Arizona's minimum hourly wage will increase by $0.30 per hour on January 1, 2012, from $7.35 to $7.65 per hour. The increase was recently announced by the Arizona Industrial Commission, and reflects a comparable percentage increase in the cost-of-living formula -- specifically, the federal Consumer Price Index for All Urban Consumers -- to which Arizona's minimum wage rate is statutorily tied.

Prior to 2006, there was no generally applicable state minimum wage law in Arizona. The only minimum wage rate of concern to most Arizona employers was the one established by the federal Fair Labor Standards Act ("FLSA"). However, in November 2006, Arizona voters approved a ballot initiative, known as Proposition 202, that established a broadly applicable state minimum wage, and provided for annual upward adjustments to that wage to reflect the rate of inflation.

The initial state minimum wage, which became effective on January 1, 2007, was $6.75 per hour. Since that time, the state minimum wage has increased steadily, although by varying amounts, every year except 2010, when there was no adjustment in the statutory wage rate because there had been no increase in the applicable cost-of-living index during the preceding year. The $0.30 increase that will become effective in 2012 is the largest annual increase since the state minimum wage law became effective in 2007.

While the FLSA still establishes a federal minimum wage, the federal minimum wage is currently, and in 2012 will continue to be, lower than the corresponding state minimum wage. In 2012, for example, the federal minimum wage will be $7.25, as compared to the Arizona minimum wage of $7.65. Employers in Arizona are bound to pay the higher of the two potentially applicable minimum wage rates.

Arizona is among 17 other states and the District of Columbia with minimum wage rates higher than the federal minimum wage. In Colorado, for example, a 2006 voter initiative amended the Colorado Constitution to provide for a minimum wage similarly tied to increases in the Consumer Price Index for the Denver-Boulder-Greeley combined area. Although not yet final, Colorado's minimum wage is expected to increase by $0.28 on January 1, 2012, to $7.64.

The typical full-time minimum wage employee in Arizona works in the service industry. Assuming an eight hour day and a 260-day work year, that employee will earn slightly more than $15,000 in 2011. Assuming the employee will be retained despite the additional cost to the employer (an issue often debated by economists and others),1 the adjustment in the hourly minimum wage that will become effective in 2012 will increase the employee's annual earnings by approximately $625.

The fact that less than 10% of Arizona workers are currently earning the minimum wage (one federal study indicates the percentage may be as low as 2%) has prompted some observers to suggest that annual increases in the minimum wage should be of little concern to Arizona employers. However, the observation ignores the ripple effect caused by increases in the minimum wage, which place pressure on employers to raise the wages and salaries of other, higher paid employees in order to keep pace with the increases employers are required to make to the wages paid to minimum wage employees.

In any event, the impending increase in the state minimum wage will require employers with employees who are being paid the currently applicable minimum wage to decide whether to retain those employees at the higher rate that will apply in 2012. The increase also will require all employers to change the posted minimum wage notice they are statutorily required to display, in a form prescribed by the Industrial Commission, in the common areas of establishments in which their employees work and where their other employment notices are posted.

If you have any questions concerning Arizona's minimum wage increase, or other employment matters, please feel free to contact John M. Fry, This e-mail address is being protected from spam bots, you need JavaScript enabled to view it , or Michael D. Moberly, This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or any other member of Ryley Carlock's Labor and Employment Practice Group.

___________________________
1 For a summary of this debate, see Matthew Stoloff, Comment, Minimal Change?: Implications of the "Raise the Minimum Wage for Working Arizonans Act," 39 ARIZ. ST. L.J. 1287, 1295-1302 (2007).

In the June 22, 2011, edition of the Federal Register, the National Labor Relations Board ("NLRB" or "Board") published a Notice of Proposed Rulemaking that would profoundly change the representation election process by, among other things, drastically shortening the time between a representation petition and election.

To illustrate what the NLRB has proposed, imagine an election for a political office with two Candidates - Candidate "A" and Candidate "B."  Candidate A has been surreptitiously campaigning for months (or even years).  Candidate B is completely unaware that there is an upcoming election, or that he is even a candidate.  As soon as Candidate A believes he has enough votes to win an election against Candidate B, Candidate A announces that he wants an election.  Under the current rules, Candidate B would have approximately 42 days to campaign, educate voters, communicate facts and other information, and gain support.  Under the proposed new rules, however, Candidate B would have a mere 10 to 21 days to campaign.  

This is just part of what the NLRB's proposed new rules would do to an employer.  During the 10 to 21 days following the filing of a petition, an employer would also have to complete additional, burdensome tasks such as learning the basic rules governing the election process; staking out a legal position on a host of issues the business might never have previously considered; preparing for a hearing that will be set one week from the date an election is requested; and compiling lists of detailed information to provide to the NLRB and the union requesting the election.  Needless to say, an employer would be under a severe disadvantage under the NLRB's proposed rules.

If adopted, the NLRB's proposal would also result in the following significant changes to representation election rules:

• Election petitions could be filed electronically;
• An employer who customarily communicates electronically with employees would be required to send NLRB election Notices electronically to its employees;
• Pre-election hearings would be scheduled to take place seven days after the filing of a petition;
• Prior to the commencement of any pre-election hearing, an employer would be required to both file a "Statement of Position" setting forth its position on a host of legal issues (or forever waive the right to raise any issue not identified in the Statement of Position), and provide the union with a list of employee names, work locations, shifts, and job classifications;
• In addition to home addresses, an employer would be required to give the union access to employees' telephone numbers and available e-mail addresses within two days of the direction of an election;
• The scope of issues that may be litigated before an election would be significantly limited (including postponing most questions regarding the eligibility of particular individuals or groups of potential voters); and
• The NLRB could decline to review many of the Regional Directors' decisions, substantially limiting the appeal options available to employers.

The proposed rules represent the latest (but likely not the last) NLRB action that skews the playing field to favor unionization and severely restricts - and in some cases probably eliminates  - employers' ability to effectively communicate facts and opinions to their employees prior to elections.  In effect, this proposal denies workers the opportunity to obtain necessary information and the ability to make an informed and well-reasoned decision regarding whether or not to be represented by a labor organization. 

This latest benefit to organized labor comes as no surprise from a Board whose members were appointed by a President who openly admitted that he "owe[s] those labor unions."  Since organized labor was unsuccessful in its attempts to pass the controversial Employee "Free" Choice Act ("EFCA"), Obama's nominees on the NLRB have been doing all they can to tip the scales in favor of labor unions, and have shown that they are willing to achieve through rulemaking and adjudication the changes that unions sought but were not able to achieve through Congress.

Given the current composition of the Board, there is no reason to believe that the proposed rules will not be enacted as drafted, or in a substantially similar form.  Therefore, employers need to be more vigilant than ever about detecting organizing activity and being prepared to handle a petition for a representation election in a very short period of time.  A contingency plan should be in place, and supervisors should be trained so that they know what to look for and know their lawful role in a union organizing campaign.  There will be little time for such tasks with only 10 to 21 days advance notice of a critical election.[1]

If you have questions regarding the NLRB's proposed rules and how your business may be impacted, or any other aspect of labor relations, please contact Ellen Glass, Nate Niemuth, or any other member of our labor and employment practice group.    

[1] While the NLRB did not dictate a timeline for the conduct of an election, the proposed rules require the regional director to schedule the election for "the earliest date practicable."  In his highly-charged dissent from the proposed rules, the lone Republican Board member, Brian Hayes, indicated that the expedited election process would result in elections taking place between 10 and 21 days after the filing of the petition. 

