POSTED BY SCOTT T. SILVERMAN ON APRIL 27, 2012

Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30.  Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged.  Briefly, the changes to the rules are:

1) An explicit statement that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists.

2) Hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation. Importantly, issues that will not clearly affect the results of an election are to be deferred until after the election

3) Hearing officers have discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director.

4) Most requests for Board review—with the exception of special permission to appeal—are postponed until after the election.

5) The requirement of a 25 day delay between the direction of an election and the actual election is eliminated.

As explained by the Board, the changes primarily affect procedures in elections for which the parties cannot agree on unit, eligibility and similar issues.

The General Counsel’s office also issued a set of frequently asked questions, which explain the Board’s revised rules and the procedures that will be followed by regions in elections.

Employers should understand that the new procedures will dramatically shorten the time period between a petition and the actual election.  Therefore, employers should no longer assume that there will be sufficient opportunity for an effective campaign.  Consistent proactive union avoidance strategies should be considered.

POSTED BY RICHARD D. TUSCHMAN ON APRIL 25, 2012

The EEOC has ruled that claims of discrimination based on transgender status, also known as “gender identity,” are protected by Title VII.

In a decision issued on April 20, 2012, the agency found that the claims of Mia Macy ("Macy"), a transgender woman who had applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATFE”), were cognizable under Title VII.  Macy, who had “presented” as a man when she applied for the position, alleged that she was denied the position when she informed ATF that she was in the process of transitioning from male to female.

The EEOC reasoned that Title VII prohibits not merely discrimination based on sex, but also on gender, i.e. on the “cultural and social aspects associated with masculinity and femininity.”  Thus, decisions based on transgender status constitute gender discrimination, according to the EEOC.  The EEOC cited numerous court decisions that have reached the same conclusion, including the Eleventh Circuit’s recent decision in Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

But what does “transgender” mean? A male who is in the process of converting to female through surgery and hormone treatments is clearly transgender, but what about a cross-dresser?  Are employers prohibited from taking into account the fact that a male applicant is a “drag queen”, or that a female applicant wears her hair short, applies no make-up, and appears androgynous?

The answer would appear to be yes.  According to the American Psychological Association (“APA”) web site, “transgender” is “an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.”  That definition would seem to cover a wide range of people apart from those who have physically converted, or are in the process of converting, from one sex to another – including cross-dressers and people who appear androgynous. 

The lesson of the Macy decision is clear:  Employers faced with an applicant or an employee who does not meet gender-based cultural and social norms should be aware that discriminating against such persons based on their identity, behavior or appearance may constitute a violation of Title VII. 

POSTED BY SCOTT T. SILVERMAN ON APRIL 18, 2012

The D.C. Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board's Rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.  In  light of this order, the Board has stated that regional offices will not implement the Rule, pending the resolution of the issues before the DC Circuit Court.  The Board explained that its action was necessary in order to assure uniform implementation and administration of agency rules. 

The Board represented that it plans to appeal the D.C. District Court's decision that the enforcement mechanisms of the Rule were impermissible.  In addition, the Board will appeal the South Carolina District Court opinion, which found that the NLRB lacked authority to promulgate the Rule, rendering it completely unlawful.

Until further notice, therefore, employers should not post the NLRB rights poster.  Be sure to check this blog as more updates are sure to occur in this rapidly changing environment.

POSTED BY RICHARD D. TUSCHMAN ON APRIL 16, 2012

Do employers have a right to demand access to their employees’ Facebook pages to ensure employees’ posts do not reflect poorly on their employers? A Miami-Dade firefighter’s race-baiting rant about the Trayvon Martin case - posted on his personal Facebook page - is sparking new interest in this question.

Captain Brian Beckmann’s post, published on the website theGrio.com, criticizes the prosecutor in the George Zimmerman case for political posturing and states that “urban youth” are the products of “failed, sh*tbag, ignorant, pathetic, welfare dependent excuses for parents.” Beckmann’s post goes on to say that urban youth are “just misunderstood little church going angels and the ghetto hoodie look doesn't have anything to do with why people wonder if they're about to get jacked by a thug.”

