Minnesota Employment Law Report - Observations on labor and employment law from FLFV

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held that the new rule from the National Labor Relations Board (the “Board”) requiring employers to post a notice regarding employee rights under the National Labor Relations Act (“NLRA” or the “Act”) is invalid because it violates employers’ free speech rights. National Ass’n of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. May 7, 2013).

The D.C. Circuit’s decision does not directly address the requirement under Executive Order 13496 that covered federal contractors post a different (albeit similar) notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA. While the decision suggests that requiring this posting could also violate employers' free speech rights, because the decision did not directly address the Executive Order, federal contractors should not remove the notice that they are required to post.

The Board’s Posting Rule

As we previously reported, in August 2011, the Board published a rule requiring nearly all private-sector employers to conspicuously post a notice entitled, “Notification of Employee Rights under the National Labor Relations Act.”

With regard to enforcement of the posting requirement, the Board’s posting rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.

D.C. Circuit Strikes Down Posting Rule

After finding that the Board had sufficient members to issue the posting rule (because the Board still had at least three lawfully appointed members at the time it promulgated the posting rule), the Court analyzed whether requiring employers to post the Employee Rights Notice violates employers’ free speech rights under the Act.

Section 8(c) of the Act protects an employer’s First Amendment right to engage in non-coercive speech about unionization and expresses a congressional intent to encourage debate on labor-related issues. Specifically, Section 8(c) provides, in relevant part:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Drawing from First Amendment case law, the court concluded that while Section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is, the Board’s rule mandates that the failure to post the Employee Rights Poster constitutes an unfair labor practice, and can also be evidence of anti-union animus to support another unfair labor practice. Thus, both of these enforcement mechanisms violated the plain language of Section 8(c) by requiring the employer to disseminate the Board’s Notice in order to avoid one or more unfair labor practice charges.

As to the tolling of the 6-month statute of limitations, the court held that Congress could not have foreseen the type of alleged equitable tolling the Board would attempt to enact into law in 2011, and thus could not have intended that equitable tolling be incorporated into the Act. As a result, the Board’s equitable tolling theory violated the Act.

Because the court concluded that the Board would not have adopted the posting rule absent any basis for enforcement, the court invalidated the posting rule as a whole.

Bottom Line

For now, employers are not required to post this notice (the Supreme Court could ultimately overrule the D.C. Circuit’s decision). As noted above, however, federal contractors are advised to continue to post the notice required by Executive Order 13496 until further notice. We will be closely following this issue. Stay tuned for further developments.

In Genesis HealthCare Corp. v. Symczyk, No. 11-1059 (April 16, 2013), the U.S. Supreme Court ruled that an employee could not continue pursuing her Fair Labor Standards Act (“FLSA”) collective action after her employer made an “offer of judgment” (a type of settlement offer) that would pay her entire claim.

Factual Background

In 2009, RN Laura Symczyk filed a lawsuit on behalf of herself and "all other persons similarly situated" claiming that her employer violated the FLSA by automatically deducting a 30-minute meal break from her daily pay.  In response, the employer made an offer of judgment under Federal Rule of Civil Procedure 68, which provides that if the offer is not accepted, and if the ultimate judgment in the case does not exceed the offer, the party rejecting the offer must pay all the subsequent costs incurred by the other side. The employer’s offer in this instance was $7,500 for alleged unpaid wages as well as "such reasonable attorneys' fees, costs, and expenses . . . as the Court may determine.”

Symczyk failed to respond to the offer one way or the other, so the employer asked the court to dismiss the case. The employer argued that the claim was now moot because the employer offered Symczyk complete relief on her individual damages claim. The trial judge agreed, noting that since no other individuals had actually joined the suit, the employer’s offer of judgment fully satisfied Symczyk's claim. The judge felt that Symczyk should not be allowed to continue litigating when she was already being offered everything she was seeking.

The Third Circuit Court of Appeals disagreed, however, noting that while Symczyk's claim might have been moot, the claims of the proposed class were not completely satisfied. The Appeals Court concluded that a defendant is not permitted to use an offer of judgment to "short-circuit the class action process." This might seem a bit odd since there were no other members of the class, but under the terms of the court’s previous rulings, there was still time for other people to “opt in” to the litigation. Therefore, technically not all of the claims were resolved by the offer of judgment.

Supreme Court Decision

The case was appealed to the U.S. Supreme Court, who agreed with the original ruling that dismissed the case. They ruled that since Symczyk’s individual case became moot, she no longer was an adequate representative of the class of persons harmed by the challenged employment practice. With nobody else able to step up and fill that role, the case had to be dismissed.

One of the questions that the Supreme Court left open was whether an offer of judgment that is not accepted by the other side should be allowed to end the litigation. It seems reasonable to say that if the lead claimant is offered everything she is seeking, she shouldn’t be allowed to reject the offer and keep suing. On the other hand, should employers be able to short circuit the entire action simply by satisfying the lead claimant's claim? Courts differ on this issue, and the Eighth Circuit (in which Minnesota sits) has not yet weighed in.

Bottom Line

The employer’s approach in this case might be useful in some instances to avoid protracted litigation. However, it is not certain whether the federal courts in Minnesota would approve such a tactic, and it is very possible that employers would not want to make such offers because they could be seen as tacit admissions that they did in fact violate the FLSA.

The United States Citizenship and Immigration Services (“USCIS”) released a new Employment Eligibility Verification Form I-9 (“Form I-9”) this month. 