Are Your Company's Policies, Handbooks, and Job Descriptions Up-To-Date?

While the Americans with Disabilities Act Amendments Act ("ADAAA" or the "Act") became effective on January 1, 2009, the Equal Employment Opportunity Commission ("EEOC") only recently released its final regulations implementing the Act. Those regulations became effective on May 24, 2011. (PDF version)

The debate over legalizing the use and sale of marijuana for medical purposes is not new. In 1996, California became the first state to legalize the medical use and sale of marijuana. The legalization movement gained momentum after that enactment, and several other states followed California's lead in providing legal protection for medical marijuana users.

After several unsuccessful efforts, Arizona recently joined the trend. In the November 2010 General Election, Arizona voters passed by a slim margin Proposition 203, now commonly known as the Arizona Medical Marijuana Act (the "Act"), making Arizona the 15th state, in addition to the District of Columbia, to legalize the medical use of marijuana.[1] As has been the case in other states enacting such legislation, this development poses significant managerial and legal problems for Arizona employers.

Decriminalization of Medical Marijuana

The use of marijuana, even for medical purposes, remains unlawful under federal law. However, in October 2009, the Obama Justice Department announced that it would no longer prosecute medical marijuana users and distributors in states where the medical use and sale of marijuana is lawful as a matter of state law.

In most states that have legalized the medical use of marijuana, state criminal penalties for the use, possession, and cultivation of marijuana are removed for patients with a recommendation or referral from their physicians. In Arizona, for example, the Act permits qualifying patients with certain debilitating medical conditions such as cancer, HIV/AIDS, hepatitis C, and multiple sclerosis, to receive up to 2½ ounces of marijuana every two weeks from dispensaries, or to cultivate up to 12 marijuana plants if they live 25 miles or more from the nearest dispensary.

The Basics of the Arizona Act

The statutes of most states with medical marijuana laws simply do not address workplace issues. Courts in several of these states have concluded that the protection afforded to medical marijuana users under these statutes is limited to the decriminalization of medical marijuana use, possession or sale. These courts generally uphold the right of employers to terminate or otherwise discipline employees whose use of marijuana for medical purposes violates drug-free workplace policies.

The Arizona Act, by contrast, specifically prohibits employers from discriminating against individuals in hiring, promotion or other terms and conditions of employment based on their status as registered medical marijuana card holders, unless doing so would cause the employer to lose a monetary or licensing benefit under federal law. Arizona employers also may not discipline a registered medical marijuana card holder for testing positive for marijuana, unless the individual testing positive used, possessed, or was impaired by marijuana on the employer's premises or during working hours.

The Act also provides that even in the absence of a positive drug test, employers may discipline employees, including registered card holders, for using marijuana in the workplace, or for working while under the influence of marijuana. However, the Act does not appear to permit employers to discipline a card holder for possessing marijuana on the employer's premises unless the employee tested positive for marijuana use.

A Maze For Arizona Employers

The relatively unique employment provisions of the Arizona Act raise significant concerns for employers. Considerable empirical evidence shows that the use of marijuana, whether for medical purposes or otherwise, impairs the user's cognitive functions and ability to perform complex tasks requiring attention and mental coordination, and that the impairing effects of marijuana use last for a considerable period of time after the actual ingestion of the drug. Courts and commentators often have noted the liability to which employers may be subject if third parties are injured by the actions of employees working under the influence of drugs.

Of course, Arizona employers still must comply with OSHA and other federal standards governing workplace safety, especially when their employees perform safety-sensitive tasks such as operating heavy equipment, machinery, or motor vehicles as part of their job duties. In fact, the United States Department of Transportation recently reminded employers in the trucking, railroad, airline, and transit system industries that state medical marijuana laws do not supersede federal requirements to test transportation employees for drug use, and the fact that an employee's use of marijuana was for medical purposes does not excuse an employer from addressing the employee's positive test as specified in the Department's regulations.

The Department's position on this issue poses a particular dilemma for Arizona employers because the Department's regulations do not purport to authorize employers to make hiring or disciplinary decisions on the basis of an employee's positive drug test. The regulations instead merely require an employer whose employee tests positive for marijuana use to prohibit the employee from performing safety-sensitive functions until the employee passes a subsequent drug test and complies with the education and treatment requirements of a comprehensive return-to-duty process prescribed by the Department.

The Arizona Act, by contrast, does contain language permitting employers to "penalize" their employees for operating, navigating or being in physical control of a motor vehicle, aircraft or motorboat while under the influence of marijuana. However, the Act also makes it clear that an employee's positive test for marijuana use, standing alone, is not sufficient to establish that the employee is under the influence of the drug, and that a positive test provides no basis for disciplining an employee who is a medical marijuana cardholder unless the test shows that marijuana was present in the employee's system in a sufficient amount to cause impairment.

The problems these statutory and regulatory ambiguities pose for employers are compounded by the fact that the Arizona Act also fails to define the term "impairment." Unlike in the case of alcohol use, where an employer presumably could rely by analogy on state statutes defining "impairment" for purposes of operating a motor vehicle, or perhaps on the Department of Transportation's even more stringent definition of that term, there is no generally accepted external standard for determining whether a marijuana user is impaired.

Arizona Regulators Offer Little Help

Many observers expected the Arizona Department of Health Services to address these problems when it issued the implementing regulations it was directed to promulgate under the terms of the Act. Unfortunately, the Department's regulations not only fail to define "impairment" or being "under the influence" of marijuana, but they are silent as to any of the troubling employment implications of the Act.

A proposed amendment to the Act presently being considered by the Arizona legislature would define the term "impairment" to mean being under the influence of marijuana to the extent that the employee's job performance abilities are "decreased or lessened." However, this self-evident definition provides little guidance for employers facing difficult decisions concerning the employment of medical marijuana users.

Until the Arizona courts or the state legislature provide greater guidance as to the meaning and impact of the Act, employers will be operating in a state of uncertainty concerning their legal rights and obligations and those of their employees who are medical marijuana card holders. In the meantime, employers must take a common-sense approach to the issue and ensure they are making informed and measured decisions. Employers also should update their employee handbooks so that employees, supervisors, and managers are informed about what the Act does and does not require of employers.

If you have any questions regarding the Arizona Medical Marijuana Act or need assistance in revising your workplace drug policies, please contact Michael D. Moberly at (602) 440-4821, Charitie L. Hartsig at (602) 440-4898, or any other member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.

[1] The other 14 states that provide some protection to medical marijuana users are California, Alaska, Oregon, Washington, Maine, Colorado, Hawaii, Nevada, Montana, Vermont, Rhode Island, New Mexico, Michigan, and New Jersey.

Because the Board believes that many employees protected by the NLRA are ignorant of their rights under the statute, the stated purpose of the proposed rule is "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." To achieve that goal, the proposed rule would require most employers, including most non-union employers, to educate employees about their right to organize and bargain collectively by posting a notice in their workplace alongside the various other posters concerning safety, wage and hour, and anti-discrimination.

The proposed notice is similar in form and content to the one finalized earlier this year by the U.S. Department of Labor for federal government contractors. However, unlike other workplace notices, in addition to the 11 x 17 inch paper poster, employers would also be required to distribute the notice electronically, such as by e-mail, posting on an intranet or internet site, and/or other electronic means, if the employer customarily communicates with its employees by such means. Employers could choose to either download and "prominently" post the notice electronically, or to provide a link to the Board's Web site that contains the full text of the required employee notice.

