In a decision rendered September 29, 2007, the NLRB ruled 3-2 that Board policy would be modified to require the General Counsel to prove that an applicant is "genuinely interested in seeking to establish an employment relationship with the employer" in refusal to hire or consider cases under Sections 8(a)(1) and (3). Toering Electric Company and Foster Electric, Inc. and Local Union No. 275, International Brotherhood of Electrical Workers, AFL-CIO, 351 NLRB No. 18. As the Board recognized, this decision represents a change in the law by abandoning the implicit presumption that anyone who applies for a job is protected as a Section2(3) employee.
As factual background to this decision, the employer, Toering Electric ("Toering"), became the target of a local union's "salting" campaign. In response to newspaper help-wanted advertisements, the local union mailed batch applications to Toering, a practice common in salting campaigns. Many of these resumes were incomplete or stale, and one was from a union member who failed to accept a job with Toering that had been previously offered to him. Toering did not hire any of the individuals whose resumes it received from the local union. Toering argued that these individuals lacked statutory employee status because they were not truly seeking employment with Toering. The Administrative Law Judge rejected this argument and held that Toering violated Sections 8(a)(1) and (3) by refusing to hire the individuals based upon their union affiliation. Toering appealed, arguing that these individuals were not genuinely interested in seeking employment and thus were not entitled to statutory protection.
The Board agreed, in part, with Toering. Prior to this decision, an individual would be accorded statutory employee status even when engaged in behavior clearly intended to provoke the employer to refuse to hire them or engaged in behavior which was seemingly at odds with an intent to work for the employer. This approach, according to the Board, is "flawed", especially in situations of batched union applications. To "discourage " cases where unfair labor practices charges of hiring discrimination are filed based on applications of individuals with no intention of being employed by the employer, the Board believed a "change in law is warranted" to shift the focus to the applicant's genuine interest in employment.
The Board made clear that the previously-established burden-shifting FES framework still applies in refusal to hire or consider cases. But, now, once the General Counsel has shown that the alleged discriminatee has applied for employment, the employer may contest the genuiness of the application through evidence such as evidence that the "individual refused similar employment" with the employer; "incorporated belligerent or offensive comments on his or her application"; "engaged in disruptive, insulting, or antagonistic behavior during the application process; or engaged in other conduct inconsistent with a genuine interest in employment." In addition, the fact that the application is stale or incomplete may be evidence of an individual's lack of interest in employment. Once this evidence is presented, the General Counsel must then rebut this evidence and prove by a preponderance of the evidence that the individual was "genuinely interested" in seeking employment.
This decision is significant for employers because it shifts the burden of presenting evidence of an individual's job interest to the General Counsel. Prior to this decision, the employer, as an affirmative defense, had to present evidence proving the applicant's lack of genuine job interest. Proving the applicant had no interest in working for the employer was a difficult, expensive, and time-consuming task. With this decision, the General Counsel is now required to prove genuine job interest as part of its burden in proving discrimination in refusal to hire or consider cases.