recalled that the Board has held that “an employer’s discipline of an employee based on a website statement relating to terms and conditions of employment is unlawful.”  These communications referred to as “other concerted activity” are protected under Section 7 of the National Labor Relations Act in addition to rights of employees to self-organize, to form, join, or assist labor organizations, and to bargain collectively through representatives of their own choosing.  Concerted activity, to be protected, must be for the purpose of collective bargaining or for “other mutual aid or protection”.  Though not defined by the Act, the NLRB has found concerted activity to include statements made by an employee when acting with the authority of other employees seeking to initiate, induce or prepare for group action or to bring group complaints to the attention of management.  Specific cases have found concerted activity present where employees complained of terms and conditions of employment including: wages, corrective actions, discharges, employer investigations, pay practices and working conditions.  These complaints came in the form of emails, posts and blogs.  Since the application of the Act to social media policies is a major developing area and NLRB decisions are specific to the underlying facts, only time will tell where the line will be drawn between protected activity and mere griping.