The source of the story apparently had access to Beckmann’s Facebook page and sent a screen shot of his post to theGrio.com. The source expressed concern that the comments reflected "the thoughts of someone who responds to the homes of the very people" being denigrated in the post. The Miami-Dade Fire Rescue Department is investigating the matter.

For public sector employers like Miami-Dade County, the question of whether employers can demand access to their employees’ Facebook pages is complicated by civil service rules, collective bargaining agreements, and First Amendment rights. But for private sector employers in Florida, no law currently restricts an employers’ right to demand access to their employees’ Facebook pages.

That is not to say that requiring employees to disclose their Facebook passwords is a good idea. An employer’s routine demands to view employees’ Facebook pages would undoubtedly be viewed as heavy-handed and smack of “Big Brother.”

But where an employer has knowledge of discriminatory posts or other online behavior by an employee that reflects badly on their business, demanding access to the employee’s Facebook page may be prudent, and perhaps even necessary, to prevent liability or reputational injury to the employer.

Legislation may change the legal landscape on this issue. Maryland recently passed a bill that prohibits employers from asking applicants and employees for social media account log-ins and passwords. Several other states are considering similar legislation. Florida is not among them, for now, but federal legislation may be on the horizon. We will keep an eye on this fast-moving issue and report on new developments.

POSTED BY SCOTT T. SILVERMAN ON APRIL 16, 2012

On Friday, April 13, 2012, the United States District Court for South Carolina held that the National Labor Relations Board ("NLRB") exceeded its authority when promulgating a rule which requires that all employers subject to the jurisdiction of the National Labor Relations Act ("NLRA") post a notice of employee rights.  In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al., Case No. 2:11-cv-02516-DCN, Federal Judge David Norton held that the NLRB violated the Administrative Procedures Act when promulgating the rule, and granted summary judgment to Plaintiffs on their claim that the rule was invalid.

As previously reported, on August 30, 2011, the NLRB published a Final Rule, which is currently set to take effect on April 30, 2012.  The rule is divided into two main parts: (1) Subpart A contains the requirement that all employers subject to the NLRA post notices, in conspicuous places, that inform employees of their NLRA rights, NLRB contact information and NLRB enforcement procedures; and (2) Subpart B states that a failure to post the required notice is an unfair labor practice and that the NLRB may toll the statute of limitations for a violation of the rule and find a failure to comply with the rule as evidence of unlawful motive in unfair labor practice proceedings.

Last month, the D.C. District Court issued an order on a separate challenge to the rule and held that the Subpart A notice posting requirement was a valid exercise of the NLRB's powers.  However, the D.C. District Court found that the NLRB's remedial measures in Subpart B of the rule were impermissible.

The South Carolina District Court disagreed with D.C. District Court and held that the rule was completely unlawful.  Initially, Judge Norton focused on Section 6 of the NLRA, which grants the NLRB the power to make, "in the manner prescribed by the Administrative Procedures Act,   such rules and regulations as may be necessary to carry out the provisions of" the NLRA.  Judge Norton found that while the notice posting rule may be helpful in carrying out the NLRB's functions, it was not necessary.  Further, Judge Norton reasoned that there is no provision in the NLRA, unlike several other federal labor statutes, which requires employers to inform employees of their NLRA rights. Thus, the rule could not be said to be necessary to carry out an explicit Congressional directive.  Judge Norton opined that the NLRA framework requires the NLRB to be reactive to election petitions or unfair labor practice charges and that the Board exceeded its powers by adopting a proactive notice posting rule.

The South Carolina District Court has not yet issued an injunction or other formal relief to Plaintiffs. Further, it is expected that the NLRB will seek to stay Judge Norton's order pending appeal.  Finally, the D.C. District Court's decision is currently on appeal.  Given judicial developments in this area, the NLRB may postpone the effective date of the rule again, or there may be some further judicial decision in advance of April 30, 2012.  Employers are advised not to display the NLRA notice rights poster prior to April 30, 2012 and to consult with counsel to determine the current status of the rule as of the current enforcement date.

