Union Wrongly "Reminds" Employers to Post New NLRB Notice by January 31

Posted by Thomas R. Trachsel on January 30, 2012

Blog Pic - False Stamp.jpgThe National Labor Relations Board (NLRB) has adopted a rule that would require employers under its jurisdiction to post notices informing employees of their rights under the National Labor Relations Act.  (We previously addressed this posting requirement here, here, and here).

SEIU Healthcare Minnesota has been sending letters to employers, stating that they are required to post the notice by January 31, 2012. (A redacted version of the SEIU’s letter is available here).

As we advised on December 23, 2011, the effective date of the posting requirement is now April 30, 2012.  Although the scheduled effective date was at one time January 31, the NLRB announced on December 23 that it has postponed the effective date to April 30. (The NLRB’s December 23 announcement of the postponed effective date is here).

Thus, contrary to SEIU’s letter, you do not have to post the new NLRB notice (in hardcopy or electronic form) by January 31.  Moreover, it should be noted that litigation over the posting requirement is pending, and we expect that at least one U.S. District Court will address the validity of the posting requirement prior to the April 30 effective date.

We will of course provide you with any important updates concerning the new posting requirement.

Unlawful Background Check Policy Costs Pepsi Big

Posted by Grant T. Collins on January 18, 2012

Blog Pic - Go to Jail.jpgLast week, it was reported that Pepsi Beverages agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (“EEOC”).  News of the lawsuit should not be surprising because, as we previously reported, the EEOC is in the process of more carefully scrutinizing employers’ use of criminal background checks and credit checks as part of its E-RACE Initiative (Eradicating Racism and Colorism from Employment).

Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.  Pepsi’s former policy also denied employment to applicants who had been arrested or convicted of certain offenses that were relatively minor.  The EEOC claims that more than 300 African Americans were adversely affected when Pepsi applied their criminal background check policy that disproportionately excluded African American applicants from permanent employment.

It has long been recognized that a blanket policy of denying employment to any person having a criminal conviction violates Title VII as such policies have an adverse impact on minorities. Courts are particularly skeptical of adverse employment decisions based solely on arrest records because statistics show that minorities are arrested at a higher rate, and many arrests never lead to convictions.  Given Pepsi’s reliance on arrest records, they made a good decision to settle the case.

As part of the settlement, Pepsi agreed to amend its background check policy, offer employment opportunities to victims of the former criminal background check policy, provide Title VII training for its hiring personnel and all of its managers, and supply the EEOC with regular reports on its hiring practices under its new criminal background check policy.

Bottom Line

The first lesson of the Pepsi case is that employers must avoid the use of arrest records as part of a background check.  They don’t really tell you if the applicant committed the crime or is likely to do so in the future.  Since statistics still tell us that people of color are arrested on a disproportionate basis, using this non-job related criterion in hiring decisions will eventually result in a disparate impact.

The second lesson is that, rather than implementing a blanket policy, employers are better served by utilizing a more “tailored approach,” screening out only those candidates convicted of an offense that would render them particularly inappropriate for the position in question.  For instance, candidates with poor driving records may be barred from positions involving a great deal of driving.  Likewise, where the position requires an employee to handle money, a candidate convicted of theft or embezzlement could be excluded.

President Announces Intent to Fill Labor Board Vacancies with Recess Appointments

Posted by Thomas R. Trachsel on January 05, 2012

NLRB - GIF.gifThe National Labor Relations Act calls for the National Labor Relations Board (the quasi-judicial body that decides cases, and that also has certain rulemaking authority) to consist of five members, but the Board does have the power and authority to issue decisions at times when it has only three members.

The Board, however, does not have the authority to issue decisions (or adopt new rules) with only two members. This was the conclusion that the Supreme Court reached in June of 2010 in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010).  The New Process Steel case was the culmination of a 27-month period from January of 2008 to March of 2010 during which the Board issued hundreds of decisions with only two members, and it created quite a fallout.  In any case, it is now settled that the Board cannot decide cases or engage in rulemaking any time that it is down to only two members.

Most recently, the Board has consisted of three members – Mark Pearce, Brian Hayes, and Craig Becker.  However, Craig Becker’s term expired at the end of the last session of the Senate, at approximately noon on January 3, 2012.  This reduced the number of Board members to two.

