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As reported in the Chicago Tribune.
Wednesday, February 1, 2012
Sunday, January 22, 2012
U.S. Supreme Court Upholds Religious Freedom with Confirmation of the "Ministerial Exception"
A few weeks ago, on January 11, 2012, the U.S. Supreme Court made a unanimous decision which is one of the clearest rulings in favor of religious freedom in decades. In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court affirmed the “ministerial exception” under civil rights law, effectively preventing civil court review of employment disputes between churches and ministers. The EEOC had sought to eliminate the exception. This “ministerial exception” has been applied to a wide range of employment disputes by state and federal courts over the past fifty years, but this was the first time the Supreme Court addressed the issue.
“[T]he authority to select and control who will minister to the faithful is the church’s alone,” Chief Justice John Roberts wrote in the court’s opinion. Three other Justices -- Clarence Thomas, Samuel Alito, and Elena Kagan -- wrote separate concurring opinions, and argued that the ministerial exception should have even broader application than the unanimous opinion held.
“It was a strong rebuke to the extreme position taken by the Obama administration,” said Luke Goodrich of the Becket Fund for Religious Liberty, who served as counsel to the church in the case. “One of the biggest things is it’s unanimously decided, which nobody was predicting and is a really big deal. … It’s a great day for religious liberty.”
The case involved the Hosanna-Tabor Evangelical Lutheran Church and School, an affiliate of the Lutheran Church-Missouri Synod. It operates a church and school in Redford, Mich., offering classes from pre-school through the eighth grade. It has teachers who work on contract, and teachers whom it regards as “called” in the spiritual sense, after they have completed a course at a Lutheran college. It regards them as “commissioned ministers.” However, most of them working as teachers do not have duties that are much different from contract teachers — that is, on the whole, all teachers mostly lead classes in non-religious subjects.
In July 1999, the school hired Cheryl Perich to teach kindergarten as a contract teacher. The next year, she completed the required religious studies and became a “called” teacher, but with no change in what she taught. For the next three years, she taught kindergarten. During the 2003-2004 school year, she taught third and fourth grades. She taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks. She testified that she almost never introduced any religious ideas into her classes.
However, four days a week, for 30 minutes, she taught a religion class, and she attended chapel with her class once a week for 30 minutes. She did lead her class in prayer three times a day, for five or six minutes. In the final year she was at the school, the class under her leadership engaged in a brief devotional activity each day. Twice a year, she took her turn — with all teachers, contract or “called” — in leading chapel services.
In June 2004, before the next term opened, she suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February. The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades. School officials then decided it would be best if she resigned. Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act. When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve their disagreements via internal church arbitration.
She filed charges with the EEOC, claiming retaliation under the ADA. The EEOC wound up suing the school, and Perich joined in the lawsuit. A District Court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law. The Sixth Circuit Court, however, while recognizing (as have all federal Circuit Courts) that there was such an exception, ruled that Perich could not be treated as a “minister” under that exception because her duties were not primarily involved in the teaching of the faith, and that she had no role in spreading the faith or in church government.
Indeed, Assistant Solicitor General Leondra Kruger had argued before the Supreme Court that the church school should only have the protection of freedom of association, the same protection that a labor group has. The court in its opinion characterized that argument as both “remarkable” and “extreme,” noting that the Constitution outlines specific protections for religion beyond those for a labor organization. Religious cases before the Supreme Court often center on the tension between the Free Exercise Clause of the Constitution and the Establishment Clause, but Roberts wrote that in this case, both clauses protect the Lutheran school from government interference.
