Several other states – including New Jersey, California, Illinois, and Washington – are also considering similar legislation.

Congress is also getting in on the action:  the U.S. House of Representatives has introduced the Social Networking Online Protection Act (“SNOPA”) and the U.S. Senate has introduced the Password Protection Act of 2012, both of which prohibit employers from requiring employees or job applicants to disclose their social media user names and passwords.  In addition, some U.S. Senators have also asked the U.S. Department of Justice and the Equal Employment Opportunity Commission to investigate employers’ practices of asking job applicants for social media passwords during job interviews.

For further discussion on this topic, please see my prior blog post here.

Under the National Labor Relations Act and a Supreme Court case called New Process Steele, three (or more) members of the Board are required to constitute a quorum for Board action.  In this case, only two Board members participated in the final vote to approve the new Quickie Election procedures.  Therefore, the D.C. court concluded, the final vote on the new Quickie Election procedures was made without a quorum.

In creating the “Woody Allen Rule,” the D.C. court noted:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to satisfying a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters – even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal quote in question, the Court must hold that the challenged rule is invalid.

Following the court’s decision, the NLRB issued a press release stating that it will temporarily suspend the new Quickie Election procedures.  The Acting General Counsel has also instructed regional directors to revert to the old representation election procedures.

It will be interesting to see whether the NLRB appeals the court’s decision, or just tries to establish a quorum now that it has five sitting members, and vote again on the new representation election procedures.  Either way, the legal battles are sure to continue.

You can read the D.C. court’s decision here and the NLRB’s press release here.

In that case, the plaintiff worked as a nurse in the neo-natal intensive care unit (“NICU”) unit of a medial care center.  The plaintiff also had a medical condition called fibromyalgia, which limited her ability to sleep and caused her chronic pain.  Due to her fibromyalgia, the plaintiff was often absent from work.

The employer had an attendance policy that allowed employees to take up to five unplanned absences during a 12-month rolling period.  The employer also took the position that regular attendance was an essential function of an NICU nurse.  Specifically, absences from NICU staff can jeopardize patient care because NICU nurses require special training , and therefore, the universe of nurses that can be called in a the last minute is limited.  Thus, being understaffed is highly undesirable, and can potentially compromise patient care.

Over the course of several years, the employer provided the plaintiff with several accommodations, including allowing her to call in on bad days, various scheduling adjustments, readjusting her schedule so that she did not work consecutive days, and granting her numerous extended leave of absences.  None of the accommodations, however, were sufficient.  Finally, due to the plaintiff’s repeated violations of the attendance policy, the employer decided to terminate the plaintiff’s employment.

The plaintiff sued and argued that she had been denied a reasonable accommodation for her disability.  In her lawsuit, the plaintiff argued she should have been exempted from the company’s attendance policy.  The District Court disagreed, and dismissed her lawsuit.  The Ninth Circuit upheld the dismissal.

In issuing its decision, the Ninth Circuit noted that regular attendance was indeed an essential function of an NICU nurse.  The court also added that, where performance of a job requires attendance at the job, irregular attendance compromises essential job functions.  With these concepts in mind, the court stated that the “common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.”

The Samper decision was certainly a good result for employers.  It was also, however, very fact specific.  In the Samper case, regular attendance was certainly a mandatory component of the NICU nurses’ jobs.  In other situations, however, where employees are more “fungible” or regular physical attendance is not as essential as it would be for an NICU nurse, employers should be cautious in how they handle employees who require leave due to disabilities.  On that note, employers should be aware of a prior Ninth Circuit decision in Humphrey v. Memorial Hosps. Ass’n, (9th Cir. 2001), where the court ruled that a medical transcriptionist who had OCD should have been granted an accommodation to (occasionally) work from home, as opposed to requiring her to physically show up for work for her scheduled shifts.  In that case, the employer did not dispute that it would have been possible for a transcriptionist to work from home; in fact, several were already doing so.  Accordingly, the court ruled that the employer violated the ADA when it terminated the employment of the transcriptionist, because physical attendance was not an essential job function for that employee.

You can read the Samper case here and the Humphrey case here.

This year, the legislature appeared to be focused on unemployment insurance as one of the hot topics.  In fact, two bills regarding Hawaii’s unemployment insurance laws have already been signed into law by the Governor, and a third is on its way.  In addition, several other bills (on both employment and non-employment issues) are also still alive, and have been sent to the Governor for his signature or veto.

Hawaii Employers Council* (“HEC”) tracks legislation affecting Hawaii’s employers, and a copy of the Legislative Digest and Legislative Update articles can be found on HEC’s website here.

In addition, I will be presenting a seminar on the 2012 Legislative Session at the Hawaii Employers Council on June 6, 2012 at 9 am.  This briefing is FREE for HEC Members.  Also presenting with me will be Lowell Kalapa, President of the Tax Foundation of Hawaii.

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*My employer.  See blog post here for more details.

In a nutshell, the changes will speed up the way representation elections are conducted, which in turn, will hinder employers’ abilities to oppose union representation campaigns.  Some people – including the U.S. Chamber of Commerce – have referred to these new procedures as “ambush” elections, because of the way that employers could be prevented from effectively challenging a union representation campaign.

For instance, the new rules eliminate the current restriction that elections cannot be held until at least 25 days after a direction of election.  In addition, the NLRB has amended – or should I say, taken away – the ways that employers can challenge whether representation elections are even appropriate or whether certain individuals should even be voting in the elections.  The NLRB has also amended – or again, should I say, taken away – employers’ rights to appeal decisions by hearing officers on pre-election rulings.  Finally, the NLRB has eliminated the practice of giving parties the right to file post-hearing briefs for pre-election hearings, and instead, has given the hearing officer discretion on whether the parties should be filing briefs.

In addition to the GC’s memo, the NLRB has also issued a set of FAQs regarding the new election procedures.

Overall, these changes are certainly bad for employers.  The U.S. Chamber has lodged a legal challenge to the new representation election procedures, but has not yet received a ruling from the court.

You can read the GC’s memo here, and the NLRB’s FAQs here.  Also, prior blog posts on this topic can be seen here and here.

In other words, employers don’t need to post the new NLRB notice in the workplace.  So, you can put those posters away in drawer someplace.  At least for now…

This announcement by the NLRB came as a result of an order issued by the D.C. Circuit Court of Appeals against the NLRB, which temporarily enjoined the NLRB’s rule requiring the posting of the employee rights poster.  The D.C. Appeals Court has set a briefing schedule for May and June 2012, and will schedule oral arguments for September 2012.  Therefore, employers don’t need to worry about the NLRB poster until September 2012 at the earliest.

You can read the D.C. Appeals Court’s order here, and the NLRB press release here.

Over the past several months, the NLRB’s new posting requirement has been the subject of great controversy, and is currently set to take effect on April 30, 2012.  In light of this recent court decision, however, it will be interesting to see whether the NLRB postpones the posting requirement again.  The posting requirement had already been pushed back twice, pending legal challenges to the rule.

For the first legal challenge, on March 2, 2012, the U.S. District Court for the District of Columbia upheld the posting requirement, and ruled that the NLRB had “broad authority” to issue rules.  Accordingly, although the plaintiffs in that case appealed the court’s decision, it appeared that the new posting requirement would still take effect on April 30, 2012.

In the second legal challenge (discussed in this blog entry) the court in Chamber v. NLRB reached the opposite conclusion and invalidated the NLRB’s new posting rule.  In reaching its decision, the court noted that the Board’s authority was limited to what is necessary to carry out the provisions of the NLRA.  The court then concluded that the NLRB posting requirement was not necessary, but rather “simply useful,”  to carry out the provisions of the NLRA.  The court further explained that the role of the NLRB is to be reactive as opposed to proactive in relation to employees covered by the Act.  On this issue, the court noted that the NLRB’s posting requirement “proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act.”

This ruling is good news for employers.  The fact that this decision came out of South Carolina is not entirely surprising, because South Carolina is a largely Republican state and was in the center of the dispute between the NLRB and Boeing, Inc.

In any event, the next step is to wait and see what happens with the April 30, 2012 deadline…

The current law, Section 383-69 of the Hawaii Revised Statutes (“HRS”), provides that employers have 15 days from the mailing of their contribution rate notice to file an application for review and redetermination.  As it is currently written,  HRS § 383-69 does not specify that the Employment Security Appeals Referees’ Office (“ESARO”) is the agency responsible for hearing the appeal (it just states that the “department” will hear the appeal.)  Therefore, to clear up any confusion, this bill specifies that rate determination appeals shall be filed with ESARO.

This bill was introduced as an administration bill, and more specifically, as a “housekeeping” measure.  Despite such a seemingly innocuous label for this bill, however, things should be noted:

First, this bill deleted language from HRS  § 383-69 that previously provided that appeals made to the circuit court (after ESARO issues its ruling) “shall be heard in a summary manner and shall be given precedence over all other civil actions, except for proceedings arising under section 383-41 and the workers’ compensation law of the State.”  Thus, this is actually a significant but overlooked component of this new law, because employers’ appeals of their rate determination are no longer required be addressed in an expeditious manner by the courts.  This change in the law may end up being a point of concern for employers, because it will take employers longer to contest their UI contribution rates.

