Connecticut’s New ‘Ban the Box’ Law

Seattle’s New 4-in-1 Workplace Poster

Philadelphia Ban the Box 2016 Posting Requirement

Employers: Required Federal Postings for Job Applicants

All employers are required to display three federal postings visible to job applicants.

Are you missing a key component of posting compliance in your business?

Depending on how your company manages job applicants, you may be missing three required Federal labor law postings that must be accessible to job applicants:

  • Equal Employment Opportunity is the Law
  • Family and Medical Leave Act (FMLA)
  • Employee Polygraph Protection Act (EPPA)

The ubiquitous requirement for “conspicuous location” comes into play here. If your labor law postings are in an area not accessible to job applicants, that location would not satisfy the conspicuous location requirement.

For example, many companies display workplace postings in break rooms or on bulletin boards next to time clocks, or in manager’s offices. But if an applicant never makes it past the reception area into area where posters are displayed, then the postings are not in a conspicuous location for applicants.

How to Meet Federal Requirements for Applicant Postings

  • Determine where applicants typically fill in and/or submit job applications at a physical location.
  • Determine if labor law posters are visible and accessible (in other words, “readable”) for job applicants.
  • If not, display the three required postings.

GovDocs offers a convenient 3-on-1 laminated posters containing the required postings for applicants. Subscribers to this blog can save 20% on all compliance poster purchases, including the GovDocs Federal Applicant poster, using coupon code BLOG20.

Focus on EEO is the Law Posting for Job Applicants

For the EEO is the Law posting, employers are encouraged to post the electronic notice on their web sites in a conspicuous location. However, electronic posting does not fulfill the obligation to physically post the required information.

Additionally, physical versions must be visible and accessible to applicants and employees with disabilities that limit mobility.

E-Verify and Right-to-Work Applicant Posting Requirements

If not, display the three required postings. If your locations participate in the E-Verify program, your participating locations will have to display the E-Verify postings “in a location that is clearly visible to any employees and applicants who will have their employment eligibility verified with E-Verify.” The posting must be displayed in English and Spanish.

Where poster display is not feasible, the employer must provide all applicants with copies of the E-Verify notices in English and Spanish with application materials.

Want Even More Information About Federal Posting Requirements?

Download the free GovDocs Federal Posting Guide to learn more about Federal postings. The Guide describes each Federal posting’s content, for whom it’s required, and the posting requirements. The Federal Posting Guide includes guidance for:

  • Postings Required for All Employers
  • Postings for Applicants
  • Federal Contractor Postings
  • Federal Construction / Transportation Projects
  • Postings by Industry / Worker Classification

NLRB Redefines Joint Employer Status

The NLRB’s new standard for joint-employer status aims at increasing collective bargaining.

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Good news for unions: the National Labor Relations Board (NLRB) veered from its long-standing standard for assessing joint-employer status under the National Labor Relations Act (NLRA) to increase the reach of collective bargaining in companies with decentralized business units or subcontractor arrangements.

In Browning-Ferris Industries v. Teamsters (Case 32–RC–109684) the NLRB upheld a Third Circuit Court ruling that two or more employers are joint employers when they “share or co-determine those matters governing the essential terms and conditions of employment”.

The case involves a recycling company (BFI), a subcontractor who provides workers, and a union eager to organize a group of sorters, screen cleaners, and housekeepers.

BFI contracts with Leadpoint to supply temporary workers. Their contract states that Leadpoint is the sole employer of those temporary workers, but the NLRB decision nullifies that clause – and that alone has far-reaching implications for other employers with similar contractual relationships.

Who’s the Boss? BFI or Leadpoint?

In the daily operations of the BFI plant, Leadpoint maintained its own supervisory and scheduling oversight for the temporary workers. In other words, BFI managers did not have direct control of Leadpoint’s temporary workers in terms of scheduling, hiring/firing, or discipline; however BFI managers influenced day-to-day performance standards and productivity. Additionally, BFI’s contract with Leadpoint stated that Leadpoint’s personnel:

“…have the appropriate qualifications…consistent with all applicable laws and instructions from [BFI], to perform the general duties of the assigned position. BFI also has the right to request that personnel supplied by Leadpoint meet or exceed [BFI’s] own standard selection procedures and tests.

That contract language gave the NLRB the ammunition they needed to sink BFI’s claim that Leadpoint was the sole employer of those temporary employees. These activities taken together, the NLRB determined, qualifies BFI for joint-employer status because the company directly and indirectly influences the terms and conditions of employment.

BFI was able to have Leadpoint hire, fire, and discipline workers through its contract. BFI controlled the actual production infrastructure of the plant (the on/off switch on the production line, for example). That all spells joint-employer status according to the NLRB’s decision.

Who is a Joint-Employer?

In this decision, the NLRB defines joint employers as those with the authority to control the terms of employment and any employers who can exercise that authority – directly or indirectly. If the subcontractor is merely a stooge doing the bidding of the primary company in terms of employment activities, then those parties are considered joint employers. Contract language be damned.

Joint Employers and Centralized Compliance

According to GovDocs Compliance Counsel, Anne Jakala, Esq., employers should monitor closely the outcomes of any appeals to this case and the highly anticipated outcome of the McDonald’s case that will determine the employer status of a parent corporation and its franchises.

“While this specific case dealt with a company and its contractor, the changing of the definition of what is a ‘joint employer’ has many implications for companies that use temporary workers and franchises. If the set of facts in each case meets the newly expanded definition of ‘joint employer’ then the parent company will be considered a ‘joint employer’ with the contractor, temporary staffing agency, or franchisee. This would allow these parent companies to be brought into labor disputes and violations.”

