(Hi, everybody. I’m back)

Yes, I said again. Because he did this last time, too. Craig Becker, whose appointment just expired, was a recess appointment as well. Both times, incensed Republicans have unloaded a magazine of PR soundbites about the President circumventing the Constitutional role of the Senate, and creating some kind of rogue bureaucracy that’s equal parts fascist dictatorship and Marxist, wealth-sharing, Soviet state.

Meanwhile, a couple of news stories later, the Indiana Democratic minority is walking out of session again because the Republican majority is insisting on introducing legislation that would make Indiana the 23rd right-to-work state in the nation. That’s right, I said again. Again. Indiana Dems spent several weeks in a motel in Urbana-Champaign to keep the bill off the floor in 2010. Ground the whole legislative session to a halt.

Two labor issues, two stalemates among legislatures. Look, I know the ideology behind organized labor is deeply-rooted and not going anywhere any time soon. But that actually speaks to my point here. These are not new issues. The political lines between unions and company owners were drawn before the ones separating the modern parties. And still, Presidents appointed NRLB members who actually got confirmed, and minorities showed up on the first day of session.

The obvious question is why, all of the sudden, these historical fissures are causing such caustic stalemates. But, to be honest, I don’t really care what the question is. And whether you’re a unionized worker or a business owner, Republican or Democrat, neither do you.

Every day I wake up with items from yesterday’s to-do list. Every day I work too much, fight harder, and every night go to sleep too late with half a to-do list still to be done. We all are. Welcome to The Recovery. And that’s fine. That’s how we do it here in America. We work hard.

What we don’t need – worker and business owner alike – is for the entire legislative session or regulatory schema to get rutted by the pissing contest that has replaced political discourse, wondering if Hot-Button-Issue A is going to kill our company’s profit for the year. And (not to wax too grandiose) I’m not working this hard to live in a country that can’t suck it up and cooperate with people they don’t like. Even if it means taking the uppercut to the chin, voting “no” for the bill or the person you don’t like, and fighting to get a majority the next time around so you can win some fights.

Honestly, for three years now the economy’s been slowly clawing its way out of the toilet, and every economic pundit I’ve heard during that time has said the #1 thing holding us back is fear. Uncertainty. Employers need to know what’s going to happen a year from now to know whether it makes sense to hire someone. Employees can’t spend any money until they know they’re going to have a job in 6 months. We can’t know what the markets will do tomorrow, but we’re supposed to be able to forecast what the political climate will look like a year from now.

I don’t think the whole country is looking for a single answer to the economic problem. What we’d like, if anyone elected to anything is listening, is any movement at all. Just one time, for someone to say “well, they got us this time, we’ll get ‘em next time” and let us move on.

And yet, with approval ratings further down the crapper than their economy, Congresspeople and Senators from every seat on the political seesaw still pull this “I’m-taking-my-ball-and-going-home” garbage. It’s petty and weak. Learn how to lose, folks. The rest of us need to get some work done.

You know, if I’d hired a team that produced results this bad, I’d fire them all and start over. Man, if only I’d hired them. If only…

According to the official press release, the NLRB’s reason is that there’s confusion from business owners about which companies are under the Board’s jurisdiction, and they want to spend some time educating the business community about the issue.

Eric Meyer over at the Employer Handbook calls bulls— on the PR explanation for the delay, and I completely agree. Eric notes that the Board made quite a big deal out of the FAQ they released with the final regulations, so there’s not that much educating left to do. Also, figuring out if you’re covered by the NLRB’s jurisdiction is not that hard. Seriously, we do hard things here; this is not one of them….

I think most employer-side attorneys would tell you the real reason for the postponement has something to do with the stream of lawsuits that have been filed challenging not just the poster requirement, but the NLRB’s ability to enact regulations at all.

The new date will pose some logistical problems, though. Many employers buy new laminated breakroom posters around the new year, and the companies that make them have been busy redesigning the 2012 models to fit the NLRB info in. Now that the Board’s regulation is up-in-the-air, poster companies (and the employers that buy those posters) are going to have to decide whether to print them with the info or not.

At any rate, no need to hang the new poster next month like we expected.

Before they lose a voting quorum later this year, the National Labor Relations Board has issued two major decisions overturning two highly-praised-and-criticized rulings by the Bush-era Board. They both suck for employers, but from the PR I’ve been reading over the past 12 hours, you’d think they were either going to save or kill America’s future. Neither is true.

I’m going to talk about one of the cases, Lamons Gasket, because it’s getting the most press. Then I’ll have a very calm word about hysteria and politics.

Lamons Gasket: Reversing the EFCA Straw Man

In Lamons Gasket Co., the Board reversed Dana Corp., a 2007 decision by the Bush-era Board that was pilloried by union folks from the day it was published. Here’s the issue:

Typically, when a group of employees votes to be represented by a union, there’s a period of time where the union’s validity can’t be challenged by employees. This time period, called the “recognition bar” is meant to give “the bargaining relationship…a fair chance to succeed.” Basically, the recognition bar keeps an employer from trying to goad its employees into revoking the union representation before it’s tried to work with the union.

In Dana Corp., the Board carved out an exception to the recognition bar. Where an employer voluntarily recognizes a union as the representative of its employees, the employees had 45 days to file a petition challenging union recognition. If 30% of the bargaining unit signed onto the petition, a secret ballot election would have to be held to make sure a majority of the workers actually wanted the union.

Here’s the thing: employers can voluntarily recognize a union after the union shows an “unassisted and uncoerced showing of interest from a majority of employees.” That “showing of interest” almost always means the union has collected recognition cards from a majority of the employees. If you’ve followed Labor Law at all, you know where I’m going with this. Cards? Secret Ballots?

Sounds a lot like the Employee Free Choice Act, right?

Yeah. In 2007, with the Presidential election looming, EFCA was a hot-button issue. Most people thought that an Obama election would mean near-instant passage of the Card Check law. (Didn’t exactly turn out that way, but in ’07, nobody knew that.) When the Board dropped Dana Corp. into that landscape, unions went nuts. They said Dana Corp. was doing away with decades of Board precedent on voluntary recognition and was a back door way to cut the legs out from under EFCA.

It wasn’t. The recognition bar still existed wherever employees actually voted for a union. Dana Corp. was a reasonable way to make sure that employees were getting a union that they actually wanted, instead of being strong-armed or confused into a representation that they’d be stuck with for a year or more. If you need more proof of this, check out Jon Hyman’s first-hand account of a Dana Corp. decertification here.

When it became clear that EFCA was going to die in Congress, unions saw reversing Dana Corp. as something of a consolation prize. EFCA the Home Game. If they couldn’t get the labor laws changed, at least they could get a liberal Board to reverse Dana.

And that’s just what happened. Just like we expected. In Lamons Gasket, the current Board examined data showing that Dana Corp. only decertified, 1% of voluntary recognitions, and therefore decided it was unnecessary. The decision isn’t shy about it’s relation to the bigger fight over EFCA:

The decision in Dana thus undermined employees’ free choice by subjecting it to official question and by refusing to honor it for a significant period of time, without sound justification.

Lamons Gasket Co. at Page 2 (emphasis added).

The Takeaway

So what does all this mean? It means that Liberals believe card check is a valid way for employees to choose a union, and that Conservatives don’t.

Shocker.

In reality, it means that there will be employees out there that are represented by unions that probably don’t have majority support. As an employer, I think it means you should refuse to voluntarily recognize a union unless you are 100% convinced your employees are on board.

And that’s it. After all the wrangling and shouting and this ridiculously-long blog post, that’s all Lamons Gasket means. Union drive? Demand the election.

(Epilogue)

Stop Screaming! Bad Labor Law ≠ Political Armageddon

Okay, so Lamons Gasket sucks. It reverses a ruling that was reasonable and really helped protect employees. But it was also pro-business, and it was replaced with a pro-union rule. If your labor lawyer didn’t tell you this was probably going to happen two years ago, then you need to start shopping, and drop the word “proactive” a lot during the bidding process.

The problem is both Dana and Lamons cannot escape the politics surrounding them. But do those politics affect your business? Not as much as everyone is trying to convince you they do. Lobbying groups, twitchy labor lawyers, conservative bloggers and politicians are pulling out some serious shock and awe in response to the decision. Forced unionism! Attacks on worker’s rights! An underhanded scheme! By union extremists! That have hijacked the government! And they’re going to tell you all about it in URGENT LABOR LAW ALERTS!!!!!

Dial. It. Down.

I think Lamons Gasket is a dumb reversal that will hurt employees, but it’s not the end of the world. Remember the takeaway – if you think the union could sneak in against your employee’s will, just don’t voluntarily recognize. Make ‘em prove it. End of issue.

