LATEST CHANGES IN FEDERAL amp STATE LABOR amp EMPLOYMENT LAWS Anna ElentoSneed August 2015 Webinar Wednesdays CHANGES AT THE National Labor Relations Board US Department of Labor Wage amp Hour Division ID: 554325
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envision, strategize and actualize
LATEST CHANGES IN FEDERAL &
STATE LABOR & EMPLOYMENT LAWS
Anna Elento-SneedAugust 2015
Webinar WednesdaysSlide2
CHANGES AT THE …
National Labor Relations BoardU.S. Department of Labor, Wage & Hour DivisionEqual Employment Opportunity CommissionOccupational Safety & Health Administration
Hawai`i State LegislatureSlide3
NLRB - UNION ORGANIZING PROCESS
Old ProcessPetition filed
Hearing on bargaining unit held within 7 days of petitionElection held 30-42 days after petition (or stipulated election date)Election objections filed within 7 daysHearing on objections held after electionResults certified within 7 days of election, or after hearing on objections completedNew Process (“Quickie Election”)Petition filed
Within 7 days after petition, employer files position statement on proposed bargaining unitNo hearing heldElection scheduled 10-21 days after petition filedIf employer objects after election, then hearing held on bargaining unitEntire election process cut to 14 daysSlide4
NLRB - UNION ORGANIZING PROCESS
Organizing by “Micro Units”Union petitions to represent a “unit” of employees
Employers used to argue about appropriateness of unit:Similarity in skills, interests, duties and working conditionsFunctional integration of the plant, including interchange and contract amount employeesEmployer’s organization and supervisory structureBargaining historyExtent of union organization among the employeesNow employer must prove excluded employees share overwhelming community interest with those in the proposed unitPractical effect: Union’s proposed unit presumptively validSlide5
NLRB - UNION ORGANIZING PROCESS
Micro Units + Quickie Election =Union picks and chooses among disgruntled employee groups to select best micro unitGet quickie election with the micro unit, then use them as base to spread to next micro unit
Keep moving from micro unit to micro unit, staging the elections 3-4 weeks apartEventually when the unionized employees outnumber the non-union employees, petition the NLRB to automatically accrete the remainderSlide6
NLRB – UNION ORGANIZING PROCESS
Card
Signing
Begins
Petition
Filed
Election
Certification
Bar Ends
Critical Period
OLD Campaign TimelineSlide7
NLRB – UNION ORGANIZING PROCESS
Card Signing Begins
Recognition Occurs & Negotiations Begin
Negotiations Deadline
Election
Critical Period
NEW Campaign TimelineSlide8
NLRB - SOCIAL MEDIA
The Old “Rules”Employers may restrict use of company equipment (computers, cell phones, and email) to business reasons only
Employers may monitor employees using company electronic equipmentNo reasonable expectation of privacy if the employer has reserved the right to monitor usage and routinely monitors usageMonitoring must be based on legitimate, business reasonsE.g., City of Ontario v. Quon, 130 S. Ct. 2619, 560 U.S. 746 (2010)
City maintained written policy on monitoring use of City-provided pagers; officer exceeded usage limit; City investigated and discovered sexually explicit messages Officer and others sued for invasion of privacy and unreasonable search & seizureSearch lawful because it was: (a) motivated by legitimate work-related purpose; and (b) reasonable in scopeSlide9
NLRB - SOCIAL MEDIA
The New “Rules” According to the NLRBEmployee comments on social media may be protected activity
E.g., American Medical Response of Connecticut, Inc. and Intl. Brotherhood of Teamsters, NLRB Case No. 34-CA-12576 (2010)Employee terminated for posting negative comments about supervisor on Facebook was terminated; she filed unfair labor practice charge with NLRB for violation of Section 7 rightsNLRB ruled discharge violated federal labor law because employee was engaged in protected activity when she made comments about her supervisor and responded to comments from her coworkersSlide10
NLRB – SOCIAL MEDIA
The New “Rules” According to the NLRBEmployers
must allow employees to use company email for personal communicationsE.g., Purple Communications, Inc., 361 NLRB No. 126 (2014)Handbook policy restricted use of email, company computers and other devices to business purposes only; some employees were assigned email accountsCharge filed with NLRB alleging company policy overly broad and unduly restrictive on employees’ ability to discuss working conditions and terms of
employmentBoard framed the case as one involving “ACCESS” rather than “USE OF EQUIPMENT”NLRB ruled employers must grant access to employees unless they can show restrictions on access are necessary to maintain production and disciplineSlide11
NLRB – SOCIAL MEDIA
Implications of NLRB’s Decision in Purple Communications
Board has abandoned old rulings – now in “unchartered waters”Applies to unionized and non-union employersMany questions left unanswered and will require litigationDoes this apply to email from outsiders?Can employers monitor usage to prevent abuse?Who bears the cost of this new privilege?What happens with e-discovery if there is a dispute?Does this apply to other devices and/or social media?Slide12
NLRB - HANDBOOKSNLRB Also Scrutinizing Language in Employee Handbooks
Under National Labor Relations Act, unlawful for employers to interfere with employees’ rights to:Right to discuss wages, hours and other terms and conditions of employment
Engage in protected concerted activityExamining handbooks for overly broad languageSocial media policies (e.g. prohibition on discussions of work-related matters)Confidentiality policies (e.g. prohibition discussion of wages)Conflict of interest policies (e.g. personal interests v. company interests)Work rules (e.g. insubordination, disloyalty, use of company trademarks)Slide13
Old RuleJoint employers = “A” effectively & actively participates in control of labor relations & working conditions for employees of “B”Factors considered:Hiring & firing
