Wyatt Employment Law Report


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NLRB’s Notice-Posting Rule Finally Rejected By Two Courts of Appeals

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.

In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __,  Civil No. 12-1757 (4th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.

The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.


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NLRB Postpones Effective Date of its Notice Posting Rule to January 31, 2012

By Edwin S. Hopson

On October 5, 2011, the National Labor Relations Board announced that it has postponed the implementation date for its new notice-posting rule to January 31, 2012.  It had originally been scheduled to become effective on November 14, 2011. 

The U.S. Chamber of Commerce and the National Association of Manufacturers have filed suit to block the new rule, but there has been no ruling in those cases. 

The NLRB cited as reasons for the extension, the need for more time “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”  No other changes in the rule, or in the form or content of the notice, were made.

 Member BrianE.Hayes, who dissented from the original adoption of the rule, agreed with the postponement of the effective date of the rule.


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Supreme Court Upholds Arizona Law Which Penalizes Employers That Hire Illegal Aliens

By Glen M. Krebs

On May 26, 2011, the U.S.Supreme Court in Chamber of Commerce of the United States of America v. Whiting, 563 U.S. ____ (2011) upheld the Legal Arizona Workers Act.  This case does not involve the (in)famous SB 1070 Arizona law which requires police to check the immigration status of individuals in certain circumstances (several provisions of SB 1070 have been struck down by the 9th Circuit Court of Appeals and are on appeal to the Supreme Court).

 In Whiting the Court acknowledged that states can impose sanctions through licensing and similar laws on those who employ unauthorized aliens.  For example, theArizona law instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens.  The Court relied on the federal Immigration Reform and Control Act language which specifically allows states to impose sanctions through licensing and similar laws.

 The Supreme Court also concluded thatArizona’s E-Verify mandate is not preempted by federal law.  The Court determined that the IIRIRA provision setting up E-Verify does not circumscribe state action.  Therefore,Arizona’s requirement that all employers participate in E-Verify was upheld.  The state law requires that an employer, after hiring an employee, verify the employment of the employee through E-Verify.  Federal laws do not require use of the E-Verify system unless you are a sub-contractor of the federal government.  

 According to the Supreme Court, the following states have laws that provide for suspension or revocation of business licenses as a sanction for employing unauthorized aliens:Colorado,Mississippi,Missouri,Pennsylvania,South Carolina,Tennessee,Virginia, andWest Virginia. The states ofMississippi,South Carolina, andVirginiaalso require employers to use E-Verify or other method of verification.

 In addition,Georgiahas recently enacted the Illegal Immigration Reform and Enforcement Act of 2011, which among other things requires employers to use E-Verify as a condition of issuance and renewal of business licenses.

 Other states may attempt to pass similar restrictions on employers.  Therefore, employers MUST be aware of state laws impacting their hiring practices and not just the federal laws. 

 For questions regarding E-Verify or other immigration laws in states where your company is operating, contactGlenKrebsat 859-288-7409 or gkrebs@wyattfirm.com.