News & Publications

E-Update: April 2012 Highlights

Submitted By Firm: Shawe & Rosenthal, LLP

Contact(s): Elizabeth Torphy-Donzella, Gary L. Simpler


Darryl G. McCallum

Date Published: 4/30/2012

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New NLRB Election Rules Take Effect Today

Today, April 30, 2012, is the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:

• On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.

• Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.

• The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.

• When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”

• Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.

• The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.

• At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.

• Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.

• Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.

A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.

EEOC Releases Guidance on Use of Arrest and Conviction Records in Employment Decisions

On April 25, 2012, the EEOC issued updated Enforcement Guidance regarding an employer’s use of arrest and conviction records in making employment decisions. The agency also issued a Question and Answer (Q&A) document that helps explain the Guidance.

According to the EEOC, a policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. The Enforcement Guidance explains how the EEOC analyzes the “job related and consistent with business necessity” standard for adverse employment hiring decisions based on criminal records, and provides hypothetical examples interpreting the standard.

Arrests and convictions are treated differently for purposes of Title VII, since the fact of an arrest does not establish that criminal conduct has occurred. The EEOC acknowledges that an arrest may in some circumstances trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action. The Guidance notes, “[a]lthough an arrest standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.”

In examining whether an employer’s policy of screening individuals based on criminal convictions violates Title VII, the EEOC will look to see whether the employer’s policy provides an opportunity for an individualized assessment for those people identified by the screen in order to determine if the policy as applied is job related and consistent with business necessity. Under the new enforcement rules, the following should be considered by an employer when screening based on criminal convictions:

The Nature and Gravity of the Offense or Conduct. The Guidance notes: “Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). … With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.”

The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence. The Guidance points out that the amount of time that had passed since the applicant’s criminal conduct occurred is probative of the risk he poses in the position in question. For example, the Guidance notes that the risk of recidivism may decline over a certain period of time.

The Nature of the Job Held or Sought. Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”

The Guidance also lists examples of employer best practices for considering criminal records in connection with employment decisions. Among other examples, the Guidance advises employers to (1) develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct, (2) identify essential job requirements and the actual circumstances under which the jobs are performed, (3) determine the specific offenses that may demonstrate unfitness for performing such jobs, (4) determine the duration of exclusions for criminal conduct based on all available evidence, and (5) record the justification for the policy and procedures.


NLRA. The U.S. Court of Appeals for the D.C. Circuit found that an employer was required to reinstate an employee who the NLRB determined had been unlawfully terminated despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB’s determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees. One employee had been terminated after having a confrontation with a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event in which he spoke critically about the employer, claiming that the employer failed to adequately staff its newsroom and that he had considered starting a rival newspaper. In a separate incident, an employee was terminated after making a surreptitious recording of a meeting with management where he expected to receive discipline but was denied the right to union representation. With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in protected activity when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether or not he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was not unlawful under state or local law.

Age Discrimination. Finding that a 41 year old former tree trimming foreman had presented sufficient evidence such that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit reversed a lower court’s grant of summary judgment for the employer and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the 41 year old plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to the employee. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where plaintiff was working was injured by a falling tree. The plaintiff had been in his truck and not out with his crew at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report. After losing his age discrimination case on summary judgment, the plaintiff appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered probative of pretext even though the supervisor did not make the ultimate termination decision, since the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, since the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew rather than in his truck.

New Jersey Law Against Discrimination. A New Jersey appellate court recently held that a non-Jewish worker could bring a hostile work environment claim based on anti-Semitic comments made by his supervisors. In Cowher v. Carson & Roberts, the plaintiff, a truck driver, claimed that his supervisors, wrongly perceiving him to be Jewish, directed anti-Semitic comments at him on a daily basis for approximately 14 months. He allegedly told the supervisors to stop making the comments, but they did not do so. The employee ultimately resigned for unrelated reasons and later sued, alleging a hostile work environment based on the New Jersey Law Against Discrimination (LAD). The lower court rejected the claim, ruling that the supervisors’ comments were not actionable because New Jersey did not recognize a cause of action premised upon perceived membership in a protected group, other than disabled persons. In reversing the lower court, the appellate court stated: “there is no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act and does not protect those who are perceived to be members of a different class …” Thus, the Court reasoned, if the employee could demonstrate that the discriminatory comments would not have occurred but for the perception that he was Jewish, then his claim is covered by the LAD.

