Friday, May 24, 2013

EEOC's Jackson Office and Mexican Consolute sign agreement

PRESS RELEASE
5-21-13

EEOC's Jackson Office and Mexican Consulate Sign Historic Outreach Agreement

Agreement Establishes Ongoing Collaborative Relationship to Combat Discrimination

JACKSON, Miss. - The Birmingham District of the U.S. Equal Employment Opportunity Commission (EEOC) will sign a Memorandum of Understanding (MOU) with the New Orleans Consulate of Mexico at the EEOC's Jackson Area Office in Jackson on May 23.  The agreement establishes an ongoing collaborative relationship between these two entities to provide Mexican nationals with information, guidance, and access to resources on the prevention of discrimination in the workplace, regardless of documentation status.  Andrea GarcĂ­a Guerra, consul general of Mexico in New Orleans, and Delner Franklin-Thomas, director of the EEOC's Birmingham District, will sign the agreement.

"This pact will enhance and carry forward both entities' missions - promoting employment justice and protecting people's basic human rights," said Franklin-Thomas.

Under the terms of the MOU, the EEOC will expand its cooperation with the Mexican Consulate, providing it with Spanish-language materials explaining the laws enforced by the EEOC.  The EEOC will also provide representatives to meet with Mexican nationals in Mississippi in order to disseminate information and conduct counseling regarding employment discrimination matters.

The EEOC and the Mexican Consulate will work together regularly to provide information regarding workplace discrimination on Spanish-language radio stations throughout their respective jurisdictions.
The Mexican Consulate in New Orleans provides services to preserve the rights of Mexican nationals residing in Mississippi and Louisiana.  The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment.  The EEOC's Birmingham District includes Alabama, Mississippi (except 17 northern counties) and the Florida Panhandle.

Thursday, May 16, 2013

NLRB Posting

As mentioned in the previous post, the requirement for most private sector employers to post the "Employee Rights" posting by the National Labor Relations Board has been determined to be an infraction of the employer's First Amendment Rights.  Employers are still allowed to post the posting, but are not required.  For this purpose National Safety Compliance offers the NLRB "Employee Rights" Posting as a supplemental poster.  It is free if purchased with a Federal Labor Law Poster, or $2.00 otherwise.

Remember:

"The U.S. Court of Appeals for the District of Columbia said the National Labor Relations Board violated employers' free speech rights in in trying to force them to display the posters or face charges of committing an unfair labor practice." - US News & World Reports

Thursday, May 9, 2013

NLRB Employee Rights Posting Requirement

According to US News & World Reports: "The U.S. Court of Appeals for the District of Columbia said the National Labor Relations Board violated employers' free speech rights in in trying to force them to display the posters or face charges of committing an unfair labor practice."

Ever since the NLRB has required the "Employee Rights" poster to be posted by virtually all employers, it has continued to be challenged in the court system.  The unions seemed to look to this new law to boost union membership since it would put the information readily available to almost all employees in the United States. 

Earlier this year, the same appeals court brought into question hundreds of rulings by the current National Labor Relations Board after learning that President Obama's recess appointments to the board were ruled unconstitutional. The Obama Administration is appealing that decision to the U.S. Supreme Court.

The poster rule would have required more than 6 million businesses to display an 11-by-17-inch notice in a prominent location explaining the rights of workers to join a union and bargain collectively to improve wages and working conditions. The posters also made clear that workers have a right not to join a union or be coerced by union officials.

The National Association of Manufacturers, U.S. Chamber of Commerce and other business groups complained that the regulation violated free speech rights by forcing employers to display labor laws in a way that some believed was too skewed in favor of unionization.
A three-judge panel of the court agreed, ruling that the National Labor Relations Act protects the rights of employers not to publish the government's poster if they find the language in it objectionable. That protection is similar to the First Amendment freedom of speech, said Judge A. Raymond Randolph, who was appointed to the court in 1990 by President George H.W. Bush.
"First Amendment law acknowledges this apparent truth: all speech inherently involves choices of what to say and what to leave unsaid," Randolph said.
Randolph's decision was joined by Karen LeCraft Henderson, also a Bush appointee, and Janice Rogers Brown, who was appointed by Bush's son, President George W. Bush.
"Today, manufacturers claim an important victory in the fight against an activist NLRB and its aggressive agenda," said National Association of Manufacturers President and CEO Jay Timmons. "The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate."
A labor board spokesman did not immediately respond to a request for comment. The board had argued that the rule was needed because many workers — including recent immigrants, high school students and other employees in nonunion workplaces — were not aware of their right to engage in collective bargaining.
Unions said the posters were needed to address widespread misunderstandings about labor law and many workers' fear of exercising their rights under it.
The rule was supposed to take effect last year, but the appeals court had blocked it after lower courts split on whether the rule was valid. A federal judge in Washington, D.C., found the poster rule was acceptable, but limited how it could be enforced. Another federal judge in South Carolina said the labor board exceeded congressional authority when it approved the poster requirement in 2011.
In response to this court decision, National Safety Compliance is no longer sending the supplemental posting with all Federal Labor Law Poster orders.  It is, however, available for free with the purchase of the Federal Labor Law Poster, or available by itself for only $2.00 with 2-sided lamination.

For more information, please feel free to contact National Safety Compliance.

