Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Several mid-week updates on a variety of topics.

IMMIGRATION. 

     The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today.  Their opinion(s) are expected in several months.  I will update you on this topic once a decision is rendered. 

     In the meantime, the Alabama Legislature is working on potential amendments to HB56.  I have not reported on this, and will not, until it becomes law.  When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.

FACEBOOK PASSWORDS. 

     There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts.  Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law.  Many other states are considering passing such laws.  Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.  

     For employers that do ask for passwords to social media sites, and actually look at them, caution is advised.  Learning too much information can lead to lawsuits.  Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws.  The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment.  This could lead to a push for unionization by the workforce at employers who ask for passwords

UNIONIZATION. 

          Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed.  Yesterday, the Senate blocked an attempt to delay the implementation of the rules.  There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules.  I posted about the new rules on December 7. 

 EEOC RULES ON TRANSGENDER PROTECTION. 

     The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII.  Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix.  At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male.  After applying, Macy went through a transition and became a female.  Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts.  In fact, the job had been filled with someone else.  Macy filed a complaint with the EEOC alleging sex and gender discrimination.  The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions.  The EEOC's enforcement activities will apply in both the public and private sectors. 

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I have posted recently about the NRLB requirement for the posting that informs employees of their rights under the NLRB.  Last week, a Federal District Judge in South Carolina found that the Poster was unlawful, but did not block it's implementation.  This created a split between the courts, and left employers wondering what to do.  Now, the U.S. Court of Appeals for the District of Columbia Circuit has entered an injunction halting the implementation of the NLRB's rule to post this information.  The Court will hear additional arguments concerning the Poster requirements to determine if they are legal or not.  In light of this ruling, there is no requirement to post the NLRB Poster at this time. 

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The National Labor Relations Board currently consists of 3 members: 2 Democrats and 1 Republican. At the present time, 2 seats are vacant.  The Republican member has threatened to resign so that there would not be a legal quorum, but has not done so.  This past June, the NLRB published proposed amendments, which would make it quicker and easier for unions to organize in the workplace.  On November 30, the NLRB, on a 2-1 vote along party lines, approved a Resolution to proceed with the new rules.  The Resolution is not the law, but is a summary of what will soon be published as the Final Rules.  In light of the fact that the Republican member's term expires on December 31, causing the NLRB to lose the ability to have a quorum, I anticipate that their will be a hard push to publish the Final Rules before year end.  The changes that will speed up the union election process are:

     Pre-election hearings can be limited by the hearing officer to whether a question of representation exists.  With limited exceptions, this means that disputes concerning voter eligibility would be determined after the election.

     The hearing officer will have to give express permission for parties to file post-hearing briefs.

     The right to seek review of any rulings made concerning the appropriate bargaining unit and related items will not be allowed until after the election has taken place and the ballots counted.

     The current regulations which provide a minimum of 25 days from the time the regional director directs an election to the time of the election itself, will be rescinded.  This time period provided an opportunity for the NLRB to rule on a request for review if filed.

     Permission to directly appeal to the NLRB will require a showing of "extraordinary circumstances".

     The NLRB's review of a regional director's or judge's resolution of post-election disputes will be discretionary after both stipulated and directed elections. 

The NLRB has posted an Explanation of Resolution on it's website. 

Practice pointers.  With private sector union membership at an historically low rate of 6.9%, labor organizations are pushing these changes to speed up the election process to deny employers the opportunity to educate their workforce as to the pros and cons of unionization. For employers, now is the time to determine if there is any discontent in the workplace, and if so, try to address the issues.  If approved, which I think they will be, unions will once again begin campaigning to unionize as many workplaces as possible.   With the Republican member dropping off the Board as of December 31,the NLRB will not have enough members to obtain a quorum, and  the Democratic majority expects to vote before year end. 

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November 14, 2011 is the day that employers covered by the National Labor Relations Act (NLRA) will be required to post a notice regarding employee rights to unionize.  The NLRA applies to both unionized and non unionized workplaces, with certain exceptions.  The National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the NLRA.  The posting, which will be available on or before November 1 on the NLRB website, includes language setting forth the rights of employees under the NLRA, including the right to organize a union to negotiate with the employer concerning wages, hours and other terms and conditions of employment, discuss wages and benefits with co-workers, and their right not to join or remain a member of a union.  Language is also included concerning actions the employer is prohibited from taking, including questioning employees about union support or activity in a way that discourages employees from engaging in that activity, threatening to close a workplace if employees choose a union to represent them, and promise or grant promotions or pay raises to discourage or encourage union support.  Finally, the notice includes language explaining what unions cannot do under the NLRA, including threatening or coercing employees in order to gain support for the union or take adverse action against employees because they have not joined or do not support the union. 