In support of the electronic distribution requirement, the proposed rule cites J. Picini Flooring, wherein the Board recently changed its standard notice-posting remedy to require employers found to have violated the NLRA to distribute remedial notices electronically in addition to the traditional posting of a paper notice on a bulletin board. Given the increasing prevalence of electronic communications at and away from the workplace, the Board reasoned that notices posted on traditional bulletin boards may be inadequate to reach employees who are accustomed to receiving important information from their employer electronically and do not typically look at information on a traditional bulletin board. Furthermore, the growth of telecommuting and the decentralization of workplaces permitted by new technologies mean that an increasing number of employees would never even see a paper notice posted at the employer's facility. Accordingly, by requiring electronic distribution, the Board is attempting to adapt its rules and policies to reflect the modern work environment.

The Board rejected voluntary compliance as a possibility, and proposed serious potential consequences for employers who fail or refuse to post the required notices. The Board's proposal would treat a failure to post the notice as an unfair labor practice. Such a failure would also warrant tolling of the six month statute of limitations period for any unfair labor practice charge against a noncompliant employer. Finally, an employer's willful failure to post the notice could be considered as evidence of unlawful motive in an unfair labor practice case involving other alleged NLRA violations.

Members of the public may submit comments on the proposed rule, including comments on whether the Board has the power under the Act to create the proposed rule, for 60 days, until February 22, 2011.

If you have any questions about how to remain in compliance with the NLRA and the NLRB, please contact Ellen Joy Glass at (602) 440-4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Group.

Employee Monitoring

Balancing an Employer's Right to Know vs. Employee Privacy

With the proliferation of employer issued laptops, cell phones, and Blackberries, employees, now more than ever, are using workplace resources to conduct personal matters. In fact, some studies suggest that 25% of work time is spent on the Internet and sending e-mails for non-business purposes. Accordingly, monitoring of employees' electronic conduct can be a critical tool in addressing productivity. It can also be used to protect employer assets and detect and deter improper employee conduct.

However, employers do not have carte blanche to read employees' private, confidential e-mails. Employees have a reasonable expectation of privacy regarding some of their personal e-mails, and employers could face liability if they cross the line in electronic monitoring.

Stengart v. Loving Care Agency

The Supreme Court of New Jersey recently tackled these issues in Stengart v. Loving Care Agency, 990 A.2d 650 (2010), which raised the issue of an employee's privacy interest in her personal e-mail correspondence sent on an employer-issued computer. Stengart, the plaintiff in that case, worked for a home health care agency, Loving Care, as an Executive Director of Nursing. She was provided an employer-issued laptop on which she could access the Internet through Loving Care's server. At the time, Loving Care had a policy that stated it could review e-mails at any time, and that e-mails and Internet communications are the company's business records and are not to be considered private. The policy also stated that occasional personal use of the computer is permitted.

While employed with Loving Care, Stengart used the laptop to e-mail her attorney regarding work concerns. The e-mails were sent to her attorney through her personal, password-protected Yahoo e-mail account. Unbeknownst to Stengart, Loving Care's browser software automatically saved a copy of each web page she viewed on the computer's hard drive.

Stengart eventually terminated her employment with Loving Care and returned the laptop to her former employer. A few months later, she filed a discrimination, harassment and retaliation lawsuit against Loving Care. As part of the discovery process, Loving Care had Stengart's laptop forensically imaged. Among the items retrieved were the e-mails Stengart had sent to her attorney through her personal Yahoo account.

Stengart's attorneys asked the trial court to order that the e-mails be returned. When the issue reached the New Jersey Supreme Court, it concluded that the e-mails should be returned to Stengart because she could have reasonably expected that the e-mails to her attorneys sent through her personal Yahoo account would remain private. The Court reached that conclusion in part due to the fact that Loving Care had an "ambiguous" policy regarding electronic media.

The New Jersey Supreme Court, however, was quick to point out that employers are not prohibited from monitoring the use of workplace computers. In fact, the Court stated, employers can adopt lawful policies relating to computer use "to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies." Loving, 990 A.2d at 665. However, the Court made clear that "employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce company policy." Id.

Take Away Lessons

While monitoring of employees' electronic conduct is a valuable tool for management, companies should follow these common-sense guidelines to help reduce the risk of liability that can be associated with monitoring:

• Provide notice that the content of e-mails can be forensically read and retrieved;
• Maintain policies that are tailored to your specific operation and that address the specific technology that will be monitored, including all forms of communication and use of electronic devices;
• Implement consistent review and audit processes;
• Apply policy to all corporate members, employees, and management;
• Do not acknowledge occasional personal use of e-mail in policy;
• Do not review attorney-client privileged material without a clear understanding of the privilege; and
• When in doubt, seek legal counsel!

If you have any questions about employee monitoring, please contact Charitie Hartsig at 602.440.4898, or any member of Ryley Carlock & Applewhite's Labor and Employment Department.

Shortly after President Barack Obama took office last January, he signed Executive Order 13496 (the "Order"). The Order requires certain federal contractors and subcontractors to post notices informing employees of their rights under federal labor law. On May 20, 2010, the U.S. Department of Labor ("DOL") Office of Labor-Management Standards ("OLMS") issued a final rule implementing the Order. The rule, which takes effect on June 21, 2010, identifies which federal contractors and subcontractors are required to post the notice, establishes the content of the notice, provides guidance on the manner and location of the posting, and sets forth penalties for noncompliance.

Coverage

The notice must be posted by federal contractors who have at least one covered federal contract of at least $100,000, and by the subcontractors (whether at the first-tier level or below) performing work necessary to the primary covered contract as long as their subcontract is greater than $10,000.

The reach of the Order is not limited to employers whose employees are unionized. There is, however, an exception to the posting requirement. Contractors and subcontractors that do not meet the definition of "employer" under the National Labor Relations Act ("NLRA") have no obligation to post the notice.

Content of the Required Notice

The required notice provides employees with information concerning their rights under the NLRA to join a union and to bargain collectively with their employer. The notice goes on to provide seven examples of illegal conduct by employers, and five examples of illegal union conduct. Importantly, the notice informs employees that they should contact the National Labor Relations Board ("NLRB") if they believe their rights or the rights of others have been violated, and it provides the NLRB's website address and toll-free number for that purpose. Notices and additional information are available on the DOL website at http://www.dol.gov/olms/regs/compliance/EO13496.htm.

Manner and Location of Posting

The notice must be conspicuously displayed in all places where notices to employees are customarily posted, as well as where employees perform activities related to the federal contract or subcontract. If an employer customarily posts notices to employees electronically, it must post the notice about NLRA rights electronically in addition to posting it physically. When posted electronically, the notice must be prominent, include a link to the DOL's website containing the full text of the notice, and must be labeled "Important Notice About Employee Rights to Organize and Bargain Collectively with Their Employers." Additionally, notice must be provided in languages used by "a significant portion" of the contractor or subcontractor's employees.

Enforcement

The regulations provide for compliance evaluations, complaints, complaint investigations, and enforcement procedures by the DOL's Office of Federal Contract Compliance Programs ("OFCCP"). Contractors and subcontractors that violate this notification rule may be subject to sanctions for noncompliance, including suspension or cancellation of an existing contract; debarment from future contracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of noncompliance with these requirements.