Second, and more alarmingly, the initial draft of this bill contained language that would have taken away employers’ rights to appeal the ESARO decision to the circuit court.  Rather, the ESARO decision would have become final and binding upon an employer.  This  would have been a major infringement on employers’ rights to challenge their UI contribution tax rates.  Fortunately, later drafts of this bill, including the draft signed by Governor Abercrombie, included employers’ right to file administrative appeals with circuit court.

A copy of this measure can be read here.

In any event, at this point, this bill must still be signed by the Maryland governor before it becomes law.  If signed, it would take effect on October 1, 2012.

Several other states, including California, Washington, Illinois and New Jersey are also considering similar measures.

Over the past few weeks, several people have asked me whether an employer can, or should, require job applicants or employees to disclose their usernames and passwords for sites such as Facebook, Twitter, etc.  Thus far, my response has been that aside from the fact that it is not entirely clear whether such a practice is even legal (because of the Stored Communications Act, the Computer Fraud and Abuse Act, and a case called Konop v. Hawaiian Airlines), I think it is a bad practice for a number of reasons.  Specifically, employers need to be careful about how they research a job applicant, or even an employee, because they will often find things they didn’t want to (and shouldn’t) know about.  In addition, such a practice is bad for employee morale, and may scare away job applicants who are otherwise qualified for a position.  Finally, any savvy employee or job applicant will likely just purge their social media accounts of any incriminating evidence if they know they will be required to disclose their passwords to an employer, so requiring the passwords will become an exercise in futility.  This, pitted against the fact that an employer may discover something about an employee or applicant they they otherwise don’t want to know (such as a disability, sexual preference, religious belief, etc.), weighs in favor of not asking applicants or employees for their social media passwords.

I will be speaking in more detail on this topic at a seminar entitled “Modern Technology and the Workplace” at the Hawaii Employers Council (“HEC”) on April 26, 2012.   I will be presenting the seminar along with Ben Schorr, from Roland Schorr & Tower.  You can view further information about the seminar and register for the event on HEC’s website here.

You can read a copy of the bill here, and track the progress of this measure on Maryland’s legislative website here.

This measure haw now been sent back to the State House of Representatives to “agree” or “disagree” to the current form of the the bill.  At this point, it is unclear whether the House will agree or disagree to the current form of the bill.  It is worth noting, however, that the only revision made by the Senate was to change the effective date of this new law (if passed) to July 1, 2012 (it was January 1, 2013 in the House’s version.)  In addition, that revision was made at the suggestion of the Department of Labor and Industrial Relations.  Therefore, there is a likelihood that the measure will be accepted – or agreed to – by the House in its current form.

If this bill passes Final Reading in the House, it will be sent to Governor Abercrombie for his approval.  If the House “disagrees” with the current form of the bill, it will be sent to a conference committee, which will be comprised of senators and representatives.  If the bill is passed out of conference committee, it will then need to be approved again by the full House and Senate.

Under this new law, tax rates will rise from anywhere between 0.2% to 1.2% of an employer’s taxable wage base.  (The taxable wage base has a maximum of $38,800 for 2012.)  The maximum tax rate will increase from 5.4% to 6.6%.  The smallest increase will be from 5.4% to 5.6% per employee, whereas the largest increase will be from 5.4% to 6.6% per employee.  Based on the taxable wage base for 2012, this 1.2% increase could lead to a maximum increase of $465 per employee.

This bill is an interesting one for employers, because some employers will be negatively impacted by the new law, whereas other employers will actually benefit from the changes.  Specifically, this bill affects only employers with a negative reserve ratio (meaning they have had a lot of unemployment benefits charged against them).  Employers with a positive reserve ratio will not have their UI contribution rates affected under this measure.  Additionally (and I apologize if this is getting complicated to follow), the overall UI tax schedule is determined by the amount of money in the state’s UI fund.  If the UI fund is higher, employers are placed on a lower tax schedule.  If the fund is lower, employers are placed on a higher tax schedule. Therefore, the long term effect of HB 2264 HD2 SD1 is that a heavier burden will be placed on employers with a negative reserve ratio to replenish the state’s UI fund, which will in turn, lower the overall tax schedule for all employers.

You can read a copy of HB 2264 HD2 SD1 here.