NLRB Announces Proposed Rule Requiring Posting of Notice on Employee Rights

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On December 21, the National Labor Relations Board (NLRB) did something it rarely does: it indicated its intent to change labor law requirements through the regulatory process, rather than its normal process of case-by-case adjudication.

See full text of NLRB’s proposed rule on employee rights notice posting, including introductory commentary. NOTE: This is just a proposed rule at this time, with a sixty-day comment period now open.

NLRB Press Release Summary of Proposed Notice-Posting Rule

The NLRB press release states:

The rule would require employers to notify employees of their rights under the National Labor Relations Act.

[T]he Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily by email or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.

The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Key Elements of NLRB’s Proposed Employee Rights Notice-Posting Rule

  • All employers subject to National Labor Relations Act (NLRA) must post notice.
  • Employers must post the required notice of employee rights conspicuously, including all places where notices to employees are customarily posted.
  • Electronic posting by email or on internet or intranet is also required if employer customarily communicates with employee by such means.
  • Translated version may be required if significant portion of workforce is not proficient in English.
  • The NLRB will enforce the new rule by processing alleged failure to post the employee rights notice as an unfair labor practice charge.
  • In addition to remedy of order requiring posting along with a remedial notice, NLRB may enforce rule by tolling statute of limitations for filing an unfair labor practice charge and treating willful failure to post as evidence of unlawful motive in case in which motive is at issue.

Full Text of Proposed Notice

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the
National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

  • Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
  • Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
  • Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
  • Strike and picket, depending on the purpose or means of the strike or the picketing.
  • Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

  • Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking
    lots or break rooms.
  • Question you about your union support or activities in a manner that discourages you from engaging in that activity.
  • Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
  • Threaten to close your workplace if workers choose a union to represent them.
  • Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
  • Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
  • Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

  • Threaten you that you will lose your job unless you support the union.
  • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
  • Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
  • Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
  • Take other adverse action against you based on whether you have joined or support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the
violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: www.nlrb.gov. You can also contact the NLRB by calling toll-free:1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

The National Labor Relations Act covers most private-sector employers.Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the
NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

Employers Must Act Immediately to Comply With Genetic Information Nondiscrimination Act

The federal Genetic Information Nondiscrimination Act (“GINA”) takes effect on November 21, 2009. GINA is a congressional response to scientific and medical advances, including advances in the ability to test DNA in ways that can reveal predisposition to disease or disability, among other personal information. Here is a brief summary of what employers need to know and do immediately about GINA.

DNA

Prohibition of Discrimination Based on Genetic Information

Under Title II of GINA, an individual’s genetic information is now among the characteristics protected by federal employment discrimination laws, along with race, sex, age, etc.

Genetic information is defined as information about:

  • genetic tests of an individual;
  • genetic tests of the individual’s family members;
  • manifestation of a disease or disorder in the individual’s family members.

Genetic information does not include:

  • information about any noticeable disease or symptoms of an individual that has been diagnosed, is symptomatic, or is being treated;
  • information about the sex or age of an individual or the individual’s family member; or
  • results of drug or alcohol tests.

GINA prohibits employer use of genetic information in hiring, firing, promotion, compensation, termination, or other terms and conditions of employment. It further prohibits use of such information to limit, segregate, or classify employees, or to deprive individuals of opportunities.

Limitations on Obtaining Genetic Information

Employers may not request or purchase genetic information about an employee or an employee’s family member (with limited exceptions). Employers also may not obtain such information, including family medical history, from job applicants, including during a post-offer medical examination and history. These prohibitions also apply when obtaining information during the ADA interactive process of seeking reasonable accommodation for employee.

Confidentiality

Any genetic information an employer may have must be treated as confidential medical information and stored in separate medical files.

Posting Requirement

As with many other employment laws, GINA includes a posting requirement in order to provide accurate information to applicants and employees.

The EEOC currently provides two options http://www1.eeoc.gov/employers/poster.cfm for meeting this requirement with free downloads:

  1. a supplement to the existing “EEO is the law” poster; and
  2. an amended “EEO is the law” poster.

Additionally, a number of companies provide commercial employment poster services, advantages of which may include that they combine state and federal posting requirements and that they provide larger, laminated posters and automatic updates, by subscription, for any required changes.

Health Insurance Requirements

Title I of GINA prohibits the use of genetic information by group or individual health insurers in setting eligibility or premium or contribution amounts. It does not, however, prohibit underwriting based on the individual’s current health status, and does not mandate coverage for any particular tests or treatments.

GINA also prohibits health insurers from requesting or requiring individuals to submit to genetic tests, but does not prevent treating physicians from requesting such tests.