This was the first time the high court had ever ruled on the ministerial exception -- a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question qualified. The court did look at several distinct factors in the evidence to bolster its conclusion that the teacher qualified as a “minister,” such as (1) her role was distinct from that of most of the church's members; (2) when her congregation called her as a teacher, it provided her with a certificate according her the title of "commissioned minister"; (3) she was tasked with performing her teaching duties "according to the Word of God"; (4) the congregation prayed that God would bless her ministry to the glory of God; (5) to become a licensed minister, the teacher had to complete eight college-level courses, receive endorsement from her Synod district, and pass an oral examination; (6) she was commissioned as a minister only upon election by her congregation upon its recognition of God's call to her to teach; (7) she held herself out as a minister by accepting the formal call to teach, and by claiming a housing allowance exclusion on her tax return; (8) her job duties demonstrated her role in conveying the church's religious message and carrying out is mission; (9) she performed several religious duties at the school as a called teacher. The Court concluded: "In light of these considerations—the formal title given [her] by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church—we conclude that [she] was a minister covered by the ministerial exception."
Yet, the court refused to adopt any particular standard for determining when a litigant is a “minister.” “We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.
The 6th U.S. Circuit Court of Appeals ruling in favor of the teacher had primarily been based on the fact she spent more minutes of the day teaching secular subjects than religious subjects, therefore not qualifying as a minister. The Supreme Court rebuffed this concept. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote, “The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed." The Court acknowledged that the teacher's religious duties "consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects." The Court also noted that it was unsure whether any church employees devoted all their time to religious tasks: "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."
During the oral arguments, some of the justices seemed bothered by the facts of the case – there was no dispute the teacher suffered from a disability, and the Church had gone so far as to revoke the teacher’s ministerial commission and then fired her when she filed the suit, on the grounds that she had circumvented the channels within the church hierarchy for resolving such disputes. Interestingly, Justice Alito made a reference to 1 Corinthians 6:1-7 in the notes of his concurring opinion, a biblical text that advises believers not to go before “the ungodly for judgment.”
“[T]he authority to select and control who will minister to the faithful is the church’s alone,” Chief Justice John Roberts wrote in the court’s opinion. Three other Justices -- Clarence Thomas, Samuel Alito, and Elena Kagan -- wrote separate concurring opinions, and argued that the ministerial exception should have even broader application than the unanimous opinion held.
“It was a strong rebuke to the extreme position taken by the Obama administration,” said Luke Goodrich of the Becket Fund for Religious Liberty, who served as counsel to the church in the case. “One of the biggest things is it’s unanimously decided, which nobody was predicting and is a really big deal. … It’s a great day for religious liberty.”
The case involved the Hosanna-Tabor Evangelical Lutheran Church and School, an affiliate of the Lutheran Church-Missouri Synod. It operates a church and school in Redford, Mich., offering classes from pre-school through the eighth grade. It has teachers who work on contract, and teachers whom it regards as “called” in the spiritual sense, after they have completed a course at a Lutheran college. It regards them as “commissioned ministers.” However, most of them working as teachers do not have duties that are much different from contract teachers — that is, on the whole, all teachers mostly lead classes in non-religious subjects.
In July 1999, the school hired Cheryl Perich to teach kindergarten as a contract teacher. The next year, she completed the required religious studies and became a “called” teacher, but with no change in what she taught. For the next three years, she taught kindergarten. During the 2003-2004 school year, she taught third and fourth grades. She taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks. She testified that she almost never introduced any religious ideas into her classes.
However, four days a week, for 30 minutes, she taught a religion class, and she attended chapel with her class once a week for 30 minutes. She did lead her class in prayer three times a day, for five or six minutes. In the final year she was at the school, the class under her leadership engaged in a brief devotional activity each day. Twice a year, she took her turn — with all teachers, contract or “called” — in leading chapel services.
In June 2004, before the next term opened, she suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February. The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades. School officials then decided it would be best if she resigned. Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act. When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve their disagreements via internal church arbitration.
She filed charges with the EEOC, claiming retaliation under the ADA. The EEOC wound up suing the school, and Perich joined in the lawsuit. A District Court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law. The Sixth Circuit Court, however, while recognizing (as have all federal Circuit Courts) that there was such an exception, ruled that Perich could not be treated as a “minister” under that exception because her duties were not primarily involved in the teaching of the faith, and that she had no role in spreading the faith or in church government.