FLSA and Independent Contractors. A Florida federal district court recently held that a group of technicians who engaged in the installation, service and repair of cable television, high-speed internet, and digital telephones were independent contractors and not employees. In Scantland v. Jeffrey Knight, Inc., the plaintiffs performed services for a company that installed telecommunications equipment. Each of the individuals signed an independent contractor agreement with the company. The plaintiffs brought suit against the company for additional monies due under the FLSA, claiming that, despite signing the agreements, they were actually employees and not independent contractors. The Court held that the decision as to whether an individual is an independent contractor or an employee is controlled by the “economic realities” of the situation. Courts look beyond mere labels to see whether the putative employee depends on the alleged employer for his economic livelihood based on the parties’ actual working relationship. In this case, the Court found significant the fact that, in practice, the plaintiffs did in fact exercise control the manner in which the work was performed. For example, they could, in their discretion, hire and pay their own employees to assist in performing the work. In addition, the plaintiffs purchased and used their own equipment to perform the work. Because the plaintiffs were paid per job completed and were required to bear their own costs, they maintained control over their profits and losses. The fact that the plaintiffs were engaged in work that required special skills also weighed in favor of their independent contractor status.

Arbitration Agreements. A Maine federal district court denied an employer’s motion to compel arbitration after concluding that the arbitration agreement contained an illusory promise to arbitrate. In Canales, Jr. v. University of Phoenix, the employee received an employee handbook that contained an arbitration agreement. The handbook stated: “All covered disputes shall be resolved pursuant to these procedures and the result is final and binding on both the Company and the employee.” Despite this language, the handbook acknowledgment form signed by the employee stated “Since the … policies … described in the Employee Handbook are necessarily subject to change, I acknowledge that revisions may occur, and I understand that such revisions may supercede, modify or eliminate existing policies.” The acknowledgment form further provided that any revisions must be in writing and approved by the company president. The employee brought suit in federal court and the employer moved to compel arbitration. The Court denied the motion to compel arbitration, reasoning that the language in the acknowledgment form allowed the employer to unilaterally change or eliminate the terms of the employee handbook without any waiting period or notice to the employee. This rendered the agreement to arbitrate illusory because the employer could suddenly change the terms of the arbitration agreement to avoid arbitration. This case serves as a reminder to employers to ensure that they have an arbitration agreement that is separate from the employee handbook. The agreement should contain a requirement that notice be given before any changes are made and should provide that the agreement cannot be changed once the right to arbitration has been invoked.


In a recent informal discussion letter, the EEOC responded to an inquiry as to the application of Title VII’s prohibition against religious discrimination to healthcare workers’ requests for exemption from employer-mandated vaccinations. The letter also provides practical tips that employers should observe in addressing religious accommodation claims.

The EEOC opinion letter states that absent undue hardship, religious accommodation could be required for an applicant or employee with a sincerely held religious belief against vaccination who seeks exemption from the requirement as an accommodation. The letter also addresses the broader issue of what religious beliefs are potentially entitled to accommodation under Title VII, provided that a reasonable accommodation could be provided without undue hardship. The letter observes: “Title VII defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”

Whether a practice is considered religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons. An employee’s belief or practice can be “religious” for Title VII purposes even when the employee is affiliated with a religious group that does not espouse or recognize the employee’s belief or practice, or if few, or no other individuals adhere to it. Referencing the EEOC’s Compliance Manual, the letter states that “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”

Factors that alone or in combination might undermine an employee’s assertion that he sincerely holds the religious belief at issue include:

• whether the employee has behaved in a manner markedly inconsistent with the professed belief;

• whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;

• whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and

• whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The EEOC warns, however, that no one factor is dispositive and that while prior inconsistent conduct is relevant to determining sincerity, an employee’s degree of adherence to a religious belief may evolve over time. 

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Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel