Change Coming to Human Resources

Michael VanDervort who has a cleverly titled blog, Human Race Horses, makes a good point about how change can and will happen regardless of the passage of any legislation, 7 People Who Will Change Human Resources in 2009.

All seven named by Michael hold positions within the Department of Labor or at the NLRB. I was not aware that Mary Beth Maxwell, who was the Executive Director of American Rights at Work, a pro-EFCA group had been named as a Senior Adviser to Secretary of Labor Solis. Maxwell's name had been bantered about for the Secretary position itself.

Legality of 2 Member NLRB Decisions -- A Split Decision

The D.C. Circuit says no, the 7th Circuit says yes. For the details, see Ross Runkel's post, Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.

To make matters even more complicated, the 1st Circuit in March held the 2 member decisions were valid, see Two Member NLRB Legal, At Least in the First Circuit.

This kind of circuit split usually ends up in the Supreme Court, but it may also speed up the confirmation process for the Board nominations of Craig Becker and Mark Pearce. Even when they are confirmed, there will still be one vacancy on the five member board.

Congrats to Another Old Timer

Mike Fitzgibbons who had the first Canadian labor and employment law blog, Thoughts from a Management Lawyer, has just had his 6th anniversary, Another Day Another Blog Anniversary.

If this blog was even in part an inspiration for his, as he so nicely says, then I have assuredly made one clearly positive contribution to the blogosphere.

Congratulations Mike and please keep posting.

NLRB to Double with Members Becker & Pearce

President Obama has indicated his intentions to nominate Craig Becker and Mark Pearce as his two Democratic nominees to the National Labor Relations Board. Both have long standing connections with the labor side of the docket. The Washington Labor & Employment Wire, a blog that I don't think I have previously linked to, has the report, Obama Looks to Fill Two NLRB Vacancies with Becker, Pearce, with biographical information on the pair.

When these two are confirmed, which of course may take some time, the Board will be lacking one Republican member. By tradition, the Board consists of three members of the appointing President's party and two of the other.

Transgendered Workers in the Mainstream Press

Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business. On Tony (formerly Ann) Ferraiolo's first day back,

Madison owner and president Steve Schickler walked in and sat down. "So you're a 'he' now, right?" Schickler asked. Ferraiolo nodded. "Good enough," Schickler said briskly. "I'll let the managers know."

For Schickler, 50, there was no question about what would happen next. Ferraiolo would continue to supervise more than half of the plant's 50 employees. Life would go on as before, with one small difference: Ferraiolo would no longer use the ladies' room.

Besides 'tolerance' the article has some other suggestions on managing the transition.

One interesting note in the article, 322 major companies have added gender identity to their diversity programs. One small mistake is the statement that the first court to recognize protection for transgendered employees under Title VII was a DC District Court case brought by an employee of the Library of Congress last year. In reality that honor goes to the 6th Circuit decision Smith v. City of Salem, almost five years ago, see Transsexual Discrimination - By Definition Sex Stereotyping and Actionable Under Title VII.

It's Not EFCA, Now It's FAN

While the EFCA debate has moved underground for awhile, perhaps the next challenge for employers may be FAN. FAN actually is not the acronym for the act in question, the Arbitration Fairness Act, but rather the Fair Arbitration Now coalition, a group formed to support it. Fair Arbitration Coalition, Website & Blog Announced. Here are links to the blog and to the website.

The bottom line of the Act, which has been introduced as H.R. 1020 is to make pre-dispute agreements to arbitrate employment or consumer disputes invalid. Not all employers will be impacted, but those who have set up alternative dispute resolution programs which culminate in binding arbitration will have those programs blown away by the legislation.

Obviously taking a lesson from the EFCA debates, the proponents are quick to point out that the act does not prohibit arbitration. Technically true, but the fact of the matter is it does prohibit arbitration as a condition of employment, which means as a practical matter, arbitration of employment law claims will be a thing of the past once the bill passes.

Will it pass? I have not seen a lot of handicapping on this one yet, but given that not all employers are impacted and that one of the big proponents of consumer arbitration, also banned, are financial institutions which are not exactly in favor with Congress (or the American public) at the moment, I would have to say the odds are in favor of its passage.

Congratulations to Jordan Barab, Number 2 at OSHA

I first learned of Jordan Barab by reading his blog, Confined Space. His blog has been dormant since January 24, 2007 when he joined the Committee on Education and Labor working on OSHA related legislation. You can see my comments on the shut down of his blog at A Tremendous Loss - Confined Space Closes Shop.

Last week, Barab was named Deputy Assistant Secretary for OSHA, and until a permanent OSHA Director is named, he will also be filling that role. See House Aide Jordan Barab Named Acting Head of OSHA.

I actually got to meet Jordan the last week of February at a seminar where we were both speaking. I know workplace safety is something that he is passionate about. He has always been a strong and vigorous advocate, but now moves even more to the center of the action.

Others have been quick to sing his praise, see quotes from the AFL-CIO's director of safety and health, Peg Seminario and the Chair of the House Committee where he has been working, Rep. George Miller, here. And from the blogosphere, Effect Measure, titles it a Miracle at OSHA.

Best of luck in a challenging position.