Indeed, Assistant Solicitor General Leondra Kruger had argued before the Supreme Court that the church school should only have the protection of freedom of association, the same protection that a labor group has. The court in its opinion characterized that argument as both “remarkable” and “extreme,” noting that the Constitution outlines specific protections for religion beyond those for a labor organization. Religious cases before the Supreme Court often center on the tension between the Free Exercise Clause of the Constitution and the Establishment Clause, but Roberts wrote that in this case, both clauses protect the Lutheran school from government interference.
This was the first time the high court had ever ruled on the ministerial exception -- a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question qualified. The court did look at several distinct factors in the evidence to bolster its conclusion that the teacher qualified as a “minister,” such as (1) her role was distinct from that of most of the church's members; (2) when her congregation called her as a teacher, it provided her with a certificate according her the title of "commissioned minister"; (3) she was tasked with performing her teaching duties "according to the Word of God"; (4) the congregation prayed that God would bless her ministry to the glory of God; (5) to become a licensed minister, the teacher had to complete eight college-level courses, receive endorsement from her Synod district, and pass an oral examination; (6) she was commissioned as a minister only upon election by her congregation upon its recognition of God's call to her to teach; (7) she held herself out as a minister by accepting the formal call to teach, and by claiming a housing allowance exclusion on her tax return; (8) her job duties demonstrated her role in conveying the church's religious message and carrying out is mission; (9) she performed several religious duties at the school as a called teacher. The Court concluded: "In light of these considerations—the formal title given [her] by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church—we conclude that [she] was a minister covered by the ministerial exception."
Yet, the court refused to adopt any particular standard for determining when a litigant is a “minister.” “We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.
The 6th U.S. Circuit Court of Appeals ruling in favor of the teacher had primarily been based on the fact she spent more minutes of the day teaching secular subjects than religious subjects, therefore not qualifying as a minister. The Supreme Court rebuffed this concept. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote, “The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed." The Court acknowledged that the teacher's religious duties "consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects." The Court also noted that it was unsure whether any church employees devoted all their time to religious tasks: "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."
During the oral arguments, some of the justices seemed bothered by the facts of the case – there was no dispute the teacher suffered from a disability, and the Church had gone so far as to revoke the teacher’s ministerial commission and then fired her when she filed the suit, on the grounds that she had circumvented the channels within the church hierarchy for resolving such disputes. Interestingly, Justice Alito made a reference to 1 Corinthians 6:1-7 in the notes of his concurring opinion, a biblical text that advises believers not to go before “the ungodly for judgment.”
“She was fired simply for asking for a hearing,” Justice Anthony Kennedy said in the arguments. But the court’s unanimous opinion said the question of whether the church used religious reasons as a pretext for firing the teacher “misses the point of the ministerial exception,” which requires courts to preserve churches’ autonomy in selecting leaders.
The EEOC argued that such a broad application of the ministerial exception would encourage abuse by religious groups, such as violations of child labor laws or the hiring of undocumented immigrants. Roberts responded that churches are still subject to criminal prosecution, and that courts could consider other types of lawsuits regarding breaches of contracts, for example, “if and when they arise.” But Roberts concluded,:
“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit …. The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” (Emphasis added).
What does this opinion mean for the average church or parochial school?
First, this is one of the first truly favorable Supreme Court opinions favoring religious freedom in decades, rendered by a unanimous court. It is the first explicit recognition of the ministerial exception by the Supreme Court, verifying an important principle in the fight for religious freedom that had appeared to be ebbing. The ability of both churches and private schools to govern themselves based on the principles of their faith and their foundational doctrines appears more firm. This would appear to at least slow down secular interferences with church governance.
It should mean fewer employment discrimination or wrongful termination cases filed against churches. While the Court refrained from providing a definition of the term "minister" for purposes of the ministerial exception, it did note several factors that made the teacher in this case a minister, and this will provide church leaders with helpful insight into the application of the exception to other church staff members. The concurring opinions indicate there is a potential for even broader application.
