NLRB's "Quickie Election" Rules Struck Down . . . At Least For Now

Try as they might, the NLRB can't seem to get any of its new rules past the federal courts in Washington D.C.   On May 14, the United States District Court for the District of Columbia struck down the NLRB's new "quickie election" rules.   As we noted last June, the NLRB's "quickie election" rules would have sped up the normal representation election process and would have given employers less time to educate their employees about the risks and downsides of unionization.  The proposed rules would have also limited an employer's ability to seek redress from the government on certain pre and post election issues.   For the time being - and as the District Court expressly held this week - "representation elections will have to continue under the old procedures."

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EEOC Changes Course And Extends Title VII Protection To Transgender Individuals

The EEOC recently ruled that Title VII provides protection to individuals who file charges based on "gender identity, change of sex, and/or transgender status."  The EEOC's decision represents a signifcant change in how the agency views transgender issues; specifically, the EEOC had previously ruled that Title VII did not extend protection to transgender individuals.

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Reasonable Accomodations and Using Arrest and Conviction Records In The Hiring Process: EEOC To Hold Public Meeting To Discuss These Issues

On April 25, the EEOC will hold a public meeting in Washington D.C. to discuss the legality of employer's consideration of an applicant's arrest and conviction record when making hiring decisions.  At this same meeting, the EEOC also plans to offer guidance on reasonable accommodations and undue hardship under the ADA.  It is expected that the EEOC will offer additional, and perhaps written guidance, on these topics at the meeting or shortly after the April meeting.

In 2011 the EEOC's office of Legal Counsel issued a non-binding advisory opinion on employer use of arrest and conviction records during the hiring process.  The opinions not only reaffirmed the EEOC's  interest in employer background checks, they also outlined the EEOC's current thinking on the subject.  Specifically:

• The EEOC will continue to draw a distinction between arrest and conviction records;
• The EEOC is not yet prepared to adopt a presumption of disparate impact when employers use arrest (or conviction) records in the hiring process; and
• The EEOC encouraged employers to make sure their criminal background checks related to the job duties for the position in question.

The EEOC also a public meeting in June 2011 to discuss reasonable accommodations and leaves of absence under the ADA.  The EEOC indicated in that meeting that it would be releasing further enforcement guidance on that issue, but has not yet done so. 

Social Media In The Workplace: Maryland Closes The Door On Employer Access To Employee And Applicant Social Media Sites

Maryland has become the first state to pass a bill banning employers from asking employees or applicants for their social media passwords and login information.  The User Name and Password Privacy Protection Act prohibits employers from taking or threatening adverse action based upon an employee's or applicant's refusal to provide a user name or password to a "personal account" accessed through a "computer, telephone, personal digital assistants, and other similar devices."   Commentators expect Maryland's Governor to sign the bill into law in May and it will take effect on October 1, 2012.

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DELAYED AGAIN: D.C. Circuit Delays The NLRB's Notice Posting Deadline

On April 17, the United States court of appeals for the District of Columbia issued an injunction preventing the NLRB from implementing its notice posting rule.  The notice posting rule, which requires employers to post a notice of employee rights under the NLRA, was previously set to take effect on April 30.   With this injunction, and last week's ruling by a federal district court in South Carolina that the notice posting rule is invalid, employers nationwide have a good faith basis for refusing to post the notice on or before April 30.  The injunction will remain in effect until the D.C. Circuit rules on the legality of the notice posting rule.

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