Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

New NLRB Rule Speeds Union Elections

An article published recently in the National Law Review by John A. Ferguson Jr., Robert S. Nichols, Nancy M. O’Connor, and Lon R. Williams Jr. of Bracewell & Giuliani LLP covered the New Union Election Rules by the NLRB:

Time and Procedures for Employers to Respond to Union Election Petitions Are Eliminated or Reduced

Today the National Labor Relations Board (NLRB) published in the Federal Register its new Rule that will change procedures for private sector union representation elections. The Rule becomes effective April 30, 2012. The Rule dramatically shortens the period between the filing of an election petition and the election unless the parties stipulate to the election date. The Rule also effectively eliminates pre-election challenges to NLRB rulings on such critical issues as the appropriate bargaining unit and eligible voters.

While the NLRB defends these changes predicting they “will reduce unnecessary litigation in representation cases and thereby enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation,” the sure effect of these changes will be to reduce the time period—and thus the opportunity—for employers to communicate their views on unions with their employees and to respond meaningfully to union campaign efforts before an election is held.

Which Election Procedures Will Be Changed?

The specific amendments to the NLRB’s current rules of procedure include:

  • Authorizing NLRB hearing officers in pre-election hearings to limit evidence on any individual eligibility issue.
  • Expanding these hearing officers’ discretion over post-hearing briefs, including limiting the subjects that can be addressed, the amount of time for filing, and also determining whether a brief can be filed at all.
  • Eliminating the right to request pre-election review of a Regional Director’s rulings, requiring the request for review to be consolidated with any post-election requests for review of the Regional Director’s rulings on challenges and objections.
  • Eliminating the current 25-day waiting period between the Regional Director’s post-hearing Decision and Direction of Election and the election.
  • Limiting special appeals from rulings of the NLRB hearing officer or Regional Director to “extraordinary circumstances where it appears that the issue will otherwise evade review.”
  • Subjecting the current right to appeal a Regional Director’s post-election rulings on potentially outcome-determinative challenges and objections to the NLRB’s discretion.

What Changes That the NLRB Had Initially Proposed Are Not Included in Its New Rule?

The NLRB’s Final Rule implements only some of the more dramatic procedural changes that the NLRB had originally proposed in June 2011. Some of those proposed changes which are not included in the current Rule would have:

  • Required employers to directly provide the union—within two days of the Regional Director’s decision—each eligible employee’s name, telephone number, e-mail address, work location, shift and classification. Currently, only the employee’s name and home address are required to be provided by the employer to the Regional Director within seven days of the decision. The Regional Director then makes that information available to the union.
  • Set the pre-election hearing within seven days of the filing of the election petition and required that the non-petitioning party, such as an employer, submit a written statement of position with all substantive arguments before that hearing or risk waiving those arguments on appeal.

Has the NLRB’s Final Rule Been Challenged?

Yes.

  • On December 1, 2011, the U.S. House of Representatives passed theWorkforce Democracy and Fairness Act, which would allow a union representation election only after 35 days from the filing of the petition and would also require a two-week waiting period before the first hearing could be held on that petition.
  • On December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the United States District Court for the District of Columbia challenging the Rule, claiming that employers will be denied a fair opportunity to explain to employees the consequences of unionizing.

© 2011 Bracewell & Giuliani LLP

Status Update: Fired – Social media is a great way to market a company. It is also a great way to get fired from one.

Recently featured in the National Law Review an article by Emily Holbrook of Risk Management Magazine about Social Media:

Time Line: Status Update — Fired Social media is a great way to market a

company. It is also a great way to get fired from one.

Facebook recently reached a milestone: 750 million active users worldwide. With people spending more than 700 billion minutes per month on the social network, it’s no wonder many users get themselves in trouble for what they post. For example, a juror in the UK was dismissed after she disclosed sensitive case information on her Facebook profile, asking her friends to participate in a poll to help her decide “which way to go” with the verdict. But repercussions from other comments on social media sites have been much worse.

Many employees have been terminated over certain comments or pictures, and the National Labor Relations Board says it has been receiving an increased number of social media cases as this new mode of communication continues to grow in popularity and users continue to post with reckless abandon.

June 2008

20-year-old James Brennan was fired from his job at a store in central London after posting a derogatory statement about his employers. He believed his comment was visible only to his friends, but a colleague printed off the remark and showed it to his boss. Brennan claimed that what he wrote was private and done on his own time. Nonetheless, he was fired on the spot.

November 2008

Virgin Atlantic canned 13 flight attendants after they criticized the airline’s flight safety standards and described passengers as “chavs” (a derogatory term used in the UK referring to aggressive, arrogant, lower-class young adults) on Facebook. Management at Virgin Atlantic fired the 13 individuals due to their “totally inappropriate behavior” that “brought the company into disrepute.”