The Form I-9 is used to verify both the employment authorization eligibility and the identity of employees.  Although employers should begin using this new form immediately, the USCIS acknowledges that some employers may need sufficient time to update their business processes prior to transitioning to the use of this form. As a result, if necessary, employers can continue using previously valid Forms I-9 until the use of the new form becomes mandatory on May 7, 2013.  Employers who fail to utilize the new Form I-9 as of May 7, 2013, may be subject to penalties as set forth in 8 U.S.C. § 1324(a).

Provided that re-verification does not apply, employers are not required to complete a new Form I-9 for any current employees for whom proper Forms I-9 are already on-file.

The changes are aimed at minimizing errors in form completion and include:

• Expanded instructions;


• Expanded length from one to two pages; and


• New fields for e-mail addresses, phone numbers, and foreign passport information in Section 1.

The revised form includes “Rev. 03/08/13” in the lower left corner of the page and is accessible at www.uscis.gov.

Bottom Line

Employers should be aware of the new Form I-9 and begin utilizing it immediately, if possible. Failure to use this new form when it becomes mandatory on May 7, 2013, may subject employers to penalties.

More information about the new Form I-9 is available at www.uscis.gov/I-9Central.

In a move with extremely significant implications, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s three recess appointments to the National Labor Relations Board in January of 2012 were unconstitutional. Because the three recess appointments were invalid, the Board was legitimately comprised of only two members (an insufficient number) when it issued its decision and order in the underlying case. (As we previously reported, the U.S. Supreme Court held in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010), that the Board must have at least three members (i.e., “quorum”) to issue decisions and orders, as well as rulemaking.) Accordingly, the D.C. Circuit in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2012), vacated the Board’s unfair labor practice determination.

Generally, the President is supposed to nominate Board members, and the Senate is supposed to confirm, before they can be appointed. However, it has been recognized that when the Senate is in recess, the President may temporarily appoint a Board member without Senate approval. On January 4, 2012, President Obama, attempting to appoint Board members without Senate approval, recess appointed three individuals as Board members – Sharon Block, Richard Griffin, and Terence Flynn. If valid, this action would have properly taken the Board up to a full complement of five members (albeit only for a limited period of time).

In this case, however, the D.C. Circuit invalidated the recess appointments on two separate grounds. First, the court reviewed the text and history of the Recess Appointment Clause to the Constitution and held that a recess appointment must be made during “intersession recesses” of the Senate. The Board appointments were not made during an intersession recess because they were made on January 4, 2012, which was one day after the Senate began a new session.

Second, the court concluded that the Constitution permits the President to make a recess appointment only when the vacancy arises during the recess. Two of vacancies arose on dates when the Senate was in session, so those vacancies did not qualify for a recess appointment. The final vacancy, which was open on January 3, 2012, was similarly invalid because “the Senate did not take an intersession recess . . . .” Instead, the Senate held “pro forma” sessions every three days from December 20, 2011 through January 22, 2012.

Bottom Line

The Board has, since January of 2012, issued numerous important decisions (some of which purported to change well-established law), and the Board has also engaged in significant rulemaking. Unless the D.C. Circuit reverses itself – or the Supreme Court overturns the D.C. Circuit’s decision – all of the Board’s recent and controversial actions are in jeopardy. Undeterred, Board Chairman Mark Gaston Pearce has announced that the Board will continue issuing decisions and orders notwithstanding the D.C. Circuit’s decision.

Now that we are well into January of 2013, the President has no ability at the present time to recess appoint anyone as a Board member, and given the position of the White House that the appointments were constitutional, it seems unlikely that the President will nominate a package of Board members for Senate approval. In the meantime – while this issue continues to be reviewed by the Courts – the Board and its decisions and orders are in limbo.

Attorney Grant T. Collins also contributed to this report.

On January 14, 2013, the U.S. Department of Labor (“DOL”) issued a new Administrator’s Interpretation on who qualifies as an adult “son or daughter” under the Family and Medical Leave Act (“FMLA”) when an employee seeks protected leave to care for that individual.

FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave during a 12-month period to care for a son or daughter with a serious health condition. The definition of “son or daughter” includes individuals over the age of 18 if:

1. the individual has a disability as defined by the ADA (as amended by the ADA Amendments Act of 2008 (ADAAA));


2. the individual is incapable of self-care due to that disability, which means that he or she “requires active assistance or supervision to provide daily self-care in three or more of the ‘activities of daily living’ or ‘instrumental activities of daily living’”;


3. the individual has a serious health condition; and


4. the individual is in need of care due to the serious health condition.

Child’s Age at Onset of Disability Is Not Relevant

The Administrator’s Interpretation makes clear that FMLA leave is available even if the employee’s child developed the disability after reaching the age of 18.  In short, FMLA applies to caring for adult children if they meet the requirements set forth above.

More Adult Children Will Qualify as “Disabled” Under the Amended ADA

The Administrator’s Interpretation reminds employers that the ADA’s definition of “disability” has been substantially broadened by the ADAAA.   For example, there is no minimum duration for an impairment to be considered a disability, and an impairment that is in remission can still be considered a disability if it would substantially limit a major life activity when it is active. Even so, FMLA leave is only available if the adult child is incapable of self-care due to a disability and needs care due to a “serious health condition” under the FMLA regulations.

As an example, an employee’s 25-year old son with diabetes qualifies as having a disability under the ADA, but if he lives independently and does not need assistance with any daily activities, he will not be considered an adult “son” under FMLA. However, if he becomes unable to walk and care for himself, he will meet the definition and a parent could then take FMLA leave to care for him if such care is needed for a serious health condition.

Bottom Line

While an Administrator’s Interpretation does not carry the same weight as a regulation or judicial opinion, it does offer detailed guidance to managers applying the FMLA’s provisions in the context of employees caring for adult children.  Employers should study its contents carefully and ensure that qualifying parents are afforded FMLA leave.