The rule requires the following of employers who are covered by the NLRA:

     Employers must post and maintain the NLRB notice in a conspicuous place and to take reasonable steps to ensure that the notices are not altered, defaced or covered by any other material, or are otherwise unreadable.

     If the employer customarily posts notices to employees regarding personnel rules and policies on an Internet or intranet site, the NLRB's rules must also be posted on such sites.

     In a workplace where 20% or more of the workforce is not proficient in English and speaks a language other than English, the employer must provide notice in the language that such employees speak.  The NLRB has offered to provided translations of the notice.

     In a workplace that includes two or more groups constituting at least 20% of the workforce who speak different languages, the employer must provide the notice in each such language.  The NLRB has offered to provide translations of the notice.

    Failure to post the notice may be deemed an unfair labor practice. 

Practice pointers.  Once again, this is a reason to train supervisors about the notice, the employer's position on unionization, and how and when these issues can be communicated with employees.  The employer is permitted to post its position concerning unionization, but this should be done carefully to comply with the NLRA.  It is important to note that THE NLRA APPLIES TO BOTH UNION AND NON UNION workplaces, and I anticipate that this rule will have a significant impact on workplaces that are union free or partially unionized. 

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Last week, a federal jury in Birmingham returned a $314,000 verdict in favor of Albert Thomas and against Chemical Lime Co. located in Calera.  Mr. Thomas worked for Chemical Lime for 25 years, and was fired after he filed a charge with the EEOC.  The lawsuit contained 8 claims, including racially charged allegations that a supervisor left what appeared to be Klu Klux Klan garb in plain sight for Thomas and that one of his supervisors held up one of the hoods while making inappropriate comments and gestures, including "you won't be working here much longer, you will be with your brothers on the street" and threatening to "fire his black" backside.  This case is of particular interest since the jury found that Chemical Lime was not guilty of the underlying allegations, but only of retaliation for firing Thomas after he filed his charge with the EEOC. 

Practice pointer.  This case demonstrates that  not only can the allegations themselves lead to an adverse judgment, but that the claim of retaliation can result in a large verdict, even without a finding that the alleged underlying wrongful conduct took place. 

UNION MEMBERSHIP DOWN IN 2010. 

According to USA Today, the Bureau of Labor Statistics reported last Friday that union membership in 2010 declined by 612,000 from 2009.  In 2009, unionized workers represented 12.3% of the workforce, and in 2010, this dropped to 11.9%.  Private sector union membership fell from 7.2% to 6.9% of the workforce, while Public sector union membership dropped 1.2%.  The article points out that Black workers are more likely to be union members than White, Asian or Hispanic workers, that union membership was highest among those 55-65 and lowest among those 16-24, and that New York had the highest union membership rate at 24.2%, while North Carolina, at 3.2%, was the lowest. 

Practice pointer.  Unions will continue to push into non-union business sectors in Alabama and around the country in an effort to grow their numbers.  Employers must be aware of any organizing activity in their workplace, and be very careful how they respond.  Their are very specific rules and regulations on what can and cannot be done in this situation. 

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Yesterday, I reported that the Executive Committee of the AFL-CIO was meeting in Miami, and Vice President Biden and Labor Secretary Solis would address the meeting in person.  President Obama, via a previously recorded videotape, made an appearance on Tuesday.  In the videotape, according to the Wall Street Journal, President Obama stated that "We will pass the Employee Free Choice Act".  The Senate should be considering the EFCA in by the end of the month. 

The EFCA remains high on the President's legislative agenda, and I anticipate it's passage will be pushed hard by the President in the Democratic controlled Congress.  I will continue to keep you posted as this Act winds it way through Congress.

