This week, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the National Labor Relations Board overruled a 2016 decision, and held that an employer does not have a duty to bargain over employee discipline with a union prior to reaching a first collective bargaining agreement.
The battle between a now pro-employer NLRB and labor unions continues. In the latest skirmish, the NLRB has announced its new election rule (which repeals Obama-era “quickie” election rules) will take immediate effect to the extent that a federal court has not struck provisions of the rule down.
The Obama NLRB issued rules for expedited union elections (disparagingly referred to by management-side opponents as “quickie election” rules) in 2014. Those rules deprived employers resisting unionization of many of the tools they had used for years to delay elections and vote counts, and to challenge election results they didn’t like. That all changed, unsurprisingly, with a Trump NLRB—but the NLRB’s own rulemaking process seemed pretty “quickie” itself, which became exactly the thing that labor unions challenged.
JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST
Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for…
As federal, state and local governments continue to develop their responses to the COVID-19 outbreak, employers may find themselves in uncharted territory as to how to deal with emerging employee issues.
There are three overriding rules that all employers should remember:
- Think safety first. Keeping those employees who are infected or at risk of infection at home to ensure that the rest of the workforce is safe should be the number one priority.
- Think about how you can keep your business going. Make sure your work-from-home policies and technology are up to date, and remind employees how to use them.
- Avoid stereotypes. Do not allow employees to assume that people of certain ethnicities are at a higher risk than others. If you become aware of any discrimination or harassment—stop it immediately.
Below are some general answers to questions our clients have been asking. However, please be aware that this is a very fact-specific and complex topic; COVID-19 related employment issues are evolving by the hour. Employers are cautioned to stay abreast of federal, state, and local government advisories, and to consult legal counsel before making employment decisions or changing policy.
With the arrival of 2019 novel coronavirus (“COVID-19”) to the United States, employers should begin thinking about strategies to mitigate business interruptions, ensure employee safety, and avoid unnecessary litigation.
Know Your Resources
Employers should continue to monitor reliable guidance provided by the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies. Understanding how COVID-19 is transmitted and what steps can be taken to protect diagnosed or exposed employees is essential to dispelling employee fears. Employers can educate employees on prevention and symptoms and should be prepared to answer employee concerns regarding workplace safety. The following are guides which may be helpful to employers:
- Up to date information on COVID-19 can be found here: Coronavirus Disease 2019 (COVID-19)
- The CDC’s interim guidance to employers can be found here: Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), February 2020
- Information regarding employee travel can be found here: Traveler’s Health
- The CDC’s Interim Guidance for Risk Assessment Guide can be found here: Interim US Guidance for Risk Assessment and Public Health Management of Persons with Potential Coronavirus Disease 2019 (COVID-19) Exposure in Travel-associated or Community Settings
On December 17, 2019, the National Labor Relations Board issued two decisions which dramatically overturn a pair of hotly debated Obama-era rules.
The first sets down a rule allowing employers to limit an employee’s use of workplace email to workplace-related subjects – a measure of control which was forbidden to employers under the earlier rule.
The second presents a new standard which allows employers to lawfully ban employees from discussing ongoing workplace investigations – another standard that make eminent sense in today’s “Me Too” environment.
NLRB Strengthens Employer Control Over Company-Owned Email Systems
The first of these game-changing decisions is Caesar’s Entertainment Corp, which overturns the much debated Purple Communications decision, which had limited an employer’s control over its own email system. Caesar’s Entertainment lifts this restriction by allowing employers to prohibit workers from using company-owned email systems for non-work-related purposes, including communications regarding union organization.
Caesar’s Entertainment reverses the controversial 2014 decision Purple Communications, Inc., 361 NLRB No. 126. In Purple, the NLRB declared that an employer may not ban employees from using company-owned email for union organizing activities after-hours unless the employer can show that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights” to use email for union-related purposes. Equating email communications with oral communications, the NLRB reasoned that email use deserves the same special protection against employer interference as employee union organization talk. Purple thus limited an employer’s property right in the email systems it creates and maintains, while fashioning only a frustratingly vague exception for “special circumstances.”
The labor movement sent a powerful and potentially revolutionary signal to the tech industry this past week on September 24: contract employees of HCL Technologies, working under a renewable contract with Google, voted to unionize for better salaries, benefits, and working conditions. Nearly 80 contract HCL employees stationed in Google’s Pittsburgh office joined the United Steelworkers trade union, which represents more than 850,000 American employees across various industries. Significantly, this marked the first time contract tech workers have unionized in the United States in an industry that is almost entirely non-union.
The vote for union representation strikes at the heart of the business model used by companies like HCL, a multinational Indian IT services company. Although the HCL employees who have been contracted out to Pittsburgh work alongside Google employees in similar positions, they contend that they receive less favorable benefits and less compensation for their work than do those employed directly by Google. This is often the case for contract workers, who are heavily utilized in the technology industry thanks to the lower costs of employing them. But these same contract employees have historically been less inclined to unionize, fearing that their employers will respond by declining to renew their contracts when the time comes. Indeed, some HCL Technologies employees expressed this exact concern, recognizing the possibility that Google would decline to renew its contract with HCL as a result of Tuesday’s vote.
In the first post-Epic Systems decision regarding arbitration agreements, the NLRB has underscored just how pro-arbitration courts and regulators have become. In Cordúa Restaurants, the Board put its stamp of approval on employers revising arbitration provisions even after employees file a claim. In doing so, employers can exercise more control as to how employees must bring their claims and—particularly, as in the case of Cordúa Restaurants, by limiting class and collective actions.
In Cordúa Restaurants, employees, as a condition of their employment, had to sign arbitration agreements waiving “their right to file, participate or proceed in class or collective actions.” Despite this agreement, some employees still filed collective wage and hour actions in federal court. Additional employees began “opting-in” to these collective actions.
In response, the employer revised its arbitration agreement so that employees waived their right to opt-in to a collective action. The agreement was revised to say “I agree that I cannot file or opt-in to a collective action under this Agreement, unless agreed upon by me and the Company in writing.” Employees had to sign this new arbitration agreement as a condition of employment.
In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).
So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment.…
Continue Reading The Rumor Mill Is Now Your Problem? Yes, According to the Fourth Circuit
In the decision rendered by the Supreme Court in Epic Systems Corp. v. Lewis, employers are able to enforce individual arbitration proceedings if arbitration was agreed to in an employment contract. Settling a Circuit split on the issue, the Supreme Court decision affirmed the Fifth Circuit holding in Murphy Oil, and remanded the Ninth and Seventh Circuit decisions in Ernst & Young, LLP v. Morris and Epic Systems Corp. v. Lewis. Justice Gorsuch, writing for the majority, found that “as a matter of law the answer is clear. [ . . . ] Congress has instructed federal courts to enforce arbitration agreements according to their terms–including terms providing for individualized proceedings.” (Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (slip op., at 2).
The Court, when looking at the Arbitration Act and the National Labor Relations Act (“NLRA”), decided the two provisions could be read in harmony. “When confronted with two Acts of Congress allegedly touching on the same topic, this Court is not ‘at liberty to pick and choose among congressional enactments’ and must instead strive ‘to give effect to both.’” (Id., slip op. at 10) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974). The Court was unable to find any “clear and manifest” intent, as required by Morton, of Congress to displace the Arbitration Act with the NLRA.
The Court found that their holding was consistent with the prior decisions in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32 (1991) and NLRB v. Alternative Entertainment, Inc., 858 F. 3d 393, 413 (CA6 2017) finding that the Fair Labor Standards Act and Age Discrimination in Employment Act do not displace the Arbitration Act. The Court likened the employee’s theory to an “interpretive triple bank shot” that “raise[s] a judicial eyebrow.” (Epic Systems Corp., slip op., at 15). Justice Gorsuch also reminded the employees that Congress “does not, one might say, hide elephants in mouseholes.” (Id., quoting Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). Therefore, the Court sided with the employers and held that “Congress has instructed that arbitration agreements like those before us must be enforced as written.” (Id., slip op., at 25).…
Continue Reading When Arbitration is in Play, Class Action is off the Table