Schwartz Kelly, LLC

On June 21, 2011, the National Labor Relations Board proposed new rules regarding union representation votes that are widely considered disadvantageous to employers seeking to defeat a unionization vote by its employees.  The proposed changes modify rules that have existed since 1947, raising the question as to why the NLRB has decided to act now, particularly since union membership is down to 6.9% of the private sector and just 11.9% of all workers in 2010.  By comparison, unions represented 20.1% of all workers in 1983.  The rules proposed by the NLRB would shorten the time between workers’ election vote and the initial call for a union vote, circumventing employers’ time to rally against unionization by expressing its views during the election campaign.  Employers should be ever-mindful of the time it has to respond to a union vote, especially since employers often do not learn about the union campaign until months after it has begun.  For questions about union voting or other employment or labor issues, please call us.

A recent case in the New Jersey Appellate Courts serves as an important reminder to employers to use caution in their communication with employees.  In Lapidoth v. Telcordia Techs., Inc., the Court required the employer to reinstate its employee after a year-long maternity leave.  Even though the employee was no longer covered by the Family and Medical Leave Act and New Jersey’s Family Leave Act, which provide only  12 weeks of protected leave, the Court found that the employer had created a contract with its employee when it approved her request for leave by written notice and her request for extension of that for up to a year.

Employers may unwittingly undermine the protections provided by their employment policies, such as at-will employment (employees can be terminated with or without cause), by contradicting those terms in their communications with employees.  Employers would be wise to consider an integrated approach to their employment policies.

If you would like help reviewing how your employment policies interact with each other, please do not hesitate to call.

Labor Department statistics released yesterday showed that 9,000 people filed for  unemployment benefits for their first time in the week ending June 18^th.  As this number demonstrates, many employers are still shedding jobs despite what economists describe as an overall recovery, albeit very weak.  When employers down-size, they frequently see an up-tick in employment-related claims, as older workers claim age discrimination in the firing process and women claim gender bias.  To minimize the risk of claims, employers should seriously consider offering some type of severance package to terminated employees in exchange for a release of claims.

Call us and we will help you through the process and talk about the risks and rewards.

A recent hearing before the Equal Opportunity Commission concerning employer obligations under the Americans with Disabilities Act highlighted the importance of engaging in a dialog with employees.  The process of discussing the need for accommodations with employees and their health care providers is known as the “interactive process. ”  It is extremely important for employers to engage in this process before denying a request as “unduly burdensome” or requiring an employee to take a leave.  Employers are required to engage in a conversation in good faith with the purpose of finding a solution that suits both the employee and business interests.  When done correctly, the employer avoids liability and receives an engaged, loyal employee.

We are interested in hearing about your experiences under the ADA.