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SHRM Newsletter: NLRB Proposes New Employer Posting Requirement

01/05/2011

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January 5, 2011

This is Utah SHRM Legal-mail no. 2011-1 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 PROPOSES NEW EMPLOYER POSTING REQUIREMENT

-  NEW ADA REGULATIONS PENDING

-  ANOTHER UTAH LOCAL GOVERNMENT PASSES ANTI-BIAS ORDINANCE

-  COMMENTS SOUGHT ON NURSING MOTHERS MANDATES

-  JETS/FAVRE SUED FOR SEXUAL HARASSMENT

NLRB PROPOSES NEW EMPLOYER POSTING REQUIREMENT:  The National Labor Relations Board (NLRB) recently proposed requiring most employers to post a notice in their workplaces telling employees about their rights under the National Labor Relations Act (NLRA).  Among other things, the NLRA gives employees the right to act in concert to seek to improve working conditions, form a union, seek help from a union and engaged in various union activities once a union is formed and/or recognized.  The rule would apply to all employers covered by the NLRA, which basically means all private employers.  The NLRA does not cover the following: agricultural laborers; persons employed in the domestic service of any person or family in a home; persons employed by a parent or spouse; independent contractors; supervisors; employers subject to the Railway Labor Act, such as railroads and airlines; federal, state, or local government employees; or any other person who is not an employer as defined in the NLRA.  Failure to post the required notice would be considered an unfair labor practice subject to sanctions.  Interested persons should comment on the proposed rule before

February 20, 2011.  Thereafter, the NLRB will finalize the nature and scope of the new posting requirement.  You can read a copy of the proposed new rule here: http://www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf.

NEW ADA REGULATIONS PENDING:  In late December of 2010, the Equal Employment Opportunity Commission (EEOC) approved draft final regulations under the ADA Amendments Act (ADAAA).  The EEOC also sent them to the Office of Management and Budget (OMB) for review and approval.  OMB can take up to three months for this review, but the EEOC has asked for an expedited process.  The EEOC will not publicize the new regulations until the OMB review is completed.  There is speculation that the EEOC has changed its proposed regulations made public in 2009.

ANOTHER UTAH LOCAL GOVERNMENT PASSES ANTI-BIAS ORDINANCEGrand County in eastern Utah has joined the growing list of local governments to enact ordinances prohibiting workplace discrimination, based on sexual orientation, within the boundaries of the County.  Salt Lake City, West Valley City, Taylorsville, Salt Lake County, Park City, Summit County, Murray, Moab and Logan also have adopted similar measures at the municipal level.  Employers within all ten of these local governmental boundaries are subject to claims for discrimination and should take steps to manage that risk.  These steps should include adding sexual orientation and gender identity as protected classes listed in employee handbooks and policy statements and training supervisors and employees about the new legal requirements.  Ogden City is also considering passing such an ordinance.

COMMENTS SOUGHT ON NURSING MOTHERS MANDATES: Congress recently amended the Fair Labor Standards Act to require, as of March of 2010, that covered employers provide nursing mothers with reasonable time and private space to express breast milk while at work.  Parts of the new requirement are clear, but parts are somewhat confusing.  The United States Department of Labor (DOL) likely will issue some kind of guidance clarifying the requirements.  Thus, DOL has asked employers and other interested parties to provide comments to DOL about the requirement.  Here is a link to a DOL Q & A describing its request for comments and its plans for guidance:  http://www.dol.gov/whd/nursingmothers/faqsRFI.htm  A DOL fact sheet further describing the requirements for break times for nursing mothers is available here: http://www.dol.gov/whd/regs/compliance/whdfs73.htm

JETS/FAVRE SUED FOR SEXUAL HARASSMENT:  As further proof of my oft-stated warning that no employer is immune from either actionable misbehavior by workers or from employment lawsuits, there is the recent news that future Hall of Fame QB Brett Favre and the New York Jets have been sued by two female employees employed by the pro team when Favre was the QB in 2008.  The women allege that Favre made sexual requests and comments and sent them sexual texts while he worked for the team.  Favre and the Jets deny the claims.  I could easily make comments about the risks of making passes on the job or trying to score while at work.  However, it is awfully early in the new year for such puns, so I will refrain.  I am sure 2011 will bring us many more opportunities for puns and other humor in the employment law world and I look forward to enjoying them with you.  Happy New Year!

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.