The Employee Free Choice Act: What It Is, Where It Stands, and What You Can Do about It

For two years, Congress has been considering enacting the Employee Free Choice Act (EFCA), which would make it easier for workers to unionize. After Democratic gains in last fall's elections, many have felt that the act will pass this session, and this has had some employers feeling anxious because of the impact it could have on them.

We present on our website information that can help you better understand what the EFCA might mean to you and where the legislation currently stands. More important, we asked Mark Kittaka, a partner at the Fort Wayne office of Barnes & Thornburg LLP (FlashPoint's legal affiliate) to suggest some preventative measures that you can take to avoid unionization; we list some of his ideas on how to promote a positive work environment, increase employee satisfaction and engagement, and minimize the likelihood that your employees will organize.

Read the rest of this article to learn more. Those who want more in-depth discussion of the EFCA should consider attending a half-day seminar sponsored by the Indiana Chamber. Ken Yerkes and Terry Dawson, partners at Barnes & Thornburg LLP, will lead the seminar, to be held the morning of August 25 in downtown Indianapolis. Details are available on the Chamber's website.

Need more help on developing preventative measures to address the EFCA? Contact FlashPoint. We'll work with you to build sound policies, develop management training programs, and conduct employee surveys.

Congratulations and Celebrations

FlashPoint congratulates Susan Rush, Vice President of Human Resources at Buchanan Group, Inc., and a member of FlashPoint's strategic HR peer group. Susan recently became certified as a Professional in Human Resources (PHR).

We also recognize our client EHOB, who was recently named one of fifty "Companies to Watch" by the Indiana Economic Development Corporation, its Small Business Development Center network, Purdue University, and the Edward Lowe Foundation. The award recognizes the state's privately held businesses that employ up to 150 employees and have between $750,000 and $100 million in annual revenue or working capital.

We offer a hearty "well done" to our own Jeremy York. Jeremy was one of nine candidates for IndySHRM's (formerly the Human Resource Association of Central Indiana's) HR Professional of the Year Award. We also send our congratulations to the award recipient, Donna Gadient of RW Armstrong.

Finally, we welcome to FlashPoint our newest team member, Julie Bingham. Julie has a broad range of HR experience and specializes in total rewards. You can read more about her on our website (where you'll learn, among other things, that even though she's a numbers whiz she still likes to count on her fingers).

Upcoming Events

Indiana Chamber HR Workshops
FlashPoint sponsors the Indiana Chamber's 2009 HR Training Series. Information is available at 800.824.6885 or the Chamber's website.

• Immigration Seminar, August 26
• Supervising and Managing People Workshop, September 15-16
• Fifty Ways to Leave an Employer, September 23

Other FlashPoint Speaking Engagements
FlashPoint regularly presents at conferences and association meetings. We hope to see you at the following event!

• Indiana State SHRM Conference--Krista Skidmore will present a session titled "Strategically Connecting Talent Acquisition with Talent Management," September 2. For more details about the conference, visit its website.

New Rulings Affecting HR

D.C. Circuit Overrules NLRB on Use of 
E-Mail for Union Activity
Earlier this month the United States Court of Appeals for the District of Columbia Circuit reversed the National Labor Relations Board (NLRB), finding that the board misapplied the National Labor Relations Act when it ruled that the Eugene (Ore.) Register-Guard properly disciplined an employee for using the company's e-mail system for union purposes.

The case stemmed from three e-mails that one of the paper's copy editors (also the union president) sent in 2000: the first e-mail corrected information concerning a union rally, and the second and third encouraged employees to demonstrate union support in their attire and asked volunteers to assist with a union event. The paper disciplined the copy editor for violating its communication systems policy, which prohibited use of its communication systems for "non-job-related solicitations." While the NLRB found that the first e-mail did not violate the policy, it held that the latter two e-mails did constitute solicitation and that discipline was justified.

To learn why the D.C. court overturned the NLRB and how the decision impacts employers, read Barnes & Thornburg's Labor Alert on this issue.

Supreme Court Finds Reverse Discrimination When City Tossed Out Test Results
In late June the United States Supreme Court ruled 5-4 that the City of New Haven, Conn., discriminated against Caucasian and Hispanic firefighters when it disregarded the results of a promotional exam because fewer African-American firefighters scored well on the tests.

In Ricci v. DeStefano, New Haven gave its firefighters objective examinations to determine who qualified for promotions. After the city discovered that, on average, Caucasian firefighters scored better than African-American firefighters, some of the African-American firefighters threatened to sue, claiming that the exam violated Title VII of the Civil Rights Act of 1964 because it had a disparate impact. Under a disparate-impact theory, an employee can establish discrimination by showing that the employer had a policy (or test) that appears to be racially neutral but is discriminatory in operation.

In light of the test results and the threatened lawsuit, the city of New Haven decided to disregard the exam results. A group of Caucasian and Hispanic firefighters who had scored well on the exam then sued New Haven under Title VII, claiming that the city discriminated against them on the basis of their race by disregarding the exam results.

Barnes & Thornburg has issued a Labor Alert with more details of the case, the reasoning behind the Court's decision, and how this may affect your own testing policies.

Proposed Rulemaking Highlights the EEOC's Expansive Interpretation of the ADA Amendments Act

The Equal Employment Opportunity Commission (EEOC) approved last month its Notice of Proposed Rulemaking (NPRM) to revise its current regulations and implement the ADA Amendments Act of 2008 (ADAAA). Although the text of the NPRM is not yet available to the public, the EEOC's Office of Legal Counsel (OLC) briefly summarized the NPRM's major provisions prior to the EEOC's vote. Based on the OLC's oral presentation, it appears the EEOC has broadly interpreted the ADAAA. In particular, there are two major points of interest to employers.

For information about the two points of interest and what the ADAAA may mean for you, view Barnes & Thornburg's Labor Alert on this issue.

U.S. Supreme Court Issues Key Decision for Employers in Age Discrimination Case

In a narrow and contentious 5-4 decision last month, the United States Supreme Court ruled against an age discrimination plaintiff, stating clearly that the plaintiff must prove that "but for" his age, the alleged discrimination would not have occurred.

The Court's decision in Gross v. FBL Financial Services, Inc. clarifies that unlike Title VII, the Age Discrimination in Employment Act (ADEA) does not allow a plaintiff to establish discrimination by showing that age was simply a motivating factor. Instead, the majority held that an ADEA plaintiff must prove by a preponderance of evidence that age was the "but-for" cause of the alleged adverse employment action.

Read Barnes & Thornburg's Labor Alert for more in-depth discussion of the case and analysis of the Court's decision.