Effective November 1, 2012, Oklahoma handgun owners will be permitted to carry their firearms more freely than before. Yet contrary to some popular belief, the state’s new “open carry” bill (SB 1733) does have limitations. Though some employees may believe they now will have the right to carry guns while at work, that’s incorrect, and employers should be prepared to respond immediately.

Currently, the Oklahoma Self-Defense Act provides for the issuance of handgun licenses to qualifying Oklahomans and spells out the parameters and restrictions governed by the Act. Under the new law amending the Act, which Governor Mary Fallin signed on May 15, those who have a valid handgun license now will have the right to carry a handgun, concealed or unconcealed (“open carry”), in many public locations beginning November 1.

However, there remain some important exceptions to that right. Licensed individuals are still prohibited from carrying handguns inside government buildings, on school property and in most of areas of college campuses, at sports venues, and at a few other specified facilities.

Another important provision that didn’t change under the new law is that Oklahoma businesses still have the right to prohibit any and all weapons in their buildings. That includes the right of employers to implement and enforce policies that prohibit employees who are licensed to carry from bringing a handgun, concealed or unconcealed, into the workplace. Keep in mind employees still have the right to store guns inside a locked vehicle on the employer’s parking lot.

Employers should anticipate that some employees may think they soon will be able to bring guns to work, so long as they are licensed. Now is the time to set the record straight. If you do not already have one in place, consider adopting and publishing a policy banning any and all weapons from your workplace. If you have a no-weapons rule in effect, now is an excellent time to remind your employees about the policy and to explain that the new law will not affect or change your no-weapons rule.

Charlie Plumb is an editor of Oklahoma Employment Law Letter and a partner in the Tulsa office of McAfee & Taft. Check out the law firm’s employment and employee benefits blog at EmployerLINC.com.

The U.S. District Court for the District of Columbia ruled that the NLRB didn’t have a quorum when it approved the rule, which went into effect April 30.

At the time of the vote — December 21, 2011 — the normally five-member NLRB had just three members because terms had expired for two others and no replacements had been confirmed. In addition, the term of another of the three members was to expire at the end of the year, making it necessary to vote on the issue before the end of 2011 when the Board was expected to be left without the three members necessary to constitute a quorum.

Republican member Brian Hayes opposed the rule but didn’t actually cast a vote or participate in the December 21 meeting. Therefore, U.S. District Judge James Boasberg said Hayes’ lack of participation meant the NLRB lacked a quorum in approving the rule even though it had three sitting members.

“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in the court’s opinion. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters — even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.”

The judge went on to write: “Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.”

In filing the suit, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace raised multiple challenges, but the district court dealt with just the question of a statutorily required quorum. “Regardless of whether the final rule otherwise complies with the Constitution and the governing statute — let alone whether the amendments it contains are desirable from a policy perspective — the Board lacked the authority to issue it, and, therefore, it cannot stand,” the judge wrote.

Since the NLRB’s vote in December, the term of member Craig Becker expired at the end of 2011. President Barack Obama used recess appointments to appoint three new members, who were sworn in on January 9, 2012.

So it’s possible that the rule can be voted on again by a full five-member NLRB. In the event of a new vote, it’s likely the election rule will pass. But the validity of the three recess appointments has been challenged, raising the possibility that even a new vote won’t settle the issue.

The court’s ruling is bringing praise from foes of the election rule change. The National Right to Work Legal Defense Foundation issued a statement hailing the judge’s decision.

“Today’s decision prevents implementation of a rule that deprives employees of hearing both sides of the story about unionization and is a victory for workers,” said National Right to Work President Mark Mix. “However, despite this decision, a secret ballot election can’t prevent the fundamental violation of individual rights that occurs under union boss monopoly bargaining.”

Keep up with the latest changes in federal employment laws, regulations, and agency action with the Federal Employment Law Insider

The new guidance, approved in a 4-1 vote during a meeting on April 25, includes information on how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against discrimination under Title VII of the Civil Rights Act of 1964. The new guidance explains that an employer’s use of criminal history must be “job related and consistent with business necessity.”

The best practices section of the guidance advises employers to eliminate policies or practices that automatically exclude people from employment because of any criminal record. It also says employers should train managers and hiring officials about Title VII and its prohibition on employment discrimination.

The guidance says employers should “develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.” That means employers first should determine what offenses may signal unfitness for a particular job and then they should include an “individualized assessment” in which the employer informs the applicant or employee that he may be excluded because of criminal conduct. The employer then should give the individual an opportunity to explain why the exclusion may not be “job related and consistent with business necessity.”

