News and Information

Companies Required to Post New "Employee Rights" Poster

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

Absent court intervention, most companies will be required to post – beginning November 14, 2011 – a new 11-by-17 inch notice informing employees of their rights under the National Labor Relations Act (NLRA), pursuant to a final rule issued by the National Labor Relations Board (NLRB).

Employee Rights – The notice informs employees that they have several rights, including the right to "organize a union;" to "form, join or assist a union;" to "bargain collectively;" to discuss their wages and benefits or "union organizing" with their co-workers; and that they may raise "work-related complaints" directly with a government agency and seek "help from a union."

Covered Employers – Because NLRA rights apply to union and non-union workplaces, all private sector employers subject to the NLRB's jurisdiction will be required to post the notice.

Violations – Failure to post the notice may be treated as an unfair labor practice under the NLRA, and the NLRB may extend the statute of limitations for filing other unfair labor practice allegations against the employer. If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Where and How to Post – The notice (which may be downloaded from the NLRB's website and printed in color or black-and-white on one 11-by-17 inch paper or two 8-by-11 inch papers taped together) must be posted where other workplace notices are typically posted. In addition to the physical posting, covered employers must post the notice on an intranet or an internet site if personnel rules and policies are customarily posted there.

Translated Version – Translated versions of the notice will be available from the NLRB, and must be posted at workplaces where at least 20% of employee are not proficient in English.

Federal Contractors – The notice is similar in content and design to a notice of NLRA rights that must be posted by federal contractors under a Department of Labor (DOL) rule. As a result, a contractor will be regarded as complying with the NLRB's notice posting rule if it posts the DOL notice.

Legal Challenge - A number of business groups – including the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce – have filed lawsuits seeking to block the new posting requirement, on the basis that the NLRB has no statutory authority to require a notice of employee rights to be posted.

Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.

Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.

Conviction Record is Not an Automatic Bar to a Job

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

"In the vast majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment," according to a new fact sheet from the federal government.

Discrimination – "Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, national origin, religion or sex. This law does not prohibit an employer from requiring or applicants to provide information about arrests, convictions or incarceration. But, employers may not treat people with the same criminal records differently because of their race or religion."

No Automatic Bar – "In addition, in the vast majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment. This is because an automatic bar to hiring everyone with a criminal record is likely to limit the employment opportunities of applicants or workers because of their race or ethnicity."

Factors to Consider – "If an employer is aware of a conviction or incarceration, that information should only bar someone from employment when the conviction is closely related to the job, after considering: (1) the nature of the job; (2) the nature and seriousness of the offense; and (3) the length of time since it occurred."

Arrests – "Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the employer should allow the person to explain the circumstances of the arrest. If it appears that he or she engaged in the alleged unlawful conduct, the employer should assess whether the conduct is closely enough related to the job to justify denial of employment."

Reentry – "Each year, more than 700,000 individuals are released from state and federal prisons. Another 9 million cycle through local jails." In response, the U.S. Attorney General has assembled a Cabinet-level interagency Reentry Council, which includes the U.S. Equal Employment Opportunity Commission (EEOC), to support the federal government's efforts to assist those returning from prison and jail.

OFCCP to Require Federal Contractors to Submit More Data

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

Federal contractors would be required to submit to the Office of Federal Contract Compliance Programs (OFCCP) copies of its leave policies, its VETS reports, applicant flow data by group and by job title, and aggregate compensation data under proposed revisions to the OFCCP’s Scheduling Letter that is sent to contactors to initiate audits of their written affirmative action plans (AAPs).

Leave Policies – For the first time, contractors would be required to submit to the OFCCP copies of its employment policies covering the Family and Medical Leave Act, pregnancy leave, and accommodations for religious observances and practices – and a copy of their employee handbook if these policies are a part of such manual. According to the OFCCP, receipt of those policies would assist it in “better determining the existence of sex or religious discrimination indicators within contractor organizations.”

VETS Reports – In addition, contractors would be required to submit to the OFCCP a copy of the Veterans Employment Report (VETS-100 and/or VETS-100A) for the last three years. These documents are required reporting for federal contractors and include information on their hiring of disabled and other protected veterans under Vietnam Era Veterans’ Readjustment Assistance Act. “This information supports OFCCP’s efforts to prohibit discrimination based on an individual’s status as a protected veteran.”

