Unions and NLRB still pushing over Poster issue

While court rulings earlier this year put the National Labor Relations Board's (NLRB) workplace poster mandate on ice, an appeal of the National Association of Manufacturers ruling is expected to be heard in the D.C. District Court of Appeals in September. Since these rulings were issued, a number of actions taken in support of the policy both by the agency and those in support of the rule, presenting new challenges for employers and those seeking to curtail the ability of the agency to act as an advocate for labor unions.

The poster rule suffered two setbacks from rulings which barred the agency from mandating employers post a notice that was considered by many to be free advertising for labor unions. In National Association of Manufacturers v. NLRB and Chamber of Commerce v. NLRB, federal courts in Washington D.C. and South Carolina both ruled the agency could not require employers to post such notices. 

Earlier this month, a Friend-of-the-Court brief filed by the AFL-CIO, Change to Win, and Professor Charles Morris, a retired professor from the Dedman School of Law at Southern Methodist University in Dallas sought to support the NLRB's push for the employer mandate, arguing the poster and other notification processes were within the scope of the agency's authority and were essential to it's ability to help workers who sought to organize unions in their workplaces. In the brief, they warn that "as union density has declined, the need for workers to have an independent source of information about their rights has never been greater".

Pennsylvania latest state to issue E-Verify mandate

Pennsylvania joins a growing number of states which are mandating the use of the federal E-Verify service for screening new hires for eligibility to work in the United States.

Signed into law earlier this week, the Pennsylvania law applies to companies which do business with state government, but doesn't apply to other businesses. The new law would require them to subscribe to the service and begin running new hires through the system no later than January 1 of next year, giving them several months to learn the system.

It's worth noting that E-Verify rules require that all new hires be run. Selectively running new hires or even checking out applicants who have not been hired is not allowed. All or nothing.

The new law comes with penalties, including fines and bans on doing business with the state:

Supreme Court reins in union political fundraising - again

A ruling by the Supreme Court last week continues years of rulings by the Court which have reined in the ability of labor unions to collect funds for political activities from workers. Last week's ruling in the case of Knox v. Service Employees International Union, Local 1000 continues that trend, calling into question a union practice of collecting the money from workers for political activities. 

In the Knox ruling, the Court held that the method used by the service employees' union to collect special fees for campaigning against two referendum questions in California in 2005 violated those workers First Amendment free speech rights. The court issued two rulings on separate issues in the lawsuit: 

• In a 7-2 ruling, the court concluded that the union did not give proper notice to non-union members before making the deductions.
  
  
• In a 5-4 ruling, the court ruled that the method used by the union to allow non-union members in the state's "agency shop" workplaces to "opt out" of such special fees was insufficient to protect their First Amendment rights, ruling that non-members should be sent a notice giving them the chance to "opt in" to the special fees.

The case was initiated by eight California civil servants in response to a 2005 "special assessment" imposed by SEIU officials to raise money to campaign against four ballot proposals, including one that would have revoked public employee unions' special privilege of using forced fees for politics unless an employee consents. The plaintiffs argued that employees who refrained from union membership who were forced to pay union dues as part of the state's agency shop workplaces were given no chance to opt out of paying the SEIU's political assessments.

OSHA employer penalties rising

Employer should be wary of increased efforts by federal and state OSHA officials to enforce and penalize employers. While some actions aimed at increasing penalties have been bottle-necked in Congress and in federal courts, but such roadblocks alone won't stop employers from facing increased headaches and costs from OSHA visits to workplaces. Increased OSHA inspections will allow the agency to spot and cite violations with increased frequency, the federal agency is also changing the rules which govern how penalties are applied to greatly reduce the latitude given to employers and set employers up to face quickly-increasing fines for workplace safety violations.

In writing for the Society of Human Resource Management labor attorney Allen Smith reported on a presentation by Nina Stillman, a labor attorney with Morgan Lewis in Chicago. As penalties are capped by existing federal laws, OSHA has increased penalties by ramping up the use of repeat violator citations. Stillman said OSHA “is doing repeats all over the place.” Such citations are very costly for employers, costing up to five times the penalty of the first-offense citation. 

Stillman also reported that OSHA has increased the penalties by:

Feds considering hiring quotas for disabled

In what has been a controversial move contested by major national business organizations, the U.S. Department of Labor is considering a proposed rule that would mandate a seven percent hiring quota for those with federally-funded contracts.

Keep in mind that many local and state programs receive federal funding, thus could fall under the scope of this proposed rule.

Claiming a thirteen percent unemployment rate for those with disabilities, Patricia Shiu, director of the Office of Federal Contract Compliance Programs, said "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals.

That means mandates upon employers are in the works.