On the heels of a new federal law requiring certain public federal buildings to provide lactation spaces, California has enacted one of the most expansive sets of protections for breastfeeding employees in the country. The California law which became effective January 1, 2020, includes provisions regarding break time, policy requirements, and specifications regarding the lactation room.
Last week, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued two new opinion letters which clarify how employers should calculate the overtime rate when employees are paid lump-sum bonuses and when employers can pay consultants on a per project basis while avoiding overtime requirements under the Fair Labor Standards Act (FLSA). While DOL Opinion Letters are not binding on any court, they are helpful guidance, particularly for employers, on how the DOL applies the law to the circumstances at hand.
The National Labor Relations Board (NLRB) delivered two New Year’s gifts to employers regarding deferral to arbitration and restrictions on union buttons.
U.S. employers wanting to hire foreign professionals should identify those eligible for H-1B sponsorship as soon as possible to allow sufficient time to navigate newly required procedures in March 2020, including using the H-1B electronic registration system. Employers petitioning for cap-subject H-1B hopefuls are now required to register electronically and pay a $10 registration fee between March 1 and March 20, 2020 to be entered in the yearly draw.
The holiday cheer keeps coming from the National Labor Relations Board (NLRB) with the release of three new decisions favoring employers: (1) workplace policies covering confidentiality during workplace investigations are lawful; (2) employers can restrict employees’ use of emails for nonbusiness purposes; and (3) employers can stop deducting and remitting union dues after the expiration of a collective bargaining agreement.
Employers can finally breathe a sigh of relief. Late last week, the National Labor Relations Board (Board) announced finalized union election rules, which will ease some of the quickie election procedures implemented by the Board in 2014. Perhaps most significantly, the new rule extends the time to the pre-election hearing from 8 calendar days to 14 business days, allowing employers, who are often blind-sided by union election petitions, a more reasonable amount of time to retain counsel and prepare for the hearing. The rule also returns to the pre-election process several important issues, such as determining which employees are supervisors, and prohibits elections from being scheduled less than 20 days after the election is approved or directed.
In 2014, the Board implemented what quickly became known as its “ambush election rules.” These rules significantly changed the existing election procedures by shortening the pre-election process, effectively making it easier for unions to win representation elections. Of the 25 amendments made to the existing election procedures, some of the more dramatic changes in 2014 included:
- Mandating that the pre-election hearing be held 8 calendar days after the filing of the petition, with extensions granted only under “extraordinary circumstances.”
- Requiring employers, for the first time, to file a “positon statement” outlining their arguments for hearing by noon on the business day before the hearing. Unions quickly learned to manipulate the filing of the petition to deprive employers of time to prepare their arguments and position statement (for example, filing the petition late on a Friday afternoon so that the hearing would be held on a Monday while the positon statement had to be filed by noon the Friday before).
- Prohibiting employers from raising any issues at the hearing that were not included in the position statement, or that did not affect a significant number of employees in the bargaining unit.
- Deferring until after the election took place the litigation of important bargaining unit issues, including which employees were supervisors ineligible to vote.
- Drastically reducing the time between when the petition was filed and when an election would be held. Prior to the ambush election rules, the average time to an election was about 38 days. Under the ambush election rules, the average time hovered around 21-23 days, meaning employers had little time to talk to their employees about the realities of unionizing.
These short deadlines often left employers scrambling to find counsel and prepare for the hearing. Under this pressure, many employers simply waived their right to raise important issues, such as which employees should be in the bargaining unit, and entered into stipulated election agreements without a pre-election hearing.
The new rule, while not undoing all of the 2014 changes, does allow employers a little breathing room. Most significantly:
More time to prepare for the pre-election hearing: As noted above, the rule extends the time to the pre-election hearing from 8 calendar days to 14 business days after the petition is filed. Not only does this longer time period allow employers a more reasonable amount of time to prepare for the hearing, it allows the parties and the Board more time to try to resolve issues prior to the hearing rather than needlessly litigating issues that might have been resolved through negotiation and compromise.
Requires unions to respond to the employer’s position statement: Previously, the entire burden leading up to a pre-election hearing rested on the employer. Employers were required to jump through a number of procedural hoops including posting notices, producing lists of employees, and filing a substantive position statement outlining all of the issues they intended to litigate at the pre-election hearing. Under the new rule, the union is now required to file a response to the employer’s position statement. As mentioned above, unions frequently timed the filing of petitions to deprive the employer of time to prepare for the hearing. Popular filing dates included the Wednesday before Thanksgiving and the Friday before Christmas when key managers and witnesses were unavailable to prepare for hearing. Requiring the union to respond to the employer’s positon statement not only transfers some of the pre-election burden to unions, it may make unions reconsider the timing of their petitions knowing they will have to substantively respond to the employer’s position statement or risk having their petition dismissed or the employer’s position on bargaining unit issues accepted.