POSTED BY KAREN M. BUESING ON APRIL 9, 2012

Employers should welcome the new amendments to Florida's unemployment compensation laws. Among other things, those amendments eliminate the provision that the unemployment compensation law is to be liberally construed in favor of the claimant, broaden the definition of "misconduct" which will disqualify a claimant from receiving benefits, and require claimants to take new steps to demonstrate efforts to find work.  "Misconduct" now covers certain conduct regardless of whether it takes place in the workplace or during working hours. It now specifically includes conduct demonstrating a "conscious" (rather than "willful") disregard of an employer's interests, carelessness or negligence that manifests an intentional disregard of those interests, chronic absenteeism or tardiness,  or a violation of an employer's known, valid and consistently enforced rule.

Prior to the amendments, claimants could receive unemployment compensation even though they were also receiving severance from their employer. Now, that severance will reduce the amount of unemployment compensation claimants receive. Further, the evidentiary burden for unemployment compensation hearings is relaxed under the new amendments – hearsay may now support a finding of fact if the party against whom it is offered has a reasonable opportunity to review it prior to the hearing and the hearing officer determines that it is trustworthy, probative and in the interest of justice to admit the evidence.

These are exciting changes for employers long frustrated by the unemployment compensation process. We are pleased to have the Hon. Alan O. Forst, Chairman of the Florida Unemployment Compensation Appeals Commission join me in a discussion of how these changes are playing out in the field at the 17th annual Akerman Labor & Employment  Law Seminar in Hollywood, Fla. on Thursday April 19. We hope you will join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp

POSTED BY MICHAEL BENCHETRIT ON APRIL 3, 2012

The U.S. employer that wishes to have a foreign national conduct business with its company or work for its company in the United States should determine if a temporary visa or a more permanent immigration solution is required for time spent in the United States. As part of this strategy, the U.S. based employer should work closely with the foreign national to determine her educational background and employment experience abroad, especially if it is with a related entity of the U.S. based employer, in order to develop a well-rounded immigration plan.

Developing a successful immigration planning and compliance program can be accomplished by the HR professional that familiarizes himself with the I-9 Form, and understands the policy behind temporary employment options and permanent employment options. With new tools available to employers such as the E-Verify program, being able to track and manage the I-9 process and ensuring new employees are properly verified and existing employees are properly re-verified, the often complex world of immigration law and procedures can effectively be de-mystified.

In my Immigration Law 101 presentation at the 17th annual Akerman Labor & Employment Law Seminar, I'll address these topics and more. Come join us. To learn more please visit http://www.akerman.com/events/LELS12/overview.asp

POSTED BY SCOTT T. SILVERMAN ON APRIL 3, 2012

Your company just won its workers' compensation case, and the employee was denied benefits.  Time to celebrate, right? WRONG. You may have just bought yourself a civil lawsuit for damages.

In Ocean Reef Club, Inc. v. Wilczewski and Leon, No. 3D09-2779 (Fla. 3d DCA March 21, 2012), the Third District Court of Appeal made two findings of which all Florida employers should be aware: (1) an employer with knowledge of workers' compensation injuries, but who fails to properly report them, is prevented from claiming workers' compensation tort immunity, because the employee failed to file for benefits or because benefits were denied as time-barred; and (2) an employer cannot claim workers' compensation tort immunity when its carrier has denied coverage on the ground that the asserted injuries were not within the course and scope of employment.

In Ocean Reef, employees, a hair stylist and nail technician in a beauty salon, had notified their supervisors of asthma-like symptoms, headaches and respiratory problems, resulting from chemical fumes, for which they sought medical treatment.  However, neither they nor their employer gave notice to the insurance carrier of these illnesses.  It was only after Ocean Reef was sued for damages, that it notified the carrier, which denied coverage on the basis that the illnesses did not occur in the course and scope of employment and that the statute of limitations had run.  Ocean Reef then moved for summary judgment on tort immunity in the civil action, which was denied.  The denial then went to the Third District on appeal.

