On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007). The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes. The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use). In Purple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes. This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance. Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception). Continue Reading
On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures. Employers should be aware of how the new rule will affect union organization in the workplace. The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.” The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015. The new rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
- Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
- Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
- Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
- Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
- Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
- Eliminates automatic stays of elections caused by challenges to the regional director’s pre-election decision;
- Narrows the issues the Board must review in post-election disputes to those issues raised; and
- Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director’s approval of an election agreement or decision directing an election, and requires employers to include voters’ personal email addresses and phone numbers (if available) on the voter list.
As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.
It is unlikely that the new rule will go unchallenged. The rule has been heavily criticized as sanctioning “union ambush tactics.” Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits. However, employers should not bank on courts overturning the new rule. Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.
Bass, Berry & Sims attorneys Tim Garrett, Michael Moschel and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best practices related to anti-discrimination policies. In the article, employers are encouraged to ensure policies are properly introduced to employees and that managers and supervisors are adequately trained to implement the policies. To read the full article, click here.
In a case decided on December 8, 2014, the Supreme Court unanimously held the Fair Labor Standards Act (FLSA) does not require a staffing agency to compensate warehouse packers for time spent waiting in post-shift security lines. The packers argued their wait time, which they asserted could be as long as 25 minutes each day, should be compensated because the security checks were required by their employer and were necessary to the employer’s task of minimizing shrinkage (i.e. product loss). Following dismissal in the District Court for failure to state a claim, the Ninth Circuit reversed as to the FLSA claim, agreeing with the employees. The security checks were integral and indispensable to the employees’ work because the employer required the screenings to take place on the premises and because the screenings were designed to prevent theft, the threat of which arose as a result of the nature of the employees’ primary work as packers of Amazon.com merchandise.
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently filed complaints against three employers alleging that the employers’ wellness programs violate the Americans with Disabilities Act (“ADA”) due to the penalties imposed on employees who chose not to complete the wellness programs’ requirements.
The ADA prohibits employers from asking employees disability-related questions or requiring employees to undergo medical examinations unless those questions and examinations are job-related and consistent with business necessity. However, the ADA allows disability-related questions and medical examinations as part of a wellness program as long as the wellness program is voluntary and the information obtained is kept confidential and not used to discriminate on the basis of a disability.1 A wellness program is considered voluntary if the employer neither requires participation nor penalizes employees for not participating in the program. Many employers offer incentives to employees to encourage participation in wellness programs. The EEOC has never formally explained whether and to what extent offering an incentive effectively amounts to a requirement to participate or a penalty. The EEOC has indicated in its last two semiannual regulatory agendas that it plans to issue proposed regulations on this issue, but no regulations have been issued to date. Continue Reading
Bass, Berry & Sims attorneys Tim Garrett, Michael Moschel and Dustin Carlton authored the article “Analyzing Recent NFL Scandals: Is Some Conduct Ever ‘Off Duty’?” that was published by InsideCounsel on December 4. In the article, the authors discuss recent allegations involving off-duty behavior of NFL players and how the league responded to the behavior. The authors relate these examples to recent actions of the EEOC to pursue domestic violence cases and the duties of employers when it impacts the workplace. To read the full article, click here.
Volunteerism is good and should be encouraged by employers. However, with its use come concerns that the persons engaged in the labor may not actually be considered volunteers by the courts. This is particularly true in the Sixth Circuit, where the court of appeals has rejected the “threshold-remuneration test,” an employer-friendly test that looks primarily and initially at whether there was any compensation or remuneration provided or intended for the work. The Sixth Circuit instead applies a balancing approach in which it considers all the common law of agency factors, raising questions as to how a court might “strike the balance.” In light of this uncertainty, employers should consider the following:
Voters in Massachusetts have approved a statewide law mandating employers with at least 11 employees provide those employees with up to 40 hours of paid sick time per year. This mandate makes Massachusetts the third state requiring paid sick days, behind Connecticut and California. Under the new law, effective July 1, 2015, Massachusetts employees can earn up to 5 paid sick days a year, and those who work for employers with less than 10 employees will be eligible for unpaid sick days. The new law covers both private and public employers and requires the paid sick time to be compensated at the same hourly rate currently paid to the employee. Additionally, the law will permit employees to roll-over up to 40 hours of unused sick time to the next calendar year and specifically prohibits employers from interfering with or retaliating against an employee for the use of earned sick time. We are advising our clients with operations in Massachusetts, and in other states and cities with similar laws, to revise their policies and their employee handbooks to properly account for this new requirement.
Bass, Berry & Sims attorneys Michael Moschel, Tim Garrett and Dustin Carlton authored the article “NLRB’s Expansive View: The Northwestern ‘Football’ Ruling and Why Inside Counsel Should Care,” that was published by InsideCounsel on November 13. In the article, the authors discuss how the recent NLRB decision in the Northwestern University case may indicate a broader approach to union rights and how the decision could impact all employers in the U.S. To read the full article, click here.
On October 28, 2014, the National Labor Relations Board (the “Board”) again held that employers violate Section 7 of the National Labor Relations Act (“NLRA”) when they require employees to sign class action waivers as a condition of their employment. The Board first so held in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012). Although numerous courts have since rejected the Board’s reasoning in D.R. Horton, the Board nonetheless reaffirmed its position, meaning that employers who maintain such agreements will continue to face significant hurdles to their enforcement.
In Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014), the employer (“Murphy Oil”) required, as a condition of employment, that all employees sign a Binding Arbitration Agreement and Waiver of Jury Trial (the “Agreement”). The agreement specifically provided: