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SHRM Newsletter: NLRB Posting Deadline Delayed



October 20, 2011

This is Utah SHRM Legal-mail no. 2011-18 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).







NLRB POSTING DEADLINE DELAYED: The National Labor Relations Board (NLRB) recently imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  The new NLRB requirement was supposed to take effect as of November 14, 2011.  However, the NLRB now has delayed this deadline until January 31, 2012.  The NLRB has said that more time is needed to educate employers about the requirement.  Here is the NLRB’s press release:  If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement:  A copy of the new poster is available here: and here:

VETS 100 FILING DEADLINE ALSO DELAYED:  According to a recent announcement by the United States Department of Labor (DOL), the e-filing system for VETS-100 and VETS-100A forms will not be available until November 1, 2011.  Thus, DOL has extended the filing deadline for these forms until December 30, 2011.  These forms must be filed by certain federal contractors regarding veteran affirmative action obligations.

CALIFORNIA LEGISLATIVE UPDATE:  National SHRM has reported on some new California employment laws recently enacted. You can read the full article at:  Each new law will be effective on Jan. 1, 2012.  Here are the highlights:

(1) The Wage Theft Prevention Act of 2011 (AB 469).  This law requires all private employers to provide a list of specific written information to all new nonexempt employees not covered by a valid collective bargaining agreement. Employers must provide the following information: *The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including any rates for overtime, as applicable. *Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances. *The regular payday designated by the employer in accordance with the requirements of this code. *The name of the employer, including any “doing business as” names used by the employer. *The physical address of the employer’s main office or principal place of business, and a mailing address, if different. *The telephone number of the employer. *The name, address and telephone number of the employer’s workers’ compensation insurance carrier. *Any other information the Labor Commissioner deems material and necessary. Employers also must give notice of any changes within seven days by information on the employees’ next pay statements or in a separate written form.

(2) Prohibited Use of Credit Reports (AB 22). This new law bans employers from obtaining credit information about applicants or employees, except in these limited circumstances: (1) a position in the California Department of Justice; (2) a managerial position (one qualifying for the executive exemption from overtime); (3) a sworn peace officer or other law enforcement position; (4) a position for which credit information is required by law to be disclosed or obtained; (5) a position that involves regular access (other than in connection with routine solicitation of credit card applications in a retail establishment) to people’s bank or credit card account information, Social Security number, and date of birth; (6) a position in which the employee would be a named signatory on the employer’s bank or credit card account, authorized to transfer money on behalf of the employer or authorized to enter into financial contracts on behalf of the employer; (7) a position that involves regular access to cash totaling $10,000 or more of the employer, a customer or client during the workday; and (8) a position that involves access to confidential or proprietary information (defined as a legal “trade secret” under Civil Code 3426.1(d)). Even where an exception applies, employers still must give written notice to the applicant or employee that the credit report is being requested. In addition, the report must be provided free of charge to the employee. If employment is denied on the basis of information obtained from the credit report, the employer must advise the applicant and provide the name and address of the credit reporting agency that supplied the report.

(3) Misclassification of Independent Contractors (SB 459). SB 459 makes “willful” misclassification of independent contractors by “any person or employer” unlawful, and imposes a civil penalty of $5,000 to $25,000 for each violation “in addition to any other penalties or fines permitted by law.” The bill also empowers the state to develop a form and to require its use as additional reporting when a worker is hired as an independent contractor. Both government and private efforts to enforce this new statute probably will begin immediately after it becomes effective.

(4) Commission Agreements (AB 1396): AB 1396 re-establishes a previous statutory requirement that out-of-state employers must provide written information about commission compensation to employees. Also, for the first time, it requires all employers in the state to have written commission agreements as of Jan. 1, 2013. The contract must set forth the method by which the commissions will be computed and paid. It also provides that upon the expiration of the terms of the contract, if the parties continue working under the expired contract, the contract’s terms are presumed to remain in full force and effect until the contract is expressly superseded by a new contract or the employment relationship is terminated. The bill provides a specific definition of what constitutes “commissions,” which will be sure to lead to some confusion, and possibly litigation.

STATES/FEDS TO SHARE INFO ON WORKER MISCLASSIFICATION:  States (including Utah) and the federal government plan to share more information with each other about possible worker misclassification.  DOL recently signed a memo of understanding with labor commissioners from seven states — Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington — to “improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.” The DOL Wage and Hour Division, Employee Benefits Security Administration, Occupational Safety and Health Administration and other agencies will pitch in too in the information sharing process.  Enforcement efforts on this issue are likely to increase.  If you have not recently done so, now might be a good time to analyze any of your independent contractor arrangements and make sure they can meet the appropriate legal tests.

EMPLOYMENT LAW NEWS BRIEFS:  Here are a few interesting employment law news briefs.  First, the Judiciary Committee of the United States House of Representatives recently approved a bill (HR 2885) to reform the employment verification system.  Among other things, the bill would preempt state verification laws, create a voluntary biometric verification pilot program, phase out the use of paper I-9 forms and replace them with a modernized E-Verify system.  Second, a Pennsylvania federal court has found that an employer’s failure to return the calls of an employee while she was out on leave under the Family and Medical Leave Act (FMLA) could possibly be illegal retaliation for taking such leave.  According to the lawsuit, the employer repeatedly failed to communicate with the employee regarding the details and logistics of the leave.  Third, in October of 2011 the Equal Employment Opportunity Commission (EEOC) filed three lawsuits against Utah employers alleging they had committed national origin, pregnancy and/or race discrimination or harassment.  The EEOC does not often sue employers in Utah.  All three cases are pending in Utah federal court.  Finally, maybe it is time to double check and make sure that you are retaining employment records for the right amount of time?  A recent SHRM outlines a lot of the relevant details, see:

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.