What about parochial schools? This would appear to be a tougher case. The facts distinguished between “contract teachers” and “called ministers.” One of the attorneys for the school even commented that the exception should not apply to most classroom teachers who teach secular subjects. But many private parochial schools require their teachers to have religious or bible-based training, often at the college level, and have them function in the same manner as the plaintiff in this case. It would seem possible to define teacher roles in terms of ministerial function, even for regular classroom teachers. If many of the factors cited by the Court which added up to confirmation of the ministerial exception in this case were also present in the daily lives of Christian School teachers – and if the teacher contract also expressly confirmed the status – it might be possible to argue for the ministerial exception for the average Christian school teacher. (Having a school affiliated with a church or denomination helps as well). A tougher hurdle, to be sure, but arguably not insurmountable.
Saturday, September 17, 2011
The WINNER of SHBA's "South Holland Appreciation Days" Raffle!
I am pleased to announce that the Winner of my prize for the South Holland Business Association's South Holland Appreciation Days Raffle for free legal services is Lazette Toney of Harvey, Illinois. She has chosen the Corporation services. Ms. Toney is starting a not for profit organization, and needs help getting that off the ground. I'll be calling to meet with her in the next week or so, and hope to have a photo and perhaps a promotion about her organization in a future entry.
The NLRB and Facebook: What can Employers do about what thier Employees post on socia media sites?
In my last Law Blawg entry, I commented on how the National Labor Relations Board ("NLRB") has weighed in on the issue of how employees can or cannot use social media to disparage their employers. The news hasn't been necessarily good for Employers.
Let's set the scene: A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page. Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire. The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior. The NLRB ruled this violated the National Labor Relations Act ("NLRA").
How is this so? Behavior offensive to company policy is protected when its broadcast to the world over the internet? What is going on?
Let's set the scene: A poorly performing employee starts making disparaging, even slanderous remarks about his boss on his Facebook page. Several of his co-workers jump in (they are the employee's "friends" on Facebook), and post comments, agreeing with the original premise, and adding their own fuel to the fire. The Employer gets wind of this, and disciplines the employee for violating the company's policy about rude and discourteous behavior. The NLRB ruled this violated the National Labor Relations Act ("NLRA").
How is this so? Behavior offensive to company policy is protected when its broadcast to the world over the internet? What is going on?
All Employers, even those who don't have union employees, need to understand how the NLRA applies to them. In my last post, I explained the threshold requirements for determining whether an Employer is subject to the act. Generally, if your business has employees, and the volume of your business is over $50,000.00, the NLRA governs your business. Even if your employees are not in a union.
Once an Employer knows the NLRA applies, they need to understand its limitations. Section 7 of the NLRA protects employees who engage in “concerted activity” for their “mutual aid and protection.” Usually, protected concerted activity ("PCA") is defined as activity that is “engaged in with or on the authority of other employees” That means activity that extends beyond behavior that is done by and on behalf of an individual employee. PCA may also be found when it is the “logical outgrowth of concerns expressed by the employees collectively.”
Last month, the NLRB’s Acting General Counsel issued a report summarizing the NLRB’s recent social media decisions.The NLRB’s Division of Advice indicated that the following situations did not qualify for protection as PCA under Section 7 of the Act:
- A bartender had a Facebook conversation with his stepsister in which he complained that he had not had a raise in five years and did the job of a server without receiving tips. The conversation also contained rude comments about customers. No co-worker responded to the comments.
- A recovery specialist at a non-profit residential facility for homeless people had a Facebook conversation while at work with two non-employee friends. She posted comments about how the overnight shift was “spooky” and made jokes about the clients. No co-worker responded to the posts.
- A customer service employee at a large retail store posted disparaging remarks about her manager and later added a profane rant about the incident that precipitated the original post on Facebook. Co-workers responded only with “hang in there”-type remarks.
On the other hand, the Acting General Counsel’s report discussed several situations the NLRB found to be PCA, including the following:
- An employee’s negative Facebook post about her supervisor that drew supportive comments from co-workers and led to further negative comments by the employee.
- A former employee posted dissatisfaction that she owed state taxes because of her employer’s tax withholding policy and inability to do paperwork correctly. One employee clicked “Like” and other employees asserted they also owed money and intended to discuss it at a meeting.
