On January 5, 2015, the Chamber of Commerce of the United States and several other business groups filed suit in federal court in Washington, D.C. against the National Labor Relations Board attacking the NLRB’s recent final rule which significantly changes the NLRB’s representation procedures to speed up the holding of elections and increase the amount of information unions would receive about the employees voting in the elections. The NLRB’s new rule, passed by a vote of 3-2, is set to go into effect April 14, 2015, if not enjoined by the court pending the outcome of the proceedings. The lawsuit alleges the NLRB violated the Administrative Procedures Act, the National Labor Relations Act, and the U.S. Constitution. The plaintiffs also allege that in issuing the final rule the NLRB majority exceeded its jurisdiction and authority and, in so acting, was arbitrary, capricious, and abused its discretion.
Recently the NLRB issued its decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), holding that an employer’s email system must be made available to its employees for the purpose of engaging in union activity and other protected activity under Section 7 of the National Labor Relations Act, so long as such use occurs during non-working time. The decision, rendered by the three Democrat Members, was sharply criticized by the two dissenting Republican Members on the Board. The decision in this case also overruled the Register Guard case issued in 2007, which had held such use of an employer’s email system not protected where the employer’s email policy prohibited such use.
An employer can avoid this new rule “by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”
Many employers have in their employee handbooks or policies provisions which restrict the use of the employer’s email system to strictly business use. Those policies now run likely afoul of the NLRB’s new rule.
Therefore, to be safe, employers should review their email policies carefully to determine whether changes should be made to them.
The National Labor Relations Board, by a vote of 3 to 2, has issued a final rule published in the Federal Register on December 15, 2014, amending the Board’s representation–case procedures to, among other things, reduce the time between the filing of a petition for representation election with the NLRB and the date of the NLRB election. The rule is to take effect on April 14, 2015.
The final rule was approved by Democrats Mark Gaston Pearce, Kent Y. Hirozawa and Nancy Schiffer, with Republicans Philip A. Miscimarra and Harry I. Johnson III dissenting.
The final rule:
■ Provides for electronic filing and transmission of election petitions and other documents;
■ Adopts best practices and uniform procedures across all NLRB regional offices;
■ Requires that additional contact information for employees voting in the election (personal telephone numbers and email addresses) be included on voter lists to be turned over to the union, to the extent that information is available to the employer; and
■ Consolidates all election-related appeals to the Board into a single appeals process post-election.
The bottom line is, unions will be able to obtain much faster scheduling of elections, substantially reducing the time between the filing of the petition and the election during which the employer can campaign.
On December 8, 2014, the U.S. Senate voted 54 to 40 to confirm Ms. Lauren McFerran, a Democrat, to be a Member of the National Labor Relations Board. This keeps in place the Democrats’ majority on the Board – three Members to two Republican Members. Thus, the pro-union agenda of the Board will continue.
On December 2, 2014, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved the nomination of Democrat Lauren McFerran to serve as a Member of the NLRB. Her nomination now goes to the Senate floor for consideration. It would appear she will be confirmed during the lame duck session, barring something unforeseen, meaning that the NLRB will continue to have three Democrat and two Republican Members.
November 20, 2014, President Obama announced a series of executive actions aimed at helping to modernize some aspects of the immigration system which would encourage family unity and strengthen immigration options for foreign nationals studying and pursuing work in highly technical fields. At this point, the details for implementation of many of the initiatives outlined by the President are vague, but we will provide guidance here where possible and continue to report new details on the President’s plans as more specifics emerge.
The four main programs outlined in President Obama’s action are:
Cracking Down on Illegal Immigration at the Border: the President’s actions will increase the chances that anyone attempting to cross the border illegally will be caught and sent back to his or her home country. The President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
Deporting Felons, Not Families: the President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members and recent border crossers at the top of the deportation priority list.
Accountability — Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the U.S. for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
Streamline Immigration to Boost our Economy and Promote Naturalization for Those Who Qualify.
We are not going to cover the first two points raised here because border security and removal priorities, while important to the country, are not really the subject of this article. Our purpose is to provide guidance to companies and individuals on options they and their employees have, family members and future job applicants may under the President’s plan to obtain employment authorization and/or permanent residence. Therefore, we will outline the President’s plans for points three and four listed above.