April 2009

An unnamed employee of Nationale Suisse, an international insurance company, lost her job after supervisors realized she was using Facebook after calling in sick because she was suffering from a migraine and needed to lie in a dark, quiet room. The woman claimed she was not using her computer, but instead accessing the site from her iPhone. The company said it lost trust in the employee while the woman accused the company of setting up fictitious “friends” to spy on her account activity.

August 2009

Georgia public school teacher Ashley Payne was given a “resignation or suspension” ultimatum after her supervisors saw that her Facebook profile included a photo of her taken during her European vacation that showed her clutching a glass of wine in each hand. Along with the photo, one of her status updates contained an expletive (though she was merely referring to the official name given a local bingo night). Payne sued the school, making hers one of several lawsuits filed within the past few years involving teachers who feel they were unfairly dismissed because of the contents of their Facebook pages.

April 2010

Tania Dickinson, a ministry employee in Auckland, New Zealand, was fired over a Facebook comment in which she described herself as a “very expensive paperweight” who is “highly competent in the art of time wastage, blame-shifting and stationary [sic] theft.” The Employment Relations Authority refused to uphold a complaint from Dickinson that she was unfairly dismissed.

June 2010

24-year-old Andrew Kurtz worked as a “Pittsburgh Pierogi” mascot for the Pittsburgh Pirates baseball franchise, a job that entailed racing around the field between innings and greeting fans. Kurtz was also a diehard Pirates fan and when he found out team president Frank Coonelly decided to keep general manager Neal Huntington and manager John Russell on for another season, he took to Facebook, stating “Coonelly extended the contracts of Russell and Huntington through the 2011 season. That means a 19-straight losing streak. Way to go Pirates.” He was immediately fired.

February 2011

Dawnmarie Souza, an employee of American Medical Response, a Connecticut ambulance service, took to Facebook to criticize her supervisor and other coworkers. Soon after, she was terminated from her position. The National Labor Relations Board (NLRB) promptly brought the wrongful termination complaint before an administrative court, arguing that the company’s social media policy was too broad and that Souza’s termination violated the National Labor Relations Act, which keeps employers from penalizing employees for talking about unionization or working conditions. A settlement was reached in which Souza did not return to work but the company changed its social media policy.

September 2011

In October 2010, five employees of the minority advocacy group Hispanics United of Buffalo were fired for complaining about working hours at their nonprofit employer. The five decided to fight back, taking their case to the NLRB. There, administrative law judge Arnold Amchan, in a first-of-its-kind decision, ruled that after-hours Facebook wall complaints about being over-worked constituted legitimate “concerted activity” within the meaning of Section 7 of the National Labor Relations Act. He ordered the organization to reinstate the five employees along with back pay.

Risk Management Magazine and Risk Management Monitor.

Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.

California Appellate Court Issues a Decision That Mutual of Omaha Insurance Agents Qualify as Independent Contractors as a Matter of Law

From a recent posting in the National Law Review an article by attorney Thomas R. Kaufman of Sheppard Mullin Richter & Hampton LLP regarding the way insurance companies treat their independent agents:

December 31, 2011, as a final act for the year, the First Appellate District of the California Court of Appeal issued a good appellate decision for employers on the issue of independent contractor status, Arnold v. Mutual of Omaha. The case creates a veritable roadmap for insurance companies on how to treat agents so that they maintain their status as independent contractors rather than employees.

The Key Facts

Ms. Arnold worked as a non-exclusive insurance agent for Mutual of Omaha, which meant she was authorized to sell their products but was free to (and did) sell products of other insurance companies. Nonetheless, she claimed she was actually an employee rather than an independent contractor (IC), and that she therefore was entitled to recover for reimbursement of expenses and waiting time penalties for unpaid final wages on behalf of herself and a purported class of similarly situated agents. The factual record was very strong for the defense as to the limited control Mutual of Omaha exercised over Arnold (and its other agents):

  1. The contract Arnold signed with Mutual of Omaha expressly stated that the parties understood it was an independent contractor agreement.
  2. Her chief duties were to procure and submit insurance applications, collect money, and service clients.
  3. She was compensated entirely on commissions for products sold, with a chargeback if money was uncollected or refunded.
  4. She received no performance evaluations and nobody at Mutual of Omaha monitored or supervised her work schedule.  Plaintiff decided when, where, and to whom she would market insurance.
  5. Although Mutual of Omaha provided some training on its products and sales techniques, it was not mandatory for ICs to take the training.  The only mandatory training was as to compliance with certain state insurance laws and regulations.
  6. Mutual of Omaha provided some office space if agents wanted to use it, but it was optional, and agents had to pay for the “workspace and telephone service.”  Mutual of Omaha also did not pay for business cards or any other business expenses, although it provided certain services for a fee if an IC wanted them.
  7. Under the IC agreement in place, either party could terminate the relationship at any time with or without cause, or if Arnold failed to sell a Mutual of Omaha product for 180 days.

On this record, the trial court granted summary judgment to Mutual of Omaha that Arnold was an independent contractor rather than an employee.  Arnold appealed.