What can Employers do to deal with this issue, or to head it off before it becomes a problem? I am an advocate for encouraging my Employer clients to establish clear, objective, written policies to indicate what they expect from Employees. However, a work rule or policy will violate the NLRA if the rule restrains or explicitly restricts employees from exercising their rights under the NLRA, including their right to engage in PCA. A rule is unlawful if (1) employees would reasonably construe the language to prohibit (or “chill”) the exercise of their rights under the NLRA, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of the employees’ rights under the NLRA.
The NLRB report discussed several examples of social media policies that violated the NLRA. Specifically, the following social media policies were unlawful:
- Prohibiting employees from making “disparaging comments” or engaging in “inappropriate discussions” about the company, superiors or co-workers.
- Prohibiting employees from posting pictures of themselves which depict the company in any way
- Prohibiting “offensive conduct” and “rude and discourteous behavior” in a broad manner, without limiting language that would remove the rule’s ambiguity with regard to PCA. In general, the NLRB finds that broad prohibitions reasonably tend to chill the exercise of employee rights under the NLRA.
Employers therefore must be extremely careful when drafting and enforcing social media policies. Even if you have a non-union shop, you need to carefully consider and review your social media policies. According to the NLRB, employees have the right to discuss terms or conditions of employment and workplace concerns. Will your policy tend to restrict this? If so, it needs revision. In addition, it appears that this kind of social media activity by employees must be analyzed on a case-by-case basis with an eye towards the audience and the content of supportive comments. If your not sure what to do or how to analyze the facts in light of the NLRA's restrictions, please consult your attorney. A knowledgeable employment lawyer can help you draft effective policies, and enforce them with less risk of a violation.
Thursday, September 15, 2011
The NLRB's New Posting Requirements -- if You're an Employer, You Need to Read This!
The National Labor Relations Board ("NLRB") recently issued a new rule (See Notification of Employee Rights Under the National Labor Relations Act, 76 Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. §§ 104.201et seq.)) requiring most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act ("NLRA"). The rule becomes effective November 14, 2011.
This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted. If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule. If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.
But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA. Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000. (There are certain categories of business that are subject to the NLRA regardless of revenue levels. These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms). Thus, your business may be covered, and you never knew it.
Note: If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.
This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.
An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA. Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation. However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices. This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.
Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper. The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry).
This new poster requirement adds to all the current, existing notice requirements Employers must follow. For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage. Employers should use this new requirement to make sure they are also posting all the employee notices required by law.
This new rule mandates particular language to be included in this required notice, including information about employees' rights to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities. Employers must display this notice in the form of an 11-by-17-inch poster in all places where other personnel notices are typically posted. If the Employer has a system for communicating with employees about personnel rules or policies on intranet or internet sites this notice must also be included on those sites. The particular content of the notice is mandated by the rule. If 20 percent or more of an employer's workforce is not proficient in English, the notice must be posted in their foreign language. Copies of the official notice will be available from NLRB regional offices and from the NLRB website at www.nlrb.gov.
But don't assume that because your workforce is not unionized that this new requirement does not apply. The rule applies to all employers subject to the NLRA. Who is subject to the NLRA? Odds are if you have a business with employees and have any volume of business, the NLRA governs your relationship with your employees. The NLRA covers most private sector employers that engage in interstate commerce above certain minimal financial levels. In certain specific instances, the NLRB contains revenue-based jurisdictional limits that are different for particular business types or industries. For example, if your in the business of running an office building or shopping center, the threshold limit is $100,000 in revenue; for law firms, the threshold is $250,000; for private schools, the threshold is $1 million (which is the highest revenue limit listed in the jurisdictional standards). If your business is not specifically listed, the default threshold is $50,000. (There are certain categories of business that are subject to the NLRA regardless of revenue levels. These include many financial based businesses, such as financial information organizations, accounting firms, and stock brokerage firms). Thus, your business may be covered, and you never knew it.
