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SHRM Newsletter: NLRB Poster Deadline Postponed Again

12/28/2011

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December 28, 2011

This is Utah SHRM Legal-mail no. 2011-23 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).

CONTENTS:

-  NLRB POSTER DEADLINE POSTPONED AGAIN

-  PAYROLL TAX CUT EXTENDED TWO MONTHS

-  USERRA HOSTILE ENVIRONMENT CLAIMS ALLOWED

-  EEOC LETTER CAUSES DIPLOMA CONTROVERSY

-  COUNTING YOUR BLESSINGS

NLRB POSTER DEADLINE POSTPONED AGAIN: 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 but that deadline was later delayed until January 31, 2012.  The NLRB has delayed the deadline again, and it now is set at April 30, 2012.  The most recent delay is a related to a court request to postpone the effective date pending a legal challenge to the new requirement.  If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster  A copy of the new poster is available here: https://www.nlrb.gov/poster and here: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

PAYROLL TAX CUT EXTENDED TWO MONTHS:  Congress and President Obama have agreed to extend the current 2% payroll withholding tax cut for two more months, i.e. through February 29, 2012.  Both are involved in negotiations to extend the tax further.  More details on the extension and the negotiations are available here: http://www.shrm.org/hrdisciplines/compensation/Articles/Pages/PayrollTaxCut.aspx

USERRA HOSTILE ENVIRONMENT CLAIMS ALLOWED:  A new law (the Veterans Opportunity to Work (VOW) to Hire Heroes Act) recently enacted by Congress and signed by the President will allow employees to assert  hostile environment harassment claims based on their military service status.  The new law amends the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  Up to now, courts had been reluctant to recognize such claims, but the new law amends USERRA to include the same language under the other federal discrimination laws that allows for hostile environment claims.  Employers should take steps to ensure that their policy language precludes harassment based on military status and that supervisors and HR officials are educated about this new requirement.

EEOC LETTER CAUSES DIPLOMA CONTROVERSY:  An informal discussion letter from the Equal Employment Opportunity Commission (EEOC) is generating some controversy over whether an employer can require a high school diploma as an employment prerequisite.  The informal letter (without the force of a law or regulation) was written in response to a question about persons who are unable to earn a diploma because of learning disabilities, thus making them ineligible for jobs that require a high school education.  The EEOC said that a diploma requirement that screens out someone based on a disability must be job related and consistent with a business necessity or it may violate the Americans With Disabilities Act (ADA).  If it meets this requirement, the employer must then show that the person denied the job could not perform its essential functions, even with accommodations.  Thus, according to the EEOC, while an employer need not prefer an individual with less qualifications (e.g. someone without a diploma who could not earn one due to a disability), it cannot flatly refuse to even consider him/her if they could perform the job with accommodations. 

COUNTING YOUR BLESSINGS:  Certainly one of the highlights of any holiday season is watching the classic 1954 Bing Crosby movie “White Christmas.”  During the movie, Bing croons out a lovely Irving Berlin song that is always one of the movie’s highlights for me.  The context for the song is Bing helping to relieve the what-will-the future-bring worries of a colleague.  Remembering and enjoying the song also seems to be a nice way to see out the passing year of uncertainty, and of ringing in 2012- a new year of hope, and yes, probably more uncertainty.  The lyrics are pasted in below.  Here’s a link to the song:  http://www.youtube.com/watch?v=4qmMaPTuTEE  This is the last employment law update for 2011…Happy New Year!

Counting Your Blessings

When I'm worried and I can't sleep
I count my blessings instead of sheep
And I fall asleep counting my blessings
When my bankroll is getting small
I think of when I had none at all
And I fall asleep counting my blessings
I think about a nursery and I picture curly heads
And one by one I count them as they slumber in their beds
If you're worried and you can't sleep
Just count your blessings instead of sheep
And you'll fall asleep counting your blessings 

 

 

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

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.