Wealth Law Blog : Oregon Asset Protection Lawyers & Attorneys : Samuels Yoelin Kantor Seymour & Spinrad Law Firm : OR Estate Planning, Fiduciary Litigation

This blog reported on the National Labor Relations Board’s (NLRB) latest notice-posting requirement for employers falling under its jurisdiction (see our October 3 and October 12, 2011 posts). Once again, the NLRB has extended the deadline to hang the mandatory and controversial 11-by-17 inch poster. The original deadline was November 14, 2011, then extended to January 31, 2012, and now extended to April 30, 2012.
Why the extensions?

The NLRB reported that its first deadline extension was to grant confused employers more time to determine whether they were required to hang the poster.

Now, this second extension comes on the heels of a Washington D.C. federal judge’s request that the NLRB postpone the rule’s effective date pending current legal challenges to the Board’s authority regarding the rule. In addition to the Washington lawsuit (consolidated from originally two suits filed by various trade and labor organizations), the US Chamber of Commerce and South Carolina Chamber of Commerce also filed lawsuits in the US District Court of South Carolina challenging the notification rule.

Pending a court ruling on the matter, employers are expected to comply with the current rule. Contact SYK attorneysTim Resch or Steve Seymour for help with this or other employment and labor questions.
 

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From time to time we publish summaries of interesting trust and estate cases. Today’s post examines a recent Oregon Appeals Court decision in the rapidly expanding field of elder law. The case involves an elderly woman with impaired mental capacity and asks whether she may be a considered a third-party beneficiary (under contract law) of a residency agreement signed on her behalf. The case also touches on the issue of arbitration clauses in residency agreements at senior housing facilities. Arbitration clauses like the one at issue in this case have been the subject of a number of recent 9^th circuit cases.

Drury v. Assisted Living Concepts, 245 Or App 217 (2011)

Background: Dorothy Drury was suffering from dementia and her mental capacity was severely impaired at the time her son, Eddie, admitted her to the defendant’s assisted living facility. Eddie signed the facility’s admission paperwork and residency agreement. At that time he was not yet Dorothy’s guardian or conservator and did not then have a power of attorney for her.

The residency agreement included a clause requiring arbitration for all claims or disputes relating to the agreement or the services provided “to You by Us.” After about a year in the facility, Dorothy died as a result of injuries sustained in a fall. Her estate’s personal representative sued the facility for wrongful death resulting from negligent conduct. The defendants (unsuccessfully) moved to compel arbitration, arguing that the estate was bound to the arbitration clause in the residency agreement as a third-party beneficiary of the contract.

On appeal, the court held that Dorothy’s estate was not bound to the agreement and its arbitration clause. Under general contract law principles, a third-party beneficiary is presumed to assent to a contract when it accepts benefits or otherwise seeks to enforce rights under that contract. Dorothy was a “third-party donee beneficiary” of the residency agreement signed by her son. The critical issue for the court was Dorothy’s mental capacity - or lack thereof. Even though Dorothy accepted the contract’s benefits (the facility’s services and apartment), her lack of requisite mental capacity meant that her acceptance of benefits did not ratify the contract.

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Citing an influx of questions from businesses and trade organizations, the NLRB has extended the deadline to hang the mandatory new 11-by-17 inch poster by a few months. This extension gives employers more time to clarify whether they fall under the NLRB’s jurisdiction. No other changes were made as to which employers must display the new poster and where to display it in the workplace.

See this blog’s previous October 3, 2011 post (Employers Must Display New NLRA Poster . . .) for more information. SYK attorneys Steve Seymour or Tim Resch can help with labor, employment, or human resource questions for both employers and employees.

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Here are highlights of the new requirements:

Which employers must hang the new poster?
All private sector employers within the NLRB’s jurisdiction must hang the new poster. The NLRA rights apply, and the new poster must be hung, in both union and non-union workplaces, as well as both for-profit and non-profit organizations.

Certain agricultural, railroad and airline employers are not within the jurisdiction of the NLRB and do not have to hang the new poster. Likewise, certain very small businesses are exempt from the NLRB and do not have to hang the new poster. The rules governing which small businesses qualify for this exemption can be complex. Generally, the NLRB categorizes small businesses into “retail” and “non-retail” businesses. “Retail” businesses (including home construction) with less than $500,000 in gross annual volume of business are exempt and do not have to hang the poster. “Non-retail” businesses with either a gross annual “inflow” (goods or services purchased from out of state) or “outflow” (goods sold or services provided out of state) of less than $50,000 are exempt. Some specific categories of businesses (such as nursing homes, private schools, day care centers, office buildings, libraries and museums) have different annual gross revenue requirements for NLRB exemption. A labor and employment attorney can help clarify your status if you are unsure whether your business is exempt.

Where to get the new poster:
You can purchase the poster from a commercial supplier, request free copies from any NLRB regional office, or simply download it from the NLRB’s website and print it yourself. Since the poster must be at least 11-by-17 inches in size, you can download either an 11-by-17 version or a two-page, 8.5-by-11 version and tape the two pages together. Click here to download either version: https://www.nlrb.gov/poster

If more than 20% of the organization’s employees are not proficient in English and speak another language, the employer must post both the English language poster and a version in that other language (obtainable on request from an NLRB regional office).

Where to display the new poster:
The poster should be hung in a “conspicuous” place in each business premises, such as where other company notices and workplace rights information are customarily posted. If the workplace typically puts such notices and rules on an internet or intranet site, the poster should be added to that electronic site (as well as physically hung in a conspicuous place). If employees work at sites away from the main business premises, the poster should be hung in those locations as well.

Contact SYK attorneys Steve Seymour orTim Resch with any questions about the new NLRA poster, as well as any general labor, employment, or human resources questions.
 

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