Allows employers to litigate important election issues before the election: As before the 2014 rules took effect, disputes between the employer and the union over which employees should be included in the bargaining unit and which employees are supervisors who are ineligible to vote will once again be litigated and decided before the election. Knowing who is actually eligible to vote in the election is vital to an employer’s ability to effectively communicate with its employees about unionization. First, it allows employers to tailor their communication to those employees who will actually be voting. Second, employers routinely rely on supervisors to communicate with employees about the employer’s views on unionization during the time leading up to the election. An employer who mistakenly treats an employee as a supervisor who is later found to be eligible to vote risks having unfair labor practice charges filed against it and possibly having the results of the election thrown out if the employer wins. Employers will once again know up front which employees are supervisors and be able to rely upon those employees as part of its employee communications strategy.
More time to talk to employees before the election takes place: The new rule directs Board officials to set elections no fewer than 20 days after approval (in the case of a stipulated election agreement) or direction (after a pre-election hearing if no election agreement is reached) of the election. This change will come close to returning the pre-election timeline to the pre-ambush election rules average. Additionally, the Board’s regional officials will now have more leeway to extend deadlines in the election process, including the timing for notice of pre-election hearings and briefings.
The final rule will be effective in April 2020, about 120 days from the date of publication in the Federal Register, which is anticipated to be December 18, 2019. Until then, employers will still have to comply with the existing ambush election rules. We anticipate that unions will try to amplify organizing efforts in order to file petitions before the rules change, to take advantage of the more union-friendly 2014 rules. Even under the current rules, however, employers can still be successful in union elections if they are prepared and proactively maintain positive relations with their employees.
|Petition Filed||Pre-2014 Rule||2014 Rule||New Rule|
|Position Statement Filed||Not required||Noon on the business day before the hearing||8 business days following the service of the Notice of Hearing|
|Union response to position statement||Not required||Not required||3 business days before hearing date|
|Pre-election hearing||Generally about two weeks after petition filed||8 calendar days after petition filed||14 business days after petition filed|
|Election date||Within 42 days of the petition filing (on average 38 days), or about 25 days after the direction of election||As soon as practicable (average 21-23 days but as little as 3 days in at least one case)||Not sooner than 20 business days following an election agreement or direction of election|
Contact your Akerman attorney if you need guidance in preparing for potential union organizing or improving your relationship with your employees.
The latest catchphrase in the ongoing generational battle between Millennials and their more senior counterparts may have consequences for employers if permitted in the workplace. The phrase, “OK, Boomer” has increasingly gained popularity among Millennials and Generation Z’ers as a way of dismissing comments or habits from older generations that they view as out of touch. The term was initially coined in response to an online video rant by an unidentified older man, in which he criticized younger generations for their sensitivity and perceived failure to launch, calling them “snowflakes” and “Peter Pans.” The term has since expanded from its initial meme form to become increasingly used as an in-person retort – most notably on the floor of Parliament in New Zealand.
As the phrase becomes more common, so does the risk for employers. Because the “Boomer” in “OK, Boomer” refers to the Baby Boomer generation, which consists of individuals born between 1946 and 1964, its ageist undertones can run afoul of the Age Discrimination in Employment Act (ADEA) and its state law counterparts. These laws protect workers age 40 and older from age-related discrimination. Notably, it is the effect of the language, not the speaker’s intent, that determines whether the use of a potentially ageist term creates a hostile work environment for older workers.
Employers who compensate non-exempt employees based on the “fluctuating work week” method, take note. Last month, the Department of Labor issued a proposed rule that would permit employers to supplement the salaries of such employees with additional non-overtime payments, such as bonuses and other incentive pay. This is great news for employers and employees, and here is why.
Last month, New York City joined an emerging national trend toward increased protections for independent contractors and freelance workers, adopting a new law, Int. 136-A, extending to independent contractors and freelancers the protections afforded to employees under the city’s Human Rights Law (NYCHRL).
Effective January 11, 2020, the NYCHRL will apply to employers that employ four or more persons – now defined to include independent contractors and freelancers – during the twelve (12) month period before the start of an unlawful discriminatory practice, and continuing through the end of that practice.
As a result, independent contractors and freelancers will be able to file complaints with the city’s Commission on Human Rights, and they will be protected against retaliation for reporting discrimination or harassment. Employers should be prepared to apply the NYCHRL’s protections to independent contractors and freelancers, including: New York City’s salary history question ban, preventing employers from inquiring into an applicant’s salary history before extending an offer; the Fair Chance Act, which prevents employers from inquiring into an applicant’s criminal record before making a job offer; and the Stop Credit Discrimination in Employment Act, restricting employers’ ability to conduct credit checks on applicants and employees.
Companies should take steps to ensure that their websites and mobile apps are accessible to persons who are blind or vision impaired, based on the Supreme Court’s recent refusal to review an appellate court decision that allowed a blind man to sue a national pizza chain under the Americans with Disabilities Act.