Applicant Flow Data – The OFCCP also would require contractors to submit data related to applicants, hires, promotions and terminations both by job group and by job title (instead of either by job group or by job title, as is currently the case). “This revised submission would result in OFCCP obtaining more accurate reporting data for its analyses related to identifying sex and race discrimination indicators.”

Compensation Data – The changes also would require a contractor to submit “more precise data for OFCCP’s compensation analysis. The more precise data is aggregate data rather than the disaggregate data requested in the current Scheduling Letter,” and would allow OFCCP to “perform more specific analyses and pinpoint possible discrimination based on race or sex.”

Effective Date - The OFCCP will seek public comment before the revisions are finalized and take effect. The OFCCP’s current scheduling letter and itemized listing will expire on September 30, 2011.

OFCCP Proposes Sweeping Changes to Veterans AAPs

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

Federal contractors would be required to establish and maintain quantitative data on the number of protected veterans who apply for and are hired for jobs, and set annual hiring benchmarks based on availability and other relevant information, under new, sweeping veterans’ affirmative action plan (AAP) regulations proposed by the Office of Federal Contracts Compliance Programs (OFCCP) on April 26, 2011.

Change in Terminology – The OFFCP would delete reference to the Vietnam Era Veterans Readjustment Assistance Act (or VEVRAA) and clarify that the classification of protected veterans are: (1) special disabled veterans, (2) veterans of the Vietnam era; (3) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; and (4) recently separated veterans.

List Openings with State Job Service – Contractors would be required to list its jobs with the state job service in the manner that the state requires, provide its status as a federal contractor, and request “priority referrals” of protected veterans for job openings at all its locations within the state.

Keep Applicant Flow Records – Contractors would be required to maintain records, on an annual basis, of the total number of referrals it receives from the state job service, the number of priority referrals of protected veterans it receives, and the ratio of protected veteran referrals to total referrals. Such records are to provide a quantifiable measure of the availability of protected veterans in the workplace and would be required to be kept for 5 years.

Invitation to Self-Identify – In light of the difficulty of identifying protected veterans, federal contractors would be required to invite veterans to self-identify both pre- and post-offer of employment.

Required Outreach and Recruitment Efforts – Contractors would be required to engage in three outreach and recruitment efforts, including entering into linkage agreements and establishing ongoing relationships with Veterans’ Employment Representatives in the State job service and with at least one of several other listed organizations and agencies.

Annual Hiring Benchmarks – The proposed regulation would require – for the first time – that contractors establish annual hiring benchmarks, expressed as the percentage of total hires who are protected veterans that the contractor seeks to hire in the following year.

In Sum – The proposed regulations, once finalized, will increase federal contractors’ data collection obligations, require contractors to take specific actions to satisfy their AAP obligations, and – most significantly – require contractors (for the first time) to establish hiring benchmarks for veterans.

EEOC Revises Americans with Disabilities Act Regulations

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

New regulations to implement the ADA Amendments Act (ADAAA) were issued by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011. The new rules are "designed to simplify the determination of who has a 'disability' and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA)."

Disability Broadly Defined – The ADAAA went into effect on January 1, 2009, and "overtuned several Supreme Court decisions that Congress believed had interpreted the definition of 'disability' too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes or epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals."

Three-Pronged Approach – "The ADAAA and the final regulations define a disability using a three-pronged approach: (1) a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an 'actual disability'); or (2) a record of a physical or mental impairment that substantially limited a major life activity ('record of'); or (3) when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor ('regarded as)."

Must Still be Qualified – "The ADAAA does not change the requirement that an individual with a disability be 'qualified' for a job. An individual is qualified for a job if he or she can meet a job’s general requirements – e.g., skills, education, experience – and can perform the essential job duties, with or without reasonable accommodation."

Reasonable Accommodation – "Nearly all of the ADAAA’s changes only affect the definition" of 'disability' – and does not change the definition of 'qualified,' 'direct threat,' 'reasonable accommodation,' or 'undue hardship,' or the burdens of proof applicable to each one. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the 'regarded as' definition of disability."

What ADAAA Does Not Change

Illegal Use of Drugs – A business may still refuse to hire or discharge someone because he or she is "currently engaging" in the illegal use of drugs. However, “a person who no longer engages in the illegal use of drugs may be an individual with a disability if he has successfully completed a supervised drug rehab program or has otherwise been rehabilitated successfully, or is participating in a supervised rehab program (e.g. Alcoholics Anonymous)."