What Makes the Case Noteworthy

The court of appeal affirmed, declaring that it was not even a close case.  As a preliminary matter, the court held the common law test of employee v. IC applies to claims under Labor Code Section 2802.  This is a multi-factor test (roughly 10 factors depending how you count them), codified in a decision called S.G. Borelli & Sons, Inc. v. DIR, 48 Cal. 3d 341 (1989).  This holding is not exactly earth-shaking as the plaintiff’s argument of statutory interpretation was not particularly cogent.  It is the summary judgment aspect of the case that makes it notable, because the case sets forth a pretty good roadmap of what an insurance company who wants to have independent contractor agents should follow to preclude a lawsuit that the agents are really employees.  The court pointed to the existence of undisputed facts on several specific issues as justifying summary judgment:

“After a careful review of the opposing evidence, we find nothing that raises a material conflict with the supporting evidence summarized above. The salient evidentiary points established Arnold used her own judgment in determining whom she would solicit for applications for Mutual’s products, the time, place, and manner in which she would solicit, and the amount of time she spent soliciting for Mutual’s products. Her appointment with Mutual was nonexclusive, and she in fact solicited for other insurance companies during her appointment with Mutual. Her assistant general manager at Mutual’s Concord office did not evaluate her performance and did not monitor or supervise her work. Training offered by Mutual was voluntary for agents, except as required for compliance with state law. Agents who chose to use the Concord office were required to pay a fee for their workspace and telephone service. Arnold’s minimal performance requirement to avoid automatic termination of her appointment was to submit one application for Mutual’s products within each 180-day period. Thus, under the principal test for employment under common law principles, Mutual had no significant right to control the manner and means by which Arnold accomplished the results of the services she performed as one of Mutual’s soliciting agents.”

The court mentioned that several other factors further tilted in Mutual of Omaha’s favor, but it appears that establishing undisputed facts on the above items would generally be sufficient to support summary judgment.  Furthermore, the court recognized that a plaintiff cannot avoid summary judgment simply by raising a triable issue of fact on one or two minor factors of IC status.  Rather, the court held that if a reasonable factfinder considering all of the evidence together could not conclude that the agent was an employee, the employer is entitled to judgment:

“The existence and degree of each factor of the common law test for employment is a question of fact, while the legal conclusion to be drawn from those facts is a question of law. (Harris v. Vector Marketing Corp. (N.D. Cal. 2009) 656 F.Supp.2d 1128, 1136.) Even if one or two of the individual factors might suggest an employment relationship, summary judgment is nevertheless proper when, as here, all the factors weighed and considered as a whole establish that Arnold was an independent contractor and not an employee for purposes of Labor Code sections 202 and 2802. (SeeVarisco, supra, 166 Cal.App.4th at p. 1106.)”

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.

The 16th Annual National Institute on the Gaming Law Minefield

The National Law Review is pleased to inform you of the 16th Annual National Institute on the Gaming Law Minefield:

ABA Gaming Law 2012

Gaming Law Minefield 2012

Event Information

When

February 23 – 24, 2012

Where

  • Green Valley Ranch Resort & Spa
  • 2300 Paseo Verde Pkwy
  • Las Vegas, NV, 89101
  • United States of America

Program Description

The Gaming Law Minefield National Institute is one of the most comprehensive, state-of-the-law gaming programs available. Program attendees have consistently rated the program as a valuable
educational experience that provides participants with the opportunity to meet and talk with a wide variety of gaming law experts and leading state and Native American regulators.

  • The program will discuss revolutionary legal, regulatory, and ethical issues confronting both commercial and Native American gaming.
  • Two hours of ethics credit will be available.
  • Learn about global anti-corruption initiatives, Internet gaming, and the challenges faced
    by commercial and Native American gaming.
  • Gain knowledge on the latest techniques to cope with problem gamblers.

Who should attend:

Attorneys, compliance officers, Native American leaders, regulators, and legislators will gain invaluable insights into current trends, opportunities, and obstacles in the gaming industry.


‘Super PACs’ Spend $13 Million on Early Primaries, Romney Top Beneficiary

Posted previously by the National Law Review, an article by The Center for Public Integrity regarding Super PACs Spending on Early Primaries:

New outside spending groups, dubbed super PACs, that can accept unlimited donations from corporations and wealthy individuals, spent $12.9 million in Iowa and other early GOP battleground states through New Year’s Day, according to an analysis of federal data.

The top beneficiary was former Massachusetts Gov. Mitt Romney. A total of $4.6 million was spent to help the nominal front-runner, the vast majority for ads torpedoing former House Speaker Newt Gingrich. Second was Texas Gov. Rick Perry, who benefited from $3.7 million in outside spending.

According to a Center for Public Integrity analysis of Federal Election Commission data,12 outside super PACs spent money, mostly on advertising, with the intention of electing or defeating a GOP presidential candidate. Ten have not yet reported their donors. The two that have did so last summer.

