If you have any questions in regards to the above, please do not hesitate to contact our offices so that we may explain the amendments to the provisions of the Code in more detail. Our address is:
Fiddler González & Rodríguez, P.S.C., P.O. Box 363507, San Juan, PR 00936-3507. Our fax (787) 759-3108.
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José J. Santiago
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Antonio L. García
On May 7, 2013, the D.C. Circuit Court of Appeals issued an opinion vacating the National Labor Relations Board’s regulation requiring employers to post a notice advising employees of their rights under the National Labor Relations Act. The posting rule was published in the Federal Register on August 30, 2011 (Labor Watch No. 11, 2011) and has been on hold pending resolution of several court challenges (Labor Watch No. 7, 2012).
A three member panel of the Court held that the Board’s rule violated the free speech rights of employers under Section 8(c) of the Act and found all three of the rule’s enforcement mechanisms unlawful. The Court held that two of the rule’s enforcements mechanisms (that failure to post the notice could be considered an unfair labor practice and that such failure could be evidence of anti-union animus in a case involving other alleged violations) violate Section 8(c). In addition, the Court found that the third enforcement mechanism (if the employer failed to post the notice through inadvertence, the Board could extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer) to be completely unsupported by any authority in the Act
The Court struck down the entire rule because it found that all its enforcement mechanisms are invalid. The Court found it unnecessary to reach the question of whether the Board has the authority to issue the rule. However, two of the three judges stated in a concurring opinion that they would also hold that the Board lacks the authority to issue the posting rule.
In April of last year a separate District Court ruled that the Board did not have the authority to issue the notice posting rule. The Board has appealed that decision to the Fourth Circuit. The questions regarding the Board’s posting rule have not been finally resolved so employers must remain vigilant for further developments. While these questions are being resolved, employers are not required to post a notice. However, federal contractors should be aware of their obligation to post a similar notice of employee labor law rights as required by Executive Order 13496. (See Labor Watch No. 4, 2009)
Finally, the new regulations create special rules for airline flight crew employees, including special hours of service requirement, method of calculation of leave and record keeping requirements.
In addition to the regulations, DOL has published an updated FMLA poster and has also updated several of its optional-use FMLA forms. The regulations go into effect on March 8, 2013. The poster can be found here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at firstname.lastname@example.org.
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