Workers Compensation – "The ADAAA and the regulations specifically state that changes to the ADA do not alter the standards for determining eligibility for benefits under State workers’ compensation laws or under Federal and State disability benefit programs."

Process for Providing Reasonable Accommodations – The process for providing reasonable accommodation has not changed as a result of the ADAAA. "Generally, a person with a disability still has to make a request for an accommodation, and an interactive process between the person with a disability and the employer may still be necessary to determine an appropriate accommodation. As part of this process, an employer may still ask for reasonable documentation showing a disability and a need for a reasonable accommodation where the disability and need for accommodation are not obvious or already known. However, since the definition of disability has been broadened, documentation may focus less on whether the person has a disability and more on the need for an accommodation. Finally, an employer is not required to provide an accommodation that would cause the employer an undue hardship -- meaning significant expense or difficulty."

Employee who Poses a Health or Safety Risk – "An employer does not have to employ a person who poses a 'direct threat' meaning significant risk of substantial harm to the health or safety of the individual or others. However, this is a stringent standard requiring an individualized assessment of the risks posed by a specific person with a disability in a particular job. An employer cannot rely on generalized information about a disability, or on myths, fears, or stereotypes about a disability when excluding someone on the basis of health or safety concerns."

Pregnancy – Under the ADAAA, "pregnancy is not an impairment and therefore cannot be a disability."

In Sum - The new ADAAA regulations will become effective on May 24, 2011. The EEOC has released an ADAAA fact sheet and two Questions-and-Answer documents about the regulations to aid employers – including small business – in understanding the law and the new regulations.

Workers may Check their Own Employment Eligibility Status

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2011

The U.S. Department of Homeland Security (DHS) on March 21, 2011 announced the launch of E-Verify Self Check – "a voluntary, free, fast and secure service" that "allows individuals in the United States to check their own employment eligibility status before formally seeking employment."

Workers Can Correct Information Before Applying for Jobs – The new E-Verify Self Check "gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration (SSA) records before applying for jobs – allowing workers to better protect themselves from potential workplace discrimination that could result from an employer’s abuse of the E-Verify system."

E-Verify Self Check Process – "The E-Verify Self Check process consists of four steps: (1) users enter identifying information online (such as name, date of birth and address); (2) users confirm their identity by answering demographic and/or financial questions generated by a third-party identity assurance service; (3) users enter work eligibility information such as a Social Security number and depending on citizenship status, an Alien Registration number; and (4) E-Verify Self-Check checks users’ information against relevant SSA and DHS databases and returns information on users’ employment eligibility status."

Correcting Inaccuracies – If Self Check is unable to confirm employment authorization (e.g. due to typographical errors or unreported name changes), individuals are provided with instructions (in English or Spanish) on how to resolve a potential data mismatch in their SSA or DHS records before they seek employment.

Information Not Shared with Employers – "Information that users provide to E-Verify Self Check and the results of an E-Verify Self Check are not shared with users’ employers or prospective employers. The results of a Self-Check query do not replace the results of an employer E-Verify query."

Not for Employer Use – "E-Verify Self Check is not for employer use. Employers may not require workers to use Self Check or show Self Check results. Employers may not accept the results of a Self Check query as a document to fulfill the requirements of the Form I-9, Employment Eligibility Verification. E-Verify employers must continue to run an E-Verify query on each new hire (or existing employee, if applicable), even if the new hires have previously verified their employment status through Self-Check."

In Sum - Currently, "E-Verify Self-Check is available to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia. In the coming months, DHS will continue to expand E-Verify Self Check service to additional eligible users on a rolling basis."

Electronic Storage of I-9 Forms

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Employers may complete, sign, scan, and store Employment Eligibility Verification forms (Form I-9) electronically – including existing I-9 forms – as long as certain performance standards for the electronic system are met, under a revised rule issued by the Department of Homeland Security (DHS) on July 22, 2010.

I-9 Forms – The Immigration and Nationality Act (INA) requires all U.S. employers to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986. To comply with the law, an employer is responsible for the completion of an I-9 form for each new employee, including U.S. citizens.

Retention Requirement – Employers are required to retain an I-9 form in their own files for "three years after the date of hire of the employee or one year after the date that employment is terminated."

