December 2014 - Labor and Employment News
December 15, 2014
The headline of this article is an inaccurate exaggeration. But the NLRB did issue a decision on December 11, 2014 that dramatically changed the way employers can limit employee use of the employer’s e-mail system. The written decision also calls into question decades of precedent holding that employers may limit the use by employees of any of the employer’s equipment if the employees want to use it for union organizing or other protected activity.
At issue was an employer’s “Electronic Communications Policy” that, like many such policies, “strictly prohibited” employees from using the employer’s electronic communications systems, including e-mail for, among other things:
The employees in question had individual e-mail accounts on the system and used those e-mails for work purposes. No evidence showed that the employer made exceptions to this rule or that it had disciplined anyone for violating the rule.
A union sought to represent the workers and lost in secret ballot elections. The union then objected to the election results arguing that the Electronic Communications Policy violated the National Labor Relations Act because it was overbroad and employees should have been able to use the employer’s e-mail system to help the union in its organizing efforts. At the trial level, the judge dismissed the allegations that the Electronic Communications Policy was unlawful. It applied a 2007 NLRB decision that allowed employers to restrict the use of its e-mail system.
However, in this case the Board voted 3-2 to overturn that earlier case and establish a new standard for employee use of an employer’s e-mail system for union activity or any other National Labor Relations Act protected activity. The Board decided that employee use of e-mail for protected communications on non-working time “must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The Board emphasized that it did not require that the employer allow employees to use e-mail, but if they did allow such use for business purposes they must allow it for union organizing and other protected purposes unless the employer could demonstrate “special circumstances” that would make a ban on non-work use necessary.
This ruling will almost certainly be appealed, and a court may or may not allow it to stand. Moreover, the NLRB has been a favorite agency of both parties for political show-downs in recent years, and with control of both Houses of Congress in the Republicans’ hands next year this may become a high profile issue.
In the meantime, employers should take this opportunity to review their own electronic communications policies to ensure that they reflect reality. Most employers tolerate some degree of personal use of their e-mail system, and those employers should make sure that their policies conform with their practices. If an employer has a prohibition against any personal use of e-mail, it should examine whether such a policy is really necessary and examine whether it might have “special circumstances” that could justify such a blanket prohibition. If not, the employer may wish to amend its policy rather than be at risk of the NLRB bringing a claim alleging that it maintained an unlawful policy.
What about the parenthetical in our headline: “(And It Wants to Take the Rest of Your Stuff Too)”? One of the analytical hurdles that the Board needed to address was the decades of precedent holding that an employer does not have to allow employees to use its equipment for union organizing purposes. Rather than attempt to leap or circumvent this hurdle, the Board ran right through it, stating:
The supposed principle that employees have no right to use, for Section 7 purposes, employer equipment that they regularly use in their work is hardly self-evident. We reject its application here and we question its validity elsewhere.
The Board followed this statement with a footnote announcing that it was explicitly overruling a 2005 case “to the extent that it held that the employer acted lawfully by prohibiting the employee from using a sheet of its used copier paper to notify coworkers about a union meeting.” These statements and the larger context of this case certainly imply that unless the employer can demonstrate “special circumstances,” employees are presumptively allowed to use any of the employer’s property that they use in their work for purposes of union organizing or other protected activity.
All employers, union and non-union, need to be aware of this significant development regarding electronic communications policies (and perhaps more general policies on equipment use generally).
Please contact Hugh F. Murray, III at 860.240.6077 or firstname.lastname@example.org or Michael Colgan Harrington at 860.240.6049 or email@example.com if you have any questions concerning the issues discussed in this article.
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Private sector union representation hovers at an anemic 6% of the eligible workforce, down from a high several decades ago when approximately 35% of the private workforce was represented. A divided National Labor Relations Board (“NLRB”) announced rule changes last week that, while likely doing little to change the long-term trend against unionization, will almost certainly cause headaches for those employers who do face a union organizing campaign. Combined with other recent and soon-expected NLRB decisions, employers facing any reasonable threat of union organizing need to take steps now to be prepared for an election petition. Given the new rules, there may not be any time to prepare after a petition is filed.
The National Labor Relations Act provides for an orderly process to determine if a group of employees wish to be represented by a union for purposes of collective bargaining. Under the law, the NLRB conducts a secret ballot election among employees in an appropriate bargaining unit. If a majority of those voting vote in favor of the union, then the union becomes the exclusive bargaining representative of all the employees in that bargaining unit. Once employees vote for a union, they may not have another election for at least a full year. If the union and the employer enter into a collective bargaining agreement, then an election cannot be held for up to three more years. Consequently, the initial election has significant consequences for both employers and employees.
Under current procedures, a petition for an election triggers a notice to the employer from the NLRB and a hearing, usually within ten days. At the hearing, the parties and the local Board officers determine which employees are eligible to be included in the bargaining unit. Elections usually occur within 45 days of the petition, and both sides use this period to campaign. They explain to the employees why they should vote for or against union representation. In select cases, this time period can be extended where particularly complicated issues concerning who is or is not eligible to vote exist or where the union files an unfair labor practice charge that delays the election.
On the eve of the Republicans taking control in the Senate, the Board majority decided that elections need to be held more quickly. The new rules, which go into effect April 15, 2015, dispense with many of the procedural issues that occur prior to an election and speed up several other processes. Among the new rules, which have been nicknamed “Ambush Election Rules:”
These changes mean that an employer who receives a petition for a union election among its employees will have little or no time to prepare between the petition and the election. Employers will need ready access to experienced labor attorneys and, if appropriate, experienced campaign consultants.