Employees’ Rights and Remedies

Individuals have the same rights and remedies for violations of GINA as for violations of Title VII. These include reinstatement, hiring, promotion, back pay, injunctive relief, monetary and non-monetary damages (including compensatory and punitive damages), and attorneys’ fees and costs.

Employers Must Act Now

Regulations supporting GINA will be issued soon. In the meantime, employers must prepare for GINA immediately by:

  • revising post-offer medical exams and histories to comply with GINA;
  • reviewing policies and procedures to make sure genetic information is not otherwise sought; and
  • posting the new EEOC poster or supplement.

Charming the Stimulus Act COBRA:New COBRA Rights and Employer Obligations

A federal subsidy of continued health coverage under COBRA is one of the main “ease-the-pain” provisions of the Stimulus Act enacted February 17, 2009 (the American Recovery and Reinvestment Tax Act of 2009).

This provision is intended to keep the recession from swelling the ranks of the uninsured, by making COBRA coverage more affordable for involuntarily terminated employees and their dependents.

Indian snake charmer in action with Cobras

photo credit: Laertes via flickr

The new COBRA provision is effective immediately, and it retroactively benefits employees terminated involuntarily since September 1, 2008. The new employee COBRA rights are accompanied by new employer notice obligations.

The following is a summary of these new rights and obligations.

Stimulus Act COBRA Subsidy

Currently, COBRA allows continuation of health care coverage that would otherwise terminate due to specified “qualifying events,” but payment is the covered individuals’ responsibility.

In contrast, the Stimulus Act provides “assistance-eligible individuals” a federal subsidy of 65% of their normal COBRA premiums for up to 9 months.

  • They can continue coverage under COBRA for 35% of the normal premium.
  • The government pays the remaining 65% through payroll tax credits.
  • This subsidy is not taxable income to “assistance eligible individuals.”

Who Qualifies as an “Assistance-Eligible Individual”?

The COBRA subsidy is available to employees and covered family members eligible for COBRA coverage between September 1, 2008, and December 31, 2009, if:

  1. The reason for loss of health coverage is involuntary termination.
    • Involuntary termination is not defined in the Act. Employees permanently laid off for economic reasons obviously qualify.
    • The Conference Committee report explains that Congress intended to cover all involuntary terminations — even for cause — except those involving “gross misconduct” (COBRA is inapplicable to these anyway).
    • The subsidy is not available for other COBRA qualifying events (such as divorce, resignation, reduction in hours, or covered child attaining the age limit).
  2. The individual properly elects COBRA coverage pursuant to new election rules allowing retroactive election in some situations in which COBRA would otherwise be unavailable (see below).

The COBRA subsidy is unavailable to taxpayers with modified adjusted gross incomes of over $145,000 ($290,000 for joint filers) or their dependents.

  • Any subsidy payments improper under this rule will be recaptured through additions to income tax for the year in which received.
  • This recapture phases in pro rata for taxpayers with modified adjusted gross income over $125,000 ($250,000 joint).
  • Because taxable income is not determined until the tax year is over, relatively highly-paid individuals may be able to benefit from the subsidy, subject to recapture. They also have the express right to waive the opportunity to this benefit, avoiding any possible tax issues.

“Different Coverage” COBRA Option Under Stimulus Act

Assistance-eligible individulas may receive the subsidy for coverage different than they had while employed, but only if:

  1. The employer chooses to offer this different coverage.
  2. The unsubsidized premium for such coverage is no higher than the premium for their coverage during employment.
  3. Such coverage is also offered to active employees at the time.
    • It is unclear whether this means active employees must be able to change to the different coverage immediately — rather than only at normal open enrollment times — or only that it must be an option available to active employees under normal election procedures.
  4. The different coverage is not one of the following:
    • Coverage providing only dental, vision, counseling, and/or referral services
    • A flexible spending arrangement.
    • Coverage consisting primarily of first-aid services, prevention and wellness care, and/or similar care in an employer-maintained on-site medical facility.
  5. The individual elects the different coverage within 90 days after notice of this option.

Extended Election Period Under Stimulus Act

The Act provides an extended election period to assistance-eligible individuals who did not initially make a timely COBRA election or who did so but lost COBRA coverage due to premium nonpayment:

  • They may elect subsidized COBRA between the Act’s enactment date (February 17) and 60 days after receiving notification of the Act’s subsidy provisions.
  • If they do, subsidized COBRA is not retroactive to the termination date as if a timely election had been made initially. Rather, it starts with the first coverage period after the enactment date. (For a typical plan whose coverage periods are calendar months, such coverage will begin March 1, 2009.)
  • Coverage elected under the extended election period terminates when it would have if elected during the original election period.

New Employer COBRA Notice Obligations Under Stimulus Act

Who Is Entitled to Notice?

The new notice obligations apply to three groups of assistance-eligible individuals:

  1. Those who lost coverage on or after September 1, 2008, but before the Act’s enactment, who are already receiving COBRA coverage or are still in their initial COBRA election period.
  2. Those who lost coverage on or after September 1, 2008, but before the Act’s enactment, who are not receiving COBRA because their initial election period expired and they did not elect COBRA or they elected it but their coverage was cancelled for premium nonpayment.
  3. Those losing coverage due to involuntary termination after the Act’s enactment.

Notice to the first two groups of individuals requires a special effort to identify them all and retroactively provide them with the additional information required (seel below).

Notice to the third group can be accomplished going forward by promptly changing existing COBRA notice procedures.

Notice may be accomplished by amending existing notice forms or using a separate document.

What Must Notices Say?

Notices must include these facts:

  1. That premium subsidy is available, and under what conditions (displayed prominently).
  2. That the option to enroll in different coverage is available — if the employer permits this.
  3. Description of extended election period and duration of coverage if elected during this period.
  4. Name, address, and phone number of plan administrator and anyone else maintaining relevant information in connection with premium subsidy.
  5. Description of obligation to notify plan if a covered individual becomes eligible for coverage under another group health plan or for benefits under Title XVIII of the Social Security Act (events terminating COBRA) and the penalty for failure to do so.

When Must Notices Be Sent?

Notices must be sent within 60 days of the February 17, 2009, enactment.

The Department of Labor is to prepare model notices within 30 days of enactment.

Therefore, employers will have to be ready to implement the new model notices on very short notice (30 days following DOL preparation of the model notices, if DOL is on time). Employers can prepare their own notices and forms, but it is probably preferable to use government-specified ones.

In the meantime, employers should prepare a list of all assistance-eligible individuals entitled to notice based on terminations before enactment (not just employees, but all covered family members).

For assistance-eligible individuals involuntarily terminated after enactment but before the DOL notices are available, employers’ options include:

  • Sending the current COBRA notice, following up with a second notice on the subsidy when the DOL provides its notices.
  • Sending the current COBRA notice, with an accompanying insert briefly mentioning the new subsidy and stating they will soon receive more detailed information and forms.
  • Preparing a complete, tailor-made notice and form and beginning full compliance immediately.

Mechanics of Implementing COBRA Subsidy Under Stimulus Act

Assistance-eligible individuals pay only the 35% portion of COBRA premium. Then “the person to whom premiums are payable” will be reimbursed the remaining 65% by having it treated as as payroll taxes paid. Specifically:

  • The remaining 65% will be a credit offsetting payroll tax liability.
  • If it exceeds payroll tax liability, it will be credited or refunded as if it were an overpayment of payroll taxes.
  • The credit is claimed on Line 12a of the January 2009 revision of Form 941, with the number of individuals provided COBRA premium assistance disclosed on Line 12b.

The following supporting documentation for the credit must be maintained, according to the IRS:

  • Information on receipt of assistance-eligible individuals’ 35% premium shares, including dates and amounts,
  • For insured plan, copy of invoice or other supporting statement from insurance carrier and proof of timely payment of full premium to insurance carrier
  • For self-insured plan, proof of premium amount and coverage provided to assistance-eligible individuals
  • Attestation of involuntary termination, including date, for each covered employee whose involuntary termination is the basis for subsidy eligibility
  • Proof of each assistance-eligible individual’s eligibility for COBRA coverage between September 1, 2008, and December 31, 2009, and of their election of COBRA coverage
  • SSN’s of all covered employees, amount of subsidy reimbursed for each, and whether subsidy was for 1 person or 2 or more

In most instances, the employer is “the person to whom premiums are payable,” who may claim the reimbursement, except where coverage is through a multiemployer plan, in which case the plan itself can claim the reimbursement.

The IRS and Treasury will be providing further details regarding this credit process through regulations.

Employers’ Action Checklist

  • Calendar the notice deadline — 60 days after February 17, 2009 (February 18, 2009).
  • Decide whether to offer a different coverage option to assistance-eligible individuals.
  • Coordinate efforts with insurer, multiemployer plan, or third-party administrator, as appropriate, including determining who will issue notices, collect COBRA premiums from assistance eligible individuals, and recover.
  • Identify all assistance-eligible individuals based on involuntarily terminations since September 1, 2008.
  • Decide whether to create your own notices and forms or await those from the DOL.
  • Begin coordinating with payroll department or payroll service as needed to recover the COBRA subsidy through payroll tax credit using revised IRS Form 941.
  • Establish procedures for handling elections of subsidized COBRA by individuals who already paid in full, through rebates or credits against future payments.