The Third District held that an employer could not fail in its statutory obligation to provide notice of work-related injuries, and then argue that the tort immunity applied, because the employees did not give notice, and that the workers' compensation claim was barred due to the passage of the statute of limitations.  The court also found that it would be inequitable for the employer, through its insurance carrier, to assert there were no work-related injuries and no workers’ compensation coverage, and then later, when the employee brought a tort action against the employer, to assert a workers’ compensation coverage defense.  An employer simply cannot take such inconsistent positions.

The lessons for employers are: (1) to make sure that supervisors make the required notice of injury so that the employee will be limited to the workers' compensation remedy;  and (2) to coordinate the defense of workers' compensation claims with civil litigation to make sure that inconsistent positions are not taken.  Had this employer made the required notice of injury during employment, or had made sure that an inconsistent defense was not taken in the workers' compensation proceeding, it would not now be looking at a significant civil damages exposure.

POSTED BY SCOTT T. SILVERMAN ON APRIL 2, 2012

Do you ever get the idea that all developments out of Washington, DC are bad for employers?  Well, at least in this instance, there is some good news for a change.

On March 29, 2012, the EEOC issued its Final Rule on Disparate Impact and "Reasonable Factors Other Than Age" Under The Age Discrimination in Employment Act. http://www.eeoc.gov/laws/regulations/adea_rfoa_qa_final_rule.cfm

The U.S. Supreme Court had previously criticized the prior EEOC regulation, which had required employers to prove a "business necessity" for policies that had a disproportionate effect  on workers over 40.  Now, in response to a disparate impact claim, employers must only show that their practices are based on a "reasonable factor other than age," which is the RFOA defense.  As explained by the EEOC, the RFOA defense is much easier to prove than "business necessity."

The Final Rule does two (2) things: (1) it clarifies that the RFOA defense may be used in response to a disparate impact claim, not "business necessity"; and (2) it explains how the RFOA applies.  Importantly, an employer is only required to assert a RFOA defense when the employee has identified a specific employment policy or practice, and established that the practice harmed older workers substantially more than younger workers.  This is a tough standard for an employee to meet.  Moreover, even if the employee satisfies the test, to qualify for the RFOA defense, the employer must only show that it  reasonably designed and administered its policy to achieve a legitimate business purpose in light of the circumstances.

In summary, the employer must demonstrate: (1) that the criteria utilized in the policy or practice is related to a legitimate business purpose; (2) that managers and supervisor were given guidance or training on how to apply the factor to avoid discrimination; (3) that managers or supervisors were given limited discretion to assess employees subjectively; (4) that the adverse impact on older workers was assessed; and (5) the employer took steps to reduce harm to those in the protected age group.

Employers thus now have an easier defense to disparate impact age claims and specific guidelines to assert the defense.  Welcome news for once!

POSTED BY RICHARD D. TUSCHMANON APRIL 2, 2012

Non-compete agreements need to actually prohibit the competitive activities at which they are aimed.  Thus, they must reflect the reality of the businesses for which they are drafted. 

So, if you are drafting or reviewing a non-compete agreement, it's critical that you consider not only what the business does, but how it does it- and how a former employee might be able to take away business notwithstanding that boilerplate language you were thinking about using.

A recent decision by Florida’s Fifth District Court of Appeals illustrates the problem of boilerplate language.  The former employee, an equine veterinarian, signed a non-compete agreement, which provided:

B. During the term of this agreement, and for a period of two (2) years after termination thereof, Employee shall not own, manage, operate, control, be employed by, assist, participate in, or have any material interest in any business or profession engaged in general equine veterinary practice located within a thirty (30) mile radius of 19801, County Road 561, Clermont, Florida [the employer’s business address].. 

All that boilerplate – “own, manage, operate, control, be employed by, assist, participate in, or have any material interest in” – sounds pretty impressive, right?

Not in this case.  Think about it – did you ever take your dog or cat to the vet's office and see a horse in the waiting room?   I didn't think so. The problem for the employer here was that equine veterinarians typically make house calls (or stable calls).  So, the location of an equine veterinarian’s office is unimportant – it's where the horses are that counts.  Because the plain language of the agreement did not prohibit the former employee from providing her services within the 30-mile radius, the 5th DCA reversed the trial court's injunction against the former employee.  The non-compete agreement, and all of its boilerplate language, was ultimately useless.