In addition to the guidance document, the EEOC released questions and answers, which, among other things, explain how the new document differs from previous guidance, why the agency decided to update its policy, and how employers can legally use criminal history.

The EEOC says the new guidance provides more in-depth analysis of the issue than three previous guidance documents issued twice in 1987 and again in 1990. The new document discusses disparate treatment in more detail and gives examples of situations in which applicants with the same qualifications and criminal records are treated differently because of their race or national origin in violation of Title VII.

The question-and-answer document also explains the two ways in which an employer’s use of criminal history information may violate Title VII — disparate treatment discrimination and disparate impact discrimination.

Disparate treatment discrimination occurs when an employer treats job applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.

Disparate impact discrimination occurs when employers don’t show that an individual’s exclusion is job related and consistent with business necessity. Such instances can disproportionately exclude people of a particular race or national origin.

Keep up with the latest developments in federal employment law, regulations, and enforcement with the Federal Employment Law Insider

In 2010, the Massachusetts Legislature made sweeping changes to the statute governing employers’ use of Criminal Offender Record Information (CORI). In addition to prohibiting employers from asking about an applicant’s criminal history on the job application, the amendments called for additional changes to the way employers access CORI data and how they must use and maintain that information. Those remaining changes become effective May 4 and include the following:

• Web-based access for all employers. CORI data soon will be available to all employers via a new Web-based criminal background database called iCORI on May 7. Initially the information will be limited only to felony convictions less than 10 years old and misdemeanor convictions less than five years old; however, all convictions for murder, manslaughter, and certain sexual offenses will appear on the subject’s iCORI report regardless of the age of the conviction.
• Notification requirements. Beginning in May, employers must provide applicants and current employees with a copy of their criminal history reports before either questioning them about the reports or making adverse employment decisions based on the information therein. This requirement applies to all criminal background information, regardless of whether it is obtained through iCORI. Employers that intend to base an adverse decision on a criminal history search also should provide the candidate with a copy of the Department of Criminal Justice Information Services’ document Information Concerning the Process in Correcting a Criminal Record.
• Record-keeping requirements. There are new, strict record-keeping requirements and record-keeping limits for employers that receive CORI data. Employers must obtain signed acknowledgment forms before conducting a search, and the forms must be kept for one year from the date of the request for information.
• Dissemination restrictions. Employers may share CORI data only with persons in their organization with a need to know the information. Employers also must keep a log of all persons with whom the information is shared, and the log must be maintained for a year after the date of dissemination.
• Data storage. Employers are required to store hard copies of CORI data in locked and secured locations. Electronically stored data must be password-protected and properly encrypted. Data may not be stored for more than seven years, and employers must implement effective means for destroying or deleting such information.
• Written policy requirements. Employers that annually conduct five or more criminal background investigations now will need to maintain a written CORI policy. This policy must indicate that the employer will notify applicants of any potential adverse decision based on CORI information, provide applicants with their CORI report and the employer policy, and provide information concerning the process for correcting a criminal record.

The law also provides for periodic audits of employers that request and receive CORI data, assessing fines of up to $5,000 for knowing violations of the laws.

Tim Murphy is a partner with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, and a frequent contributor to Massachusetts Employment Law Letter, which will keep you up to date on CORI developments. For more information, you can reach Tim at (413) 737-4753.

The U.S. Court of Appeals for the District of Columbia Circuit has granted a request to halt the implementation of a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post notices informing employees of their rights under the NLRA. Meanwhile, the circuit court will hear appeals to a previous decision from the D.C. district court in which the NLRB’s authority to promulgate the rule was challenged and upheld.

Earlier this week, a U.S. district court in South Carolina held that the NLRB lacked the authority to make the rule and that doing so was a violation of the Administrative Procedure Act. This ruling created a split from the aforementioned D.C. district court decision, generating confusion about what, if anything, would be required of employers at the end of the month with regard to the poster.

The D.C. Circuit has expedited its review of the lower court’s case and will hear oral arguments in September.

Keep up with the latest developments in federal employment law and regulations with the Federal Employment Law Insider

For over 75 years, the National Labor Relations Board (NLRB) was one of a very few federal labor agencies that didn’t require employers to post a general notice of employee rights in the workplace. Yet, on December 22, 2010, the NLRB decided it would change its 75-year history. On that date, the NLRB proposed a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post notices informing employees of their rights under the NLRA.