Note: If you are a federal contractor or subcontractor, and already follow regulations applicable to your industry to post notices informing employees of their rights under the NLRA, you are already in compliance with the new rule.
This new posting will stir up a great deal of controversy, particularly for smaller businesses that have never dreamed of dealing with the implications of NLRA rights in non-unionized settings. The posting will specifically inform employees that they have the right to discuss their wages, benefits and other terms and conditions of employment with co-workers and the right to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints. It will also inform employees that an employer cannot legally terminate, discipline or take other adverse action against employees who exercise these rights.
An Employer who fails to follow this new requirement could be charged with interfering with employee rights under the NLRA. Even if the employee has done nothing else to violate the NLRA, this could be the basis for an unfair labor practice charge. Usually the penalty for failure to follow NLRB posting requirements is minor, as long as the missing poster is the only violation. However, considering the new found slant in favor of unionization by the Obama Administration's appointees to the NLRB, such a violation will certainly result in a further investigation, and the potential for finding allegations of other unfair labor practices. This could be significant, as the violation of the posting rule could toll the six-month statute of limitations that ordinarily applies to charges of NLRA violations. Also, because Employers cannot retaliate against any employee for filing a charge with the NLRB or offering evidence concerning an alleged violation of the Act, an Employer's violation of this new requirement could be cleverly used by employees who anticipate disciplinary action or termination to gain protected status under the Act. This is because, once an employee files a charge, the employee could claim that any adverse action that followed was illegal retaliation.
Therefore, Employers with non-unionized workplaces should be careful to follow this new regulation. The NLRB has been especially active in recent months in bringing unfair labor practice enforcement actions against non-unionized Employers for disciplining employees or adopting policies which purport to limit what the NLRA defines as "concerted activity." For example, the NLRB's Office of General Counsel recently published notice of the Board's rulings on several cases involving social websites, where Management's social media policies or disciplinary actions against what employees were posting on Facebook or Twitter were deemed improper. The Board came to some shocking conclusions regarding how commentary by a group of employees on another employee's Facebook site transformed into "concerted activity," and were protected activities under the NLRA. (I plan to comment on this issue in my next Blog entry).
This new poster requirement adds to all the current, existing notice requirements Employers must follow. For example, the Fair Labor Standards Act, the Family and Medical Leave Act, federal anti-discrimination statutes, and federal workplace safety statutes all have their own mandatory posting requirements. Besides federal posting requirements, Employers are subject to state and local requirements, such as the Illinois minimum wage. Employers should use this new requirement to make sure they are also posting all the employee notices required by law.
Monday, August 29, 2011
CHANGE OF LOCATION for Drawing for free Legal Services
Just to reiterate: I am participating in an exciting event for the South Holland, Illinois, business community. In conjunction with South Holland's annual Heritage Festival, the South Holland Business Association is sponsoring "South Holland Appreciation Days." This will take place from August 29 through September 3, 2011, with an emphasis on September 1 through 3. Participating businesses will offer raffle prizes. Many businesses will be giving away some exciting, valuable prizes, so you'll want to check out the SHBA website at www.shba.org for all the details.
The way it works, is you visit the business during regular hours, and pick up that vendor's business card. You write your personal information on the card, and it's entered into the drawing for the prizes that business offers. Only one card per visit, but you can visit as many times as you want.
As stated above, I have changed my location for the week -- I will now be using office space courtesy of Roger DeGraff and Southland Mortgage in the Park Avenue Office Plaza at 17050 South Park Avenue, South Holland, IL 60473 I'll be there most of the time during that week, but call to make sure at 708-359-4906. I've had special post cards printed for the occasion, making it easy to fill out.
The prize I am offering is a choice of one of the following:
1. A complete Estate Planning Package (includes a Will, applicable advanced directives (i.e. Durable Powers of Attorney for Property and Health Care, HIPAA Authorization, and a Living Will if desired), and appropriate revocable trust arrangements if applicable).