We will continue to analyze this new legislation and will provide further updates to you as we become aware of them. In the meantime, we would be happy to discuss your compliance strategy, and help you begin complying with the new requirements.

Useful Links

40-Cent Hike in Missouri Minimum Wage Effective January 1, 2009

In November 2006, Missouri voters approved an increase in Missouri minimum wage from $5.15 an hour to $6.15, with automatic annual increases thereafter to match increases in the Consumer Price Index.

Federal minimum wage law permits states to impose higher rates, which is now the case in Missouri, as the federal minimum, at $6.55, is significantly lower than the Missouri. For all employers subject to the Missouri law, the higher Missouri rate prevails.

Pursuant to the 2006 law, Missouri minimum wage increased to $6.65 an hour in 2007.

Effective January 1, 2009, it became $7.05 per hour. For tipped employees, the minimum rate is now $3.52 per hour.

Factors Reducing the Impact of the Increase in Missouri Minimum Wage

Missouri businesses with annual gross income below $500,000 are exempt.

Many businesses are not affected because they are already paying a higher rate in order to attract and retain good workers.

And, as one commentator points out, the federal minimum wage is rising later in 2009 as well, and then, at least for a while, Missouri will not be out of step with the rest of the nation:

When the federal minimum rises in July to $7.25 an hour, it will trump the Missouri minimum, taking some fuel from the state opponents’ fire. But, because the Missouri voters tied state increases to CPI changes, the controversy is likely to continue with each annual change…unless opponents succeed in overturning the law.

Update Your Posters

There is a new poster reflecting the new rate. It is available for free download at http://www.dolir.mo.gov/posters2.htm. Fancier versions (e.g., colored, laminated, combined with other required state and federal posters, etc.) are available from many commercial sources.

For More Information About Missouri Minimum Wage, See FAQs About Missouri′s Minimum Wage Law from Missouri Department of Labor Standards

Looking Ahead to 2009: The Potential Revival of Previously Proposed Federal Employment Laws

In the recently convened Congress, we anticipate the revival of a significant number of labor and employment law bills previously introduced, but not enacted into law. The Democratic electoral successes suggest better prospects for the passage of these laws. In fact, one has already been rushed through the legislative process. However, those that appear to impose substantial cost burdens on business may be less palatable to Congress now that jobs have become such a critical concern.

Labor Law

In addition to the Employee Free Choice Act, discussed in a previous article, federal labor law would also be substantially altered by the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act (the RESPECT Act).

This law would redefine “supervisor” for purposes of the National Labor Relations Act. As a result, many workers now deemed to be supervisors would be considered employees. As such, they would be eligible to form and join unions and enjoy other protections afforded to employees under the National Labor Relations Act.

Employment Discrimination Law

The following four efforts to modify existing employment discrimination protections were left on the table by the last Congress:

  1. The Ledbetter Fair Pay Act, a response to a Supreme Court case strictly interpreting the time period within which pay discrimination claims may be brought. This Act has now been passed by Congress. It allows such claims to be brought within a specified time after the date of any discriminatory paycheck, rather than after the date the discriminatory pay practice began.
  2. The Paycheck Fairness Act, which would amend the Equal Pay Act to make it more difficult for an employer to justify differences in pay between male and female employees. This Act would also protect employees who share salary information with their co-workers in furtherance of a sex discrimination investigation, and it would expand Equal Pay Act remedies to include compensatory and punitive damages. It has passed the House already this year, but may face a battle in the Senate.
  3. The Fair Pay Act, which would require equal pay for “equivalent work.” Employers could not pay jobs that are held predominately by women or minority employees less than jobs in the same company held predominately by men or white employees if those jobs are “equivalent in value” to the employer. The Fair Pay Act would make exceptions for different wage rates based on seniority, merit, or quantity or quality of work, and would contain a small business exemption.
  4. The Employment Non-Discrimination Act, which would add discrimination based on sexual orientation to Title VII of the Civil Rights Act of 1964.

Other Employment Issues

Other laws recently proposed involve a variety of other employment issues. These include:

  • The Working Families Flexibility Act, which would create a statutory right for employees to request a change in the number of hours worked, when work is performed, or where work is performed. This Act would not require that the employer agree to any particular request, but would require it to meet with the employee to consider such requests and to provide a written explanation and satisfy other procedural requirements if it refused them.
  • The Patriot Employers Act, which would provide tax credits to employers who increase the proportion of jobs located in the United States.
  • The Employee Misclassification Prevention Act, which would require employers to keep records on and notify workers of their employment or independent contractor classification and their right to challenge that classification. It would also impose penalties on employers who misclassify employees as independent contractors.
  • The Arbitration Fairness Act, which would ban mandatory arbitration agreements in the employment, consumer, franchise, and civil rights contexts.
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