After the required notice and comment process, the NLRB published its final rule on August 30, 2011. After a number of extensions, the rule is currently set to take effect April 30, 2012.  However, the rule, and its posting requirements, may be delayed again because of an ongoing court battle.

The U.S. and South Carolina Chambers of Commerce filed a lawsuit seeking review of the final rule. In extensive briefings from the Chambers and the NLRB, U.S. District Court Judge David Norton reviewed the rule and determined that the Chambers’ position was correct — specifically, the Board, in promulgating the final rule, exceeded its authority in violation of the Administrative Procedure Act.

Judge Norton’s opinion provides a thorough review of the NLRA, its purposes, and how rule making should be performed under the Administrative Procedure Act. His very detailed analysis included a chart comparing other federal labor and employment statutes’ posting requirements with those of the NLRA. Interestingly, the three laws that generally comprise the NLRA (the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act) contain no statutory mandate to post any notice as required by the NLRB’s rule. Other statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Occupational Safety and Health Act (OSH Act), and the Family and Medical Leave Act (FMLA), contain specific statutory authority requiring that employers post notices outlining rights and remedies under the statutes.

In reaching his decision, Judge Norton went through the applicable case law in a statutory construction case. He found that the plain language of the Act “compelled” a finding that the NLRB lacked authority under the Act’s language to promulgate the rule.

The court’s conclusions can be summed up as follows:

1. The rule is “useful” but “not necessary” to carry out the provisions of the NLRA.
2. The NLRB is an agency that reacts to charges filed by others, and the rule “proactively dictates employer conduct prior to the filing of any petition or charge.”
3. There was no statutory “gap” for the NLRB to fill.

With those conclusions, Judge Norton ruled in the Chambers’ favor. This appears to suggest that, for the moment, no notice will be required of South Carolina employers on April 30. In the meantime, it is likely that the NLRB will voluntarily put a nationwide hold on enforcing the posting of the notice in the interest of settling a conflict between the South Carolina ruling and a separate decision from the federal district court in Washington, D.C.

We will have more detailed information in the May issue of South Carolina Employment Law Letter.

Richard J. Morgan is a shareholder at McNair Law Firm and is an editor of the South Carolina Employment Law Letter

By Mark I. Schickman

California employers have been waiting since October 2008 for the California Supreme Court to issue its ruling in the Brinker Restaurant case, clarifying whether employers must “ensure” that employees take meal and rest breaks or simply “provide” those breaks. Today, the court unanimously served up a major victory to California employers with its decision.

In her opinion, Justice Kathryn Werdegar held that employers must provide an off-duty meal break to employees during the first five hours of work, yet employers are not required to ensure that the break is taken.

Relying upon statutory text, the court found no support for an employer’s obligation to enforce the meal break that it provided. The court was clear, however, that the law will not “countenance an employer exerting coercion against . . . or otherwise encourage the skipping of legally protected breaks.”

The court made several other rulings regarding the law of class certification and the mathematical technicalities of exactly when rest breaks and meal breaks must be given, but that was all icing on the cake. Substantial news for employers to digest is that they must provide an off-duty meal break within five hours of the start of an employee’s shift but need not force-feed an employee who refuses to take it.

Employers will still get in trouble if they create a circumstance in which an employee cannot take lunch — for example, by giving employees tasks that require them to work through lunch or by pressuring them to skip lunch. But if your policy permits employees to take an off-duty lunch break and you provide that opportunity, you need not police their conduct.

We will cover this case in more detail in the next issue of California Employment Law Letter.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and the editor of California Employment Law Letter. If you have questions about this case, he can be reached at (415) 541-0200.

Maryland has become the first state to enact password protection legislation designed to prohibit employers from requiring applicants and employees to disclose their personal passwords to social media sites such as Facebook, Twitter, and MySpace.

The legislation was passed April 9 and is expected to be signed by Governor Martin O’Malley. If signed, it will take effect October 1.

In short, the legislation states that employers may not discharge, discipline, or otherwise penalize employees based on their refusal to disclose a password. Further, employers may not refuse to hire any applicants as a result of their refusal to disclose such information. The new legislation applies to all Maryland employers regardless of size as well as state and local government.

The legislation also contains a provision that permits employers to conduct an investigation for the purpose of ensuring compliance with applicable securities or financial laws or regulatory requirements based on the receipt of information about the use of websites, Web-based accounts, or other similar accounts.

