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:
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:
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