History of Electronic Storage – In June 2006, DHS published an interim final rule to permit electronic signature and storage of the I-9 form.

Summary of Changes – The DHS, on July 22, 2010, made minor modifications to its electronic signature and storage rules to clarify certain provisions that:

Employers must complete an I-9 form within three business (not calendar) days;

Employers may use paper, electronic systems, or a combination of paper and electronic systems;

Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;

Employers need not retain audit trails of each time an I-9 form is electronically viewed, but only when the I-9 form is created, completed, updated, modified, altered, or corrected; and

Employers may provide or transmit a confirmation of an I-9 form transaction, but are not required to do so unless the employee requests a copy.

Time to Complete Form I-9 – The DHS' revised rule clarifies that employers must complete Section 2 of the I-9 form "by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins."

Electronic Storage Options – Employers may use paper, electronic systems, or a combination of the two to store I-9 forms. However, an employer must produce a reasonable facsimile or copy of the I-9 form. Employers may change electronic systems as long as such systems meet the requirements of the DHS’ revised rule.

Only the pages of the I-9 form containing employer and employee-entered data need be retained. Other pages of the current form are instructions for completing the I-9 form and need not be retained by the employer.

Employers may, but are not required to, copy or make an electronic image of a document used to comply with the requirements of the INA.

I-9 forms and verification documentation may be stored in a separate I-9 file or as part of the employee’s other employment records.

Audit Trail Requirements – Whenever an electronic record is created, completed, updated, modified, altered, or corrected, a secure and permanent record must be created that establishes the date of access, the identity of the individual who accessed the electronic record, and the particular action taken.

In its revised rule, the DHS deleted the requirement that the electronic storage system be searchable by any data element.

Employee Receipt – DHS amended it rule to require employers to provide or transmit a printed confirmation of an electronic transaction only if an employee requests it. In addition, the DHS removed the language requiring the employer to provide the confirmation at the time of the transaction.

If, however, the employee requests confirmation, it is reasonable for the employer to be required to give the employee a copy of the information provided within a reasonable period of time.

Providing the option of electronic preparation and storage does not in any way alter the requirement that the employer physically examine by the employee in the presence of the employee prior to completing the I-9 form.

Federal Contractors Must Report Executive Compensation and Subcontractors

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Federal contractors are required to report – to the federal government – executive compensation and first-tier subcontractor awards on federal contracts expected to be $25,000 or more issued on or after July 8, 2010, under a sweeping new government contract rule that applies to all businesses, "regardless of business size or ownership."

Reason for New Rule – The new contracting rule implements a provision in the Federal Funding Accountability and Transparency Act of 2006 (as amended by the Government Funding Transparency Act of 2008), which requires the government to establish a free, public website containing full disclosure of all Federal contract award information.

"The reporting requirements of the Transparency Act are sweeping in their breadth, and are intended to empower the American taxpayer with information that may be used to demand greater fiscal discipline from both executive and legislative branches of Government."

Covered Contracts – The new rule applies to all solicitations and contracts with a value of $25,000 or more issued after July 8, 2010, and applies to all businesses, large and small, regardless of size or ownership.

The rule applies to commercially available off-the-shelf (COTS) item contracts, as well as actions under the simplified acquisition threshold, meeting the $25,000 threshold.

It does not apply to classified solicitation and contracts, and contracts with individuals.

Contractor Must Obtain Information from First-Tier Subcontractors – The law requires the Contractor to report information on subcontract awards. The law also requires all reported information be made public, therefore, the Contractor is responsible for notifying its subcontractors that the required information will be made public.

Subcontract Reporting Requirement – Unless otherwise directed by the contracting officer, by the end of the month following the month of award of a first-tier subcontract with a value of $25,000 or more (and any modifications to these subcontracts that change previously reported data), the Contractor must report the following information at http://www.fsrs.gov for each first-tier subcontract:

Unique identifier (DUNS Number) for the subcontractor receiving the award and for the subcontractor's parent company, if the subcontractor has a parent company.
Name of the subcontractor.
Amount of the subcontract award.
Date of the subcontract award.
A description of the products or services (including construction) being provided under the subcontract, including the overall purpose and expected outcomes or results of the subcontract.
Subcontract number (the subcontract number assigned by the Contractor).
Subcontractor's physical address including street address, city, state, and country. Also include the nine-digit zip code and congressional district.
Subcontractor's primary performance location including street address, city, state, and country. Also include the nine-digit zip code and congressional district.
The prime contract number, and order number if applicable.
Awarding agency name and code.
Funding agency name and code.
Government contracting office code.
Treasury account symbol (TAS) as reported in FPDS.
The applicable North American Industry Classification System code (NAICS).