ACCOUNTABILITY – CRIMINAL BACKGROUND CHECKS AND TAXES
DHS will establish a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than five years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees and show that their child was born before the date of the President’s announcement on November 20, 2014.
Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children and met specific education and public safety criteria were eligible for temporary relief from deportation as long as they were born after 1981 and entered the country before June 15, 2007. DHS will expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.
Streamline Immigration to Boost our Economy
Providing portable work authorization for high-skilled workers awaiting LPR status (including their spouses). DHS will make regulatory changes to allow these workers to move or change jobs more easily. Also, DHS is finalizing new rules to give certain H-4 spouses employment authorization as long as the H-1B spouse has an approved LPR application.
DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.
In order to strengthen educational experiences of foreign students studying science, technology, engineering and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives while waiting to obtain LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.
It is important to note that at this point none of the President’s new programs are available for filing to obtain benefits. Also, these programs are not an amnesty. Applying for and receiving Deferred Action does not convey legal immigration status to an Applicant. It means that since CIS recognizes you are not a removal priority, CIS will allow you to obtain employment authorization. In other words, “if we’ve agreed not to take steps to remove you, you should be allowed to work and pay taxes like everyone else.” Don’t get me wrong, Deferred Action is a step in the right direction for many millions of unlawful immigrants, but it does not convey any legal immigration status on the Applicant. It remains to be seen how long Deferred Action will remain available for individuals and if Deferred Action being granted will ultimately lead to a path to permanent residence or some form of legal immigration status down the road.
On the business side of things, there was little to no detail as to how any of the President’s plans will be implemented or in what time frame. The grant of employment authorization to H-4 spouses would be a welcomed change. Further benefits for STEM students and graduates would also be a wise move on the part of the government to ensure that the U.S. continues to maintain its position as the global leader in research and development. That said, it may be some time before any of these measures become a reality and what form they will take.
We will provide you with the details as more information emerges . In the meantime, if you have questions or want to know what steps, if any, you might be able to take now to prepare yourself or your employees to obtain future benefits, please contact someone in the Wyatt Tarrant & Combs Immigration Group.
On November 17, 2014, after the end of EEOC’s fiscal year (FY 2014), the EEOC released its Performance and Accountability Report (PAR) that discussed the agency’s goals and outcomes and provided statistics for the past year. Some highlights of the PAR:
According to the PAR, in FY 2014, the EEOC met, partially met or exceeded its target results in all 14 measures of its 2012-2016 Strategic Enforcement Plan. The EEOC obtained $296.1 million in monetary damages for claimants alleging employment discrimination in the private and state and local government sector. The EEOC obtained $22.5 million through litigation involving private sector employers and $74 million for public sector employees.
There were 88,778 charges in FYI 2014, which was down about 5,000 from FY 2013. The EEOC claims that fewer charges were resolved than in FY 2013 (9,810 less) because of the government shut-down and sequestration. Although there was a hiring freeze early on in the year, the EEOC hired 300 new employees at the end of the year. EEOC Chair Jenny R. Yang states in the PAR that she hopes that increased hiring and investments in technological advances will help with the agency more quickly and efficiently investigate charges.
In FY 2014, the EEOC’s education and outreach program sponsored 3,512 free trainings and events. The National Training Institute trained over 18,000 people at 420 events. The NTI focuses on the Strategic Enforcement Plan priorities.
The EEOC’s mediation program resolved 7,846 disputes out of the 10,221 mediations that were conducted, resulting in $144.6 million in compensation for the claimants.
The EEOC filed 133 lawsuits this year, which included 105 individual suits, 11 non-systemic class suits, and 17 systemic suits. The 136 merits lawsuits were resolved and obtained $22.5 million for the claimants. At the end of the year, the EEOC had a backlog of 228 cases on its active docket.
The EEOC continued to focus on systematic enforcement, completing 260 systemic investigations that resulted in 78 settlements and $13 million in monetary relief.
Systemic lawsuits make up the largest proportion of active suits, consisting of 25 percent of all active merits suits and 13 percent of total merits filings this year.
The main takeaway from the EEOC’s PAR is that it is evident that the EEOC is continuing to aggressively pursue systematic discrimination claims. Also, it is apparent that the EEOC’s backlog continues to be a problem for both parties involved in the dispute. Hopefully the additional staff hired this year will decrease the time a charge is pending.
The Press Release about the Performance and Accountability Report is available at:
Wyatt Employment Law Report 