Today is Administrative Professionals Day (formerly and sometimes still known as Secretaries Day).  In honor of this day, we refer you to "The Best of Bad Bosses" feature by HR Strange But True.  Highlights (or is it "lowlights"?) include:

• The Company President who took the office staff to lunch for Administrative Professionals Day.  Well, not the entire staff--just the blonde women.  The receptionist and his own executive assistant, both of whom had dark hair, did not get invited.
• The boss who told an employee, after she returned to work following breast cancer surgery:  "Well, I don't have to worry about you going anywhere else. No one else will hire you now that you've had cancer.  I can pretty much do what I want now."
• The boss who hit an employee with an aluminum baseball bat over a dispute about the employee's performance.  And you thought your boss was tough!

Read the full stories, and more tales of bad bosses, here. 

The effort in the Senate to prevent the implementation of the NLRB's new set of election rules failed yesterday.  By all appearances, the new election rules will take effect on April 30th.  These rules are designed to fast-track union representation elections.  This change should increase the election victory rate for unions resulting in more employee groups becoming union represented. 

What does all this really mean for employers?  The simple message is that employers that wish to remain union-free should consider educating their workforce on the topic before the employer becomes aware of a union's presence.  The time-line currently in place is already short.  The new rule will slice several weeks off of the existing schedule.  The practical effect of the change is that once a representation petition is filed, it will be almost too late for an employer to effectively respond with educational information to fully inform employees.  As they say, an ounce of prevention is worth a pound of cure.  This will be more true than ever once the fast-track election rules take effect next week. 

In a recent press release the U.S. Department of Labor announced child labor penalties against a chain retailer for allowing employees under the age of 18 to perform certain tasks the DOL has determined to be hazardous.  You might wonder what terrible tasks the employer required the minor employees to perform.  Was it handling hazardous chemicals?  Or maybe operating dangerous cutting equipment?  Not a chance.  It was nothing along those lines. 

Like many companies, this retailer had a trash and box compactor in the back of the store, and the minor employees were operating it.  Unfortunately, the DOL's Hazardous Occupation Order No. 12 generally prohibits employees under the age of 18 from operating, loading, or unloading paper balers or trash compactors.  These simple violations led to the assessment of a $12,000 civil penalty against the employer.

The lesson to be learned from this case is to be careful in how you utilize your youth employees.  DOL has issued specific regulations regarding the types of job duties employers under the age of 18, and under the age of 16, may perform.  As you can tell from this particular instance, those restrictions are not always intuitive, and what may seem like a routine function to you might be a hazardous task to the DOL. 

The NLRB's new election rule (click here to read the 12/05/2011 blog post discussing this rule), which essentially accelerates the election process, is set to take effect on April 30th.  This new rule dramatically favors unions, as it provides very little time for employers to inform employees once a representation petition is filed.  Some have labeled the rule the "ambush election rule" because it significantly shortens the current election process, which is already fairly short.  

The election rule is now under attack in the U.S. Senate by way of a proposed resolution pursuant to the Congressional Review Act.  The resolution of disapproval should be debated in the Senate this week and if approved by Congress would result in the implementation of the NLRB's election rule being blocked.  Stay tuned for further developments on this issue.

To read the press release click here.

Late yesterday the Circuit Court of Appeals for the District of Columbia (the federal appellate court over DC) issued an emergency injunction blocking the National Labor Relations Board from implementing its poster requirement, which was scheduled to take effect on April 30, 2012.  These regulations would require private-sector employers to post an official Board-drafted notice informing employees of their rights under the National Labor Relations Act, including the right to join or support a union.  Several business organizations had joined together last fall to file a lawsuit to block the poster requirement on the basis that the Board had exceeded its statutory authority in issuing the underlying regulations.  Last month the federal district judge in the District of Columbia had struck down several aspects of the Board's regulations, but upheld the poster requirement.  Both sides appealed the judge's decision and those appeals led to the DC Circuit's ruling.