Exception if Gross Income is Less than $300,000 – If the Contractor in the previous tax year had gross income, from all sources, under $300,000, the Contractor is exempt from the requirement to report subcontractor awards. Also, if a subcontractor in the previous tax year had gross income from all sources under $300,000, the Contractor does not need to report awards to that subcontractor.

Subcontract Reporting to be Phased-In – The subcontract reporting requirement only applies to first-tier subcontracts and will be phased in as follows:

Until September 30, 2010, any newly awarded subcontract must be reported if the prime contract award amount was $20 million or more;

From October 1, 2010 until February 28, 2011, any newly awarded subcontract must be reported if the prime contract award was $550,000 or more; and

Starting March 1, 2011, any newly awarded subcontract must be reported if the prime contract award amount was $25,000 or more.

Executive Compensation Reporting – By the end of the month following the month of a contract award, and annually thereafter, the Contractor must report the names and “total compensation” of each of the five most highly compensated executives for the Contractor’s preceding completed fiscal year at http://www.ccr.gov, if:

In the Contractor’s preceding fiscal year, the Contractor received: (1) 80% or more of its annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; AND (2) $25 million or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; AND

The public does not have access to information about the compensation of the executives through periodic reports filed under the Securities Exchange Act.

Executive Compensation of Subcontractor – Unless otherwise directed by the contracting officer, by the end of the month following the month of a first-tier subcontract with a value of $25,000 or more, and annually thereafter, the Contractor must report the names and “total compensation” of each of the five most highly compensated executives for each first-tier subcontractor for the subcontractor’s preceding completed fiscal year at http://www.ccr.gov, if:

In the subcontractor’s preceding fiscal year, the subcontractor received: (1) 80% or more of its annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; AND (2) $25 million or more in annual gross revenues from Federal contracts (and subcontracts), loans, grants (and subgrants) and cooperative agreements; AND

The public does not have access to information about the compensation of the executives through periodic reports filed under the Securities Exchange Act.

Total Compensation to be Included in Executive Compensation – Total compensation for purposes of executive compensation reporting means the cash and noncash dollar value earned by the executive during the Contractor’s preceding fiscal year and includes: (1) salary and bonus; (2) awards of stock, stock options and stock appreciation rights; (3) earnings for services under non-equity incentive plans; (4) change in pension value; (5) above-market earnings on deferred compensation which is not tax-qualified; and (6) other compensation.

New Kansas “No-Smoking” Law Takes Effect July 1, 2010

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Smoking will be prohibited in most indoor locations in Kansas – including places of employment and within 10 feet of any doorway, open window or air intake where smoking is prohibited – under a new Kansas state law that takes effect July 1, 2010. In addition, Kansas employers must adopt a written no-smoking policy, timely communicate such policy to employees and new hires, and post a new no-smoking sign in the workplace. The following summarizes key provisions of the new Kansas law applicable to private sector employers.

Must Provide a Smoke-Free Workplace – Kansas employers that have a place of employment that is "an enclosed area" must provide a smoke-free workplace for all employees.

Smoking Prohibited in the Workplace – No person may smoke in an enclosed area, including but not limited to:

Any place of employment – including (but not limited to) work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways that is used by employees during the course of employment;

Lobbies, hallways and other common areas in private buildings; and

Access points of all buildings and facilities – meaning the area within a 10 foot radius outside of any doorway, open window or air intake leading into a building or facility.

The "enclosed area" where smoking is prohibited includes both private enclosed offices and indoor cubicles. In fact, the new law defines "enclosed area" to mean "all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid or similar structures." Moreover, smoking is prohibited at all times in such areas – including when it is not open to the public (including after hours, on weekends or on holidays).

Where Smoking is Permitted – The new Kansas law does not prohibit smoking in the outdoor areas of any building or facility beyond the access points of such building or facility – i.e., beyond the 10 foot radius outside of any doorway, open window or air intake leading into such building or facility.

