Updates
Here are summaries of important legal or procedural changes that affect the latest edition of this product.
If you want to check on the accuracy of any other information in the book, please follow the legal research
instructions in the book or in Nolo's research manual, Legal Research: How to Find and Understand the Law.
NLRB Rules on Use of Company Email for Union Messages
Effective date:
Dec. 16, 2007
The National Labor Relations Board (NLRB) has ruled that companies may ban employees from sending personal email messages, or from sending messages that solicit or proselytize for outside organizations (including union-related messages), without violating the National Labor Relations Act.
In this case, The Guard Publishing Company (.pdf), a divided NLRB also changed the test for determining whether an employer has enforced its policies in a manner that discriminates against union-related activities. The former rule was that an employer that allows employees to use its equipment or other resources for non-work purposes may not discipline employees for using those resources for union-related purposes. The new rule is that an employer may make any number of distinctions -- for example, allowing charitable solicitations while prohibiting solicitations for other organizations, allowing personal messages while prohibiting messages sent on behalf of an organization, and so on -- without violating the law, as long as it doesn't explicitly prohibit only those activities that relate to union issues.
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Minimum Wage Increase Signed by President Bush
Effective date:
Jul. 24, 2007
On May 25, 2007, President Bush signed an emergency spending bill funding the war in Iraq. That bill also amended the Fair Labor Standards Act to provide for a three-stage increase to the federal minimum wage over the next couple of years.
The minimum wage will increase to:
- $5.85 an hour on July 24, 2007
- $6.55 an hour on July 24, 2008, and
- $7.25 an hour on July 24, 2009.
This law will change not only the federal minimum wage, but also the minimum wage rates of states that base their requirements on the federal law. For example, some states -- such as Texas and Virginia -- simply use the federal minimum wage as the state standard, while others have a state standard that is a set amount more than the federal minimum.
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Iowa, Colorado, and Oregon Prohibit Discrimination Based on Sexual Orientation and Gender Identity
Effective date:
Jul. 1, 2007
Effective July 1, 2007, the state of Iowa prohibits discrimination based on sexual orientation or gender identity.
Effective August 8, 2007, Colorado prohibits discrimination based on sexual orientation or gender identity.
Beginning January 1, 2008, Oregon will also prohibit discrimination on either basis.
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New I-9 Form and Changes to Acceptable Documents
Effective date:
Jun. 5, 2007
The United States Citizenship and Immigration Services office (USCIS) has issued a modified version of Form I-9, which employers must complete to verify an employee's identity and authorization to work in this country. The most significant changes to the form are:
- The list of documents an employer may accept to prove both an employee's identity and eligibility to work in the U.S. (called "List A Documents") has been shortened. For example, employers may no longer accept a certificate of U.S. citizenship or naturalization.
- Employees may not be required to provide their Social Security numbers unless the employer participates in the E-Verify program. (E-Verify allows employers to verify employee eligibility electronically; participation in the program is voluntary.)
You can get a copy of the new Form I-9 and instructions from the USCIS website, at www.uscis.gov. Click on Immigration Forms and then the Employment Eligibility Verification form (Form I-9).
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Court Upholds EEOC's Proposed Regulations on Retiree Health Benefits
Effective date:
Jun. 4, 2007
In 2004, the Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces laws prohibiting employment discrimination, issued proposed regulations on retiree health benefits. The regulations would allow employers to offer reduced benefits to retirees once they are eligible for Medicare, as long as the total benefits available to them from all sources are the same as those available to younger retirees.
This proposal was controversial because it creates an exemption to the general rule that prohibits employers from offering lesser benefits to older workers. Because Medicare eligibility is based on age, some workers' rights advocates argued that the regulations gave employers license to discriminate.
AARP sued the EEOC in a Pennsylvania federal district court to prevent the agency from finalizing the regulations. The trial judge first ruled in AARP's favor, then reconsidered that decision and ruled for the EEOC. However, the judge also found that the regulations should not be finalized while the case was on appeal. So, for the last couple of years, this issue has been up in the air.
On June 4, 2007, the U.S. Court of Appeals for the Third Circuit decided the case in the EEOC's favor. (American Association of Retired Persons v. Equal Employment Opportunity Commission, No. 05-4594 (3rd Cir. 2007).) The court first found that the EEOC had the authority to propose the regulations, because Congress gave it the right to carve out exemptions to the general prohibitions on discrimination found in the Age Discrimination in Employment Act (ADEA).
The court also found that the EEOC's proposal was reasonable, "necessary, and proper in the public interest," because it addressed a very real problem in benefits programs. Some employers, in an effort to avoid age discrimination claims, simply reduced or eliminated all retiree health benefits. This choice is not discriminatory, because it applies to all retirees regardless of age. However, it also deprives retirees of benefits the employer might otherwise be willing to provide. The EEOC's proposal removes the threat of a lawsuit against employers who reduce benefits for Medicare-eligible retirees. Although the court recognized that this would allow employers to provide more generous benefits to younger retirees, the court also found that it would encourage employers to provide at least some benefits to all retired workers.