More Change to Come?

The new posting requirement marks the first time that employers have been required to proactively post a notice summarizing employee rights under the NLRA, and may lead to increased organizing activity and an increase in the number of unfair labor practice charges filed by employees with the NLRB.

Notably, with the new composition of the NLRB (See Labor Law Alert: Obama Delivers Change to the NLRB (April 5, 2010) http://bit.ly/bKjcbv) there has been speculation about the possibility that the NLRB will use its substantive rulemaking authority under Section 6 of the Act to issue a workplace rights notice not limited to government contractors, but applicable to all employers covered by the NLRA. A petition for such rulemaking has been pending before the NLRB since 1993. The petition states in part:

Employees . . . are generally unaware of their rights under the Act; indeed, it appears that most are even unaware of the existence of the Board and have no knowledge of what it is supposed to do. This is especially true of unorganized employees, notwithstanding that they are granted important and extensive rights under Section 7 of the Act: to form, join, or assist labor organizations, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. In view of the vast numbers of unorganized employees and the general misperception among unorganized employees that they possess few if any rights of the kind protected by this Act, there is a greater need for a general notice and posting requirement regarding Section 7 and related unfair labor practices . . . .

In 2007, then Board Member Wilma Liebman issued a statement before the Senate's Health, Education, Labor and Pensions ("HELP") Committee expressing her interest in administrative rulemaking. She said, "[r]emarkably, more than 70 years after the [NLRA] was passed, the Board does not require employers to post any notice informing employees of their rights under federal labor law, except three days before a scheduled election and as a remedy in cases where the employer has committed an unfair labor practice. The Board has never acted on long-pending petitions for rulemaking requiring such a notice. It is high time we did." Recently, Liebman, now Chairperson of the Board, has reiterated before the American Bar Association and the U.S. Chamber of Commerce that the NLRB intends to make greater use of rulemaking and remains particularly interested in the 1993 petition asking the Board to adopt a rule requiring employers to post workplace notices informing employers of their rights under the NLRA. The recently revamped NLRB has not yet done so, but that change may be on the near horizon.

by Nate Niemuth and Ellen Glass

Dramatic change is coming to U.S. labor law. The precise timing and the exact nature of the changes are uncertain, but what is certain is that significant changes to federal labor law are on the near horizon.

Over intense Republican objection, on March 27, 2010, President Obama announced his decision to bypass the Senate and appoint two of the three pending nominees to the National Labor Relations Board ("NLRB" or the "Board") via recess appointments. The NLRB recess appointees are controversial SEIU and AFL-CIO attorney, Craig Becker, and union labor lawyer, Mark Pearce, both Democrats.

Becker was first nominated in July of 2009 as part of a three-person package to fill the five-member NLRB. The business community vigorously opposed Becker's nomination from the very beginning, questioning his neutrality and ability to fairly administer and enforce labor laws given his radical views on employer rights and how labor law changes can be implemented. Nonetheless, on October 21, 2009, the Senate's Health Education Labor and Pensions ("HELP") Committee approved the nominees by a vote of 15 to 8 as to Becker, and unanimously as to Obama's other two nominees, Brian Hayes and Mark Pearce. After the committee vote, Senator John McCain (R-AZ) placed a hold on Becker's nomination.

Because the Senate adjourned at the end of 2009 before confirming or rejecting Becker's nomination, Obama renominated Becker on January 20, 2010. The HELP Committee held a hearing on Becker's nomination on February 2, 2010, and approved the nomination in a 13-10 party-line vote on February 4, 2010. That same day, however, Senator Brown (R-MA) was sworn into the Senate, eliminating the Democrats' 60 vote majority. On February 9, 2010, Becker failed to win the necessary 60 votes to overcome a filibuster of his nomination.

Obama warned of recess appointments if the Senate did not act on his nominations. All 41 GOP senators wrote to Obama days before his announcement urging him not to appoint Becker over the Senate's Easter break. "We oppose Mr. Becker's recess appointment because of his extensive, highly controversial writings, and his entire legal and scholarly career, all of which indicate that he could not be viewed as impartial, unbiased, or objective in deciding cases before this quasi-judicial agency," the GOP letter said. "Instead, his writings clearly indicate that he would use his position on the NLRB to institute far-reaching changes in labor law far exceeding the Board's authority and bypassing the role of Congress."

In addition to representing the SEIU and AFL-CIO, Becker has written articles expressing starkly pro-union, anti-business views. His views regarding federal law are considered extreme, even by some Democrats in the Senate. In particular, Becker has argued that traditional notions of democracy should not apply in union elections and employers should be stripped of any legally cognizable interest in their employees' election of representatives. In fact, Becker would like to bar employers from many NLRB proceedings, and has argued that employers should have no right to be heard in either a representation case or an unfair labor practice case involving union organizing. Even more extraordinary is Becker's suggestion that employees should be compelled to join labor unions: ". . . it could be argued that industrial democracy should be made more like political democracy by altering the nature of the choice presented to workers in union elections. Such a reform would mandate employee representation, and the question posed on the ballot would simply be which representative."

The U.S. Chamber of Commerce issued a statement denouncing the recess appointment of Becker and warning that "[t]he business community should be on red alert for radical changes that could significantly impair the ability of America's job creators to compete." As a member of the NLRB, Becker is now in a position to make his radical views national policy, particularly given his view that changes in the law can be implemented without Congressional approval.

To understand exactly what is at stake, it is necessary to understand the potential power of an Obama Board, which can make policy for all employers, not just those with unionized workforces. The composition of the NLRB can have a tremendous effect on how business is done in America. For example, many fear, with good reason, that an Obama Board will overturn a number of key decisions, including the Dana Corporation ruling (2007) which modified existing card check provisions to permit decertification of a union within 45 days of recognition; the Register Guard decision (2007) in which the Board held that an e-mail system is employer property from which union organizing activities may be excluded; and the Oakwood Health Care decision (2006) which confirmed that those who "assign" work and "responsibly direct" employees are supervisors and excluded from union representation.

The NLRB, which establishes and enforces federal labor law, has been operating with only two members for more than two years, Wilma Liebman (D), whose term is set to expire in August 2011, and Peter Schaumber (R), whose term is set to expire in August 2010. With the addition of Craig Becker and Mark Pearce, whose terms are set to expire at the end of 2011 when the Senate finishes its term, the Board's composition shifts to three Democrats and one Republican. Absent further action, the traditionally bipartisan Board will be entirely Democratic in August of this year when the sole Republican's term expires.

Interestingly, Obama did not use a recess appointment for the Republican nominee, Brian Hayes. This was presumably a tactical maneuver to encourage the Senate to confirm his original package of Becker, Pearce, and Hayes, whose appointments are all still pending in the Senate. A recess appointment ends at the completion of the next Senate session or when a person is nominated and confirmed to the job, whichever comes first. Accordingly, the Senate could still confirm the original three-person package in order to get Hayes on the Board. If confirmed, his term would expire in December 2012. However, confirming the package would extend Becker's term until December 2014 and Pearce's term until December 2013, giving Obama's nominees more time to make a substantial imprint on federal labor law.

PDF Version.

Mike Moberly and John Fry, Shareholders in the firm's Labor and Employment group, were published  this month in the Suffolk Journal of Trial & Appellate Advocacy. Click the citation to read the article.