Administration of disciplineHandling records, payroll, insuranceDirect supervisionParticipation in collective bargaining
New RuleJoint employer = 2 separate entities that “share or codetermine matters governing essential terms & conditions of employment”Factors considered:Hiring & work hours, assignment of work, direction & supervision, compensationAlso noted that “A” provided office space, email, equipment to “B,” and operations were integratedNLRB – JOINT EMPLOYERSSlide14
USDOL - PROPOSED CHANGES TO FLSA
Exempt EmployeesExempt from minimum wage & overtime requirementsExempt status determined by statutory
testCurrent criteria for exempt statusMeet “duties” testsBona fide executivesBona fide administratorsBona fide professionalsComputer professionalsOutside salesSalary RequirementPaid full salary/weekMinimum salary $455/weekSalary excludes board, lodging, etc.Slide15
USDOL - PROPOSED CHANGES TO FLSA
Increase minimum salary for exempt employeesProposed increase is for bona fide executives, administrative, professional and computer employeesMinimum would go from $455/week to $921/week
This would be $47, 892 per yearProduction bonuses would be added on top of that when calculating overtime payComments due by September 4, 2015Administration goal is to get them passed by end of yearNeed to watch State Legislature for bills to change State lawSlide16
EEOC – NEW “SPIN” ON SEX DISCRIMINATION
Title VII Prohibits Discrimination Based on SexTraditional definition of “sex” = male or femaleStatute does not mention “sexual orientation” or “transgenders”Now EEOC Pursuing Sexual Orientation and Transgender CasesNo change in statutory language
EEOC filing lawsuitsSome courts are sympathetic, while others are notNinth Circuit (which includes Hawaii) is sympathetic to the argumentIssue will eventually be addressed by U.S. Supreme Court and/or CongressStay tuned!Slide17
OSHA – TRANSGENDERS
OSHA Setting New Health & Safety StandardsJune 1, 2015 – employer guidelines for providing restrooms to transgender employees suggest three models:Permitting employees to use existing restrooms that correspond with their gender identityProviding single-occupant, gender-neutral facility for use by all
Providing multiple-occupant, gender-neutral facility with locks for use by allAlthough OSHA guidelines not binding, EEOC & OFCCP willing to enforce guidelines through Title VII Slide18
OSHA – WORKPLACE VIOLENCE
OSHA Enforcing “General Duty” ClauseNo specific regulations on workplace violence“General duty” clause requires employers to provide employee with a place “free from recognizable hazards” that cause or are likely to cause death or serious harmOSHA issued guidelines for preventing workplace violence – can be found at
https://www.osha.gov/Publications/osha3148.pdfE.g. August 2014, OSHA cited Brookdale University Hospital and Medical Center for failing to protect its employees from workplace violenceCase arose when patient assaulted nurse; OSHA issued fine for $70,000 Brookdale settled with OSHA in June 2015 – settlement for $10,000 and included agreement to implement comprehensive prevention and training programSlide19
HAWAI`I STATE LEGISLATURE – 2015 ACTSAct 4 re Notice of Labor Appeals Board
(LAB)Hearings (HB951 HD1)LAB handles appeals of workers compensation claims and HIOSH casesIf case is appealed, LAB notifies respondent by first class mail; if no response, notice is by publication in newspaper once a week for two weeks
New law – if respondent does not reply to mailed notice of hearing, LAB can either publish notice of hearing in newspaper for two weeks or post notice online on LAB webpageAct 137 re Porterage Charges in Hotels (SB1009 SD1 HD1 CD1)Requires hotels to either distribute porterage service charges to employees in full or notify customers that service charges are being used for other purposesDéjà vu!Act 158 re Non-Compete Clauses (HB1090 HD2 SD2 CD1)Prohibits non-compete and
non-solicitation clauses in employment contracts Only applies to employers in who bring in the majority of their revenue from software development or information technology services (ancillary services for software development) Slide20
HAWAI`I STATE LEGISLATURE – 2015 ACTS
Act 165 re Overtime on Public Works (HB391 HD1 SD1 CD1)Amends definition of overtime under Chapter 104 so that overtime is now a “minimum” of 1.5 times the laborers or mechanics basic hourly rate of payIf employer has a collective bargaining agreement, the OT rate in the collective bargaining agreement is the applicable rate
Act 190 re Background Checks (SB1113 SD2 HD1 CD1)Enables organizations providing mental health or health care services on behalf of the Dept. of Health to conduct expanded background checks of operators, employees, applicants and volunteersMay conduct criminal history record checks, sex offender registry record checks, adult abuse perpetrator and child abuse and neglect record checks, and certified nurse aide registry record checksAct 205 re Commuter Benefits (HB1010 HD1 SD2 CD1)Authorizes counties to enact ordinances requiring employers to provide transportation benefitsWill likely be preempted by ERISA Slide21
FINAL THOUGHTSThe State Leg continues to enact employee friendly legislation
The Feds are going “wild”The NLRB, USDOL, EEOC and OSHA – are taking aggressive stances in rulemaking & enforcement actionsThis will result in litigation in federal courts & Congressional actionsThe result is “uncertainty” for employers for years
Risk management is essentialPlanning is criticalAnd above all, keep watching for more updates! Slide22
FOR MORE INFORMATION …
If you have any follow up questions, email us at aes@esandalaw.comtgibo@esandalaw.comFor access to these materials, email
bdasilva@esandalaw.comWatch for our new website – www.esandalaw.com -- coming in September 2015 Our next webinar will be September 2, 2015 and will cover Everything You Wanted to Know About ERISA But Failed to Ask