The upshot is that voters in Iowa, New Hampshire, South Carolina and Florida, all of whose contests will be held this month, won’t know who is paying for much of the advertising they see until after their votes are cast.

The next reports on donors aren’t due until January 31, the day of the Florida primary.

Federal court decisions in 2010 made it possible for individuals, corporations and labor unions to give unlimited contributions to political organizations (super PACs) and certain types of nonprofits, which can then spend the money to elect or defeat candidates. The groups are prohibited from coordinating their activities with candidates.

The top super PAC spender was “Restore Our Future” — the ambiguously named group set up to help Romney. The group spent $4.1 million, all of it in opposition to Gingrich, who enjoyed a brief lead in Iowa polls last month before the shellacking.

Restore Our Future has moved on from Iowa and spent $622,000 in Florida, a likely harbinger of more to come in that high stakes contest. Almost $100,000 has been spent by the pro-Romney group in South Carolina, whose primary is January 21.

Restore Our Future reported raising over $12 million in the first six months of 2011; it is apparently the best-funded of the new breed of PACs, and has received a few seven-figure donations. Not so well known is a second organization that hopped on the Romney bandwagon, Citizens for a Working America Inc.

The group spent $475,000 on a Christmas Eve ad buy praising the candidate.

The group initially supported Rep. Michele Bachmann of Minnesota but changed course shortly before the big ad buy.

The Center traced an address in an FEC filing for Citizens Inc. to the office of JSN Associates in Dayton, Ohio. The “JSN” is James S. Nathanson, who said Monday the group is “very definitely pro-Romney.” He would not say who the group’s donors are.

A previous incarnation of the group met with some controversy when it accepted a single $255,000 donation in 2010 from a Virginia consulting group called “New Models.” Questions were raised as to whether the group was being used as a pass-through for unnamed donors.

A super PAC supporting Perry, “Make Us Great Again,” spent all of its $3.7 million on ads backing the Texas governor.

Former Utah Gov. Jon Huntsman enjoyed the support of “Our Destiny PAC” which spent $1.9 million for ads in New Hampshire, where he opted to compete first rather than Iowa.

Two groups supporting Gingrich ponied up just over $900,000 for TV spots. The bulk of the pro-Gingrich spending was done by “Winning Our Future,” a super PAC that was just started last month.

A surging Rick Santorum, a former U.S. senator from Pennsylvania, enjoyed $631,000 in supportive spending by outside groups.

“Priorities USA,” a super PAC supporting President Obama, was also active, spending a little more than $306,000 on advertising opposing Romney.

And “Endorse Liberty Inc.,” a new super PAC embracing Rep. Ron Paul of Texas, spent more than $448,000, most of that on Internet advertising. It also listed one of the more unusual expenditures of the 2012 campaign — $2,000 on “costumes and makeup.”

Peter Stone contributed to this report.

Reprinted by Permission © 2011, The Center for Public Integrity®. All Rights Reserved.

White Collar Crime

The National Law Review would like to advise you of the upcoming White Collar Crime conference sponsored by the ABA Center for CLE and Criminal Justice Section, General Practice,  &   Solo and Small Firm Division:

Event Information

When

February 29 – March 02, 2012

Where

  • Eden Roc Renaissance Miami Beach
  • 4525 Collins Ave
  • Miami Beach, FL, 33140-3226
  • United States of America
Primary Sponsors

  • Highlight

The faculty includes some of the leading white collar lawyers in the United States.  The keynote panels for the 2012 program will continue to focus on the role of ethics and corporate compliance in today’s business environment.

  • Program Description

Each year the National Institute brings together judges, federal, state, and local prosecutors, law enforcement officials, defense attorneys, corporate in-house counsel, and members of the academic community.  The attendees include experienced litigators, as well as attorneys new to the white collar area.  Attendees have consistently given the Institute high ratings for the exceptional quality of the Institute’s publication, its valuable updates on new developments and strategies, as well as the rare opportunity it provides to meet colleagues in this field, renew acquaintances and exchange ideas.

The faculty includes some of the leading white collar lawyers in the United States.  The keynote panels for the 2012 program will continue to focus on the role of ethics and corporate compliance in today’s business environment.  Once again, we expect excellent representation from the corporate sector.

  • CLE Information

ABA programs ordinarily receive Continuing Legal Education (CLE) credit in AK, AL, AR, AZ, CA, CO, DE, FL, GA, GU, HI, IA, ID, IL, IN, KS, KY, LA, ME, MN, MS, MO, MT, NH, NM, NV, NY, NC, ND, OH, OK, OR, PA, RI, SC, TN, TX, UT, VT, VA, VI, WA, WI, WV, and WY. These states sometimes do not approve a program for credit before the program occurs. This course is expected to qualify for 11.0 CLE credit hours (including TBD ethics hours) in 60-minute-hour states, and 13.2 credit hours (including TBD ethics hours) in 50-minute-hour states. This transitional program is approved for both newly admitted and experienced attorneys in NY. Click here for more details on CLE credit for this program.

Be Organized Now, Save Your Family Time and Money Later

Recently posted in the National Law Review an article by Jessica M. DesNoyers of Varnum LLP regarding wills and estate planning:

Varnum LLP

I have assisted in the distribution and administration of more than one trust and estate, and I speak from experience – the process is much easier on the family and takes considerably less time if the deceased was organized.

If the decedent died without a valid will or any estate planning, and the decedent owned any assets upon his or her death, the family has to file a claim in Probate Court to transfer the property and hope that they know what all of the decedent’s assets were.  If the decedent died with a valid will, but did not have a trust in place, or did not transfer all of his or her assets into the trust, the family will still have to file a claim in Probate Court.  Finally, even if a solid estate plan is in place, there are a number of tasks to be completed and documents to be filed or mailed before the decedent’s estate can be disbursed or administered.  To make the process easier on family members attempting to comply with your last wishes, here are some easy things you can do now to help your family later:   he distribution and administration of more than one trust and estate, and I speak from experience – the process is much easier on the family and takes considerably less time if the deceased was organized.

  1. Meet with an attorney to ensure your estate plan is up-to-date, and you have all the documents you need.
  2. Keep all of your estate planning documents together and in a safe place, and let your attorney or a trusted family member know where they are.
  3. If you have retirement accounts, money market accounts, or insurance policies where you’ve named beneficiaries, keep all of those document together with your estate planning documents.  Confirm that your documents name the beneficiaries you want named.  Keep company contact information with the documents so that your family knows who to contact at the company to make a death claim and receive benefits.
  4. Keep all title documents together with your estate planning documents, or if kept in a safe deposit box or safe, make a note with your estate planning documents altering family of where it is how to access it.  This would include title to cars and real estate.
  5. If you have specific personal items you want to give to certain individuals, make that clear.  You can create what is called a “holographic will” for personal items by handwriting (not typed) what items you want to give to which people or entities, write the date on the document and sign it at the end of the document.  This does not take the place of an estate plan, but can be used to distribute items such as family heirlooms.
  6. Finally, keep a list of all the assets you have that will need to be transferred.  No, you do not need to list every plate in your cupboard.  You should, for example, list which banks you have accounts with and what types of accounts, where you own real property, life insurance policies, and vehicles or “toys” (i.e. boats, ATVs, etc.) you own.

Being organized is relatively easy, and the benefits of the time you take today will be a gift to your family after you are gone.  Call an estate planning attorney today to assist you in the process.

© 2011 Varnum LLP

U.S. Department of Education Amends its FERPA Regulations to Allow for Certain Additional Student Disclosures

Published in the National Law Review an article by attorney Stephen A. Mendelsohn of Greenberg Traurig, LLP regarding  Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g:

 

GT Law

The United States Department of Education (DOE) has completed its administrative procedures and has enacted new regulations that amend current regulations enforcing the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232g. These new regulations, which are effective on January 3, 2012, allow for greater disclosures of personal and directory student identifying information and regulate student IDs and e-mail addresses, among other issues. The new regulations are found at 34 CFR, Part 99, sections 99.3, 99.31, 99.5, 99.6 and 99.37. Colleges and universities need to quickly consider the impact of these new regulations upon their current student privacy policies and existing notices. Failure to do so may result in complaints and DOE enforcement proceedings.

FERPA

FERPA is a longstanding federal statute which provides that a parent or eligible student, if over the age of 18, has a right to inspect and review the student’s education records and to have them amended and withdrawn, under certain circumstances. FERPA is applicable to all public K-12 school districts and virtually all post secondary institutions, as they receive federal funds under programs administered by the DOE. FERPA generally prohibits the disclosure of personally identifying information (PII) contained in “education records,” without aparent’s or student’s written consent, to certain third parties. There are a number of statutory exceptions for emergency medical and health reasons and for law enforcement activities, among others. PII includes a student’s name, social security number, parents’ names, family addresses, birth dates, place of birth, a parent’s maiden name, and any other data that make a student’s identity easily traceable.

FERPA makes a distinction between PII and “directory information.” DOE regulations allow for the disclosure of directory information, without needing a student’s or parent’s consent, unless the parent or student has opted out of such disclosure. A school subject to FERPA must provide a written notice to parents or students setting forth its disclosure policies concerning directory information with the procedures for opting out and contesting the student’s education records.

The New Regulations

A. Directory Information and Student IDs

The new regulations clarify that an institution may, under certain circumstances, designate and disclose student ID numbers, or other unique personal identifiers, as directory information to be displayed on a student’s ID card or badge as long as the ID card is not the sole method of obtaining access to the student’s education records and is used with other credible identifiers. The regulations also provide that a parent or student may not opt out of the disclosure of such directory information.