Michael D. Moberly & John M. Fry, Squandering the Last Word: The Misuse of Reply Affidavits in Summary Judgment Proceedings, 15 Suffolk J. Trial & App. Advoc. 43 (2010). 

As social networking sites like Facebook.com and MySpace.com continue to grow in popularity, employers are catching on and reviewing the profiles of applicants and employees. Although social media may appear to be a cheap and convenient way to obtain an increasing amount of information regarding these individuals, employers must be aware of the host of potential legal pitfalls that await those that choose to use social media, three of which are discussed below.

Authenticity

From the outset, employers that choose to investigate applicants and employees using social media should not overlook the fact that the profiles they find are not always authentic and trustworthy. While this may seem obvious, employers should ensure that the information they find when reviewing a candidate's profile is actually about the applicant they are considering, and not someone with the same name. More troubling than mistaken identity, however, is a disturbing new trend among college students: creating fake explicit or unflattering profiles of other students they view as competition for jobs with the intent of tarnishing their reputation in the eyes of a prospective employer. Accordingly, employers should remember not to believe everything they see.

Background Checks

In using social medial to investigate potential employees, employers gain access into part of applicants' personal lives that has been traditionally unavailable or off-limits during the hiring process. This knowledge can set an employer up for claims of employment discrimination. An individual's online profile may reveal information regarding sexual orientation, parental status, disability status, age-related information, and/or nationality. The problem for an employer is that once this information is known, it will be hard to prove that a hiring decision was not based on a person's protected status in a subsequent lawsuit alleging discrimination in the hiring process. In this way, many of the measures taken by employers to ensure a non-discriminatory hiring process can be undermined by the use of social networking sites. Accordingly, employers who choose to examine these sites should proceed with caution and consider taking steps to protect themselves, such as: (1) waiting to review online information until after a conditional job offer is given to an applicant; (2) documenting the use of a social networking website along with the legitimate business reason for a decision not to hire; and (3) training and refreshing all individuals involved in making hiring decisions on state and federal antidiscrimination laws.

Conditions of Employment

Another potential danger arises when an employee uses social media to discuss terms and conditions of employment. "Terms and conditions of employment" has been construed quite broadly, and includes virtually all aspects of the work environment from wages and benefits, to a supervisor's competence. While an employer may prefer to keep such information confidential, or may be offended by an employee who says something negative about work in the social networking world, federal labor law allows employees - even those who are not unionized - to engage in protected concerted activity for their own benefit. This could arguably include a situation where several of your employees communicate with each other online. Accordingly, before issuing any discipline to an employee in response to an online post, an employer should consider whether the post is protected by federal labor law.

If you have any questions about the legal impact of social media on your business, please contact Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department. PDF Version.

Both the World Health Organization and the Center for Disease Control and Prevention have indicated that the H1N1 virus may severely impact the workplace this fall and winter. As a result, employers must be aware of the various laws that govern the workplace when responding to a pandemic flu. For example, the Occupational Safety and Health Act ("OSHA") requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." Furthermore, employers must consider various discrimination and leave laws when implementing a pandemic flu response plan.

In order to provide a safe and healthy working environment to all employees and protect employees from work-related exposure to the H1N1 flu virus, an employer may lawfully (1) require its employees to adopt infection control practices such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal; (2) require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of a pandemic virus; and/or (3) encourage or require employees to telecommute as an infection-control strategy. An employer can require an employee to stay home if there is accurate and reliable medical information indicating that the employee may pose a "direct threat" to the health and safety of other employees.

Under the Family and Medical Leave Act, an eligible employee who has a serious health condition or is required to provide care to a qualified family member with a serious health condition may be entitled to up to twelve (12) weeks of continuous or intermittent leave. Whether H1N1 is a serious medical condition will necessarily depend on the facts of each individual case. However, due to concerns of a nationwide flu pandemic, it likely may be
considered a serious medical condition.

Finally, although H1N1 appears to have originated in Mexico, employers must not use this information to discriminate against workers of Mexican nationality. Discrimination based on nationality, even if it is based on an honest fear of the H1N1 flu virus, would violate federal and state discrimination laws.

Employers who are considering plans to deal with potentially high levels of absenteeism as a result of an H1N1 outbreak may survey their workforce to gather personal information needed for pandemic preparation, but may only ask "broad questions that are not limited to disability-related inquiries." Therefore, an employer should ask questions that place non-medical reasons for an absence during a pandemic on equal footing with medical reasons. For example, an employer is permitted to ask its workforce whether certain conditions (e.g., mandatory school closures, curtained public transportation, or chronic illnesses that weaken immunity) will affect an employee's ability to come to work. However, an employer that chooses to do so should ask employees to simply answer "yes" or "no" as to whether any of the reasons might apply to them without identifying the specific condition applicable to the employee. For an example of an ADA-Compliant Pre-Pandemic Employee Survey,
visit http://www.eeoc.gov/facts/h1n1.html.

The recent H1N1 flu outbreak should serve as a reminder to employers of the importance of knowing how to appropriately respond to a serious epidemic. Employers need to react (without overacting) to employees who contract contagious diseases like H1N1. Please contact any member of our labor and employment department if you would like assistance in preparing for or responding to a serious influenza epidemic.

President Obama has followed through with his campaign pledge to nullify Ledbetter v. Goodyear by signing the Lilly Ledbetter Fair Pay Act of 2009 (the "Ledbetter Act") into law. The Ledbetter Act amends the Civil Rights Act of 1964 by stating that the 180-day statute of limitations for filing an equal-pay lawsuit over pay discrimination resets with each new discriminatory paycheck.

The legislation is named for an Alabama woman who, at the end of her 19-year career as a supervisor at a tire factory, learned that her male colleagues earned much more than her. This discovery prompted her to file a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination. When her case eventually went to trial, a jury concluded she had indeed suffered illegal pay discrimination on the basis of sex and awarded her $3 million (which was later reduced to $300,000 in accordance with Title VII's damages cap).

However, on appeal, the Supreme Court threw out Ms. Ledbetter's case after Goodyear successfully argued that her claims were time-barred because she failed to file her suit within 180 days (the limitations period under Title VII) of the date that her employer first paid her less than her peers.

The Ledbetter Act is a direct response to the Supreme Court's decision holding that the statute of limitations for presenting an equal-pay based lawsuit runs from the date of a pay decision setting a discriminatory wage. The Ledbetter Act attempts to "fix" this controversial holding by specifying that the 180-day limitations period runs from the date of any paycheck that contains an amount affected by a prior discriminatory pay decision.

Because the Ledbetter Act amends Title VII, it also extends the time period during which employees can pursue disparate pay claims under other anti-discrimination statutes that borrow Title VII's limitations period, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. The Ledbetter Act is made retroactive to May 28, 2007, one day before the Supreme Court issued its ruling in Ledbetter.

Following its enactment, the EEOC announced that it intends to enhance enforcement in the area of pay discrimination. Accordingly, it is recommended that employers analyze their compensation practices to minimize their increased potential liability under the Ledbetter Act. Specifically, employers should:

• Evaluate all policies or practices that impact pay directly or indirectly (hiring, promotions, bonus payouts, merit-based salary adjustments, etc.);
• Conduct a statistical analysis of past and current employee compensation rates to identify disparities by protected categories;
• Consider the amount of discretion supervisors have to make compensation decisions, and re-educate those making pay decisions;
• Review compensation record retention policies to ensure that documentation reflecting when and why compensation decisions are made are retained in order to defend discrimination claims.

