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Regulatory/Legal Developments

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As Congress applies the finishing touches to its legislative and committee agendas for 2011, federal agencies and the courts have been busy dealing with issues that may have future implications for workplaces. 

NLRB Seeks Comments on Posting Regulation – The National Labor Relations Board is seeking feedback by Feb. 22 on its proposed rule requiring covered employers to post notices informing employees of their rights under the National Labor Relations Act (NLRA).

SHRM does not believe that the NLRA gives the Board the authority to require such postings, or to penalize employers who fail to post. SHRM is also concerned that the notice details in the proposed rule do not accurately reflect the rights and obligations of employers and employees under the NLRA.

SHRM plans to submit comments to the rule by the deadline and has invited state councils and chapters to sign on to this submission. In addition, we encourage all interested SHRM members to make their voices known to the NLRB. It’s important for federal rule-making entities to hear directly from HR professionals on issues that will have a direct impact on their workplaces.

To access the text of an alert on this topic sent recently to all SHRM members (including how to submit individual comments), click HERE.

Supreme Court to Consider Basis for Future Class Action Claims – SHRM submitted an amicus brief to the U.S. Supreme Court in the case of Wal-Mart Stores, Inc. v. Betty Dukes, et al. The court will not decide the merits of the underlying sex discrimination case, but will decide whether the nationwide class, made up of female employees claiming a pattern and practice of pay and promotion discrimination, was properly created.

In class action cases, all plaintiffs in the class must have similar claims and have suffered similar harms. That allows the defendant organization to prepare one defense to the class action. 

According to some reports, the Wal-Mart class could be one of the largest ever in an employment law case, representing hundreds of thousands of female employees.

Plaintiffs, bolstered by an expert witness, argue that Wal-Mart’s structure of centralized policymaking for more than 3,400 stores nationwide results in gender stereotyping and discrimination. The case is of particular importance to HR because many of the arguments focus on the performance evaluation policies of Wal-Mart and the structure for their implementation.

SHRM’s brief, which is joined by HR Policy Association, focuses on what we believe is an improper characterization of ordinary HR practices, including performance evaluations. The court’s ruling in this case may be one of the most important employment discrimination decisions in decades.  To read SHRM’s brief, click HERE.

SHRM Weighs in on Definition of “Fiduciary” – The Employee Benefits Security Administration (EBSA) of the U.S. Department of Labor recently issued a proposed rule expanding the definition of a “fiduciary” who renders investment advice. 

While much of the rule applies to service providers, SHRM reviewed the proposal to identify its potential impact on pension plan sponsors. SHRM advised EBSA that plan sponsors should be able to rely on persons representing themselves as investment experts. Plus, those experts, who provide investment advice for a fee, should be considered fiduciaries. To read SHRM’s complete comment, click HERE.

Look for more about the final resolution of these matters in a future issue of HR Issues Update.

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