The effect of the NLRB roller coaster will not be avoided by bloggers and lobbyists working you into a frenzy, making you hate Democrats or overblowing the issue in whiny press releases. Leave the politics to people who don’t have anything better to do.

I promise you, the best thing you can do for your business is turn off the spigot of rhetoric and go back to work. The decision is what it is. Not good, but we’ll cope. And regardless of what you hear, it hasn’t eliminated secret ballot elections. EFCA will not be passed on its back.

This is what the NLRB does. When the White House changes hands, the NLRB does, too. And that means some opinions from the previous Board get reversed. Dana’s been in the sights of unions since it was issued in ’07. No one on our end of the bargaining table should be surprised that it got axed. If a conservative Board takes over, I can tell you right now it’ll get knocked back the other way.

Being angry at the Board because it issued the decision is like being mad at the bears in Grizzly Man. It’s a tragedy, no doubt. But you knew it was coming.

It’s the Nature of the Beast.

By thezenderagenda.com

Here’s the long and short of it: Beginning November 14, 2011, if you employ people – at all – you will be required to put up an 11×17 poster that tells your employees that they have the right to organize, bargain collectively, and engage in protected concerted activity, and provides the number to the NLRB to report any violation of their rights. The poster will also tell them they have the right not to join a union, too. Just to make it fair.

The poster will be made available in other languages, and if 20% of your workforce speaks another language, you’ll need that poster, as well.

Oh, and if you regularly post notices to your employees on an intranet, the notice(s) will have to appear there, too.

Actually, all that’s just the “short” of it. The “long” would have to apply to the final rule as it appears in the Code of Federal Regulations, which is nearly 200 pages long. Most of it is response to the comments from business groups who opposed the rule – and the Board’s rulemaking at all – during the lead up to today’s issuance.

And it really does apply to everybody, folks. From the NLRB’s announcement:

There is no union in my workplace; will I still have to post the notice?

Yes. Because NLRA rights apply to union and non-union workplaces, all employers subject to the Board’s jurisdiction (aside from the USPS) will be required to post the notice.

I am a federal contractor. Will I have to post the notice?

The Board’s notice posting rule will apply to federal contractors, who already are required by the Department of Labor to post a similar notice of employee rights. A contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s notice.

I operate a small business. Will I have to post the Board’s notice?

The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service. The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than a slight effect on interstate commerce. The jurisdictional standards are summarized in the rule.

Failure to post the notice will be considered an unfair labor practice. While the Board can’t impose fines for failing to put up the poster, it can extend the statute of limitations for filing charges if an employee claims he didn’t know his rights because the poster was missing.

If you’re looking for a silver lining in all of this, here’s one I found in the thick of the final rule: originally, employers who regularly addressed their workforce via email would have to notify all employees by email as well. The Board eliminated that requirement, noting how confusing and repetitive it would be to re-send the notice to everyone any time a new person was hired. The required wording for the link to the intranet posting, which originally read “Important Notice about Employees Rights to Organize and Bargain Collectively with Their Employers” has also been changed to “Employee Rights under the National Labor Relations Act.”

(ht Jon Hyman)

Notably, this particular incident wasn’t a product of the recession or the global economy or anything like that. From the looks of things, it was a simple corporate falling out. These two companies had worked together for decades, and one of them decided it was time to move on. Which is a good reminder to us all: these things happen. Regardless of the market forecast, accounts can be lost, and adjustments have to be made.

My heart goes out to those whose reality has changed. God knows I know what it’s like. My mind, on the other hand – which for better or worse views the world through Labor & Employment-colored glasses – thinks maybe its time we talk about what to do when you’ve got to let a lot of people go.

There’s a lot of ground to cover, so today’s post is going to just go over the basics of what the laws require. Future posts this and next week will discuss more specifics: what goes in the notice(s), exceptions to these requirements, how to calculate when the notice should be given, etc.

The Basics

The federal law governing mass layoffs is called the WARN Act. Before 2008, I’d say 99% of the populace had no idea what the WARN Act was. To say awareness of WARN has grown over the past few years would be an understatement. If you’ve been following the labor news through the recession, you’ll probably remember the Republic Windows sit-down strike from a few years ago. That incident – where a manufacturer here in Chicago shut down overnight after the bank pulled its line of credit – made WARN issues national news.

