On November 15, 2010, the NLRB invited interested parties to file amicus briefs concerning employer discrimination in handbilling by nonemployees. In a unanimous opinion in Roundy’s Inc., 356 NLRB No. 27, (Nov. 12, 2010), the Board upheld an ALJ determination that a Wisconsin grocer committed an unfair labor practice by expelling peaceful nonemployee union handbillers from 23 stores. Determining that the grocer could not establish a property interest in the area of that handbilling permitting it to “interfere with, restrain, or coerce employees” engaging in protected concerted activities, the Board found the grocer’s conduct in violation of Section 8(a)(1) of the National Labor Relations Act (”NLRA”) at those 23 locations.

The invitation for further briefing, however, concerns two other locations where the grocer’s valid property interest in the location of the handbilling would be balanced against its employees’ right to engage in concerted activity. For these two locations, the ALJ determined that the grocer committed an unfair labor practice by engaging in anti-union discrimination - permitting access to various third parties while denying access to unions. However, the ALJ based his decision on Sandusky Mall Co., 329 NLRB 618 (1999), which was later overturned by the Sixth Circuit in Sandusky Mall Co. v. NLRB, 242 F.3d 682 (6th Cir. 2001). While it is not uncommon for the Board to continue to adhere previous Board decisions overturned by federal courts, it requested further briefing on the continuing validity of its Sandusky Mall Co. decision.

In inviting briefs, the Board asked interested parties to weigh in on the continuing validity of the Board’s decision in Sandusky Mall Co., proposals for alternative standards for anti-union discrimination were the Board to depart from Sandusky Mall Co., and the relevance of the Board’s 2007 Register Guard decision to the analysis. 

The Board’s reference to Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), is of particular interest. In that case, the Republican-majority Bush-era NLRB determined that employees do not have a protected NLRA Section 7 right to use employer email systems to send union-related solicitations. The Board also held that the employer did not violate Section 8(a)(3) of the NLRA by disciplining an employee for sending emails soliciting union support pursuant to the employer’s policy forbidding the personal use of email. Applying a standard of whether the employer engaged in “unequal treatment of equals,” the Board held that the employer could enforce its policy against union activity even though it had not enforced the policy against other types of personal emails, including those concerning baby announcements or inquiries for sports tickets. Instead, the Board reasoned that the employer had not permitted analogous solicitations for non-union groups. Although the D.C. Circuit Court of Appeals later refused to apply the Board’s decision in full, it declined to explicitly overturn the “unequal treatment of equals” standard. 571 F.3d 53 (D.C. Cir. 2009).

The application of a similar “unequal treatment of equals” standard to the case currently before the Board could potentially allow the grocer to allow third party access to the properties in question while not permitting handbilling. Alternatively, the current Board’s 3 to 1 Democratic-majority could elect to revisit the Register Guard standard and determine that 1) union solicitation over employer email systems, like handbilling, is a protected Section 7 right, or 2) as in Sandusky Mall Co., apply a higher level of scrutiny in determining whether anti-union discrimination has occurred.

Amicus briefs must not exceed 25 pages in length and must be filed on or before December 13, 2010.

The NLRB’s press release can be found here.

On November 17, 2010, the Senate was unable to carry the requisite 60 votes needed to invoke cloture to overcome a Republican filibuster and proceed to a vote on the Paycheck Fairness Act, S. 3772,  with a final vote of 58 yeas and 41 nays.

The Paycheck Fairness Act, previously introduced in the Senate by Senator Clinton (D-NY) as S. 766 and subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010, would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act.”

The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.” Among other things, the bill would require that any pay differential be based only on certain “bona fide factors,” such as education, training or experience, which must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims, provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  

On November 17, 2010, the Senate is scheduled to hold a cloture vote on the Paycheck Fairness Act, S. 3772. The Paycheck Fairness Act would amend the portion of the Fair Labor Standards Act (”FLSA”) known as the “Equal Pay Act” that prohibits differentials in pay between employees of the opposite sex unless those differentials “are based on any other factor other than sex.”

The bill amends this language to require that any pay differential be based only on certain “bona fide factors” such as education, training or experience. Such bona fide factors must also be consistent with “business necessity.” In addition, the bill provides for compensatory damages, and, in certain circumstances, punitive damages for Equal Pay Act claims.  The bill also provides for opt-out class actions for Equal Pay Act suits under the FLSA, as opposed to opt-in class actions, and requires that the EEOC collect pay information data from employers relating to employees’ sex, race and national origin.  

The Paycheck Fairness Act was previously introduced in the Senate by Senator Clinton (D-NY) as S. 766. However, no action was taken on the bill. The bill was subsequently reintroduced by Senator Harry Reid (D-NV) on September 13, 2010.  The Paycheck Fairness Act was introducted in the House as H.R. 12, and passed the House by a vote of 256 to 163 on January 9, 2009, the same day that the House passed the Lily Ledbetter Fair Pay Act.  The President has previously indicated his support for the bill. 

As announced by the NLRB on November 2, 2010, John S. Cotter, Acting Regional Director of the NLRB’s Hartford, CT office (Region 34), filed an unfair labor practice complaint on October 27 against ambulance service American Medical Response (”AMR”), alleging that it unlawfully terminated an employee for disparaging a supervisor on Facebook. The case, which is slated for hearing before an administrative law judge in January 2011, may redefine the scope of employer social media policies and enshrine the protections for concerted activity in a new and growing medium.

The complaint concerns a series of Facebook posts by AMR employee Dawnmarie Souza in November 2009, following the denial of her request for union representation at an investigatory interview regarding alleged misconduct. The postings, which were made on Souza’s own time on her own computer, related to denial of representation and subsequent threats of discipline arising out of the investigation and garnered additional comments from co-workers. The complaint alleges that upon learning of the posts, AMR terminated Souza under its broad internet policy, which forbids employees from making “disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors” and posting photographs in any way depicting the company in internet postings.

The theory behind this unfair labor practice charge would not protect all employee Facebook, blog, and internet postings. Only those communications representing an employee’s right to engage in concerted activities under federal labor law - such as complaints about wages or working conditions - are protected. Under this theory, such communications are protected regardless of the medium of communication: the Facebook postings relating to concerted activity are treated the same way as oral communications or the distribution of printed materials such as flyers. However, Facebook and internet postings not related to concerted activity, or done on company time or equipment in violation of an appropriately-tailored internet policy, would not be protected.

In addition to the Facebook posting/concerted activity charge, the Acting Regional Director’s complaint alleges that AMR wrongfully denied Souza union representation in the investigatory interview and enforced an overly broad internet policy. AMR has denied the allegations and maintains that the termination was not based solely on the Facebook postings, and instead was the result of Souza’s repeated serious performance problems.

OSHA’s new safety standard addressing the use of cranes and derricks in construction went into effect on November 9, 2010. Since the current standard was issued in 1971, the DOL has noted both a high number of fatalities associated with the use of cranes and derricks in construction and considerable technological advances in equipment. The final rule, published in the Federal Register on August 9, 2010, includes several provisions which have been modified from the proposed rule. The new standard is designed to address the key hazards posed by cranes and derricks on construction worksites, including the four main causes of worker death and injury: electrocution, crushed by parts of the equipment, struck-by the equipment/load, and falls.

Highlights of the new rule include the following requirements: a pre-erection inspection of tower crane parts; use of synthetic slings in accordance with the manufacturer’s instructions during assembly/disassembly work; assessment of ground conditions; qualification or certification of crane operators; and procedures for working in the vicinity of power lines.Employers have up to four years to ensure that their operators are qualified or certified under one of the options set forth in section 1926.1427, unless they are operating in a state or city that has operator requirements. In addition, employers must pay for all required training and certification of equipment operators employed as of the effective date of the rule.

The Edison Electric Institute and the Association of American Railroads, two industry associations, filed petitions challenging the rule with the U.S. Court of Appeals for the D.C. Circuit and the U.S. Court of Appeals for the Third Circuit, respectively, last month. (Edison Elec. Inst. v. OSHA, D.C. Cir., No. 10-1311, petition for review filed 10/6/10; Ass’n of Am. Railroads v. OSHA, 3d Cir., No. 10-4006, petition for review filed 10/7/10). The Edison Electric Institute will be meeting with OSHA on November 19 to share its concerns with the new guidelines. The pending lawsuits are not expected to delay implementation of the rule’s requirements, but could affect the final contours of the rule. OSHA aims to release additional compliance assistance material within the next month.

A copy of the regulatory text is available here.

In the November 9, 2010, Federal Register, the Equal Employment Opportunity Commission (EEOC) published its final regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA). GINA, which was signed into law on May 21, 2008, and became effective November 21, 2009, prohibits discrimination based on an individual’s genetic information or family medical history. While the EEOC issued proposed regulations in early 2009, advancement to a final rule was delayed by the need to consult with other agencies that share responsibility for enforcing GINA, as well as turnover among the EEOC’s commissioners.

Title II of GINA prohibits employers from discharging, refusing to hire, or otherwise making employment decisions on the basis of genetic information, as well as generally barring employers from obtaining genetic information about applicants, employees, and former employees. In large part, the regulations reiterate the provisions and language of Title II. However, they do provide clarification and guidance regarding a number of specific aspects of the statute.

The EEOC’s final regulations clarify that an employer need not intentionally solicit genetic information to violate GINA. While the EEOC’s earlier proposed regulations contained language relating to “deliberate acquisition” of protected information, that language was deleted from the final regulations, and the preamble to those final regulations explains that an employer “may violate GINA without a specific intent to acquire genetic information.”

Further, the final regulations provide additional guidance as to the scope of protected genetic information. GINA generally defines genetic information to incorporate family medical histories, including information about the manifestation of disease or disorders in family members of the individual. The regulations clarify the scope of that definition and provide examples of medical tests that are not considered genetic tests, such as blood counts, cholesterol tests, and screenings for alcohol or illegal drugs.

The regulations also provide additional guidance for navigating the exceptions to GINA’s prohibition against the acquisition of genetic information - particularly in the area of inadvertent acquisition of protected information. Where an employer warns a health care provider not to provide genetic information, it may take advantage of a “safe harbor” provision for the inadvertent acquisition of such information from that provider. The regulations emphasize that an employer must warn health care providers responding to Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) requests not to provide the employer with an individual’s genetic or family history information. The regulations even provide sample language for employers to use to properly warn health care providers against such disclosures.

The regulations provide similar guidance for employers conducting pre-employment medical evaluations. Employers are instructed to “tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.” This may require some modification to the post offer/pre-employment medical examination process to remove questions pertaining to family medical history.

The regulations also acknowledge that inadvertent acquisition of protected information may occur in casual conversion between management and employees or during conversations among employees. The regulations clarify that GINA is not violated where a manager simply overhears an employee’s conversation about protected information or asks an employee basic questions, such as “How are you?” or “How is your son feeling today?”

Pursuant to GINA, employers that do obtain protected genetic and family history information must comply with strict confidentiality requirements. The confidentiality provisions in the regulations mirror certain confidentiality provisions in the ADA, and require that protected information be kept in a separate confidential file and not in an employee’s personnel file.