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NEW NLRB POLICY TO AID MEMBERS SEEKING TO BRING CLAIMS AGAINST THEIR UNIONS

Saturday, November 10, 2018

Labor union members have been forced for many years to prove bad faith interest when seeking to make claims against their own unions for failure to represent them properly.  That has now changed based on an October 24, 2018 Memorandum from General Counsel, Peter Robb (Trump appointee) of the National Labor Relations Boards (NLRB – the federal labor law enforcement agency).  Claims of negligence against unions will now be easier because the union will be presumptively liable if workers’ grievances are not properly processed.  Unions are currently already facing declines in memberships and f

Federal Government Changes Position on Protection for Transgender Workers

Monday, October 29, 2018

Last week, the Department of Justice submitted a brief to the United States Supreme Court arguing that Title VII does not prohibit discrimination against transgender employees. The DOJ argued that the protection against “sex” discrimination does not apply to gender identity.  Importantly, the Equal Employment Opportunity Commission has not changed its position accordingly, and therefore the EEOC still considers transgender employees to be protected from discrimination. 

Title VII Hostile Work Environment Claims Proceed on Sexual Orientation Discrimination

Monday, October 22, 2018

A New York employee who worked for the NYS Insurance Fund for many years allegedly experienced discrimination and a hostile work environment based on the fact that he was gay and had a disability.  The employee complained of discrimination and alleged that following his complaints he was retaliated against.  On remand from the Second Circuit, the district court dismissed the employee’s Title VII discrimination claims because he failed to allege that he suffered an adverse employment action based on his sexual orientation.  The court found that although he alleged another employee emailed f

NYS Issues Final Guidance on Sexual Harassment Training Requirements

Wednesday, October 03, 2018

NYS issued its final guidance on the new sexual  harassment policy and training requirements in effect for all New York employers.  The state clarified that October 9, 2018 remains the deadline by which all employers must adopt a written sexual harassment policy and an anti-harassment training program.  The state has issued model language and training documents for employers that need assistance developing those documents. 

Paid Family Leave 2019 Update

Friday, September 07, 2018

Employees will pay more of their paycheck towards the Paid Family Leave benefit program in 2019 - 0.153% of gross wages up to a yearly maximum of $107.97 (up from 0.126%/$85.56 in 2018). Moreover, as per the original provisions of the Paid Family Leave law, employees will be permitted to take up to 10 weeks of paid family leave in 2019, and receive 55% of their average weekly wage, up to a maximum of $746.41.  

Deadline for New Sexual Harassment Prevention Requirements Fast Approaching

Tuesday, August 28, 2018

In April, we wrote about new steps New York State is taking to prevent harassment in the workplace, including requiring New York employers to comply with policy and training requirements.

Lululemon Employees Likely to be Conditionally Certified for Allegations of Unpaid Wages

Thursday, August 16, 2018

Earlier this month, a New York Federal Court magistrate recommended conditional certification of a class of Lululemon employees who allege they were expected to take yoga classes at studios to promote Lululemon apparel, and perform other work related tasks off the clock.  Lululemon paid the fee for the classes but did not pay the employees to attend, calling it “community work.”  The employees allege they spent approximately five hours each week in fitness classes and another five hours per week performing other tasks.

Court Holds that USC Cannot Force Employees/Investors in its Retirement Plan to Arbitrate their Breach of Fiduciary Duties Claims

Monday, August 06, 2018

Employers with retirement plans subject to the Employee Retirement Income Security Act (ERISA) often seek to reduce their potential class action liability for breach of fiduciary duty claims by including mandatory arbitration clauses in employment agreements. University of Southern California (USC) workers challenged the school's management of its plans in federal court several years ago, despite the arbitration clauses in their agreement.

Changes to Taylor Law

Friday, July 27, 2018

This year, Governor Cuomo signed a law making changes to the Taylor Law to strengthen public unions.  The Taylor Law, officially the Public Employees Fair Employment Act, defines the rights and limitations for public employees in New York.  The major changes to the existing law include the following:

Arbitration Agreements as a Condition of Employment are Enforceable

Monday, July 16, 2018

The US Supreme Court recently upheld mandatory arbitration clauses in employment contracts that waived an employee’s right to bring class or collective actions.

Governmental Affairs
18

YOUR ASSISTANCE IS NEEDED!  The NLRB's imbalanced "quick election" rule is scheduled to take effect on April 30, 2012. The congressional resolution to nullify the rule may considered by the U.S. Senate this week!

Please e-mail your U.S. Senators and Representative and either:

  • thank them for co-sponsoring the Enzi/Gingrey Joint Resolution, or
  • encourage them to do so!

Former HR professional and SHRM member, Sen. Mike Enzi (R-WY), and Rep. Phil Gingrey (R-GA), have introduced Senate Joint Resolution 36 and House Joint Resolution 103 in the Senate and House, respectively. If adopted by Congress, these joint resolutions would nullify the National Labor Relations Board's (NLRB) new "quick election" rule, which will shorten the time employers have to respond to union petitions.

Please Take This Action:
Write your members of Congress using SHRM’s HRVoice program.  This advocacy campaign is automatically tied to your legislators' positions on each joint resolution.  The version of the message you see will be a "please support" communication or "thank you," based on the given legislator's current position at the time you send the message. Please write your legislators by following these steps:

1.    To write your member of the U.S. House, log onto the SHRM Advocacy Action Center by clicking HERE

2.    To write your member of the U.S. Senate, log onto the SHRM Advocacy Action Center by clicking HERE

3.    Personalize your message with your own story

4.    Include your home mailing address.


Issue

The NLRB's election case procedures rule, otherwise known as the "quick election" rule, was published on December 22, 2011. The rule intends to shorten the time employers have to respond to representation petitions to as few as 10 days. The quick election rule is scheduled to take effect on April 30, 2012.

Sen. Mike Enzi (R-WY), ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, and Rep. Phil Gingrey (R-GA), introduced a joint resolution that, if passed, would nullify the NLRB's quick election rule.  The joint resolutions are based on the Congressional Review Act of 1996 (CRA), which allows the Senate and House to consider a joint resolution of disapproval that features the full force of law to stop a federal agency from implementing a rule or regulation.

Outlook

The joint resolution needs only a simple majority (51 votes) to pass the Senate, not the 60 votes it usually takes to defeat a Senate filibuster. If the resolution passes both the House and Senate and is not vetoed by President Obama, the quick election rule would be repealed.

SHRM Position

SHRM supports the Enzi/Gingrey joint resolution based on the belief that the quick election rule’s reduced timeframe is unnecessary. A recent NLRB annual report revealed that the median time from a representation petition to an election was 38 days in Fiscal Year 2011. This reasonable 38-day average period gives employees ample time to hear both the union and employer perspectives on collective bargaining prior to a representation election.

Should you have any questions regarding the Enzi/Gingrey joint resolution, please contact Michael Layman, SHRM's Government Relations Senior Associate, at michael.layman@shrm.org.

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