On April 17, 2012, the National Labor Relations Board ("NLRB") announced it will postpone the effective date of its rule requiring employers to post a notice advising employees of their rights under the National Labor Relations Act ("Act") pending resolution of two court cases.
NLRB Chairman Mark Gaston Pearce issued the announcement in the wake of both the April 17, 2012 emergency injunction halting the NLRB from implementing the rule until the case pending before the U.S. Court of Appeals for the District of Columbia is resolved, and the April 13, 2012 decision by the U.S. District Court for the District of South Carolina that invalidated the rule. The South Carolina District Court specifically found that "such a rule is inconsistent with the Board's reactive role under the Act" and that the NLRB does not have the authority to issue the notice-posting rule.
The U.S. District Court for the District of Columbia previously upheld the rule, but invalidated its primary enforcement mechanisms and struck down a request for an injunction. Employer groups appealed and the DC Circuit Court of Appeals granted the injunction in light of the DC District Court's ruling that invalidated the primary enforcement mechanisms for violating the posting requirement, the NLRB's indication that it may cross-appeal that portion of the decision and the need to consider the merits of the challenges to the rule before it went into effect.
These decisions are a victory for employers. However, the fight over whether the NLRB can require employers to post notices advising employees of their rights under the Act is not over. Chairman Pearce announced, "We continue to believe that requiring employers to post this notice is well within the Board's authority and that it provides a genuine service to employees who may not otherwise know their rights under our law." We expect the NLRB to appeal the South Carolina District Court decision to the Fourth Circuit. If the decisions of the DC Circuit and the Fourth Circuit conflict, it is likely that the matter will be appealed to the Supreme Court. It is important to note that this deferral does not affect the Department of Labor's current requirement that federal contractors and subcontractors post a similar notice.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Dan Schwartz and James Leva wrote an article, "Where New Conn. Ban-The-Box Law May Be Headed," for Law360. The article outlines what employers need to know about Connecticut's recently enacted "ban-the-box" law, titled "An Act Concerning Fair Chance Employment."
Day Pitney Alert
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.
Howard Fetner was quoted in an article, "Judge Allows Company to Withhold Benefits From Departing Employee," in The Connecticut Law Tribune. Fetner represented Community Health Center, Inc. (CHC), a statewide company that provides health care services to low-income patients, in a case in which a former CHC employee sought to recover compensation for unused paid time off. Following a trial, the court ruled in favor of CHC, reinforcing an employer's right to condition the payment of compensation for accrued fringe benefits upon an employee's giving a specified amount of advance notice of termination.