These changes come on the heels of another significant change in the law surrounding union representation, including the advent of so-called “micro-units,” which are bargaining units of smaller scope than would traditionally have been allowed and that may provide unions with a “foot in the door” to a workplace in the hopes of expanding in the future.
In addition, a number of other recently decided or pending cases at the NLRB complicate the playing field in terms of union organizing efforts. While these regulatory tweaks will do little to turn the fortunes of organized labor in the private sector, they do raise the chances that an employer in some workplaces will be surprised by an election petition and swift election.
Two Board members issued a lengthy written dissent to the new regulations, and argued at length that the Board was not only unwise in its decision but that it also exceeded its authority under the law. They predicted that a court would set the regulations aside. A court challenge is a virtual certainty, so employers will have to wait to see if the new rules actually go into effect. In any event, the current NLRB will likely remain very active and supportive of organized labor’s efforts to organize employees. Employers should prepare now for the actions they will take should an election petition arrive in their workplace.
Please contact Hugh F. Murray, III at 860.240.6077 or firstname.lastname@example.org or Michael Colgan Harrington at 860.240.6049 or
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The United States Supreme Court recently supported management interest when it held that the time warehouse workers spent waiting to undergo and undergoing security checks at the end of their shifts before leaving the warehouse constituted noncompensable time under the Fair Labor Standards Act (“FLSA”). Former employees who removed products from warehouse shelves and prepared them for delivery to Amazon.com customers sued for compensation. They argued that the approximately 25 minutes they spent waiting to undergo and undergoing security screenings at the end of their shifts and before leaving the warehouse each day should have been compensable. Employer Integrity Staffing Solutions, Inc. argued that the security screenings occurred after the end of the employees’ regular shifts and were not part of the principal activities for which they were employed.
The Portal-to-Portal Act contains the exemption at issue. It states that employers do not have to compensate employees for “activities which are preliminary or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” The Supreme Court has consistently held that “principal activities” are “all activities which are an integral and indispensable part of the principal activities.”
The Court reasoned that waiting in line for and undergoing a security screening were not the “principal activities which the employee is employed to perform.” Instead, Integrity Staffing hired the employees to retrieve items from warehouse shelves and package them. The security screenings were not integral or indispensable to the employees completing the principal activities of retrieving and packaging items to be sent. Further, the Court held that just because the employer required the employees to perform an activity does not in and of itself make the activity a principal activity. Rather, these screenings occurred after the completion of the employees’ principal job functions. The employees argued that their employer could have reduced the waiting time and security screening time by staggering shift terminations or increasing the number of screeners to make the time spent doing these activities de minimis. However, the Court rejected this argument and held that “[t]he fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”
The Supreme Court ultimately held that waiting to undergo and undergoing security screenings were not principal activities but instead were "postliminary" activities and thus, noncompensable activities.
Action Steps: Employers should first assess whether a required activity is integral and indispensable to performing an employee’s principal activity. If it is, then the time the employee spends doing that activity will likely be compensable. If it is unclear, then the employer should determine if the required activity could be classified as a preliminary or postliminary activity. If it is, then the time spent engaging in that activity will likely be noncompensable.
Please contact Hugh F. Murray, III at 860.240.6077 or email@example.com if you have any questions concerning the issues discussed in this article.
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Recently, the Massachusetts Attorney General issued an Advisory concerning leave available to employees under the Domestic Violence Act, which became effective on August 8, 2014. Generally speaking, the Domestic Violence Act requires employers to provide up to 15 days of paid or unpaid leave in a 12 month period to an employee who has been a victim of abusive behavior (or whose family member has been a victim), in order to seek medical attention, counseling, or legal assistance, or to address other issues directly related to the abusive behavior. The Advisory provides guidance about the Attorney General’s understanding and enforcement of the Act, without creating any additional rights or remedies. It helps clarify certain domestic violence leave requirements, without answering other questions.
For instance, the Domestic Violence Act applies to all public and private employers with 50 or more employees, but does not specify whether 50 employees have to be located in Massachusetts. The Advisory clarifies this by stating that the Act only applies to employers with 50 or more employees in Massachusetts.
Additionally, under the Domestic Violence Act employers are required to notify their employees of their respective rights and responsibilities concerning domestic violence leave. The Advisory clarifies that there is no mandatory form of notice to employees of such rights and responsibilities under the Act and proposes several possible methods of notice: describing the law in manual given to new employees, preparing an addendum to an existing employee manual, sending a memorandum, letter or email to all employees, or posting notice in a conspicuous place in a manner consistent with the requirements of a wage and hour posting.
Among the questions the Attorney General’s Advisory does not answer include (1) whether intermittent leave is available under the Domestic Violence Act, (2) whether the applicable twelve month period is fixed or can be rolling, and (3) whether domestic violence leave can run concurrently with available leave under other laws, such as the federal Family and Medical Leave Act and the newly enacted Massachusetts Sick Leave Law. Although the Massachusetts Attorney General may issue a further advisory before the Sick Leave Law goes into effect on July 1, 2015, employers will want to take stock of their existing leave laws and consult with counsel as needed to comply with the array of laws that may apply when an employee or family member is a victim of domestic abuse.
Please contact Susan J. Baronoff at 617.457.4031 or firstname.lastname@example.org or Monica P. Snyder at 617.457.4157 or email@example.com if you have any questions concerning the issues discussed in this article.
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