Members of the Board are nominated by the President, subject to the consent of the Senate. Thus, generally speaking, the President is supposed to nominate individuals to serve as Board members, and the Senate is supposed to confirm them before they can actually be appointed. There is, however, an important exception.  When the Senate is in recess, the President may temporarily appoint a Board member without Senate approval, and this is termed a recess appointment.  (Member Becker was, in fact, a recess appointment.)

On January 4, 2012, President Obama announced his intent to recess appoint three individuals as Board members – Sharon Block, Terence Flynn, and Richard Griffin.  These recess appointments would bring-up the number of Board members to five.

The President’s use of the recess appointment process in this case is not without controversy.  Republicans have accused the President of abusing recess appointments by placing controversial individuals into high-ranking positions without the approval of the Senate.  Accordingly, Republican lawmakers have attempted to block recess appointments at this time by holding pro forma sessions in an effort to avoid a recess of more than three days.   The Department of Justice under President Clinton previously opined that a recess has to last for more than three days to permit a valid recess appointment, although the Supreme Court has never ruled on the issue.  In this case, the Senate met on January 3 and is scheduled to reconvene on January 6 – a recess that is too short for making recess appointments, if this is indeed the requirement.

Apart from the three Board members, the President on January 4 appointed Richard Cordray to lead the Consumer Financial Protection Bureau. It remains to be seen whether more recess appointments will follow.  In any event, we anticipate that there will be legal challenges to the President’s authority to make recess appointments in these circumstances.

On a final note, by tradition, the Board (when at its full complement of five members) has consisted of three members from the President’s own party, and two members from the other major political party.  In this case, Mark Pearce (the current Chair), Sharon Block, and Richard Griffin are from the Democrat side, whereas Brian Hayes (the other current member) and Terence Flynn are from the Republican side.  Thus, this collection of five Board members would match the traditional balance.  However, with a majority of three members on the Democrat side, we expect that the Board would continue to issue decisions that many people view as unfavorable to the business community, and that it would also continue to push for controversial changes to the union election process.

Attorney Jessica M. Marsh contributed to this report.

OSHA Planning More Nursing Home Inspections Soon

Posted by Karen M. Charlson on January 02, 2012

Blog Pic - Nurses.jpgThe Federal Occupational Safety & Health Administration (OSHA) recently announced that due to the continued high injury rates among healthcare workers, they would be initiating a national emphasis program – the emphasis being inspections targeting nursing homes and other residential care facilities.  OSHA is not saying when the targeted inspections will start other than to indicate that it will be “within the coming months.”

Interestingly, OSHA already had a site-specific targeting program and approximately 500 nursing homes were inspected in 2011 because of their above-average number of reported work injuries. So, it is unclear how this new “National Emphasis Program” changes what has already been in place.  What is clear is that OSHA believes that nursing home work injuries occur too frequently and at too high of a severity to avoid targeted inspection.

According to statistics published by the Department of Labor’s Bureau of Labor Statistics (BLS) in the Nonfatal Occupational Injuries and Illnesses Requiring Days Away From Work, 2010, report in November 2011, 489 out of every 10,000 employees working as nursing aides, orderlies and attendants sustained injuries that resulted in lost time from work in 2010.  The average rate for all workers in all industries was 118, with bus drivers and law enforcement officers being the only professions with higher rates of loss-time injuries.  The BLS report shows that healthcare workers’ most common injuries were muscle sprains, strains and tears (56%) and the most common causes of injuries were lifting/overexertion (49%) and falls (18%).

In some ways, Minnesota nursing homes may be better prepared to weather the targeted inspections.  Minnesota's state agency (MNOSH) already goes beyond Federal OSHA regulations by having implemented Safe Patient Handling (SPH) requirements for healthcare facilities, including nursing homes.  The SPH Statute, Minn. Stat. § 182.6553 was enacted in 2008 and required healthcare facilities to have a SPH program operational by July 1, 2011.  Consequently, Minnesota healthcare facilities must already have written policies and procedures on safe patient handling, an active committee that identifies, evaluates, addresses and resolves SPH issues, proper equipment, training, assessment tools and methods for properly recording and reporting on SPH issues.

For many nursing homes, this “National Emphasis Program” will not translate into a greater chance of citation for violations.  However, it may make it more likely that the new year will bring a visit from a MNOSH inspector.