According to Jakala, the new joint-employer status could force employers to consider centralizing compliance programs to protect itself from labor law violations – and that includes workplace postings.

“A company could be held responsible for the posting obligations in those agencies, contractors, or franchisees. This new definition may now expand their labor rights obligations to those workers – including labor law postings.”

GovDocs Helps Joint Employers Centralize Posting Compliance

If you need to centralize compliance across subcontractor or franchise relationships, contact GovDocs for options that fit your operational needs. We provide ongoing posting compliance to North America’s largest employers including large staffing agencies, corporate franchises, and compartmentalized business units. Each has unique needs requiring tailored compliance programs. Contact us to learn more.

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NLRB Halts Mandatory Arbitration Agreements

One employer’s attempt to bake-in arbitration agreements as a condition of employment left a bad taste in the NLRB’s mouth.

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PJ Cheese, Inc. is part of a Papa John’s Pizza franchise (PJ United, Inc.) that employs more than 3,000 employees in Alabama, Louisiana, Texas, Ohio, Tennessee, Illinois, Missouri, Mississippi, and Virginia.

The employer developed a Dispute Resolution Program (DRP. Pronounced just like it’s spelled.) PJ Cheese intended its DRP to settle employment disputes in arbitration, out of court, and definitely out of the crosshairs of the National Labor Relations Board (NLRB).

Oh, the irony.

Instead, PJ Cheese found their Dispute Resolution Program chewed up and spit out. (PJ Cheese, Inc. and James Sullivan).

The language of PJ Cheese’s Dispute Resolution Program explicitly informed applicants and employees that “submission of an application, acceptance of employment or the continuation of employment by an individual shall be deemed to be acceptance of the Dispute Resolution Program.”

And no signature required! How convenient. The NLRB decision referred to this as a “self-executing document”.

PJ Cheese’s DRP – in big, bold capital letters – further expounded:

CONDITION OF YOUR EMPLOYMENT AND IS THE EXCLUSIVE MEANS BY WHICH THOSE PROBLEMS MAY BE RESOLVED.

Ah, now there’s the problem.

NLRB Affirms Administrative Law Court Ruling

Administrative Law Judge William “Wild Bill” Nelson “Rockefeller” Cates found the language of the DRP to quash workers’ ability to pursue class or collective judicial action allowed under Section 7 of the National Labor Relations Act (NLRA). An arbitration policy like PJ Cheese’s DRP also violated the NLRA by causing workers to believe they are prohibited from filing unfair labor practice charges with the NLRB.

The DRP tried to push workers to settle in arbitration claims such as:

  • Wages
  • Breach of any contract
  • Wrongful termination
  • Sexual harassment
  • Discrimination
  • “Whistleblower” claims

PJ Cheese’s DRP flew too close to the sun, and its cheesy wings melted into gooey defeat when the NLRB affirmed with the judge’s original decision. As a result of the decision, PJ Cheese must:

  • Cease and desist from maintaining a mandatory arbitration agreement that bars employees from filing charges with the NLRB.
  • Rescind the unlawful arbitration agreement or revise it in all of its forms to make clear to employees that the arbitration agreement does not constitute a waiver of their right to take joint, class, or collective actions against their employer or file charges with the NLRB.
  • Notify all current and former employees who were required to sign the unlawful arbitration agreement that it has been rescinded or revised and, if revised, provide them a copy of the revised agreement.
  • Post copies of a Notice to Employees that disclose employees’ rights to not be subject to binding arbitration agreements in lieu of the Section 7 and Section 8 rights under the NLRA.

What the NLRB Ruling on Mandatory Arbitration Means for Employers

Long story short: any mandatory arbitration policy that contains provisions unlawfully prohibiting employees from engaging in protected concerted activities and that leads employees reasonably to believe they are prohibited from filing charges with the NLRB will not stand.

Under federal law, employees have the right to act together with other employees for mutual benefit and protection and to file claims with the NLRB. Therefore, employers in the U.S. cannot maintain nor can they enforce a mandatory and binding arbitration agreement that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether in arbitration or in court.

Have your legal team review your employee arbitration process to ensure it doesn’t run afoul of the NLRA.

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Florida Protects Pregnant Workers from Discrimination

Florida is the latest state in the U.S. to amend existing workplace anti-discrimination laws to include pregnant women as a protected class of workers.

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Florida amended Chapter 760* of its Civil Rights statutes to include pregnant workers as a class protected from workplace discrimination.

The statute prohibits employers from terminating, refusing to hire, or discriminate against pregnant workers and other protected classes by paying them less or limiting benefits and other employment opportunities. For example, if you interview a qualified job applicant who happens to be pregnant, you cannot fail to hire her based on her pregnancy.

*Note: The online version of the statute linked above was not updated at the time of this article; however, the amendment is enacted, and the required posting contains the pregnancy revision.

Required Florida Discrimination Posting

Florida revised is Florida Law Prohibits Discrimination posting, which is required for all employers to display. The poster is provided by the Florida Commission on Human Relations in both English and in Spanish on one 8.5″x11″ sheet.

The posting now includes pregnancy as a condition protected from workplace discrimination. The Commission also updated its contact information on the posting.

Employers must display the revised posting immediately. Fortunately, GovDocs provides the revised Florida Discrimination posting as part of the Florida Compliance Posting Package, which includes postings required for all Florida employers:

  • Unemployment Insurance
  • Workers’ Compensation
  • Child Labor Law
  • Discrimination
  • Minimum Wage

Subscribers to GovDocs Labor Law News save an additional 20% on all compliance poster purchases. Use coupon code BLOG20 at check out.

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