While the injunction does not necessarily impact the entire country, the NLRB has decided not to enforce the rule while the issue is resolved.  The NLRB's temporary suspension of the rule's implementation gives employers a temporary reprieve from the posting requirement.

Of note, the DC Circuit did not address the substance of the NLRB's regulations; rather, it simply ordered the injunction to keep the notice from going into effect while the appeal is being addressed.  The timing of when the DC Circuit will further address the substance of the NLRB's regulations is not yet known. 

The current administration's pro-labor stance has not given private employers much to smile about over the last couple of years.  Last week, however, a federal judge in South Carolina provided employers with some much needed good news on this front.  In a lawsuit brought by the U.S. and South Carolina Chambers of Commerce against the National Labor Relations Board (NLRB), the judge ruled that the NLRB lacked the statutory authority to issue the regulations that require employers to post a notice informing their employees of their rights under the National Labor Relations Act.  This ruling comes on the  heels of a federal judge in the District of Columbia determining last month in a separate lawsuit that the NLRB had the authority to issue the notice requirement. 

In the South Carolina case, the court, analyzing the language of the National Labor Relations Act, determined that while the statute gives the Board the authority to issue rules to carry out the provisions of the Act, the Board's actions in requiring the posting of a notice went too far.  The court was mindful of the fact that the statute does not contain an express notice requirement, which is contrary to a number of other prominent employment laws, such as the Fair Labor Standards Act and anti-discrimination laws such as Title VII and the ADA.  The lack of any express statutory authority was noteworthy given the law's 75-year history and the fact that Congress has amended the act on a number of occasions.  The court found      Continue Reading...

Having a simple, easy-to-pronounce name is more likely to win you friends and favor in the workplace, according to a new study published in the Journal of Experimental Social Psychology.  Researchers, conducting studies using a range of names from Anglo, Asian, and European backgrounds, found that people with easy-to-pronounce names are evaluated more positively and more likely to receive job promotions.  

"Research findings revealed that the effect is not due merely to the length of a name or how foreign-sounding or unusual it is, but rather how easy it is to pronounce," according to lead author, Simon Laham from the University of Melbourne in Australia.  Subtle biases that we are not aware of affect our decisions and choices, he says.  This could have important implications for the management of bias and discrimination in the workplace and society.  "It's important to appreciate the subtle biases that shape our choices and judgments about others. Such an appreciation may help us de-bias our thinking, leading to fairer, more objective treatment of others," Laham says. 

About a month from now high school seniors will be donning funny looking caps and gowns and parading across stages to receive their hard-earned diplomas.  But employers who require a high school diploma or GED as a condition of employment need to make sure this requirement is job-related and consistent with business necessity, and that it doesn't screen out individuals who cannot obtain a diploma because of a learning disability.         

The Equal Employment Opportunity Commission recently published new guidance on whether an employer's requirement that a job applicant have a high school diploma may violate the Americans with Disabilities Act.  The guidance is in response to an informal discussion letter issued by the EEOC last November that created significant commentary and conjecture. 

The guidance explains that requiring a high school diploma for a position is not illegal.  Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, according to the EEOC, if an applicant tells an employer she cannot meet this requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions.

The guidance clarifies that the ADA only protects someone whose disability makes it impossible for him to get a diploma. It would not protect someone who simply decided not to get a high school diploma.  The employer can require      Continue Reading...

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to      Continue Reading...

On March 29 The U.S. Equal Employment Opportunity Commission (EEOC) issued the "Final Regulation on Disparate Impact and Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA).  The final rule clarifies the EEOC's position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. 

The rule responds to two Supreme Court decisions in which the Court criticized one part of the EEOC's existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional.  However, it disagreed with the part of the regulations that said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”  The Court said that, in an ADEA disparate impact case, the employer did not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also said that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA.

In issuing the new rule, the EEOC tried to make its regulations consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.  For a more-detailed      Continue Reading...