Fourth Quarter 2011 Employment, Labor And OSHA Law Developments

As we have noted in prior reports, the most significant developments in employment, labor and OSHA law have been driven by aggressive rulemaking and regulatory activity from federal agencies. The National Labor Relations Board ("NLRB" or "the Board"), in particular, prepared for its potential loss of quorum at the end of 2011 by issuing a number of controversial decisions and rules that have important implications for unionized and non-union employers alike. President Obama's eleventh-hour recess appointments have returned the Board to its full complement, but it is likely that these appointments, as well as the Board's recent holding in D.R. Horton, Inc., will be challenged. Two cases discussed below highlight some of the issues that employers will want to consider in preparing for the NLRB's new union-election rules, which are scheduled to take effect April 2012.

The Equal Employment Opportunity Commission (EEOC) has also warned that it will be targeting widespread patterns, practices, and policies of discrimination as a "top priority" in order to get the biggest bang for its buck.

Last quarter also saw increased regulatory activity by the Occupational Safety and Health Administration (OSHA) as it carries out its promise to step up enforcement of the 21 whistleblower laws that it is charged with administering. Finally, the implementation of safety and environmental requirements for oil and gas operators on the Outer Continental Shelf went into effect last quarter, raising questions regarding how the Department of the Interior's Bureau of Safety and Environmental Enforcement (BSEE) will carry out compliance audits in the coming year.

NLRB Invalidates Employment Arbitration Agreements Barring Class or Collective Actions Deadline for Controversial NLRA-Rights Poster Postponed Again NLRB Continues to Chip Away at Employers' Property Rights NLRB Announces Final Rule Amending Union-Election Procedures Non-Union Employers Should Ensure that Grievance Procedures Explicitly Apply to Group Grievances SEMS Regulations in Effect for Oil and Gas Operators on the OCS OSHA Steps Up Enforcement of Whistleblower Laws EEOC Targets Systemic Discrimination in its 2012 Strategic Plan Tax Credits for Hiring Veterans NLRB Invalidates Employment Arbitration Agreements Barring Class or Collective Actions

In a decision that was one of the NLRB's last rulings before Member Craig Becker's recess appointment ended, the Board held that an agreement that prevents non-management employees from filing class, or collective actions ― whether in a court or in arbitration ― unlawfully restricts employees' rights under the National Labor Relations Act (NLRA) to engage in "concerted activity" for "mutual aid or protection." D.R. Horton, Inc., 357 NLRB No. 184 (January 3, 2012). In addition, the Board held that arbitration agreements that do not provide a clear and unambiguous exception to arbitration, allowing employees to file charges with the NLRB, also violate the NLRA. Notably for non-unionized employers, the Board's decision was not based on a collective bargaining agreement, but rather, a corporate-wide arbitration agreement that all employees were required to enter into as a condition of employment.

The Board's ruling in D.R. Horton will likely be challenged, as it appears to conflict with recent Supreme Court decisions that point to approval of employment arbitration agreements generally and class-action waivers specifically. In 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), the Court held that a union could validly agree in collective bargaining to an arbitration clause that waived employees' rights to bring employment discrimination claims in court. Similarly, in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), decided last summer, the Court struck down a California law that prohibited class-action waivers as unconscionable, finding that the California law frustrated the purpose of the...