Where can I find a copy of the proposed notice? A copy of the proposed notice is available here.

What are the consequences for not posting the notice? There are a variety of consequences including (a) the extension of the 6 month statute of limitations for a charge of unfair labor practices and (b) the failure may be considered evidence of unlawful motive in an unfair labor case.

Where can businesses find additional information? The NLRB has a FAQ site that answer common questions and has links the laws.

On October 5, 2011, the NLRB postponed the implementation of the new posting until January 31, 2012 to “allow for enhanced education and outreach to employer, particularly those who operate small and medium sized businesses.”. A copy of the NLRB press release is available here. The previous effective date as November 14, 2011.

This will allow employers additional time to figure out how they will advise all their non-union employees that they have the right to form a union.

In this case, the Supreme Court address conduct by the employer involving the use of time clocks in an inconvenient location that resulted in the employees not receiving credit for work time spent donning and doffing (putting on their work gear). Kasten made a verbal complaint to the company about the time clock location but did not submit a written complaint. This decision is consistent the anti-retaliation protections available to workers under Title VII of the Civil Rights Act and is consistent with the position advanced by the US Department of Labor.

What does this mean for employees?

This is a significant win for employees. Previously employees often had to rely on written documentation of a complaint to their employer to substantiate a claim for a retaliatory termination. Now, employees will be able to rely on verbal testimony where they may or may not be formal written records of a complaint.

What does this mean for employers?

There will likely be increased claims for a retaliatory termination under the FLSA based upon verbal complaints to supervisors. Employers will need to be diligent in having a consistent policy of documenting all verbal, oral, email or written complaints under the FLSA. Employers may want to demonstrate (i) has a consistent policy of documenting all verbal and written complaints, and (ii) the absence of any record of a complaint (oral or written) from the terminated employee.

The district court granted summary judgment to North American Stainless and the en banc Sixth Circuit affirmed the holding that third party retaliation claims are not permitted under Title VII of the Civil Rights Act because Thompson did not engage in any activity protected by the Civil Rights Act. The US Supreme Court reversed and remanded the case and found that “hurting [Thompson] was the unlawful act by which NAS punished Regalado.”

The Court held that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination…We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she new her fiance would be fired”

This resolves the split of authority in the appellate courts addressing this issue.

What does this mean for employees and employers?

A retaliation claim under Title VII may now be asserted by someone that is not directly involved in the “protected activity” and employers will need to conduct a facts and circumstances inquiry to determine if conduct is retaliatory.

Does this create a slippery slope for employers if they fire any employee that has a connection to a different employee that filed a charge with the EEOC?

The Court does was not persuaded by this argument. The Court provided some guidance by stating w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

The court elected not to use a bright line rule with respect to third-party complaints and reaffirmed its holding in Burlington N. & S.F.R. Co. v. White that “the significance of any given act of retaliation will often depend on the particular facts and  circumstances…”

This case addresses 2 opposing viewpoints.

First, the government contends that the 6 month period applies from “the time the [Secretary] does discover, or reasonably should have discovered, the facts necessary to issue a citation.” Based upon Johnson Controls, Inc., 15 BNA OSHC 2132, 2135 (No. 89-2614, 1993), the government asserts that in the context of recordkeeping regulations “an inaccurate entry on an OSHA form 200 violates the Act until it is corrected, or until the 5-year retention requirement of section 1904.6 expires)”

Second, Volks Contractors asserts that the government’s view was not valid based upon subsequent legislative acts and cases including the case of Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162 (2007). Volks contends that the 6 month statute of limitations applies from the date that the recordkeeping violation occurs and is not a continuing violation that extends until the date that OHSA knew, or should have known, of the recordkeeping violation.Volks asserts that one of the reasons for the 6 month statute of limitations is that is becomes increasing difficult for business to recreate data of what happened as your get farther away from the date of the occurrence.

OSHA has made many materials for this case available here. This is a good case to keep track of because it companies face significant penalties for violations.

Thanks to the Blog of legal times for posting about this.

Last week, the U.S. Immigration and Customs Enforcement’s (ICE) and the Office of Homeland Security (HS) announced that they reached a settlement with retailer Abercrombie & Fitch arising out of deficiencies in the retailer’s compliance with the Immigration and Nationality Act and its employment eligibility requirements arising out of an audit in November 2008. ICE, HS and Abercrombie and Fitch paid $1,047,110.00 to settle this matter.

The most interesting and cautionary aspect of this settlement is that the violations were based on technology deficiencies in the electronic I-9 verification system and there were no instances of the knowing hire of unauthorized aliens.

What does mean for employers?

Employers may be investigated and penalized for deficiencies in their I-9 verification process even if there are no instances of knowingly hiring unauthorized workers. Employers should make sure their compliance programs and procedures are sufficient to minimize this type of risk.

What additional information is available for employers?

Fortunately, the USCIS has published the following materials to assist employers:

• Form I-9
• E3 – I Am an Employer..How do I…Complete Form I-9, Employment Eligibility Verification
• M-274 – Handbook for  employers

Employers may want to consider these materials when reviewing their policies and procedures.

The IRS changes the regulations effective after April 1, 2005 to basically provide that the student exemption to the FICA tax (which is relied on by medical students) does not apply if the students work full time. There are a handful of cases pending right now challenging the validity of these regulations and the United State Supreme Court granted an appeal to resolve this issue.

The fact sheet sets forth 2 major requirements:

1. Employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and
2. Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk”

The fact sheet also contains guidance on time and location of breaks, compensation, and clarifies which employers are subject to the requirements.

What does this mean to businesses subject to these requirements?

In general, employers will need to have a policy in place regarding break time to express breast milk and provide an area free from intrusion and the public (other than a bathroom) for employees to express breast milk. For many businesses, this may be a managers office, conference room or similar are that can be secured (i.e. locked) to prevent intrusion.

What about other state law requirements?

The fact sheet indicates that this release does not preempt state law that provides greater protection to employees

What factors establish in loco parentis status?

Either “day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume responsibilities of a parent with regard to a child”. There are also various tests and court opinions that further clarify in loco parentis

What type of documentation or evidence is an employee required to provide to establish in loco parentis status?

A simple statement from an employee that an in loco parentis relationship exists my be sufficient. The DOL takes the position that “a simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”

Are they any limitations on the number of parents a child may have under FMLA?

There are no limitations on the number of parents a child may have under the FMLA. The DOL takes the position that “neither the statutes nor the regulations restrict the number of parents a child may have under the FMLA”

Does in loco parentis status apply to same-sex couples?

Same sex couples are able to attain in loco parentis status over child. The DOL believes that “an employee who will share equally in the raising of an adopted child with a same sex partner, but does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.”

What does this mean for employers?

Employers may want to consider reviewing their FMLA leave policy to determine if it should be extended for birth, adoption or to care for a sick child if an employee establish they provide either day to day care for such child or are financially responsible for the child. This is also an opportunity for employers to decide how they want to treat same sex couples in the workplace.