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Laws and Regulations to Watch in 2012

2012 is an election year; hence, the U.S Congress is not likely to pass significant labor and employment legislation. But, the National Labor Relations Board (NLRB) and other federal agencies will put down a number of important administrative rules.

NLRB Union Election Rule

On December 21, 2011, the NLRB adopted a final rule wherein a wide range of amendments were made that would hasten the union process. Most significantly, the new rule will postpone certain employer challenges until after a successful union election. This will include challenges to the scope of a proposed bargaining unit and to whether employees are supervisors.

In addition, the new rule will allow the NLRB to determine if there is a question concerning representation. If so, then, the new rule will resolve it by conducting a secret-ballot election and certifying the results. The new rule is scheduled to take effect on April 30. 


NLRB Notice Posting Rule

The NLRB has twice delayed the effective date for its August 2011 final rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act.  The rule, which is now scheduled to take effect on April 30, is the subject of pending court challenges in South Carolina and Washington.

EEOC Rule on “Reasonable Factors Other Than Age” Under the ADEA

On November 16, 2011, the Equal Employment Opportunity Commission (“EEOC”) approved a draft final rule. It clarifies the standards for the “reasonable factors other than age” defense to discrimination claims under the Age Discrimination in Employment Act (“ADEA”).  The EEOC’s draft rule is stricter than recent decisions by the Supreme Court of the United States and aims to heighten the standards necessary to establish the defense in an ADEA case.   If approved by the Office of Management and Budget, the draft rule will likely require an individualized approach. Thus, it would determine whether an employment practice is grounded in reasonable factors other than age.

Department of Labor Persuader Activity Rule

In June 2011, the Department of Labor (“DOL”) issued a proposed rule narrowing the “advice” exception to the Labor-Management Reporting and Disclosure Act (“LMRDA”).  The LMRDA requires employers to disclose arrangements with labor relations consultants whereby the consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively.  The current advice exception exempts arrangements wherein the consultant does not directly contact employees and provides only oral or written materials to the employer.  But, the proposed rule would limit this advice exception to “oral or written recommendations” from a consultant to an employer.  Therefore, if adopted, the proposed rule would significantly expand the circumstances whereby employer-consultant arrangements must be disclosed.