The WARN Act requires that companies with 100 or more employees provide at least 60 days’ notice of any “mass layoff” or “plant closing”. That means if you are laying off at least 500 people at any one location, or between 50 and 500 people if the layoffs equal at least 1/3 of your workforce at that location, the Feds want to know about it.

There are a million rules governing this basic idea – close geographic locations can be combined, temporary employees or locations don’t count, reductions in hours short of layoffs do count sometimes, the list goes on and on.

Illinois, like most states, has its own WARN law, as well, that extends the notification requirements to companies with fewer employees. The IL WARN Act requires employers with 75 or more employees to provide at least 60 days notice of pending plant closures or mass layoffs. But mass layoffs under IL WARN is half of the federal standard: either 250 employees or 25 or more, if the layoff equals 1/3 of the workforce.

What Happens if I Don’t Give the Notice?

Penalties. Big ones, too.

Failure to provide notice of a mass layoff can result in liability against every effected employee, equal to up to 60-days’ backpay and benefits, as well as fines of up to $500/day. Also, the laws allow employees who win at court to recover their attorney’s fees.

You can make voluntary payments to employees (e.g. – severance packages) to offset these penalties, but neither law recognizes pay in lieu of notice. So you can’t “make your workers whole” outside the rules of the Act, and avoid liability.

The Takeaway

The typical story when it comes to WARN is the big-bad-employer deliberately hiding bad financials and siphoning money away from paying its workers in its final days. I’m not saying this doesn’t happen sometimes, but far more often, it’s employers that mean to do the best they can by their employees, but don’t know how to navigate the law, or don’t even know it applies to them.

The regulations surrounding both state and federal WARN laws are tough to wrap your head around. There’s a lot of “if-then” factors involved here that can get even smaller employers in trouble. While we will get into some of these specifics later, I wanted to keep this post general to support the following suggestion: If you are considering laying off a significant part of your workforce, and you have upwards of 50 people working for you during the year, run the plan by your employment attorney. The smaller you are, the easier (and more cost-effective) it will be to assess any liability, but when you are facing a large-scale RIF, the piece of mind is worth it.

If you could press a button and instantly vaporize one sector of employment law, what would it be?

Walter, in an article on Reason.com about promoting job growth, picked age discrimination. I, for one, want to be on Jon Hyman‘s superhero team.

Jon picked the Fair Labor Standards Act.

Jon’s reason was that it is essentially actually impossible to be in full compliance with the hedge-maze of regulations set up under the FLSA. He’s right, of course, but like all superheroes, my reasons for doing away with our shared nemesis are my own.

I think the FLSA is one of the most outdated laws in the Federal Lexicon. It’s not surprising. By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA – a law whose sole purpose is to protect the American workforce – is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees, and the FLSA people had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work – cramming workers into classifications that didn’t really fit.  Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.

Now, we’ve got news articles and pundits galore telling us that the future is an independent workforce – full of freelancers and mobile offices and microdistributors – and we’re still going to try and use this 1930′s regulatory model? That is a crisis that needs heroes.

Now where did I leave that spandex?

Along with Board Chairman Wilma Liebman, Solomon has been on something of a defense tour the past few months, ever since the House Education & Workforce Committee held hearings on “Emerging Trends at the National Labor Relations Board” back in February – a title that sounds much more innocuous than it actually was. The purpose of the hearings was to show how activism and labor-friendly policies had overtaken the neutrality the NLRB was supposed to exude, and how the “Obama Board” was fundamentally changing the NLRB into a government-sponsored tool of Big Labor. Solomon and Liebman both issued statements to the Committee which made, essentially, two points: (1) We inhereted most of the problems we’re being accused of pushing through; and (2) this is how the NLRB works, and nothing about what we’re doing is all that crazy.

After seeing Solomon speak, and respond to questions from that disparate audience, I think I can safely say that the truth is, of course, somewhere in the middle. Below is sort of a “quick hits” version  of Solomon’s comments on some of the hot-button issues at the NLRB at present.

Boeing

If you haven’t heard, the NLRB recently filed a Complaint against Boeing for locating a second production line for its 787 Dreamliner in a non-union facility in South Carolina instead of the Puget Sound locale that comes with the baggage of the Machinists & Aeorspace Workers. The GC’s office got a lot of blowback from South Carolina politicos and from manufacturing groups, who said the filing was politically motivated, pushed by the Machinists, and an unprecedented step to extend labor protection to economic business decisions before they affect any unionized employees. Solomon issued a response that basically said Let’s not talk about this thing in public, huh? I’m trying to settle this behemoth. Crazy, said Shopfloor, since the NLRB has PR’d the hell out of this investigation.

