7th Circuit Determination on Retaliation

On December 15, 2011, the U.S. Court of Appeals for the Seventh Circuit issued a blow to corporate defendants by determining that retaliation against an employee for reporting alleged criminal activity to law enforcement can constitute a racketeering “predicate act,” resulting in liability under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). DeGuelle v. Camilli, No. 10-2172 (7th Cir. Dec. 15, 2011). This unprecedented decision provides whistleblowers with yet another possible cause of action and expanded remedies.


Under RICO, it is unlawful for an employee of an enterprise engaged in interstate commerce to “conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” which requires the commission of at least two “predicate acts” of racketeering within a span of ten years. In enacting the Sarbanes-Oxley Act (“SOX”) in 2002, Congress added retaliation for “providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense” to the list of statutorily-defined predicate acts. To prove that predicate acts are part of a pattern under RICO, a plaintiff must demonstrate a relationship between the predicate acts and a threat of continuing activity - known as the “continuity plus relationship” test.

NLRB Postpones Implementation of Posting Requirement

The National Labor Relations Board ("NLRB") has been busy before the end of this year. Besides the new election rules, they have postponed, yet again, the posting requirement for its published rule requiring private sector employers subject to the National Labor Relations Act ("NLRA") to post an official notice informing employees of their rights under the NLRA, and penalizing employers for non-compliance.

The NLRB decided to postpone implementation as a result of a request made by Judge Amy Berman Jackson of the U.S. District Court in connection with a consolidated lawsuit brought by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Fund Inc. which alleges that the NLRB does not have statutory authority to implement such a rule. The NLRB had already postponed implementation from November 14, 2011 until January 31, 2012 because of the litigation.

NLRB Publishes New Election Rules

The National Labor Relations Board ("NLRB" or "Board") acted quickly to pass new election rules, which will take effect April 30, 2012. Please remember: just because you aren't a union shop, doesn't mean you should ignore this information.

With only days left in the term of NLRB Member Craig Becker, and just a few days before the Christmas holiday, the Board announced that it adopted final rules that will significantly expedite the processing of election petitions filed by unions. The new rules will:

1. Provide an NLRB hearing officer with the ability to limit the evidence that can be introduced at a representation case hearing.
2. Provide the hearing officer with the authority to deny a party the right to file a post-hearing brief.
3. Eliminate a party's right to have the NLRB review a decision by a regional director that directs an election.
4. Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period.
5. Eliminate a party's right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes.The new rules will reduce the time for processing representation cases that require a hearing by approximately 14 days, which means that elections will be held in roughly the same time as if the parties had stipulated to an election.

Apparently many unions, and even NLRB personnel, claim that employers have abused the current election process by litigating issues merely to delay an election. In their view, many employers, rather than resolving the election issues such as eligibility of the voters and stipulating to the election, often litigate minor issues simply to gain additional time to counter the union's organizing efforts.

In addition to having a quicker election, the new rules will limit an employer's ability to raise issues and, as a consequence, may inhibit the ability to preserve them for judicial review. Although the implementing guidance has not been announced, the new rules give NLRB regional directors and hearing officers significant discretion in determining the issues that can be raised in pre-election hearings. They also give the Board more discretion in deciding what cases to review on appeal.

Although the new rules will not become effective until April 30, 2012, the National Chamber Litigation Center, in conjunction with the Coalition for a Democratic Workplace, filed a lawsuit seeking to enjoin the implementation of the rules. Even with the legal challenges, it is important for you to review your policies and strategies regarding resisting union organizing with the new rules in mind.

New DOT Rules for Commercial Drivers

Effective on January 3, 2012, a new rule restricts the use of hand-held mobile telephones and devices by drivers of commercial motor vehicles (CMV). This rule was adopted by the Federal Motor Carrier Safety Administration and the Pipeline and Hazardous Materials Safety Administration, which are part of the Department of Transportation. It amends both Federal Motor Carrier Safety regulations and Hazardous Materials regulations. The rule restricts CMV drivers from reaching for or holding mobile telephones while operating their vehicles, or pushing more than one button to operate the device.


Please make certain you update your company policies, employee handbook, and conduct training for your CMV drivers.