I returned to my alma mater again this year to deliver a repeat performance on the principles of negligence to a Higher Education Law and Public Policy class. Hopefully the students enjoyed the assignment as much as I did.
The National Labor Relations Board (NLRB) is in charge of enforcing the National Labor Relations Act (the Act), the primary law regulating U.S. labor-management relations. Although many newsworthy NLRB decisions have been favorable to management, there are potential pitfalls. Here’s a summary of the most impactful decisions over the last few months and what employers, managers, and front-line supervisors should take away from them:
UPMC: Employers Can Restrict Union Access to Public Areas
In a win for employers, the NLRB held that an employer can eject non-employee union activists even from areas of its property that are open to the public.
An employer generally is the master of its property, with the right to allow or eject anyone it wants to from the property. Over the years, NLRB precedent created a “public space” exception– areas of the employer’s property open to the public had to be open to the union. The UPMC decision overruled that precedent, giving employers more latitude to regulate who can enter public areas of the workplace.
The takeaway? Use caution! Although employers generally have the right to eject non-employee union agents from their premises, there are notable exceptions that could still get you into trouble.
Prime Healthcare: Employer Forced to Rescind Arbitration Agreements
In a pro-employee decision, the NLRB forced an employer to rescind arbitration agreements with its past and current employees.
Employers cannot have a policy on the books that would interfere with an employee’s rights under the National Labor Relations Act. 29 USC § 158(a)(1); Boeing Co., 365 NLRB No. 154 (2017).
In Prime Healthcare, the employer’s arbitration agreement required that all claims– with limited exceptions for things like workers’ compensation and unemployment– had to be brought in arbitration.
If all claims have to be filed in arbitration, then, the Board reasoned, an employee may reasonably believe that he or she would be unable to file charges with the NLRB for unfair labor practices. There was no legitimate justification for such broad language.
The takeaway? Have your arbitration agreements and employment contracts reviewed periodically. Even non-unionzed workers have protections under the NLRA that you need to be mindful of.
Velox Express: Misclassifying Workers is not a Violation of the NLRA
In this employer-friendly decision, the NLRB held that incorrectly classifying workers as independent contractors is not in itself a violation of the Act.
The protections of the NLRA generally only apply to non-supervisory employees. Supervisors and independent contractors do not have protections under the Act. However, the Board found that an employer’s communication to its employees of its opinion of their classification is not, without more, a separate and distinct unfair labor practice.
The takeaway? Don’t let this decision lull you into a false sense of security. Many independent contractor classifications are incorrect. As an employer, you could run into problems with the National Labor Relations Act, the Fair Labor Standards Act, state workers’ compensation and unemployment laws, and more. These sorts of violations can have severe impacts on a business’s bottom line.
Kroger Mid Atlantic: Employers Can Ban Union from Conducting Protest Activities Onsite
In another pro-management opinion, the NLRB held that non-employee activists could be barred from an employer’s property, even when other civic, charitable, and promotional groups are allowed onsite.
In this situation, a non-employee union agent was at a Kroger trying to stir the pot–he was soliciting a customer boycott to bring attention to employment conditions.
Nothing in the NLRA demands that employers grant non-employee union members access to their property. However, the Board previously held that emploers had to allow union activists on the property if other non-union groups were allowed onsite for civic, charitable, and promotional activities. See Sandusky Mall Co., 329 NLRB 618 (1999).
However, in Kroger, the Board explained that the “non-discrimination” exception has to be analyzed in the context of the type of activity conducted. For example, the girl scouts can come sell cookies, but that shouldn’t mean a union rep can come and solicit a customer boycott!
The takeaway? Your legal and labor relations team may be up to speed on various labor laws. However, it’s your front-line supervisors that will often be called upon to make these decisions. It’s important to undergo periodic training so they understand both union and management rights.
Despite the overall trend in favor of employers a couple things bear repeating:
First, you need to make sure your front-line supervisors and managers are up to speed on management rights. Second, it’s critical that you have your employee policies, contracts, and arbitration agreements periodically assessed for compliance with steadily shifting labor laws. Lastly, and most importantly, do not forget that employees are often still protected under the NLRA, even if there’s no union in your workplace!
Whether your workforce is unionized or not, please contact me with any questions or comments you have about this post. Did I miss any big cases? Let me know by clicking here.
May 6, 2019
These days, keyboard warriors are taking to social media to dispense their own brands of internet justice. Most of the time, this practice is highly annoying but otherwise pretty harmless… Until a social-media shenanigan crosses the line, which can result in unintended consequences, even problems at work. In the digital age, where social justice is at our fingertips, employers and employees should understand their rights (or lack of) with respect to social media usage.
April 10, 2019
I had the honor of addressing a large group for the Livonia Chamber of Commerce event, “Forum for Employers in an Era of Recreational Marijuana.” As an added bonus, WWJ Radio did an exclusive interview with the panelists, which aired shortly after the event.
Liability for wage-and-hour violations under federal employment laws may flow through to a successor business entity, even if a transaction is structured as an asset sale, rather than a stock sale.
Should an employer and employee be allowed to agree to delay or extend FMLA leave? In the past, those arrangements allowed employees to use paid time off (PTO) either before the start of FMLA leave or to extend the duration of FMLA leave. However, a recent change in position at the Department of Labor makes this type of employee-friendly arrangement a violation of the FMLA.
Employers and retirees should check with their trusted advisors to determine whether a lump-sum pension buyout would be advantageous.
The US Department of Labor is proposing a new rule to raise the salary threshold for overtime exemption, which would have a significant impact on employers’ budgets and employees’ salaries.
A 60-year-old woman made news headlines in January when she was awarded $21 million dollars by a Florida jury because her employer refused to accommodate her Catholic missionary work. The employee, Marie Jean Pierre, needed Sundays off in accordance with her religious beliefs, and for years, the company accommodated her. When the company began scheduling Pierre for Sundays, she adapted by voluntarily switching shifts with other workers. However, Pierre’s boss finally ordered her to work a Sunday, and when Pierre refused, he fired her.