Imagine my surprise, then, when I walked into the discussion and Solomon seemed to be taking questions head-on, right out the gate. Then I listened to him, and realized beginning with Boeing was a strategic move. Get it out of the way and by the end people will forget that you didn’t really say anything. Solomon’s response to the Boeing complaint was basically (and get ready for the big theme, here): “It’s no big deal. This complaint is exactly like any claim by the GC that an employer replaced union workers with nonunion workers.” Maybe he said something more on Boeing in the minute and a half before I walked in, but I’m going to guess you can get a sense of his comments from his press release.

Facebook Cases

In case you don’t get NLRB press releases, the GC’s office made some news last year when it went after an employer for firing an employee for “concerted activity” – posting disparaging comments about her boss on her Facebook wall. The GC is actively targeting what it considers to be grossly overbroad social media policies that prohibit employees’ ability to use facebook and other internet sites to discuss their employment. The Board considers these policies as per se violations of employee’s right to concerted activity. While the newsworthy Facebook case last year settled, Solomon said that it garnered enough buzz that every Regional Office now had social media cases working their way through the system. He confirmed that this is a major focus of his office.

Two notable things he said on the Facebook front: (1) We should expect to see a series of GC Memos on social media policies and the NLRA; and (2) a disclaimer in your social media policy that said ”nothing in this policy is intended to interfere with any employee’s Section 7 rights” may work to avoid liability - but it would have to specifically reference Section 7 of the NLRA.  

10(j)’s, Default Language & Deferrals after the jump.

 10(j) Injunctions

One of the major things Solomon has been accused of since taking over the role of Acting GC is significantly increasing the number of 10(j) petitions for temporary restraining orders and other injunctive relief in Board cases. Solomon said that he’s always seen the slow process at the NLRB as a problem for retaliatory discharge cases; some time ago, he noted, a study showed that it would typically take a year or more for the Board to order a person reinstated to their jobs after being fired for promoting unionization, and by that time, usually, both the employee and the union had moved on.

So Solomon made discharge cases a priority. Under his oversight, case processessing has dropped to 64 days, and they have accumulated 71 offers of reinstatement and hundreds of thousands of dollars in backpay settlements. But Solomon urged that the GC’s office was not becoming a “10(j) Factory” (his words). He noted that 10(j) petitions were only a small percentage of the overal cases filed by his office, and that investigation into discharge cases has uncovered that 2/3 of them are meritless, which Solomon pointed out was right on average with the rest of the claims presented to the Board.

One thing Solomon said seemed sort-of disingenuous to me, though. After going through the problems of these poor employees having to wait and wait to find out if they could be reinstated, Solomon defended the increase in petitions by noting that the GC’s office doesn’t immediately pursue injunctions in discharge cases. Where it’s clear the union has already abandoned its campaign, he said, the GC’s office will not immediately ask for an injunction. I’m not sure how that matches his previously-stated concern for the employee who is still left waiting to hear about his or her lost job.

Default Language in Settlement Agreements

This was another push from the GC’s office that was brought up at the House hearings back in February. Some regional offices have been using boilerplate language in every employer settlement agreement that, if the employer defaults, the GC’s office will file or refile the Complaint, and the employer waives any right to answer or contest the charges. In January, the GC’s office issued a memo that such language should be used across the board, in all offices. Employers are obviously concerned, since whether or not you breach a settlement agreement is a pretty amorphous concept a lot of times.

Solomon said, first of all, that he inhereted this initiative from his predecessor, who was of course appointed by the President’s predecessor. It was clear he was a little taken aback by how these initiatives were being used to call him out for being a liberal tool of the unions when they’d been begun by one of the most conservative GC’s in the history of the Board. Aside from that, Solomon argued that without the language, the GC’s settlement agreements had no enforceable arm. “Settlement agreements should have a little weight behind them,” he said. Plus, the Regional Directors were well within their right to play with the boilerplate in circumstances where other language was more appropriate. So it’s all negotiable. No worries.

So, employers, when the local NLRB office presents the boilerplate language in a settlement agreement, just remind your Regional Director that Lafe Solomon said if you asked real nice, they’d take it out for you.