Friday, May 3, 2013

Kansas Department of Labor Releases New Workers' Comp Posting

Senate Bill 187, regarding Workers Compensation. The new law reduces time employees have to report workplace accidents to 20 days. Employers are required to post the new requirements. A summary of the changes are as follows:

 Workers Compensation and Employment Security Boards Nominating Committee; Qualifications for Injury Compensation Claims; ALJ Recusal; Evaluation of Physical Impairment; State Workers Compensation Selfinsurance Program; SB 187

SB 187 replaces the Workers Compensation Administrative Law Judge (ALJ) Nominating and Review Committee and the Workers Compensation Board Nominating Committee with a new entity named the Workers Compensation and Employment Security Boards Nominating Committee. The new Committee makes nominations pertaining to positions in the Workers Compensation Division, the Workers Compensation Review Board, and the Employment Security (Unemployment Insurance or UI) Board of Review. The bill also revises provisions of the Workers Compensation Act regarding qualifications for injury compensation claims, the appeals process pertaining to the recusal of an ALJ, the evaluation of physical
impairment, and administrative responsibility for the State Workers Compensation Selfinsurance Program.

Workers Compensation and Employment Security Boards Nominating Committee

The new Nominating Committee has seven members. The following state official and groups will nominate members for the Governor to consider:
● Secretary of Labor (Secretary);
● Kansas Chamber of Commerce;
● National Federation of Independent Businesses;
● Kansas AFL-CIO;
● Kansas State Council of the Society for Human Resource Management;
● Kansas Self-Insurers Association; and
● The Secretary nominates one member from either an employee organization, as defined by KSA 75-4322, or a professional employees’ organization, as defined by KSA 72-5413.

From the persons first nominated, the Governor appoints three members to two-year terms and four members to four-year terms. The Governor appoints subsequent members to four-year terms. No member serves longer than two consecutive terms. If the Governor chose not to appoint a person, the same nominating source replaces the selection by the same process. If a vacancy were to occur on the new Nominating Committee, the respective nominating source has 30 days to nominate another person.

The new Nominating Committee meets as needed. A two-thirds majority of the new Nominating Committee is required to approve an action.

Workers Compensation Administrative Law Judges

The bill increases the annual salary for unclassified ALJ positions, from 75 percent to 85 percent of the annual salary paid to a district judge.

If there is a vacant ALJ position, the new Nominating Committee nominates a person from a list of qualified applicants provided by the Director of the Workers Compensation Division. The Secretary has the discretion to appoint or reject a nomination. In the latter case, the new Nominating Committee nominates another person for the vacancy.

The reappointment process for an ALJ who has served a four-year term is revised. An incumbent ALJ submits an application to the Director of Workers Compensation. The application is forwarded to the Secretary unless the new Nominating Committee decides, by a two-thirds majority vote, to not forward the application. Under previous law, an incumbent ALJ who requested to be reappointed was considered directly by the ALJ Nominating and Review Committee.

The previous ALJ Nominating and Review Committee was composed of two members. The Secretary was required to appoint one person nominated by the Kansas AFL-CIO and the other nominated by the Kansas Chamber of Commerce. Using a list of qualified applicants provided by the Director of Workers  Compensation, the Nominating and Review Committee made a unanimous nomination to the Secretary. The Secretary had the discretion to accept or reject the applicant.

Worker Compensation Appeals Board

Under continuing law, the Workers Compensation Board reviews the decisions, findings, orders, and awards made by the ALJs. The five members of the Workers Compensation Board are required by statute to have a minimum of seven years’ experience practicing law in Kansas. The bill requires Board members to have a minimum of five years of that experience with Workers Compensation law. The bill renames the Board, calling it the Worker Compensation Appeals Board.

The previous Nominating Committee for the Workers Compensation Board was composed of two members. The Secretary of Labor was required to appoint one person nominated by the Kansas AFL-CIO and the other nominated by the Kansas Chamber of Commerce.

UI Board of Review

With regard to a vacancy on the UI Board of Review, the new Nominating Committee submits nominees for the Governor’s consideration. The Governor may choose not to appoint any of the nominees; in that case, the new Nominating Committee nominates another person for the vacancy. Appointees will continue to require confirmation by the Senate. Board members are limited to serving two consecutive terms.

Under previous law, the UI Board of Review was composed of three members appointed to four-year terms. The Kansas AFL-CIO and the Kansas Chamber of Commerce each nominated three persons to the Governor. The Governor then appointed one from each list. After Senate confirmation, the two Board members agreed upon the selection of the third member, who represented the general public.

Qualifications for Workers Compensation

Under the bill, a qualified, injured worker may seek payment from the Workers Compensation Fund if the employer was self-insured with an insufficient letter of credit. In order to be eligible for workers compensation, the bill shortens certain time periods for employees to give notice to the employer of the accident or injury:
● From 30 days to 20 days, starting from the date of the accident or injury due to repetitive trauma; and
● From 20 days to 10 days, starting after the employee’s last day of work for the employer.

Appeals Process for ALJ Recusal

In instances where an ALJ declines a request to recuse the ALJ from hearing a workers compensation case, a party to the hearing may appeal to the Workers Compensation Board. Previously, appeals of this sort were made to county district court. If a majority of the Workers Compensation Board finds sufficient grounds, the Board directs the Director of the Workers Compensation Division to assign another ALJ. If there is no pending claim for compensation, the Board’s decision may be appealed to the Kansas Court of Appeals.

Evaluation of Physical Impairment

Starting on January 1, 2015, physicians are required to use the American Medical Association (AMA) Guides for Evaluation of Permanent Impairment, Sixth Edition, when evaluating the extent of an injured employee’s impairment, rather than the AMA’s fourth edition.

State Workers Compensation Self-insurance Program

The bill transfers responsibility for the State Workers Compensation Self-insurance Program from the Secretary of the Department of Administration to the Secretary of the Kansas Department of Health and Environment (KDHE). The Division of Industrial Health and Safety within the Department of Labor assists KDHE in administering the State Workplace Health and Safety Program for state agencies.