Employer Must Have Written No-Smoking Policy – Kansas employers must adopt and maintain a written smoking policy which must prohibit smoking without exception in all areas of the place of employment. Such policy must be communicated:

To all current employees within one week of its adoption; and

To all new employees upon hiring.

Each employer also must provide a written copy of the smoking policy upon request to any current or prospective employee.

Employer Must Post No-Smoking Sign – Kansas employers must post in conspicuous place signs displaying the international no smoking symbol and clearly stating that smoking is prohibited by state law. No-smoking signs (in English and Spanish) may be downloaded from the Kansas Department of Health and Environment website.

Unlawful to Fail to Comply with New Law – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to fail to comply with all or any of the provisions of the new Kansas no-smoking law – including the failure to adopt, maintain and communicate the no-smoking policy or post the no-smoking sign.

Unlawful to Allow Smoking Where Prohibited – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to allow smoking to occur where prohibited by law. Any such person will be deemed to allow smoking to occur if they (1) have knowledge that smoking is occurring, and (2) acquiesces to the smoking under the totality of the circumstances.

Unlawful to Smoke Where Prohibited – It is also unlawful for a person to smoke in area where smoking is prohibited.

Penalties for Violations – Any person who violates the new Kansas law is guilty of a cigarette or tobacco infraction punishable by a fine:

Not exceeding $100 for the first violation;

Not exceeding $200 for a second violation within a one-year period after the first violation; or

Not exceeding $500 for a third or subsequent violation within a one-year period after the first violation.

The number of violations within a year is measured by the date the smoking violations occur. Each individual allowed to smoke where smoking is prohibited will be considered a separate violation for purposes of determining the number of violations. Local law enforcement (police or sheriff) have the authority to enforce the new Kansas law.

No Retaliation – No employer may discharge, refuse to hire or in any manner retaliate against an employee, applicant for employment or customer because the employee, applicant or customer reports or attempts to prosecute a violation of the new Kansas law.

Covered Employers – Employers covered by the new Kansas law includes any person, partnership, corporation, association or organization (including municipal or nonprofit entities) which employs one or more individual persons.

Effective Date – The new Kansas law takes effect on July 1, 2010.

Local Laws – Where local clean indoor air laws have provisions stricter than the Kansas state law, those local provisions will prevail. However, where local laws have provisions less strict than the state law, state law provisions will prevail effective July 1, 2010.

Other Areas Where Smoking is Prohibited – In addition to places of employment, the new Kansas law also prohibits smoking in most of the following indoor locations in Kansas:

Public places.
Restaurants.
Bars.
Within 10 feet of any doorway, open window or air intake where smoking is prohibited.
Taxicabs and limousines.

Exempt from New Law – The following locations are exempt from the new Kansas law:

Tobacco shops that derive not less than 65% of gross receipts from the sale of tobacco.
Gaming floors of lottery gaming facilities or racetrack gaming facilities.
Up to 20% of hotel/motel sleeping rooms.
Designated indoor areas of private outdoor recreational clubs (i.e. golf clubs, hunting clubs) where minors are prohibited.
Private homes or residences not used as a day care home.
Designated smoking areas of adult care homes and long-term care facilities.
Class A and B private clubs licensed before July 1, 2009, that notify the Secretary of the Kansas Department of Health and Environment by September 28, 2010 of their intent to allow smoking.

More Information – The Kansas Department of Health and Environment website includes the text of the new law, frequently asked questions, a fact sheet and no-smoking signs.

Contractors Must Inform Workers of Their Right to Join a Union

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Many federal contractors and subcontractors will soon be required to post a new workplace poster that notifies their employees of their rights under federal labor law – including the right to "organize a union," to discuss terms and conditions of employment or union organizing with co-workers or a union, and to "take action" by raising work-related complaints and "seeking help from a union" – under a final rule issued by the U.S. Department of Labor (DOL) on May 20, 2010.

President Obama’s Executive Order – The new requirement is the result of an Executive Order signed by President Obama on January 30, 2009. The Executive Order requires nonexempt federal departments and agencies to include within their government contracts specific provisions requiring contractors and subcontractors to post notices informing their employees of their rights under federal labor laws.

Covered Contracts – Generally, the new rule applies to non-exempt federal contracts of $100,000 or more issued after June 21, 2010 and applies to both the government contractor and its subcontractors at any tier (except subcontracts that do not exceed $10,000). However, contracts and subcontracts for work performed exclusively outside the territorial United States are not covered by the new rule.