The DOE left it up to the schools to determine what specifically should be included on a student ID. It also stated that FERPA does not require schools to force students to wear IDs. With regulations enacted in 2008, institutions may use directory information to access online electronic systems and to allow a school to require a student to disclose his/her name, identifying information and institutional e-mail address in and out of class. The DOE further clarified that an institution need not make directory information available on student IDs, but may do so if it so chooses.

B. Studies and Audit and Evaluation Exceptions

The new regulations also allow for the disclosure of PII, without student or parent consent, where institutions have contracted with organizations to conduct studies or audits of the effectiveness of education programs. However, the regulations require a written agreement with the organization containing mandatory provisions intended to guard the privacy of student records. The regulations also provide institutions with detailed, required provisions aimed at preventing PII from ending up in the hands of persons or entities not intended or permitted to receive them, and guidelines for addressing data breaches. A careful review of the regulations is necessary before an institution enters into any agreement to provide PII access to an organization that is conducting a study or an audit and evaluation.

C. Notices

The new regulations contain a model notification of rights form for post secondary institutions to provide to students and parents. Given the changes in the DOE’s regulations described in this Alert, current notice forms must be re-examined to determine whether they are in compliance. Also, the DOE’s model form has a number of optional provisions that each institution should evaluate based on their specific needs.

Conclusion

FERPA and the DOE’s regulations are complex and create the potential for administrative sanctions. The new regulations give expanded authority to institutions to make disclosures, but a careful approach to crafting policies and disclosures is necessary to avoid administrative penalties, as well as possible lawsuits by students and parents.

©2011 Greenberg Traurig, LLP. All rights reserved

Barnes & Thornburg Labor Relations’ Top Ten Traditional Labor Stories of 2011 (Part 2)

Published in the National Law Review Part 2 of  article by the  Labor and Employment Law Department of Barnes & Thornburg LLP regarding the past year’s labor news:

Here’s the conclusion to our countdown of the top ten traditional labor issues that made the news this year. Our top five are below; see numbers 6-10 in our post yesterday.

5. The Board mandates employee-rights posters, but lawsuits delay implementation

In a move that will affect virtually all private employers, whether unionized or not, the Board approved a final rule in August which requires employers to notify employees of their rights under the NLRA via an 11 x 17 inch poster. A copy of the required poster, along with more information about the posting requirement is available on the Board’s website.

This posting requirement elicited strong opposition from many business groups, including the National Association of Manufacturers, the National Federation of Independent Businesses, and the U.S. Chamber of Commerce, who have all filed lawsuits against the Board challenging the posting requirement. In response to these suits, the Board has delayed implementation of the rule, most recently postponing the effective date of the posting requirement until April 30, 2012.

So for now, employers can leave the NLRB poster off their walls, but all employers should stay informed on this issue as the implementation date approaches.

See our previous coverage of this issue here.

4. Social media becomes a new battleground

Facebook came to traditional labor this year, as the Board put a new emphasis on social media as a form of protected activity. Several complaints were filed against employers during the early part of the year alleging unfair labor practices, after the employers disciplined or terminated employees for posts related to their jobs on their personal Facebook and other social media accounts. In August, General Counsel Solomon issued a report summarizing the cases and detailing the Board’s position on appropriate social media policies.

These actions by the Board caution employers to be wary of protected speech rights under the NLRA before taking action against employees for off-duty Facebook chatter and to also make certain that company policies on social media do not chill or limit discussion regarding working conditions. Recent General Counsel decisions have also brought up the issue of potential surveillance violations if employers monitor employees’ off-duty social media use.

This continues to be a hot issue, and as we move into the new year, employers should stay cautious when it comes to social media.

See our previous coverage of this issue:

– New Facebook Cases – No Protected Concerted Activity, But Is It Surveillance??

– Update on Social Media issues with the NLRB

– Labor & Employment Law Alert – NLRB Sues Non-Union Employer Over Facebook Firing

3. NLRB complaint against Boeing for alleged unlawful transfer of work creates national controversy

By far the traditional labor story that created the most national headlines this year was the Board’s complaint filed against Boeing in April alleging unlawful transfer of work over Boeing’s decision to open a new 787 Dreamliner assembly plant in South Carolina instead of building the new planes at Boeing’s facilities in Washington. The key controversy wasn’t really the Board’s allegation of unlawful transfer of work, but its proposed remedy – shut down the brand new billion-dollar South Carolina plant and move the work to Washington. Unsurprisingly, this suggestion turned some heads in the business world. Accusations of job-killing by the NLRB soon followed, as well as legislation introduced in Congress to prevent the NLRB from mandating such a remedy.

Boeing litigated the issue for much of the year, but ultimately agreed in December to settle the case as part of a new contract with the Machinists union for its Washington facility. The union agreed to keep production of the Dreamliner in South Carolina in exchange for a promise by Boeing to build its new 737 MAX aircraft in Washington. This agreement officially ended the saga for Boeing, as the Machinists union withdrew its charge. As for the Board, it remains to be seen whether negative fallout, if any, from its decision to issue the complaint will affect its public perception in the future.