Deferral to Arbitration

This issue – of changing the way claims are deferred to arbitrators under CBA grievance procedures – is another one Solomon pointed out he inhereted from his predecessor. Typically, if the parties agreed to have an arbitrator hear an 8(a)(1) or 8(a)(3) violation, the Board would defer to the arbitrator, but would maintain reviewability.

A Supreme Court decision, interpreted through the lens of some recent DC Circuit cases, however, changed the game on deferral. Under the DC Circuit cases, if the Board defers to an arbitrator, it forfeits any jurisdiction it had over the issue, and cannot review or investigate the claim later on. This, in the Board’s view, required a reworking of the deferral procedure.

Solomon said that, from now on, the following rules will be followed for deferral requests:

1. The Board will not defer unless the issue has already been presented and decided by the arbitrator.

2. Even if you get an arb decision and request deferral, the Board can refuse if the issue is repugnant to the Board’s policy or mission.

3. The claiming party’s case will be investigated prior to the deferral decision to make sure the Board would not throw it out anyway.

4. For existing cases that have been deferred, if the issue has not yet been presented to the arbitrator, the Board can take back jurisdiction of the issue.

Solomon said that these rules will ensure that deferral does not end up removing a case that presents novel or important issues the Board should be considering, and “better clarifies” the NLRB’s view of how it retains jurisdiction in deferral cases. When someone in the audience pointed out that the rules don’t seem to address the DC Circuit’s reasons for why the Board loses jurisdiction, Solomon admitted that the goal here was to better present the next case that gets challenged, in hopes that the DC Circuit will more clearly understand the issues and reverse it’s prior rulings.

As far as 8(a)(5) cases go, Solomon readily admitted he could give no straight answer on the deferral issues they present.

Search theory is a way of understanding why there can be a surplus of both supply and demand in a given market. Why, for instance, are unemployment rates so high at a time when so many companies say they need workers?

The Prize winners developed a theory, which now bears their names, to explain how external factors – the increased efforts of other job seekers, the matching of candidate skills with employer needs – can add cost barriers to the efficient, supply-and-demand equilibrium of the job market. The theory provides analysts with a starting point to model the job market, and hopefully figure out how to unstick a log jam in the seek-and-find dance of recruitment on a macro level.

More information on the Laureates and the Prize can be found here.

Both attorneys agreed that the answer to what’s happened since Obama took over is, kind of surprisingly, “Not much.”

While President Obama seemed to start strong – the Ledbetter Act was the first law he signed – employment law dropped quickly and precipitously from the agenda, as national interest became laser-focused on the economy and healthcare.

Deem (the Plaintiff-side attorney) thought that a slow-down on the pace of employment changes was good. Our jobs are so integral to our lives, and the public needs time to absorb workplace changes as a result.

The major changes the two attorneys saw in the past year or so are:

1. The Ledbetter Act

The law named after the Plaintiff in a Supreme Court opinion clamping the statute of limitations in discrimination cases to the time the original decision was made. The law makes it so the statute of limitations is “reset” every time that initial decision (e.g., discriminatory pay between women and men) affects the plaintiff (e.g., every time she gets a paycheck).

Both noted that the Supreme Court was about to weigh in on the Ledbetter Act for the first time in Lewis v. City of Chicago. Also, a note for employment lawyers: EEOC regulations on the Ledbetter Act are expected to be released for comment this fall.

2. GINA

The Genetic Information Nondiscrimination Act. The law (and the EEOC regulations clarifying it) make it unlawful for an employer to obtain or use “genetic information” about its employees or their family members in a discriminatory manner. By protecting employees from discrimination, GINA is meant to facilitate genetic testing for predisposition of certain diseases, and for greater research into genetic sources of health issues.

Two of the exceptions the EEOC gives to employers who seek genetic info gave Deem pause: first, if an employer has a voluntary wellness program, they can obtain GI. Deem saw an opening for employers to start “voluntary” programs that were really offers employees couldn’t refuse, resulting in GI being obtained where it really shouldn’t. Second, the EEOC regs exclude GI obtained during an employer’s certification of FMLA leave. Since certification info usually sits in an employee’s personnel file (a no-no under GINA), Deem sees the possibility that the information will get spread where it shouldn’t.