The EEOC finalized these regulations on December 26, 2007. You can read them here.
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Supreme Court Decides Time Limits for Pay Discrimination Lawsuits
Effective date:
May 29, 2007
Under Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination on the basis of race, color, national origin, gender, and religion, an employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) before bringing a lawsuit. Generally, the employee must file a charge of discrimination within 180 days after the discriminatory act alleged (although the time limit is extended to 300 days if the act is also prohibited by state law).
Recently, in a pay discrimination case brought under Title VII, the Supreme Court considered when the discriminatory act that triggers an employee’s time limit for filing a charge occurs. In Ledbetter v. Goodyear Tire & Rubber Co., Inc., No. 05-1074 (May 29, 2007), the Supreme Court determined that the clock in a discriminatory pay case starts running when the employer makes a pay decision, not each time the employee receives a smaller paycheck because of that decision.
Lilly Ledbetter began working for Goodyear in 1979. In 1998, she filed a charge of discrimination with the EEOC, alleging that she was paid less than male employees throughout her employment. She claimed that several different supervisors had given her poor evaluations because of her gender and, as a result, she received smaller raises than male employees. Because of the ongoing pay differential created by these decisions, Ledbetter’s compensation was eventually significantly less than any of her male colleagues.
The jury found in Ledbetter’s favor on her pay discrimination claim, but the 11th Circuit Court of Appeals reversed the decision -- and the U.S. Supreme Court also ruled against Ledbetter. The Court found that Ledbetter should have filed her EEOC charge within 180 days after each decision about her pay was made and communicated to her. The Court pointed out that it would be difficult for Goodyear to defend itself against alleged discrimination that occurred many years ago; in fact, one of the supervisors whom Ledbetter accused of discrimination had passed away by the time of her lawsuit. Ledbetter had argued that Goodyear discriminated against her each time she was paid, but the Court disagreed.
The Ledbetter decision was a close one: Five Justices ruled against Ledbetter, while the remaining four would have upheld her victory. Writing for the dissenters, Justice Ginsberg pointed out that it’s often difficult for employees to find out about differences in pay, and that the harm caused by pay discrimination builds up over time as each paycheck is issued. Requiring employees to file a charge immediately would unfairly deprive them of a remedy for ongoing discrimination, the dissenters argued.
Ultimately, it may be up to Congress to decide which argument is correct. Justice Ginsberg invited Congress to “act to correct this Court’s parsimonious reading of Title VII,” as it did when it passed the Civil Rights Act of 1991, which overturned a number of Supreme Court cases that limited workers’ rights. And a handful of senators and representatives have said that they will introduce legislation overturning the Ledbetter decision. For the time being, however, the Court’s ruling stands as the law of the land, at least for Title VII cases. (The Equal Pay Act (EPA) also prohibits gender-based pay discrimination, and the Court indicated that different standards -- which may have allowed Ledbetter’s victory to stand -- apply to these cases.)
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More Employees May Be Classified as Supervisors Who Can't Join a Union
Effective date:
Oct. 4, 2006
Supervisors are not protected by the National Labor Relations Act (NLRA), the federal law that codifies workers' rights to organize, join unions, and bargain collectively with employers. Because supervisors are considered to be part of a company's management rather than its labor force, they cannot join unions and do not enjoy the other rights conferred by the NLRA.
The National Labor Relations Board (NLRB) recently issued a decision clarifying which employees are supervisors and which are not. In Oakwood Healthcare Inc., 348 N.L.R.B. 37 (2006), the Board found that employees who have the authority to make work assignments or direct the work of other employees may be supervisors if those tasks require some independent judgment and discretion, even if they spend only 10% to 15% of their time on these supervisory duties. This decision represents a change from previous NLRB decisions, which interpreted the term "supervisor" more narrowly.
Previously, the NLRB found that employees who used ordinary professional or technical judgment in directing less skilled employees to provide services were not exercising independent judgment, and therefore did not qualify as supervisors. But the U.S. Supreme Court rejected this interpretation as too limited (NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001)). In response to the Supreme Court's ruling, in Oakwood, the NLRB abandoned its earlier interpretation.
In Oakwood, the NLRB focused on two supervisory responsibilities: assigning work and directing the work of other employees. The NLRB found that an employee who assigns others to particular departments, shifts, or significant tasks is a supervisor, as long as making those assignments requires some independent judgment and discretion and is not simply clerical or routine in nature. An employee who responsibly directs others -- that is, who oversees the work of other employees and is held accountable for their performance -- also qualifies as a supervisor.
The Oakwood case involved charge nurses at a hospital, but the decision is expected to have significant repercussions beyond the healthcare field. Many employees who do not make hiring and firing decisions but exercise some authority over other employees will be classified as supervisors by the NLRB -- even if they spend most of their time doing the same work as the employees they supervise. The decision is widely expected to exclude more employees from union membership, although commentators for business and labor groups disagree on how many employees will be affected.
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