See our previous coverage of this issue:

– Labor & Employment Law Alert – NLRB Seeks Unprecedented Order Requiring Boeing to Move its New Production Line Across the Country

– An active day at the NLRB

– Boeing and the Union Reach a Tentative Agreement to End Contentious Battle Over Cross-Country Relocation

2. Board implements “quickie election” rules despite strong criticism from dissenting Member Brian Hayes

While it took all year, the Board succeeded last week in finalizing what critics have dubbed its “quickie election” rules. The new rules eliminate avenues for employers to challenge union activity prior to an election and also shorten time periods during which employers can campaign against unionization. The rules had been proposed by the Board in June and generated significant criticism from business groups who found the rules blatantly pro-union and accused the Board of denying employers their rights to free speech.

Also highly critical of the proposed rules was the sole Republican member of the Board, Brian Hayes, who said he considered resigning prior to the Board’s meeting to vote on the rules just to prevent them from being implemented. Member Hayes did not resign, but instead argued for more time to consider the rules, a request that was denied by his fellow Board members. The Board voted 2-1 in November to finalize the rules and the final version was published in the federal register last week.

As we move into 2012, this may not be the end of the issue, however. The rules should take effect in April, but a lawsuit filed by the U.S. Chamber of Commerce challenging the new rules may change this. Stay tuned.

See our previous coverage of this issue:

– Labor & Employment Law Alert – NLRB Election Changes Are Here (BT Alert)

– After A Long Wait, the NLRB Has Finalized the “Quickie Election” Rules

– An active day at the NLRB

– NLRB releases update on “quickie election” vote scheduled tomorrow

– Strategic resignation by Member Hayes may derail scheduled Board vote on “quickie election” rules

1. Behind-the-scenes politics leave an uncertain future for the NLRB

As our list so far has illustrated, 2011 was an active year for the National Labor Relations Board, with several controversial decisions, new administrative rules, and Congressional scrutiny. But all of these issues that we’ve included in our list are really just a byproduct of a more aggressive, and some would say politically motivated, Board. And the composition of the Board, which has driven most of the change we’ve seen this year, not only heads our list for 2011, but provides a starting point for looking into the 2012 crystal ball.

2011 saw an increased politicization of the Board, with a contentious division between the Board’s Democratic and Republican members. Sole Republican member Brian Hayes even went so far as to threaten resignation in November over what he saw as the Board’s unwillingness to take the time to consider the full effects of its controversial “quickie election” rules prior to drafting a final version of the rules. The Board also made the controversial decision to publish those rules without allowing the customary time for dissenting members (in this case, Hayes) to prepare and publish a dissent.

All of this behind-the-scenes politics has played out in the shadow of the looming expiration of Member Craig Becker’s appointment to the Board. President Obama appointed Becker as a recess appointment in 2010, which means that his term expires on December 31. Once his term expires, the Board (which is intended to have five members) will be left with only two remaining members. This loss of quorum will prevent the Board from issuing any new decisions or rules until a third member is appointed, under the U.S. Supreme Court’s New Process Steeldecision.

President Obama has attempted to prevent this from happening by recently naming two additional nominees for Board member positions, both Democrats. (The President also nominated Republican Terence Flynn to the Board last January, but his nomination has not yet been considered by the Senate.) However, the Senate so far has refused to hold a vote on any of the nominees and additionally appears to be avoiding declaring a formal recess so that the President cannot name a recess appointment as he did with Becker.

This collection of events is set to leave the National Labor Relations Board effectively useless come midnight Saturday. As we ring in the new year, the Board may be closing up shop. Stay tuned to BT Labor Relations as we see what 2012 brings.

Disagree with our picks? Let us know in the comments what traditional labor issues you think were most important in 2011.

Barnes & Thornburg Labor Relations’ Top Ten Traditional Labor Stories of 2011 (Part 1)

‘Tis the season for year-end recaps, and we here at BT Labor Relations couldn’t resist taking our own look back at the year in traditional labor. As we move into 2012, here’s our countdown of the top ten traditional labor issues that made the news this year. Numbers 10 through 6 are below; check back tomorrow for our top five.

10. The Board sues Arizona over secret ballot constitutional amendment

2011 started off with a bang in January when the Board’s Acting General Counsel Lafe Solomon threatened to sue four states (Arizona, South Carolina, South Dakota, and Utah) over their secret ballot union election constitutional amendments. All four states added provisions to their state constitutions mandating that union elections be held by secret ballot only, after constitutional amendments passed by public referendum at the November 2010 election. These constitutional amendments were in response to the Employee Free Choice Act (EFCA) proposed in Congress in 2009, which would have required an employer to recognize a union if a majority of employees signed cards stating their desire for representation. This “card check” method of recognition is currently allowed by the NLRA, but employers have the option of demanding that election of the union be confirmed by a secret ballot. EFCA would have taken this option away from employers (as well as enacting other pro-union changes to the NLRA).

