Yesterday, the NLRB issued its final rule requiring all employer subject to the National Labor Relations Act to post notices to employees of their NLRA rights such as the right to form and join a union, bargain collectively over wages and to file unfair labor practice charges with the Board as well as instructing employees on how to file those charges. 

Highlights of the Final Rule posting requirement include:  

  • Posting required not later than November 14, 2011;
  • Posting must be at least 11 x 7 inches;
  • Posted in conspicuous places where will be readily seen by employees and in all places where notices to employees concerning personnel rules or policies are customarily posted;
  • Must also be posted electronically on employer’s intranet or Internet site if the employer regularly communicates with its employees about personnel rules or policies in such manner;
  • Must be posted in language spoken primarily by 20 percent or more of workplace; 
  • Federal contractors are also covered;
  • Excluded from posting requirements are U.S. (and its wholly owned Governmental corporations), Federal Reserve Banks, States or political subdivisions, persons subject to the RLA, labor organizations and a few others. 

You can access the full Final Rule here (skip to page 174 to see the text of the Rule).  The content of the required posting is found in Appendix A (beginning on p. 185).  The NLRB also published a Fact Sheet on the new posting requirement you can read here.

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The Texas Employment Law Update has been nominated for LexisNexis’s Top 25 Labor & Employment Law Blogs and needs your help.  To be included in the Top 25, LexisNexis counts your comments as votes.

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If you enjoy reading this blog and want it to continue, vote early and often because voting ends September 12, 2011.  This is separate and apart from the ABA Journal’s Top 100 Blawgs.  You can see how to vote (Free) for the ABA Journal Blawg 100 here.  I appreciate your support.

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Walter Olson at Overlawyered started they debate by asking “If I could press a button and instantly vaporize one sector of employment law…”  He answered age discrimination.  I’ll let him defend his selection and you can read his explanation here. 

Jon Hyman and Daniel Schwartz weighed in that they would reform the depression-era outdated Fair Labor Standards Act and leave laws generally.  Both areas are ready for reform and simplification.  I asked my partners what area of employment law they thought most needed vaporizing (or at least reform).  One identified the varying mosaic of state immigration laws that are being passed across the country and that carry substantial (perhaps catastrophic) financial penalties for employing individuals not authorized to work in the U.S.  Another colleague identified the new health care law that requires employers to provide health plans or pay a penalty for each uninsured employee as an area of law that is stifling job growth –at least for small to mid-sized employers. 

My choice for vaporization is a little more specific.  I would target the FMLA regulations that limit how much information an employer can require from an employee on intermittent FMLA leave –particularly when the leave results from unexpected, anticipated and unscheduled flare-ups of serious health conditions.  These limitations place unreasonable restrictions on an employer’s ability to manage and identify intermittent FMLA abuse.  Employers face regulatory barriers in determining whether the employee’s absence on Friday was a result of his migraine headache (for which he was approved to take intermittent leave) or because he stayed out too late with friends carousing.  Verifying, in a meaningful way, that employees are using intermittent FMLA leave for approved purposes should not be prohibited or even discouraged.

If you think a particular area of employment law needs vaporizing (or at least reform), post it in the comments below and I’ll publish them to continue the debate.

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The EEOC is reviewing whether the use of arrest and criminal conviction information acts as a hiring barrier and whether employers should be precluded from asking about criminal convictions.  The EEOC publicized the meeting in a press release titled  Striking a Balance Between Workplace Fairness and Workplace Safety.  Particularly troubling about this hearing is the fact that the EEOC appears to be looking at the issue as one of workplace fairness rather than discrimination.  Workplace fairness is admirable, however, the EEOC’s mission and mandate is not to try and achieve workplace fairness.  The EEOC’s mission is educate, investigate and enforce the protections put in place by Title VII and related laws.  Stated differently, the EEOC is charged with ensuring that individuals are not treated differently because of their race, sex, color, religion, national original, age, and disability; not to ensure that the workplace is fair.

In my experience, few (if any) employers ask for or rely on arrest information in making hiring decision.  I’ve never seen an employment application that stated that a criminal conviction would be an outright bar to employment.  Most employers that seek criminal conviction information consider the nature and severity of the offense, the length of time since the offense occurred and the position for which the applicant is applying.  Banning the box (i.e., prohibiting employers from asking about criminal convictions on applications) will result in employers needlessly interviewing applicants who, by the nature or severity of their crime, will not ultimately be hired.  This is a waste of employer time and resources.  Moreover, given the EEOC’s limited resources, its time, effort and money would be better spent on core mission rather than trying to administratively expand the scope of Title VII to effectively make convicted felons a protected class.

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In Part 1, I covered some thoughts on enforcing noncompetition agreements in Texas following the Texas Supreme Court’s new decision in Marsh USA.  Today I’m addressing some tips that employees (and their representatives) who are asked to sign or are attempting to bust a noncompetition agreement might consider.

Prior to signing the agreement, negotiate everything you can.  For example:

  • Carve out customers or clients the employee serviced before becoming employed by the employer requesting the noncompete.
  • Seek very specific scope of activity restraint rather than a very generalized restraint (e.g., employee shall not engaged in any business that competes with any of the products or services of the company).
  • Negotiate a garden leave provision (i.e., the employee will receive some amount of money during the term of the noncompete period)
  • Ask for a buy-out clause where the employee (or his new employer) can buy out of the noncompetition agreement.
  • Ask that the noncompete be automatically waived if the employers ends the relationship through no fault of the employee (e.g., the employee is laid off).

When joining a new employer, the employee should seek an agreement the new employer will indemnify, defend and/or advance defense costs if the employee is sued over an alleged violation of the noncompete.  The employee should also try and ensure that his employment will not be terminated by the new employer in the event he is enjoined over a restrictive covenant with a former employer (Don’t laugh, I’ve seen an new employer provide this protection in an offer letter when it expected the former employer would sue the new hire).

When litigating over the terms of a noncompetition agreement:

  • Emphasize to the Court how limited the holding in Marsh USA is.  Marsh USA just ruled out a per se rule that noncompetes tied to stocks are unenforceable.
  • Emphasize the lack of imminent, irreparable harm.
  • Determine the primary purpose of the agreement and emphasize to the Court that the real purpose is to stifle competition rather than protecting goodwill or confidential information.
  • Identify lesser restrictions that will protect the employer’s interest.
  • Distinguish your client from the long-term, highly valued Managing Director in Marsh USA.

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