Feds Delay E-Verify Rule Once Again

The effective date of the Federal Contractor E-Verify Rule, a rule requiring federal contractors to certify workers' immigration status through E-Verify, has been postponed once again. The new implementation date is now scheduled for September 8, 2009 (extended from June 30, 2009). The rule was originally due to take effect on January 15, 2009, but has since been postponed several times.

For questions or assistance with these or other labor and employment matters, please contact the Chair of Ryley Carlock & Applewhite's Labor & Employment Practice Group.

The Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") provides certain "covered employees" who experience a "qualifying event" with continuation health plan coverage rights. Generally, an Employer with a health plan, including dental plans, vision benefit plans, and health FSAs, that was subject to COBRA, must permit each "qualifying beneficiary" to elect and receive continuation rights for between 18 and 36 months, in exchange for the qualified beneficiary paying up to 102% of the total cost of that coverage.

The president signed the American Recovery and Reinvestment Act (the "Act") on February 17, 2009, and in so doing subjected Employers to an additional cost of providing required COBRA continuation coverage during this current recession.

Under the Act, the Employer must notify every former employee that had been "involuntarily terminated" from the company at any time between September 1, 2008 until December 31, 2009 of their new rights, and the Employer's new responsibilities. The notice must explain that the Employer will pay sixty-five percent (65%) of the former employee's COBRA premium for up to 9 months of COBRA continuation coverage under certain plans, whether or not the former employee had elected COBRA when he/she was first offered continuation coverage at the time of the involuntary termination. The notice must be provided by April 18, 2009, and must provide the former employee with an election, even if it gives him/her a second chance to elect the COBRA continuation coverage, with a retroactive effective date for the premium subsidy back to February 17, 2009. The election period for this second chance again gives each former employee 60 days to decide whether to accept this benefit from the Employer.

This new law will cost the Employers. First, the Employer has to pay the initial 65% subsidy for participants who elect COBRA continuation coverage. The Employer will be reimbursed through a credit against payroll taxes paid. The required subsidy payments are phased out for certain higher paid former employees.

Second, the Employer has to offer a second COBRA notice. That means that the Employer will have to now validate mailing lists to ensure the notice is sent to former employees and their dependents whom the Employer may not have been in contact since September, 2008.

This law will be troublesome for some Employers. The U.S. Department of Labor is committed to issue a model notice that will help to explain the requirements and the rights that the covered former employees and their dependants now enjoy.

Please contact us to learn more about the solutions available under this new Act and assistance with former employee communications required now. 

The election of Barack Obama as President of the United States on the platform of change will undoubtedly have implications for employers. Just how widespread the promised change will be remains to be seen. What can be stated with certainty is that in the context of labor and employment law, the promised change may take many forms, including legislation, regulation, and revised judicial and administrative interpretations of current labor and employment laws.

PROPOSED LEGISLATION

The following is an overview of proposals President-elect Obama has supported, either as a Senator or during his Presidential campaign.

AMENDMENT OF CURRENT FEDERAL DISCRIMINATION LAWS

House Democrats have marked the first week of the new Congress by approving two pay discrimination bills -- the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12). The Lilly Ledbetter Fair Pay Act reverses a Supreme Court decision and amends Title VII, the ADA, the ADEA, and the Rehabilitation Act of 1973 to allow claims brought within 180 days of receiving any paycheck affected by a discriminatory pay decision, no matter how far in the past an act of discrimination allegedly occurred. The Paycheck Fairness Act clarifies that victims of gender-based discrimination can sue for compensatory and punitive damages, provides protection to employees who share salary information with their colleagues, and puts the burden on employers to prove that any wage disparities are job-related and not gender-based. Both bills are expected to reach the Senate floor later this month. Additionally, during his campaign, Obama pledged his support for the Employment Non-Discrimination Act ("ENDA"), an Act that would amend federal employment statutes to include sexual orientation as a protected class.

EMPLOYEE FREE CHOICE ACT (EFCA)

As noted in our previous alert, the EFCA would: (1) establish a card check procedure, under which a union could be certified if a majority of employees within an appropriate bargaining unit signed union authorization cards; (2) impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) stiffen penalties for unfair labor practices committed by employers during an organizing campaign or during bargaining over an initial contract.

RE-EMPOWERMENT OF SKILLED AND PROFESSIONAL EMPLOYEES AND CONSTRUCTION TRADESWORKERS ("RESPECT" ACT)

The RESPECT Act would effectively limit which workers the National Labor Relations Act ("NLRA") classifies as supervisors and increase the number of employees eligible for unionization by: (1) removing from the NLRA definition of "supervisor" the duties of assigning and responsibly directing other employees, and (2) requiring that employees spend a majority of their time performing supervisory duties in order to qualify as "supervisors" under the Act.

EQUAL REMEDIES ACT AND CIVIL RIGHTS ACT OF 2008

This legislation would increase employer liability and damages by removing the current $300K cap on compensatory and punitive damages for violations of Title VII and the ADA.

FAMILY AND MEDICAL LEAVE ACT ("FMLA") AMENDMENTS

The proposal would expand FMLA coverage to include businesses employing 25 to 49 people (as opposed to the current minimum of 50 employees), and provide new leave entitlements including leave for elder care and instances of domestic violence, and up to 24 hours of leave each year for parents to attend school functions for their children.

PUBLIC SAFETY EMPLOYER-EMPLOYEE COOPERATION ACT

This Act would provide collective bargaining rights for public safety officers, such as firefighters, emergency medical services personnel, and public safety officers, employed by states or their political subdivisions

FOREWARN ACT OF 2007

The Forewarn Act would expand the WARN Act's scope by requiring employers with 50 or more employees (instead of the current 100 or more employees) to provide 90-day written notice of plant closures or mass layoffs (instead of the current 60-day notice), and would double the amount of backpay an employer would owe employees if the notice requirement is not met.

NLRB DECISIONS

The first change we can expect to see in the short-term is a full complement of five members for the National Labor Relations Board (the "Board"). The statutory scheme provides for a presidentially appointed five-member Board, with members serving staggered five-year terms. As a result of this process, Board decisions tend to fluctuate over time, reflecting the ever-shifting composition of the Board.

Despite the statutory scheme calling for a five-member Board, the Board has been operating for some time with only two of its five seats filled. Therefore, President-elect Obama has the unique opportunity to appoint three members to a Board currently composed of one Republican and one Democrat, placing the viability of several decisions in the hands of a new Board and a new General Counsel. Current at-risk decisions include:

WEINGARTEN

History has shown that whether or not Weingarten rights apply to non-union employees depends upon the makeup of the Board. Since 2004, a time when the Board included three Republican members, only union represented employees have the right to have a representative present during an investigatory interview that might reasonably lead to disciplinary action. Only four years earlier, the Clinton-appointed Board held that Weingarten rights were also applicable to nonunion employees. Accordingly, another case presented to a Board comprised of different members will likely result in the Board again revising its view of Weingarten rights.

REGISTER-GUARD

In 2007, the Board held in Register-Guard that employers could legally prohibit employees from using their employer's e-mail systems for Section 7 purposes, including union organizing or engaging in other protected concerted activity, as long as the employer had a policy barring employees from sending e-mails for "non-job-related solicitations." In a biting dissent, the Democratic minority accused the majority of ignoring both precedent and the impact of technological change on workplace communications. Because the Board was closely divided on this issue (3-2) and the ruling was controversial, the rules could easily change in the future.

Due to the fact that labor law and politics are inexplicably intertwined, it is no surprise that the political pendulum swings back and forth on these issues. As Judge Edwards noted in Epilepsy Foundation v. NLRB, "[i]t is [simply] a fact of life in NLRB lore that certain substantive provisions of the NLRA invariably fluctuate with the changing compositions of the Board."

Employers that educate themselves and prepare for the changes will be better equipped to prosper in a shifting business environment where employees have enhanced rights. To that end, we will continue to keep you updated on the status of these and other important labor and employment proposals. If you would like further information regarding any of the above, or any other labor relations issues, please contact any member of Ryley Carlock & Applewhite's Labor and Employment Practice Group.

Employers Must Use Revised Form I-9 Beginning February 2, 2009

Download the PDF

On Monday, November 17, 2008, the United States Department of Labor ("DOL") published its final regulations promulgated under the Family and Medical Leave Act of 1993 ("FMLA") and the amendments to the FMLA under the National Defense Authorization Act ("NDAA"), bringing the two year public process to a close. The new regulations take effect on January 16, 2009.

The DOL made only modest changes to its original February 2008 proposals. While largely retaining the changes noted in our previous employer alert, including tightening the notice requirements, easing the medical certification process, and redefining "continuing treatment" for the purpose of establishing a serious health condition, the final regulations include noteworthy additions to the military leave entitlements and the process for "authentication" or "clarification" of a medical certification form.

Military Leave Entitlements

Perhaps most importantly, the revised regulations provide the missing definition for a "qualifying exigency" under the NDAA. "Qualifying exigency" is defined to allow eligible employees with immediate family members (spouses, children, or parents) on active duty or called to active duty to use up to 12 weeks of FMLA leave for: (1) short-notice deployment; (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities where the employer and employee agree to the leave. By its express terms, the qualifying exigency provision of the NDAA does not take effect until the Secretary of Labor defines the term. Accordingly, the regulations supplying the definition implement this new statutory military leave entitlement and covered employers will be required to offer military exigency leave when the regulations take effect beginning January 16, 2009.

In addition to providing guidance regarding the military-related leave entitlements, the DOL has issued new certification forms for both wounded servicemember leave and military exigency leave.

Medical Certification Process

The revised regulations retain the proposal allowing an employer to contact an employee's health care provider directly to seek "clarification" or "authentication" of information on the form. However, unlike the proposed regulations, the revised regulations limit which individuals may contact the employee's health care provider by requiring that the contact be made by a health care provider, a human resource s professional, a leave administrator, or a management official, and explicitly ban an employer's direct supervisor from making the contact.

This Employer Alert summarizes only a few of the changes in the 200+ page Final Rule published in the Federal Register, which can be found by visiting http://www.dol.gov/esa/whd/fmla/finalrule.htm. Employers should use the relatively short period between now and January 16, 2009, to take the following actions to ensure compliance by the time the rules become effective: (1) become familiar with the requirements of the new regulations; (2) revise existing FMLA policies in order to ensure compliance with the changes to nonmilitary FMLA leave; (3) if it has not already been done, adopt a military leave policy or update any existing military leave policy to reflect the additions contained in the new regulations; (4) conduct training on the new rules; and (5) update FMLA administration forms.

The DOL hopes that the new regulations will help employers and their workers better understand their rights and responsibilities under the FMLA.

Please contact Ellen Glass at 602.440.4887, or any member of Ryley Carlock & Applewhite's Labor and Employment Department for more information, or to attend the breakfast seminar, email This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

With Barack Obama headed for the White House and Democrats in firm control of Congress, the battle between management and labor is heating up over the deceptively named Employee Free Choice Act (EFCA, H.R. 800). Unions spent hundreds of millions of dollars to help elect Democrats in the November 4 election and secure passage of legislation that would boost their declining membership, and now "expect quick political payback" said Tom Donohue, chief executive officer of the U.S. Chamber of Commerce.

The passage of this Act would cause the most sweeping changes in labor relations since the passage of the National Labor Relations Act (NLRA). The EFCA would (i) result in a union being certified as exclusive bargaining representative without a secret-ballot election if a majority of workers in an appropriate unit sign authorization cards; (ii) require mediation and binding arbitration if the parties cannot reach an agreement within potentially as little as 120 days; and (iii) dramatically increase penalties for employer, but not union, violations of the NLRA during union organization efforts or contract negotiations. Even George McGovern, an admittedly pro-labor Democrat, has criticized the EFCA as running counter to the ideals that lie at the core of the labor movement and urged his friends and his Party not to strip the American workers of their right to a secret ballot election.

Throughout his campaign, Obama promised a more union-friendly administration if elected, saying, "This election is our chance to finally have a president who doesn't choke saying the word 'union.' . . . It's not just that this administration hasn't been fighting for you - they've actually tried to stop you from fighting for yourselves. This is the most anti-labor administration in our memory. They don't believe in unions. They don't believe in organizing. They've packed the Labor Relations board with their corporate buddies. But we are here to say it's not the Department of Management, it's the Department of Labor, and we're here to take it back." In his 2006 political memoir, The Audacity of Hope, he further explained, "I owe those unions . . . When their leaders call, I do my best to call them back right away. I don't consider this corrupting in any way." It is fair to predict that Obama will nominate pro-labor individuals to fill the three currently open seats on the National Labor Relations Board.

Obama is not only a supporter of the EFCA, but was an original co-sponsor of the card-check bill. Although the bill was introduced in both the 108th and 109th Congress, the first floor vote it received was after its most recent introduction in the 110th Congress in early February 2007. On March 1, 2007, the House passed the bill by a vote of 241-185, in largely party-line votes with Democrats in favor and Republicans opposed. However, the bill failed in the Senate due to a Republican filibuster. At that time, Democrats had only 51 votes in favor of card check. Senator Arlen Specter of Pennsylvania was the sole Republican defector.

Because composition of the Senate is crucial to the fate of the EFCA, businesses can take comfort in one key development: Democrats have failed to win enough Senate seats to reach the 60-vote margin needed to cut off debate and force votes on controversial legislation. 57 seats now appear to be in Democratic hands. Since the Democrats did not achieve a filibuster-proof Senate majority, the bill may not move unless a unified majority can again get Specter and two more Republicans to support the legislation.

Although a push for passage of the EFCA in early 2009 has been predicted, business groups are hoping that the economic downturn might delay consideration of the bill. John Engler, President of the National Association of Manufacturers, has expressed his hopes that Obama and Congress will refrain from pushing the legislation until the economy recovers, noting that polls suggest that most Americans oppose the legislation because it would end a worker's right to a secret-ballot election on union representation. If Obama chooses not to wait before pushing the Democratic agenda, the Chamber and other business groups have vowed to fight the legislation vigorously.

About the only point labor and management do agree on is that the passage of the bill could trigger the largest unionization drive since the NLRA. To illustrate, experts point out that when the state of Illinois passed a mandatory card check law in 2003, it witnessed a dramatic increase in union density. Similarly, in Canadian provinces with mandatory card check laws, approximately 32% of workers belong to a union, whereas only about 7% of American private sector workers today belong to a union.

