Employment Law Update

Michael Patrick O’Brien
February 7, 2011 | COMMENTS

The National Labor Relations Board (NLRB) recently proposed requiring most employers to post a notice in their workplaces telling employees about their rights under the National Labor Relations Act (NLRA). Among other things, the NLRA gives employees the right to act in concert to seek to improve working conditions, form a union, seek help from a union and engaged in various union activities once a union is formed and/or recognized. The rule would apply to all employers covered by the NLRA, which basically means all private employers. The NLRA does not cover the following: agricultural laborers; persons employed in the domestic service of any person or family in a home; persons employed by a parent or spouse; independent contractors; supervisors; employers subject to the Railway Labor Act, such as railroads and airlines; federal, state, or local government employees; or any other person who is not an employer as defined in the NLRA. Failure to post the required notice would be considered an unfair labor practice subject to sanctions. Interested persons should comment on the proposed rule beforeFebruary 20, 2011. Thereafter, the NLRB will finalize the nature and scope of the new posting requirement. You can read a copy of the proposed new rule here:  http://www.nlrb.gov/About_Us/news_room/Notice_for_Rulemaking/2010-32019_PI.pdf.

New ADA Regulations Pending

In late December 2010, the Equal Employment Opportunity Commission (EEOC) approved draft final regulations under the ADA Amendments Act (ADAAA). The EEOC also sent them to the Office of Management and Budget (OMB) for review and approval. OMB can take up to three months for this review, but the EEOC has asked for an expedited process. The EEOC will not publicize the new regulations until the OMB review is completed.  There is speculation that the EEOC has changed its proposed regulations made public in 2009.

Comments Sought on Nursing Mothers Mandates 

Congress recently amended the Fair Labor Standards Act to require, as of March of 2010, that covered employers provide nursing mothers with reasonable time and private space to express breast milk while at work. Parts of the new requirement are clear, but parts are somewhat confusing. The United States Department of Labor (DOL) likely will issue some kind of guidance clarifying the requirements. Thus, DOL has asked employers and other interested parties to provide comments to DOL about the requirement. Here is a link to a DOL Q & A describing its request for comments and its plans for guidance:  http://www.dol.gov/whd/nursingmothers/faqsRFI.htm. A DOL fact sheet further describing the requirements for break times for nursing mothers is available here: http://www.dol.gov/whd/regs/compliance/whdfs73.htm.

Jets/Favre Sued for Sexual Harassment

As further proof of my oft-stated warning that no employer is immune from either actionable misbehavior by workers or from employment lawsuits, there is the recent news that future Hall of Fame QB Brett Favre and the New York Jets have been sued by two female employees employed by the pro team when Favre was the quarterback in 2008. The women allege that Favre made sexual requests and comments and sent them sexual texts while he worked for the team. Favre and the Jets deny the claims. I could easily make comments about the risks of making passes on the job or trying to score while at work; however, it is awfully early in the New Year for such puns, so I will refrain. I am sure 2011 will bring us many more opportunities for puns and other humor in the employment law world and I look forward to enjoying them with you. 

Michael Patrick O'Brien is an employment attorney with Utah law firm of Jones Waldo Holbrook & McDonough (www.joneswaldo.com). He also serves as the Legal and Legislative Director for Utah’s Society for Human Resource Management chapter. Contact him at 801-534-7315 or mobrien@joneswaldo.com. Reprinted with permission.