An employer also may investigate an employee’s actions based on the receipt of information about the unauthorized downloading of its proprietary information or financial data, personal website, Internet website, Web-based account, or similar account by the employee.

Once the bill is signed into law, employers can expect regulations to be issued that will provide further details on how this new legislation will be applied in the workplace. In the meantime, those few Maryland employers that have required applicants and/or employees to disclose their passwords to various social media websites may want to reconsider their policies now so they’re prepared for the October 1 deadline.

Keep up with the latest developments in employment law and regulations in Maryland with the Maryland Employment Law Letter. Kevin McCormick is editor of Maryland Employment Law Letter and a partner with Whiteford, Taylor & Preston, L.L.P., in Baltimore.

A statement from OSHA quotes figures from the U.S. Bureau of Labor Statistics showing that workers in nursing and residential care facilities experience one of the highest rates of lost workdays due to injuries and illnesses of all major American industries. In 2010, the incidence rate for cases involving days away from work in the sector was 2.3 times higher than that of all private industry as a whole.

OSHA says statistics indicate that “an overwhelming proportion of the injuries within this sector were attributed to overexertion as well as to slips, trips, and falls.” The overexertion and slips, trips, and falls categories accounted for 62.5 percent of cases involving days away from work within the industry in 2010.

OSHA develops NEPs to focus outreach efforts and inspections on specific hazards in an industry for a three-year period. The nursing and residential care NEP will target facilities with a days-away-from-work rate of 10 or higher per 100 full-time workers.

Inspections will be focused on such hazards as exposure to blood and other potentially infectious material, exposure to other communicable diseases such as tuberculosis, ergonomic stressors related to lifting patients, workplace violence, and slips, trips, and falls. Nursing and residential care workers also may be exposed to hazardous chemicals and drugs.

Keep up with the latest developments in federal employment law and regulatory agencies with the Federal Employment Law Insider

As of March 28, 2012, a new protected category has been created under the Omaha Municipal Ordinance enforced by Omaha’s Human Rights and Relations Department. Omaha residents who are lesbian, gay, bisexual, and transgender are now protected from discrimination in the same way that sex, race, national origin, age, marital status, disability, etc., are protected categories under Nebraska and federal law.

The controversial ordinance was the subject of heated public debate and a lengthy public hearing before the Omaha City Council, which passed it 4-3 on a straight party-line vote (all Democrats voted for, and all Republicans against). Mayor Jim Suttle signed the ordinance on March 15. Although he invited all council members to the public signing, only Councilman Ben Gray, the legislation’s main proponent, was in attendance.

In large part, the controversy surrounding the new ordinance emanates from the fact that neither Title VII of the Civil Rights Act of 1964 (the overriding federal employment discrimination statute) nor the Nebraska Fair Employment Practice Act (NFEPA) grants any protection for including lesbians, gays, bisexuals, and transgendered individuals within the enumerated protected categories. This has led many to claim that the new ordinance is bad public policy because it creates a different standard in Omaha than in the remainder of the state. They say it will result in numerous claims and lawsuits and additional expense for businesses even though it’s highly questionable whether Omaha employers currently discriminate against individuals on the basis of sexual preference.

In any event, many predict the issue will move to a citywide ballot referendum in Omaha in 2013 to repeal the ordinance. Also, some expect a similar effort in Lincoln under the Lincoln Human Rights Commission and ordinances. At this time, Lincoln and Omaha are the only Nebraska cities with separate agencies where aggrieved employees working for very small employers — with one or two employees — may file a discrimination complaint. In contrast, a minimum 15-employee threshold must be met before workers can file a charge with the Nebraska Equal Employment Opportunity Commission (NEOC) or the federal Equal Employment Opportunity Commission (EEOC).

For the time being, Omaha citizens who believe they (1) have been discriminated against in the course of their employment — be it a termination, failure to be hired, denial of promotion, demotion, etc. — or (2) were refused service at restaurants, hotels, or other places have an avenue to file a discrimination charge with the Omaha Human Rights and Relations Department.

Finally, one additional note: Religious organizations are exempt from the ordinance. We will monitor developments and provide updates on the ordinance’s status in future issues of Nebraska Employment Law Letter.

Mark M. Schorr is editor of Nebraska Employment Law Letter and a senior partner at Erickson & Sederstrom, P.C. He works in the law firm’s Lincoln office.