GANFER & SHORE, LLP
CLIENT EMPLOYMENT LAW ADVISORY
NLRB REQUIRES EMPLOYERS – UNION AND NON-UNION – TO
POST NOTICES INFORMING EMPLOYEES OF RIGHT TO UNIONIZE
Effective November 14, 2011, new rules promulgated by the National Labor Relations Board (NLRB), will require all employers – regardless of their size or whether they are unionized – to post a notice of employees’ rights under the National Labor Relations Act (“NLRA”). The notice must be posted in a conspicuous place and the employer must take “reasonable steps” to ensure that the notice is not altered, defaced, covered by any other material, or otherwise rendered unreadable.
Copies of an acceptable form of notice will be available from the NLRB’s regional offices and may be downloaded from the NLRB’s website. Employers may also use their own notices (if they follow the NLRB text) or purchase notices from outside vendors. If twenty percent or more of the workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak (including each such language, if more than one). The NLRB says that it will provide translations of the notice.
The NLRB will treat an employer’s failure to post the notice as an unfair labor practice, and may also extend the six-month statute of limitations for filing charges involving other unfair labor practice allegations against the employer if the notice has not been posted. The NLRB may also consider an employer’s knowing and willful failure to post the notice as evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.
PROSPECTIVE EMPLOYER NOT SUBJECT TO RETALIATION CLAIM UNDER FLSA
A prospective employer extended a job offer contingent upon the applicant’s providing a list of pending civil litigations in which she was a party. After the applicant disclosed that she was suing her former employer for violating the wage and hour provisions of the Fair Labor Standards Act (“FLSA”), the prospective employer withdrew its job offer. After all, few employers wish to hire someone with a history of suing previous employers, regardless of the merits of the suit.
The applicant sued the prospective employer, alleging that in withdrawing its job offer, it unlawfully retaliated against her for exercising her rights under the FLSA. The prospective employer moved to dismiss the suit on the grounds that the FLSA protects only employees, not prospective employees. In Dellinger v. Science Applications International Corp., 2011 WL 3528750(4th Cir. 2011), the Fourth Circuit Court of Appeals recently affirmed a trial court decision dismissing the suit. The court agreed that the FLSA’s anti-retaliation provision relates to circumstances where an employee alleges an FLSA violation by the employer, and cannot be expanded to cover prospective employees who have made no FLSA claim against the prospective employer.
EMPLOYEE’S FMLA CLAIM REJECTED BASED ON PATTERN OF ABSENCES AROUND HOLIDAYS, VACATIONS, AND SCHEDULED DAYS OFF
An employer closed down its SaltLake City operation and transferred the plaintiff employee to Texas; the plaintiff’s family remained in Utah. After the transfer, plaintiff injured his back, which led to his taking intermittent FMLA leave over the next three years. Plaintiff took intermittent leave on 35 separate occasions just before or just after scheduled holidays, vacation days, or other scheduled time off. One year, for example, plaintiff used FMLA leave in conjunction with Independence Day, Labor Day, Thanksgiving Day, Christmas Day, New Years Eve, and his birthday.
The employer eventually figured out the pattern of plaintiff's FMLA absences and began to monitor his use of leave time. It discovered that he had a habit of taking flights to and from Utah on the days he requested FMLA leave. The employer determined that plaintiff had misused FMLA, in violation of its attendance policies, and terminated him. Plaintiff sued, alleging that his employer had unlawfully interfered with his rights under the FMLA and retaliated against him for taking FMLA leave. The federal court in Utah summarily dismissed the suit, however, ruling that the employer had an honest belief that plaintiff was abusing FMLA leave, and that the termination was therefore legitimate. Rydalch v. Southwest Airlines, 2011 WL 3349848 (D. Utah 2011).
NLRB RULES THAT UNAUTHORIZED WORKERS CANNOT RECEIVE BACK PAY FOR FEDERAL LABOR LAW VIOLATIONS
It is illegal under the Immigration Reform and Control Act (“IRCA”) for an applicant or employee to present fraudulent documents to obtain or retain his or her employment, or for an employer knowingly to hire workers who are not legally employable in this country. In Hoffman Plastics Compounds Inc. v. NLRB, 535 U.S. 137(2002),the U.S. Supreme Court ruled that the IRCA prohibited the NLRB from awarding back pay under federal law to workers who presented fraudulent work authorization documents and thus had never been lawfully authorized to work in the United States.
In Mezonos Maven Bakery Inc., 357 NLRB No. 46 (Aug. 9, 2011), employees were terminated in violation of federal labor law and sought back pay. The employees had never presented fraudulent work authorization documents to the employer. Rather, the employer had been aware that the employees were unauthorized to work but hired them anyway. The employees claimed that they were entitled to back pay because, unlike in the Hoffmancase, it was the employer, not they that violated the IRCA. The NLRB rejected their argument, concluding that Hoffman “broadly preclude[d] back pay awards to undocumented workers regardless of whether it is they or their employer who has violated” the IRCA.
The NLRB reasoned that it not possible for an employer to enter into a lawful employment relationship with an undocumented worker, and if an employer ends an unlawful employment relationship in a way that violates federal labor law, a back pay award would legitimize that relationship and replace wages that could not have been lawfully earned in the first place.
The cases presented in this Advisory are drawn from courts located throughout the United States. They may or may not apply to a given employer based upon regional interpretations of federal law as well as any applicable state or local laws. If you have any questions concerning labor or employment law, please contact Robert I. Gosseen, Esq., who heads this practice area at Ganfer & Shore, LLP, at (212) 922-9250, ext. 288, or your contact at the firm.