Federal court finds NLRB's expedited election rule invalid

By Howard Rubin and Don Stait

The Daily Record Newswire

A federal court for the District of Columbia has found the National Labor Relations Board's expedited representation election rule invalid because the board lacked a quorum when it issued the rule in December 2011.

Relying on a recent U.S. Supreme Court decision, the court determined that because only two of the three sitting board members actually cast votes to adopt the rule -- Brian Hayes had voted against an earlier version of the rule, but declined to participate in the final vote -- the agency did not have the authority to act.

When an employer and a union are unable to agree on details of a union election, a pre-election hearing is held. Had the expedited election rule been upheld, it would have limited the issues to be determined during the pre-election process, consolidated appeals and eliminated the practice of delaying elections while appeals were being heard.

The federal court's opinion was the latest in a series of decisions invalidating actions by the NLRB for acting without a quorum.

In light of the federal court's decision, the board decided to suspend implementation of the rule. The board's Acting General Counsel has similarly withdrawn guidance released in April governing the representation case procedure changes that had taken effect on April 30.

According to the NLRB's announcement, an estimated 150 election petitions have already been filed under the new procedures. The announcement states that "Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure."

EEOC approves guidance on use of criminal records in employment

The Equal Employment Opportunity Commission approved an update on enforcement guidance governing the legality of considering criminal history when making hiring or other employment decisions. The new guidance discusses:

* How an employer's use of an individual's criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964;

* Federal court decisions analyzing Title VII as applied to an employer's consideration of a criminal history;

* The differences between the treatment of arrest records and conviction records;

* The applicability of disparate treatment and disparate impact analysis under Title VII;

* Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and

* Best practices for employers.

In a press release, EEOC Chairwoman Jacqueline Berrien said that the new guidance "clarifies and updates the EEOC's long-standing policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other agency stakeholders."

The EEOC asserts that the guidance "updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee."

The updated enforcement guidance and related Q&A document are available at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.

EEOC rules that Title VII protections apply to transgender individuals

In a ground-breaking decision, the EEOC recently ruled that a complaint of discrimination based on "gender identity, change of sex, and/or transgender status" is cognizable under Title VII. The EEOC issued its ruling that intentional discrimination against a transgender individual is discrimination "based on ... sex" and thus violates Title VII.

Prior to this ruling, the EEOC generally declined to pursue discrimination claims that arose from transgender status or gender identity issues.

Although Oregon and Washington already have state laws protecting transgender employees, the EEOC ruling will strengthen the protections and let transgender employees bring discrimination claims in either state or federal court.

The decision has the potential to impact the EEOC's enforcement and litigation activities, both at the commission level and throughout its field offices. The decision may be entitled to at least some deference by federal courts. Multiple federal appellate courts already have found that Title VII affords transgender individuals some protection against discrimination.

Although the EEOC decision involved a federal employer (the Bureau of Alcohol, Tobacco, Firearms and Explosives), it is likely that the decision will apply to state and local governmental and private employers. The language in the decision was not limited to federal employees or to the specific facts of the case; rather, the EEOC clearly announced a broader interpretation that applies to any transgender individual who has suffered intentional discrimination, and affords such individuals recourse under Title VII.

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Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com.

Published: Tue, Jun 12, 2012

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