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I have previously written about various aspects of the new administration and how it may impact on the growing presence of unions in Alabama and around the nation.  Today, the Wall Street Journal reports that union leadership is gathering this week in Miami to discuss their agenda, which is described as "ambitious".  At the top of the list is the Employee Free Choice Act legislation.  Recently appointed Labor Secretary Hilda Solis, who met with the group on Monday, and is scheduled to meet with them again today, is quoted in the Wall Street Journal as saying "There is a new sheriff in town".  Vice President Biden is scheduled to meet with the group on Thursday. 

The fact that both Labor Secretary Solis and Vice President Biden are attending the meeting of the AFL-CIO executive council in person demonstrates the Obama administration's intent of increasing union presence in the American work force. 

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This is the third entry in a series addressing issues that may arise in 2009.  This entry  will focus on employment trends, both in Alabama and nationwide. 

In a recent report in the Birmingham News concerning union participation, figures from the  Bureau of Labor Statistics show that  the number of Alabama workers who are union members barely increased in from 180,000 in 2007 to 181,000 in 2008.   In 2007,  9.8%, of Alabama's workforce was represented by unions.  This number increased sligtly to 10.7% in 2009.  The percentage of union workers in Alabama was tops in the Southeast, ahead of Florida (7.9%), Mississippi (7.3%), Tennessee (6.6%) and Georgia (4.6%).  I anticipate that these numbers will increase in 2009 and 2010, and the increase may be significant if the Employee Free Choice Act becomes law.

The Bureau of Labor Statistics reported that in 2008 a total of 2,394,434 workers were laid off, with 226,117 being laid off in December.  With more companies announcing layoffs, such as GM and Wal-Mart this week, it appears as if 2009 will continue to be a bad year for workers losing their jobs.  Alabama workers are not immune:  so far this year, at least 10 large Alabama employers have notifed the state that they intend to terminate approximately 1,700 employees from ther jobs.  Most recently, Graphic Packaging International in Tuscaloosa, announced this week that it is planning on laying off 90 workers later in 2009.

Several weeks ago,  the New York TImes ran a story entitled "Layoffs Herald a Heday for Employee Lawsuits", concluding that many of the newly terminated employees will head to the EEOC or attorneys to pursue legal action. 

Practice Pointer.  As more employees are terminated from their jobs, I anticipate that there will be an increase in claims and lawsuits, especially since they will have difficulty finding new jobs in this tight job market.  Employers need to update their policies and procedures to comply with existing and new employment laws, train the managerial and supervisory staff as to the laws and the company's policies, and treat their employees as fairly as possible during these difficult times.

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Now that President Obama has signed his first law into place, the Lilly Ledbetter Fair Pay Act, Congress will continue to move forward with other employment related bills.  The Employee Free Choice Act (EFCA) is high on the agenda.  The EFCA, as proposed, will allow the workplace to  be unionized based on signed cards, and not through secret ballot elections.  Once the union organizers obtain 50% of the work forces' signatures, that will be sufficient to unionize that workplace. 

Perhaps more importantly, the EFCA contains a mandatory contract requirement.  At the present time, approximately 30% of newly elected unions are not successful in signing a contract. The EFCA provides that if a contract cannot be negotiated between the union and the employer, the first contract will be set by federal arbitrators.

Just this week, the Bureau of Labor Statistics reported that union membership rose by 428,000 members, or 12.4%, in 2008.  This is the biggest gain since the government began compiling such statistics.  This is the second year in a row that union membership has risen: in 2007, unions added 311,000 new members, or 12.1%.  With the economy where it is right now, unions have a compelling argument that they are an important part of job security, and I anticipate union membership will rise in 2009, with or without the passage of the EFCA.

Another unintended consequence of unionization was highlighted in the recent Supreme Court decision of Locke v. Karass (US Supreme Court 1/21/09).  In Locke, the Court held that the First Amendment permits a local union to charge nonmember employees represented by the union for national litigation expenses as long as the subject matter of the litigation is of a kind that would be chargeable if the litigation were local, and the charge is reciprocal in nature, i.e. that the contributing local would reasonably expect other locals to contribute in a similar manner.

Practice Pointers.  With the increase in union membership, and the possible passage of the EFCA, employers should be proactive in communicating with the workforce.  Emphasize the company's' strengths.  Review the history of the company with employees.  If there are any weaknesses (lower pay, benefits, etc.), work on resolving these issues through compromise.  Educate management and employees about how unions really work, and dispel any myths.  Train supervisors to be on the lookout for signs of potential unionization, and report it to upper management immediately. 

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