EFCA never became law, but the constitutional amendments in these states passed anyway, purportedly preserving the right of a secret ballot election for employers in those states. The amendments as they currently stand do not conflict with the NLRA, but the NLRB nevertheless took exception to them, claiming that such state provisions are preempted by federal law. After a back and forth discussion with the states’ Attorneys General during the early part of 2011, the NLRB filed suit against Arizona in May, asking the court to declare that Arizona’s constitutional amendment was preempted by federal law and therefore unenforceable.

Although EFCA never became law, the NLRB has made attempts to individually implement many of the pro-union changes proposed in the bill, and Arizona has become the battleground for card checks. So far, the NLRB’s lawsuit appears to have some traction. The Arizona federal court hearing the case has deniedArizona’s motion to dismiss and litigation continues. Stay tuned in 2012 as this issue continues to develop …

See B&T’s previous coverage of this issue here.

9. The NLRB strikes a blow to mandatory arbitration policies in Supply Technologies

Companies love mandatory arbitration policies in contracts and in May, the U.S. Supreme Court issued a landmark decision in AT&T v. Concepcion upholding such policies in consumer contracts. Employers also see the appeal of mandatory arbitration clauses and many union contracts include such provisions. However, an NLRB Administrative Law Judge reminded employers of the limits of such policies in a decision in June, finding in Supply Technologies LLC that an employer’s arbitration policy violated the NLRA by unlawfully restricting employees’ rights by suggesting that an employee had to bring any unfair labor practice charge through the arbitration procedure, and thus could not make that charge with the Board. This decision served as a warning for employers hopeful after theConcepcion decision that arbitration provisions should be carefully reviewed before being included in collective bargaining agreements. Employers should know that just because SCOTUS approves, doesn’t mean the Board will.

See B&T’s previous coverage of this issue here.

8. Congress sits up and takes notice (although no new legislation is actually passed)

With a new majority in the House of Representatives after the 2010 elections, certain Republican members of Congress have made the NLRB their new target this year. Several hearings were held by Congressional Committees to discuss what many characterize as the pro-union, “activist agenda of the National Labor Relations Board.” The Board’s complaint against Boeing was a frequent target, as well as its decisions regarding posting requirements, “quickie” elections, and “micro” bargaining units.

Additionally, Republicans in both the House and the Senate have introduced bills to amend the NLRA to reverse these controversial actions taken by the NLRB in 2011. The Democrats weren’t able to get EFCA passed when they had a majority of both houses, so it is unlikely that any of this legislation will actually be passed by a divided Congress, but the NLRB’s continued perceived pro-union actions have made traditional labor a key issue as we move into the 2012 election season.

See B&T’s previous coverage of this issue here.

7. General Counsel memo regarding mandatory language in settlement agreements puts additional pressure on employers

This year, the Board has placed additional pressure on employers looking to settle NLRB proceedings with the issuance of a memo by General Counsel Solomon in January which requires mandatory language in settlement agreements whereby an employer in effect agrees in advance that if it is even accused of violating the agreement, all of the prior charges against it have merit. Although the Board characterized this language as necessary for effective enforcement of such agreements, this requirement likely has the effect of simply making employers less willing to settle a case. And it was another example of the Board’s aggressive efforts to secure rights for unions in 2011.

See B&T’s previous coverage of this issue here.

6. Specialty Healthcare decision opens the door for “micro” bargaining units

One of the Board’s more controversial decisions of 2011 was issued in August regarding appropriate bargaining units. In Specialty Healthcare (357 NLRB No. 83), the Board overturned 20 years of precedent regarding determination of an appropriate bargaining unit in non-acute health care facilities. The Board increased the burden on employers who wish to challenge a bargaining unit petitioned for by a union to include more employees. Under the new standard, employers have the burden to prove that the employees the employer believes also should be part of the unit share an “overwhelming community interest” with the petitioned for employees. The previous rule (as articulated by the Board inPark Manor Care Center, 305 NLRB 872 (1991)), applied a lower standard: whether the community of interest of the employees the employer sought to include was “sufficiently distinct from those of other employees” in order to justify their exclusion from the bargaining unit.

The upshot is that this decision allows unions to pursue so-called “micro” bargaining units, and it will be easier for unions to certify bargaining unit(s) piecemeal, even when a majority of employees in a facility do not desire union representation. This decision helps unions trying to “get a foot in the door” by allowing them to target vulnerable employer sub-groups.

This decision was targeted by legislation introduced in Congress to reverse it, but for now, it remains current Board law and sets up new challenges for employers seeking to avoid unionization.

See B&T’s previous coverage of this issue here.

Disagree with our picks? Let us know in the comments what traditional labor issues you think were most important in 2011. And don’t forget to check back tomorrow for our top five!

© 2011 BARNES & THORNBURG LLP