On the employer-side, Nowak is concerned about well-meaning managers creating potential liability for their companies simply by asking a subordinate about an illness or a sick family member. He’s worried the law will discourage compassion and friendliness between bosses and employees even more than current laws already do.

3. Whistleblower Changes

Lost in the sea of the Stimulus bill last year was a provision granting sweeping protection to whistleblowers at organization receiving stimulus funds. The speakers noted that, unlike Sarbanes-Oxley whistleblower rules, the Stimulus Act protects anyone making internal or external complaints of gross mismanagement or abuse of authority with regard to stimulus funds, wherever the whistleblower has a “reasonable belief” of retaliation. Also unlike SOX rules, the whistleblower has a right to a jury trial, and only has to prove that the complaints were a “contributing factor” to the discrimination they suffered. Broad, indeed. The healthcare bill contains similar language, and went even further by amending the Qui Tam laws to keep the person’s identity secret while the lawsuit is pending. That should encourage a few more people to step forward, Deem said.

The Real Story: Funding

Both attorneys agreed that, while the above changes were significant, the Obama Administration’s biggest act so far in the employment law arena was the massive funding the President has allocated to the Department of Labor and the EEOC.

After a decade of budget cuts (or no budget at all), the EEOC saw its budget increase by hundreds of millions of dollars, and the DOL recently received over $1 Billion to increase enforcement of worker protection laws.

This money means more employees, deeper investigations, and new leadership for the two agencies charged with overseeing federal workplace laws.

In case you are skeptical that more money is all the agencies needed to shake things up, the EEOC’s Chicago District Office recently announced that it’s planning to review every discrimination charge that comes in for systemic discrimination, something that seemed impossible a year ago. They’ve also announced new tactics in charge reviews, including increased employee interviews and broader requests for information from employers. Nowak said that he’s seen a dramatic increase in subpoenas from the EEOC, which spells trouble for many employers who try to respond to charges without lawyer assistance.

At the DOL, Nowak noted a swift uptick in OFCCP compliance audits, even where there’s a question as to whether the employer is really a government contractor.

The Future

Neither attorney would speculate whether Obama will pick up his employment reform agenda anytime soon. The 2010 elections are looming, and Nowak felt like the death of EFCA in Congress took the wind out of the sails on a lot of initiatives.

Both attorneys agreed that, but for the elections this fall, ENDA – the law extending discrimination protection to gay, lesbian, and transgender employees – would likely be on its way to a vote. It may be too hot a topic until after the election (or too cold – if incumbents are looking for something to tout back home).

[An Aside]

One final note – At the beginning of the post, I mentioned that both employer- and employee-side attorneys agreed that not much has changed since Obama took over. This agreement was pervasive – the two lawyers expanded on each other’s points throughout – and was remarkable to a young lawyer that’s been inundated with talk of how volatile the two sides are supposed to be.

The reason, I think, for the lack of derision, was two-fold: #1) the Chicago labor & employment bar is secretly full of professionals with manners; and #2) the talk was put on by the Chicago Chapter of LERA – a group founded on the principle that labor and management should get together to discuss the workplace and how to make it better.

LERA has been a great resource to me as I begin my career, and its one that I’d highly recommend to anyone involved in employment law or labor relations at any level. The national website is here. Go see if there’s a local chapter in your area.

If you’re like I was, you’re now asking what language they speak in this Utopia.  Well, it’s English.  Moostly, ya noo. 

Yep, jobless midwesterners, break out that Bison penant  - North Dakota wants you!

A report from Marketplace details how North Dakota is soliciting workers from hard-hit midwestern states like Ohio and Michigan for its booming work needs.

According to Marketplace, the Flickertail State is reveling in a combination of planning and timing – their banks steered clear of the subprime mess, and they lured companies like Microsoft to set up shop (if Jeff Krause is right, though, let’s hope it’s not an Office 2007 distribution center or something). 

While all that was going on, the coasts suddenly realized there was a huge land mass between them that could be used to create renewable energy, and North Dakota added a whole new industry to its list of hiring sectors. The state currently has a $700 million surplus and just lowered its taxes.

Will it be a switch from what you’re used to?  Sure, especially if you’re coming from a big city.  But don’t judge the state too quickly.  Here’s what one person featured in the story had to say about her new home:

Oh, Bismarck is beautiful! It’s clean, and there’s a mall, and it’s a nice mall, and has some of my favorite stores. 

Wait – even their malls are surviving?  Man, when can I move?