If you have questions regarding the EFCA and how your business may be impacted, or any other aspect of labor relations, please contact our labor and employment practice group. If you would like to receive this by email, please contact Paul Ward at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

In summary, key proposals include:

Tightening of Notice Requirements

• Employee must notify employer "as soon as practicable" when leave is unforeseeable. The DOL expects that an employee can practicably notify his/her employer either the same day or the next business day.
• Employee must give "sufficient information" to put employer on notice that leave may be FMLA-qualifying, including an inability to perform the job, the anticipated duration of leave, and whether they intent to visit a health care provider.
• Additional administrative burdens imposed on employers to communicate more detailed information to employees regarding eligibility; however, the amount of time to provide such information is extended from two to five days.
• Requires employer to both post and distribute FMLA information.

Medical Certification Process

• In certain cases, allow an employer to contact an employee's health care provider directly for clarification or authentication of documents.
• Employer must give employee notice of an incomplete or insufficient certification in writing, and seven calendar days to cure deficiencies.
• Propose several revisions to the medical certification form itself to make it easier to understand and complete, and allow health care providers to disclose diagnosis information.
• Seeks to strengthen the recertification process and make fitness-for-duty certification more rigorous.

Serious Health Condition

• Proposal redefines "continuing treatment" for a serious health condition. The new definition is more restrictive and requires that, where continuing treatment is defined by two visits to a health care provider, the two visits occur within 30 days of the beginning of the period of incapacity. Currently, the time period is undefined.

Military Leave Entitlements

• The DOL also requested comment on a wide variety of issues related to the new military family leave entitlements that were contained in the National Defense Authorization Act.
• New leave entitlements include 26 workweeks to care for an injured or ill servicemember and 12 weeks due to a qualifying exigency arising out of the fact that a covered family member is, or has been, called to be on active duty.
• The DOL has issued a notice regarding Military and Family Leave which should be posted alongside an employer's current FMLA notice. A sample posting can be found at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.

Employers must ensure their FMLA policies reflect the new types of servicemember-related leave and should stay informed as to the status of the proposed regulations. Once the regulations are finalized, employers should further revise their FMLA policies, and ensure those responsible for compliance are trained on the new rules.

This topic will be addressed by the head of Ryley Carlock & Applewhite's Labor and Employment Department, at Sterling Education's Seventh Annual Employment Law Update in Arizona on November 13, 2008. For questions regarding any aspect of the FMLA, Ellen J. Glass at 602.440.4887; or any member of Ryley, Carlock & Applewhite's Labor and Employment Department

On September 17, 2008, the House passed the ADA Amendments Act of 2008, legislation that expands the definition of disability under the Americans with Disabilities Act ("ADA"). The ADA Amendments Act of 2008 was proposed in response to a series of Supreme Court decisions that have limited the definition of disability under the ADA. The Senate had already unanimously passed the same bill on September 11, 2008, and President Bush is expected to sign it into law in the coming weeks.

In a previous Alert in November 2008, we noted the significance of the Senate composition to the fate of the so-called Employee Free Choice Act ("EFCA" or the "bill"). Since that time there have been major developments, but the Senate continues to be the key to EFCA's future.

EFCA was introduced in the House of Representatives and the Senate on March 10, 2009, following the Senate Health, Education, Labor and Pensions Committee hearing that touted the "benefits" of unionization and featured several pro-EFCA witnesses. In its current form, EFCA would (1) establish a card check procedure that would effectively eliminate secret ballot elections; (2) have arbitrators impose contracts on employers and unions that do not reach agreement on initial contracts within as little as 120 days; and (3) impose fines and injunctions for unfair labor practices committed by employers. A recent Forbes article noted that "[i]f EFCA was enacted, a worker could find him or herself in a union he or she didn't get to vote on, abiding by a contract they didn't get to vote on, paying dues to a union they didn't agree to and whose political ideology they may not share."1 The potential effect of the proposed legislation is compounded by President Obama's nomination of two staunchly pro-labor union attorneys and one Republican to fill the three vacancies on the National Labor Relations Board. If these individuals are confirmed, the Board's composition will shift significantly in labor's direction.

EFCA appeared to have overwhelming Democratic support in the 110th Congress, and the number of Democrats in Congress has since grown. On June 30, 2009, the Minnesota Supreme Court unanimously declared Al Franken (D-MN) the winner in the disputed Minnesota Senate election. Franken's victory and subsequent announcement that he co-sponsored EFCA within hours of being sworn in theoretically gives Democrats the 60 votes needed to quash a filibuster and bring EFCA to the Senate floor for a vote (where only 50 votes are needed for passage as Vice President Biden would break a 50-50 tie).

However, two years ago it was clear that the bill would not pass the Senate and that President Bush would veto it even if it did pass. Now that Democrats have significantly increased their numbers in the Senate and President Obama has vowed to sign the bill if passed, business groups are more active in opposing the bill and support for the current version of EFCA has decreased in the 111th Congress. Because Democrats can no longer count on all 60 votes, the votes of a handful of moderate Democrats are critical to the fate of the bill in its current form or a possibly modified form.

A number of Democrats have expressed reservations about the bill. In April of this year, Arlen Specter (D-PA) changed his party affiliation to Democrat. Despite Senator Specter's change in party affiliation, he apparently remains opposed to the current version of EFCA, although he has some history of changing his position on this issue. Blanche Lincoln (D-AR), who was previously seen as a supporter, has been publicly critical of the bill, calling it "divisive" and saying that the Senate should focus on creating jobs and improving the economy instead. It is also unclear whether Dianne Feinstein (D-CA), who co-sponsored EFCA in 2007, will support it this time around. Other Seantors who have backed off their previous support of the bill include Mary Landrieu (D-LA) and Mark Pryor (D-AR). Questions also exist about where Senators Michael Bennet (D-CO), Jim Webb (D-VA), John Tester (D-MT), and Max Baucus (D-MT) stand with respect to EFCA.

There are a few Senators who are attempting to maneuver through this controversial issue by separating cloture and passage. Mark Udall (D-CO) and Mark Warner (D-VA) have indicated that they will vote in favor of cloture, but insist that they have not decided how they will vote on the bill itself. Conversely, Ben Nelson (D-NE) is opposed to the bill, but unsure on whether he will support cloture.

Because the Democrats do not yet have the 60 votes they need to break a filibuster, Tom Harkin (D-IA) is among those working to craft a compromise (sometimes referred to as "EFCA Lite") that would attract the support of the moderate Democrats who have expressed concerns about EFCA in its current form or have not publicly committed to supporting it. The possibilities being explored include (1) the use of expedited or "quickie" elections as an alternative to mandatory "card check" certification of a union; (2) granting labor unions "equal access" to an employer's workplace in order to campaign; and (3) extending the period of time before mandatory arbitration in first contract negotiations, but retaining the use of mandatory arbitration that would result in an arbitrator-imposed contract.

If you have questions regarding EFCA and how your business may be affected, or any other aspect of labor relations, please contact a member of our labor and employment practice group.

Nate R. Niemuth

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1 See Katie Packer, The Employee ‘Forced' Choice Act, (July 8, 2009), http://www.forbes.com/2009/07/08/employee-free-choice-act-opinions-contributors-unions.html (providing an overview of the financial impact of EFCA to unions, politicians, and the country).

The Arizona Fair and Legal Employment Act ("Act"), which is scheduled to take effect on January 1, 2008, requires Arizona employers to verify the legal immigration status of newly hired employees by using the federal government database known as E-Verify. A number of groups have challenged the Act in federal court but to date, these lawsuits have been unsuccessful.