07/11/2011 01:28:00 PM EST
Foley & Lardner Labor and Employment Law Weekly Update (Week of July 11, 2011)
NLRB Proposes to Change Its Election Case
On June 22, 2011, the NLRB issued a notice of proposed
rulemaking to amend its rules when processing a union election petition. (See 76 F.R. 36812.) According to the notice, the proposal
"would simplify representation case procedures and render them more transparent
and uniform cross regions, eliminate unnecessary litigation, and consolidate
requests for Board review of regional directors' pre- and post-election
determinations into a single, post-election request." The following are some of
the proposed changes:
a union files an election petition, it also must serve the petition on the
employer and certify that it has the required "showing of interest" in
authorization cards or on a petition from the targeted employees.
the representation hearing, the parties must submit a new Statement of
Position form. Any issues not contained on the form would not be
considered at the hearing.
its Statement of Position form, the employer must include a list (without
contact information) of all the employees in the petitioned-for bargaining
unit, as well as its own list of employees if it contends a different unit
is more appropriate.
the hearing officer finds that the parties are arguing about a group of
employees that makes up 20 percent or less of the possible voters, the
hearing will be closed and the issue can be taken up after the election.
pre-election request for NLRB review of the regional director's decision
is eliminated, along with the current 25-day period between the direction
of election and the actual election.
an election has been directed, the employer must provide the Excelsior
voter eligibility list electronically to both the NLRB and the union
within two days, as opposed to the current seven days. The list must
contain the name, addresses, work location, shift, and classification for
each employee eligible to vote, along with his or her phone number and
email address (if available).
Bryan Hayes, the sole Republican on the NLRB, dissented
from the proposed rule changes, claiming that there was no need to conduct
representation elections more rapidly. Mr. Hayes predicted that the proposed
amendments would substantially shorten the time between the filing of the
election petition and the election date and would limit the opportunity for a
full evidentiary hearing or NLRB review on important issues. Mr. Hayes wrote,
"the Board will impose organized labor's much sought-after 'quickie election'
option, a procedure under which elections will be held 10 to 21 days from the
filing of the petition." Mr. Hayes was referring to a key aspect of the
proposed Employee Free Choice Act that Congress is now unlikely to pass.
The NLRB is accepting public comments on the proposed
rule changes until August 22, 2011, at http://www.regulations.gov, and it also intends to hold a
public hearing on the proposal on July 18 and 19, 2011, in Washington, D.C.
More information on the proposal is available at http://www.nlrb.gov/node/525.
Have You Reviewed Your Employment Application
Your employment application is obviously an important
screening tool in your hiring process, and you should take the time to review
it to ensure it complies with any applicable laws, collects the information you
need, and provides information applicants need to know when completing the
Some application questions can run afoul of federal
employment discrimination laws. For example, the EEOC believes it is
inappropriate for employers to require applicants to disclose the date they
graduated from high school because the answer usually discloses the applicants'
ages. There also are questions that may reveal whether the applicant is
disabled, which is unlawful to ask at the application stage, as explained in
Enforcement Guidance on pre-employment disability-related questions.
Finally, state laws may limit what you can ask on an application. For example,
several states, including Wisconsin and California, place limitations and
prohibitions on questions asking about an applicant's criminal record.
As for getting the information you need from the
application and providing information to applicants, you should have your
application reviewed to determine whether there are any items missing from the
application that would be helpful to include:
the application expressly require applicants to state whether they
graduated from each educational institution they list on their application
(as opposed to just asking how many years attended)?
the application require applicants to list all involuntary terminations
and the reasons for any such terminations?
the application require applicants to represent that they have fully and
accurately answered all question on the application and tell them that an
omission or misrepresentation on the application is a basis for not hiring
them (and a basis for termination if the applicant has already been
the application tell applicants how long applications will be active?
the application tell applicants that if they are hired their employment is
Having the right questions and information on your
employment application can prevent claims, help you get the information you
need, and provide information that you want your applicants to know.
News is part of our ongoing commitment to providing legal insight to our clients
and colleagues. If you have any questions about or would like to discuss these
topics further, please contact your Foley attorney or the authors of this