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December 20, 2011, Number 21
Our Gift To You For The New Year: The Most Influential Employment Law Decisions and Changes of 2011
By: and , Esquires
With employers hoping 2012 will be a year of prosperity in business, it is a great time to apprise you of what we believe were some of the most influential employment law changes of 2011 for you, as employers and managers.
The National Labor Relations Board Posting Requirement
The NLRB has announced that by January 31, 2012, employers under its jurisdiction must post a notice in poster format explaining employees’ rights under the NLRB. The posting is available for download from the NLRB’s website: http://www.nlrb.gov/poster.
The notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It also provides examples of unlawful employer and union conduct and instructs employees on how to contact the NLRB with questions or complaints.
The posting requirements apply to most private-sector employers, including labor unions, but exclude agricultural, railroad and airline employers, as well as very small employers that conduct an insufficient volume of business to have more than a slight effect on interstate commerce. The notice should be posted where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. Although some commentators believe this change will lead to more unions, if your corporate culture encourages open communication and strives for fair wages and work conditions, then your workplace has a good chance of remaining union free. Non-union employees may find that this is an excellent time to train managers to create or maintain a work environment in 2012 that is conducive with staying union-free.
There’s An App For Employee Time-keeping
The United States Department of Labor (DOL) launched its first application for smartphones in 2011. The App — “DOL Timesheets”—is available for free on iTunes. Using this App, employees can keep their own record of the hours they work and determine the wages they are owed.
With the number of wage and hour claims increasing in recent years, many employers have expressed concerns that this App would be used as an arrow in the quiver of “sue happy” employees. However, it need not be entirely negative if employees keep track of their own time and wages. Ordinarily, in DOL investigations, the burden is on the employer to produce evidence of the employee’s hours worked and wages received.
When the employee has an independent record, the employer can make a request and obtain the employee’s records as evidence. Employers might be able to discourage employees from making outrageous claims in an otherwise employee-friendly DOL investigation.
The DOL App could also be used by employers to certify employees’ reported time. In other words, as the employer, you might want to require employees to regularly submit their independent records and compare them with your own records. Employers also can require employees to document their agreement or disagreement with your records, which would be helpful evidence in a DOL investigation.
New Regulations for the ADA Amendments Act
The Equal Employment Opportunity Commission (“EEOC”) released its final regulations for the Americans with Disabilities Amendments Act (“ADAA”). Although the EEOC passed on establishing automatic, or “per se,” disabilities, it expanded the definition of “disabled” to the point that almost any employee with an impairment can be classified as “disabled” under the ADA Amendments Act. However, there are still impairments that are not protected by the ADA or the ADA Amendments Act. For a full discussion, please see
In the past, before providing an accommodation, employers needed to determine whether the employee was actually disabled under the ADA. Now, with some exceptions including the common cold or flu and others, when an individual presents a need for accommodation and can substantiate non-obvious needs, employers should engage in the interactive process with the employee to find a reasonable accommodation—with the key being “reasonable.” Because there is not yet any case law on this topic, the extent of employees’ rights under the new EEOC regulations to the ADA Amendments Act remains to be seen.
Everyone And Their Brother/Sister Can Sue for Retaliation
The United States Supreme Court decided on January 24, 2011, in the case of Thompson v. North American Stainless, L.P., that third parties can sue for retaliation because of another individual’s complaints of discrimination. Prior to this case, only the person who sued for discrimination could also claim that they were retaliated against for taking action to end the discrimination.
The case was brought to court by Eric Thompson, the fiancé of Miriam Regalado. Eric and Miriam both worked by North American Stainless when Miriam filed a charge of sex discrimination against North American Stainless. Eric was fired from the organization shortly thereafter. He filed a lawsuit against the employer claiming retaliation under Title VII of the Civil Rights Act of 1964. At the time that he filed the lawsuit, retaliation claims were not permissible for third parties. Therefore, the District Court summarily dismissed the case. Eric ultimately appealed the case to our nation’s highest court.
The United States Supreme Court disagreed with the lower court and explained: “We think it is obvious that a reasonable worker might be dissuaded from engaging in a protected activity if she knew that her fiancé would be fired.” It was on that basis that the Court unanimously held that Title VII’s anti-retaliation provisions should be extended to those who have a relationship with the employee claiming discrimination. The Court specifically declined to identify a fixed class of relationships for third party retaliation claims.
As you may already know, retaliation can be asserted for any negative employment action. This includes a failure to hire or promote and a decision to terminate or demote. Therefore, it is now more critical than ever for employers to document any employee discipline and be honest on employee evaluations.
We suggest that you contact an employment attorney prior to any employee terminations to guide you through the termination process.
Cat’s Paw Liability
Last but not least, in 2011, the United States Supreme Court decided that employers may be liable for employment decisions that were affected by the discriminatory animus of underlings.
To refresh your memory on what has become known as “cat’s paw liability”, on March 1, 2011, in the case of Staub v. Proctor Hospital, the United States Supreme Court held an employer liable for discrimination based upon the discriminatory motive of middle managers. In the Staub case, due to their discriminatory animosity against him, middle management took disciplinary action against Staub in order to get him fired. Based upon middle management’s discipline of Staub, upper management terminated him without further investigation. The United States Supreme Court held Proctor Hospital liable for the discrimination of its middle management.
The Staub case serves as a warning to employers to conduct independent investigations to avoid getting burned by the discriminatory motives of middle management. For a full discussion of this case, please see
Bottom Line for Employers
We applaud you for surviving and thriving in 2011 and we wish you the very best for 2012.
If you have any questions about any of the above employment law decisions or changes and how they affect your business, please contact your solicitor or an attorney from our .
* KingSpry Employment News is meant to be informational and does not constitute legal advice.
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