Content of Poster – The required 11"×17" poster lists employees’ rights under the National Labor Relations Act "to form, join, and support a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board with questions or to file complaints."

Where to Obtain the New Poster – A poster with the required employee notice is available at the DOL Office of Labor-Management Standards’ website.

Translated Posters: "Where a significant portion of a contractor’s or subcontractor’s workforce is not proficient in English, they must provide the employee notice in languages spoken by employees. The DOL will provide translations of the employee notice that can be used to comply with the physical and electronic posting requirements."

May Reproduce Posters: "Contractors may reproduce and use exact duplicate copies of the DOL’s official poster."

Where to Physically Post the New Poster – "A contractor or subcontractor that posts notices to employees physically must also post the required notice physically." The employee notice must be placed:

"In conspicuous places in and about the contractor’s plants and offices so that the notice is prominent and readily seen by employees. Such conspicuous placement includes, but is not limited to, areas in which the contractor posts notices to employees about the employees’ terms and conditions of employment;" and

"Where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract. An employee will be considered to be so engaged if the duties of the employee’s position include work that fulfills a contractual obligation, or work that is necessary to, or that facilitates, performance of the contract or a provision of the contract."

Electronic Posting – A contractor or subcontractor that customarily posts notices to employees electronically must also post the required notice electronically.

Website: "Such contractors or subcontractors satisfy the electronic posting requirements by displaying prominently on any web site that is maintained by the contractor or subcontractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment, a link to the DOL’s website that contains the full text of the poster."

Link: The link to the DOL website must read, "Important Notice About Employee Rights to Organize and Bargain Collectively with Their Employers." The link can be no less prominent than other employee notices. Electronic posting cannot be used as a substitute for physical posting.

Complaints – "Employees may file complaints with the DOL about contractors and subcontractors who do not comply with the DOL posting requirements or do not include the notice provisions in contacts or subcontracts."

Investigations and Sanctions for Noncompliance – The DOL’s Office of Federal Contracts Compliance Programs "may conduct evaluations to determine compliance. Contractors who violate the regulations may be subject to sanctions for non-compliance, including suspension or cancellation of an existing contact; debarment from future Federal contracts and subcontracts; and inclusion on a list published and distributed by the Director of OLMS to all executive agencies listing the names of contractors and subcontractors declared ineligible for future contracts as a result of non-compliance with these requirements. A contractor will have an opportunity for a hearing and an appeal before the imposition of any sanctions."

Additional Resources – A helpful Fact Sheet and the new poster may be downloaded from the DOL Office of Labor-Management Standards website.

"Reasonable Break Time" Required for Nursing Mothers

by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010

Updated August 8, 2010

Employers must provide "reasonable break time" for a non-exempt employee to express breast milk for her nursing child for one year after the child’s birth – each time such employee has need to express the milk – according to a provision (Section 4207) in the newly enacted health care reform law.

A new fact sheet containing general information on the break time requirement for nursing mothers, as required under the new health care reform law, was released by the Department of Labor in July 2010.

Frequency and Duration of Breaks – Employers are required to provide a reasonable amount of break time for non-exempt employees to express milk as frequently as needed by the nursing mother. "The frequency of breaks needed to express milk as well as the duration of each break will likely vary."

Location of Breaks – A bathroom, even if private, is not a permissible location for such breaks. "The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement. A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public."

The Breaks Need Not be Paid – "Employers are not required under the Fair Labor Standards Act (FLSA) to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time. In addition, FLSA’s general requirement that the employee must be completely relieved from duty or else the time must be compensated as work time applies."

Exception for Small Employers – An employer that employs less than 50 employees is not subject to the new law if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.

Only Applies to Non-Exempt Employees – The new law was added at the end of Section 7 of the Fair Labor Standards Act, and thus only applies to non-exempt and hourly paid employees. Employees who are exempt from the overtime pay provisions under Section 13 of the FLSA are not covered by the new federal law requiring reasonable break time for nursing mothers. However, employees may be covered by state law

Does Not Preempt State Law – These new requirements do not preempt a state law that provides greater protections to employees than the protections provided under the new federal law. According to the National Conference of State Legislatures, 24 states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming).