Foley & Lardner Labor and Employment Law Weekly Update (Week of July 11, 2011)

NLRB Proposes to Change Its Election Case Rules

By Lawrence T. Lynch

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:

• When 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.
• At 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.
• With 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.
• If 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.
• The 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.
• Once 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 Lately?

By Susan R. Maisa

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 application.

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 the EEOC's 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:

• Does 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)?
• Does the application require applicants to list all involuntary terminations and the reasons for any such terminations?
• Does 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 hired)?
• Does the application tell applicants how long applications will be active?
• Does the application tell applicants that if they are hired their employment is at will?

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.

Legal 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 week's issue.