2. A complete Business Entity Set-up Package (where I help you form your Corporation, LLC, etc., and supply all supporting documentation)
3. A complete review of your business's employment policies, or, if you don't have any, I'll help draft them.
This wouldn't be a proper announcement from an attorney without a disclaimer. I am only giving away one prize, a choice of one of the three mentioned above. The prize will only include the legal fees I would normally charge to perform such work. Any additional fees, including without limitation government or license fees, recording fees, title charges, or the costs of funding a trust, must be paid by the Winner. In the South Holland Business Association materials, I was asked to give estimated valuations for these prizes. Those valuations are truly estimates. Every situation is different. A simple estate plan for a young single person just out of college will not be as "valuable" as an estate plan for a couple married for 30 years. I also reserve the right to limit the "size" of these prizes -- while I will certainly make sure the winner gets free legal services to meet their needs, if what the winner wants will cause me to take so much time as to cause me to neglect other important business matters, I will "cap" the time spent at my discretion. For example (and this scenario is highly unlikely), if a company with multi-state locations in states I am not licensed to practice in wants me to review employment policies, I can only review the policies for the locations where I am licensed. In addition, if that company's size would cause me to give away too much of my time, I reserve the right to reasonably limit the scope of the prize. I am sure the winner and I will come to satisfactory agreement, regardless.
I look forward to seeing you all at MB Financial Bank in South Holland the week of August 29th!
Saturday, August 27, 2011
Giving away Free Legal Services in SHBA Raffle!
I am participating in an exciting event for the South Holland, Illinois, business community. In conjunction with South Holland's annual Heritage Festival, the South Holland Business Association is sponsoring "South Holland Appreciation Days." This will take place from August 29 through September 3, 2011, with an emphasis on September 1 through 3. Participating businesses will offer raffle prizes. Many businesses will be giving away some exciting, valuable prizes, so you'll want to check out the SHBA website at www.shba.org for all the details.
The way it works, is you visit the business during regular hours, and pick up that vendor's business card. You write your personal information on the card, and it's entered into the drawing for the prizes that business offers. Only one card per visit, but you can visit as many times as you want.
While I do not yet have a permanent office space outside of my home in town, the good folks at MB Financial Bank are allowing me to "camp out" at in their lobby. That's located at 475 East 162nd Street. South Holland, IL 60473 -- the beautiful marble building with the fountains in front. I'll be there most of the time during that week, but call to make sure at 708-359-4906. I've had special post cards printed for the occasion, making it easy to fill out.
The prize I am offering is a choice of one of the following:
1. A complete Estate Planning Package (includes a Will, applicable advanced directives (i.e. Durable Powers of Attorney for Property and Health Care, HIPAA Authorization, and a Living Will if desired), and appropriate revocable trust arrangements if applicable).
2. A complete Business Entity Set-up Package (where I help you form your Corporation, LLC, etc., and supply all supporting documentation)
3. A complete review of your business's employment policies, or, if you don't have any, I'll help draft them.
This wouldn't be a proper announcement from an attorney without a disclaimer. I am only giving away one prize, a choice of one of the three mentioned above. The prize will only include the legal fees I would normally charge to perform such work. Any additional fees, including without limitation government or license fees, recording fees, title charges, or the costs of funding a trust, must be paid by the Winner. In the South Holland Business Association materials, I was asked to give estimated valuations for these prizes. Those valuations are truly estimates. Every situation is different. A simple estate plan for a young single person just out of college will not be as "valuable" as an estate plan for a couple married for 30 years. I also reserve the right to limit the "size" of these prizes -- while I will certainly make sure the winner gets free legal services to meet their needs, if what the winner wants will cause me to take so much time as to cause me to neglect other important business matters, I will "cap" the time spent at my discretion. For example (and this scenario is highly unlikely), if a company with multi-state locations in states I am not licensed to practice in wants me to review employment policies, I can only review the policies for the locations where I am licensed. In addition, if that company's size would cause me to give away too much of my time, I reserve the right to reasonably limit the scope of the prize. I am sure the winner and I will come to satisfactory agreement, regardless.
I look forward to seeing you all at MB Financial Bank in South Holland the week of August 29th!
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