Because 2012 is an election year, Congress is not expected to pass significant labor and employment legislation. However, a number of important administrative rules from the National Labor Relations Board ("NLRB") and other federal agencies are slated to go into effect this year:
NLRB Union Election Rule
On December 21, 2011, the NLRB adopted a final rule containing a wide range of amendments that would speed up the union election process. Of significance, the new rule will defer certain employer challenges until after a successful union election, including challenges to the scope of a proposed bargaining unit and to whether employees are supervisors. In addition, the new rule will allow the NLRB to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret-ballot election and certifying the results. The new rule is scheduled to take effect on April 30.
NLRB Notice Posting Rule
The NLRB has twice delayed the effective date for its August 2011 final rule requiring employers to post notices informing employees of their rights under the National Labor Relations Act. The rule, which is now scheduled to take effect on April 30, is the subject of pending court challenges in South Carolina and Washington.
EEOC Rule on "Reasonable Factors Other Than Age" Under the ADEA
On November 16, 2011, the Equal Employment Opportunity Commission ("EEOC") approved a draft final rule clarifying the standards for the "reasonable factors other than age" defense to discrimination claims under the Age Discrimination in Employment Act ("ADEA"). The EEOC's draft rule is more stringent than recent decisions by the Supreme Court of the United States and aims to heighten the standards necessary to establish the defense in an ADEA case. If approved by the Office of Management and Budget, the draft rule will likely require an individualized approach to determining whether an employment practice is grounded in reasonable factors other than age.
Department of Labor Persuader Activity Rule
In June 2011, the Department of Labor ("DOL") issued a proposed rule narrowing the "advice" exception to the Labor-Management Reporting and Disclosure Act ("LMRDA"). The LMRDA requires employers to disclose arrangements with labor relations consultants (including attorneys) where the consultant undertakes activities to persuade employees concerning their rights to organize and bargain collectively. The current advice exception exempts arrangements where the consultant does not directly contact employees and provides only oral or written materials to the employer. However, the proposed rule would limit this advice exception to "oral or written recommendations" from a consultant to an employer. Thus, if adopted, the proposed rule would significantly expand the circumstances where employer-consultant arrangements must be disclosed.
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