Reflections: 2023 in Review

2023 generated more than the usual number of important labor and employment developments. Jim Wimberly will discuss his views on the most important developments.

1. The effect of NLRB Cemex ruling requiring union card-checks.

2. New EEOC harassment guidance expands the law.

3. DEI programs require modification as of the Supreme Court ruling.

4. How new AI developments affect employment policies.

5. New wage-hour rule to dramatically increase salary requirements for exemption.

6. New reasonable accommodation requirements for pregnancy and religion.

7. New Independent Contractor Regulation causes concerns.

8. Major union successes and changes in organizing.

9. Federal attacks on non-compete agreements.

10. Labor Board attacks on employer handbook rules.

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Webinar Transcript

James W. Wimberly (00:00):
<Silence> Hello everybody. I'm Jim Wimberly and appreciate you participating in our webinar today. It's quite a few people participating. Some will be joining us as we move on. You can type in questions at any time. I'll try to get to 'em at the end. As always you know, we're scheduled to end at 1245, but I'm going to stay on and answer questions as long as they keep coming, and we'll probably unmute you so that you can not only type in questions at the end, but give 'em live. But you can go ahead and type 'em in as I'm proceeding, and I'll try to get to 'em as I proceed. We have a very ambitious set of topics today. It, it's 10 topics that I personally consider the most important labor and employment developments over the past 12 months. And so I'm gonna jump right in.

James W. Wimberly (01:04):
The first one being the Cmex Labor Board ruling. Now, I know not many of you fear union campaigns, but this is such a dramatic development that everybody needs to know about it. Many of us have heard of the so-called Proac, which was a Christmas tree wishlist of organized labor, IE union demands or proposals in Congress to make it easy to unionize employers all over the country. Most controversial part of that legislation was a so-called card check Provision. A card check means that there's no secret valid election that unions become representatives just by having signed what we call authorization cards from a majority of employees in the proposed represented bargaining unit. This legislation never has passed Congress. I think it passed the House of Representatives, but never the Senate. It was very close in the Senate, but there weren't enough votes for it.

James W. Wimberly (02:20):
Now, this Cemex case does by an administrative rule in a case what this pro ACT's most controversial provision never could get through Congress. So it's very dramatic. And what I'm gonna do on each issue, I'm gonna tell you what the outcome is, and then I'm gonna give you my spin or editorial comments on it. The Cmex case rules. But if a union makes a demand for recognition of an employer, could be verbal, but is usually in writing, says something like, we represent a majority of employees at your company among the following group, and it describes like a production and maintenance group, and we want you to recognize our union. And if you doubt this we'll prove it to you. Words to that effect. The union makes that kind of demand and can later show that it actually has proof that a majority of employees have signed little cards indicating they want union representation.

James W. Wimberly (03:39):
The employer is stuck with a union unless it itself asks for election, an election with within two weeks and commits no unfair labor practices. Now that burden on the employer, I guess it's easy for the employer to request an election, but not to commit any unfair labor practices, even though they're simple, innocent, unintended, whatever, maybe involve just one employee, maybe involves just a single handbook rule or company policy that's overbroad and illegal, which is another subject we're gonna talk about today. It stuck with a labor union as proven in the litigation that the union had a majority of employees signed up. So this is a very dramatic thing. I mean, to show you how dramatic, if you compare the six months after this ruling came out to the six months before it came out, and I'm not exaggerating this number, there's a 2700% increase in employer petitions for secret ballot elections.

James W. Wimberly (05:02):
So employers are realizing they gotta follow this new rule to avoid being stuck with a union. Secondly, I think it's having dramatic effect outside just the number of petitions in the, like, the most publicized labor dispute over the past year. As far as union organizing, it's been the Starbucks campaign. In December, last December, Starbucks reached out to the union and said, let's settle our differences. Let's come to the bargaining table. And after fighting the union tooth and nail for several years very dramatically Starbucks and its in essence reached out to the union to settle everything and come to the table, which is gonna ultimately result in large portions, if not all Starbucks, several thousand stores becoming organized by a union. And I think this Cemex ruling had something to do with it. So what's the message to employers? Well set up internal procedures to avoid union organizing to the extent possible by having effective procedures for employees to bring complaints to management. Let employees know of your union free policies, perhaps in orientation. Make sure your handbooks have good and fair policies that are legal and get competent experience Labor Law Council, if there's any organizing going on in your area, because this is a big deal. Number two, I'm moving to the second topic, the EEOC harassment guidance.

James W. Wimberly (06:48):
Now this guidance was put out also over the last 12 months, and it differs significantly from some guidance that the Trump administration proposed but never finalized. The Trump guidance basically followed existing case law, frankly, it was a very helpful outline of what the sex harassment or all type of harassment rules and concepts are. But the Trump proposal got tied up in the issues of, of lg QT and all those kind of things, and they never finalized it. So the new guidance came out this year in the current administration. And rather than just following the existing case law, in my opinion it advances the case law. It aggressively approaches the issue. And I'll just give you a couple of examples. Number one one of the strongest defenses and easiest defenses an employer ever had to any legal claim was the existing legal doctrine.

James W. Wimberly (08:02):
That if it was just hostile environment sexual harassment, and the employee had not reported the harassment to the employer in accordance with the employer's procedures, the employer was outta court. In other words the company wasn't made aware of the harassment by the employee and therefore had no time to react to it. Well, the new guidance gets away from that. It sets forth all kind of exceptions. The, if the employee has a reasonable belief that reporting, it wouldn't be effective if the employee feared retaliation from reporting the harassment and, and other such exceptions. So it waters down the concept that an employee must report hostile environment harassment to the employer, and the employer must fail to investigate and take appropriate remedial action for the employee to have a case. Now, this sets a lot of it. Will this become the law of the land?

James W. Wimberly (09:08):
We don't know, but obviously plaintiff's attorneys will cite this guidance, which is not a rule of law. It's guidance. It's only binding on the courts to the extent it's persuasive, but still it's helpful to claims. Now, the other things in this new harassment policy that kind of stretch the law, but what is the, the practical effect on us? One in light of this and some other developments we're gonna talk about today, we're probably gonna need to revise, correct and modify our harassment policies and our equal employment policies in general. They are, it is important that such rules be carefully worded if there's ever a need for a magic language coming from a lawyer, these types, situations are in that category. So secondly another lesson to us is to further expand our investigations and be more careful and thorough in our investigations.

James W. Wimberly (10:24):
So that's number two. Number three, DEI, diversity, equity inclusive programs, affirmative action, if you will. A case came out from the Supreme Court this year, this past year. That was not a great surprise to me, that simply says it's fine for employers to have affirmative action programs. Indeed. if you're a government contractor, they're required nothing wrong with such problems, but you can't base individual employment decisions on the basis of race, sex, age, et cetera. What affirmative action means is outreach recruitment setting goals. It doesn't mean basing each employment decision on the basis of race. Now, some people say that, gee, this is dramatic change that's gonna make it hard to have affirmative action programs. I disagree. This new Supreme Court decision last year is totally in line with the government contractor requirements that have been around for 30, 40 years as to affirmative action programs. They also state you can have goals timetables, outreach. As a matter of fact, the government guidelines for the federal government contractors require goals, timetables, and outreach. But they also emphasize you can't base individual employment decisions on the basis of race, sex, and so on. So what does that mean to us in the employment community? Well, I think two things.

James W. Wimberly (12:22):
Some in their affirmative action programs have gone a little bit too far, and the courts have considered them quotas, which are not part of the law. Quotas really have never been a part of the law. Quotas mean I must hire 10%, one race, 15% of another, and so on. So some plans that suggest they have quotas need to be revised. That's one meaning from this decision. A second meaning from this decision is that you're, there are gonna be many more lawsuits that are sometimes referred to as reverse discrimination, where the majority race or sex claims discrimination, and we're already seeing that. So that's the two lessons to come from the Supreme Court case on affirmative action. As I say, I don't consider it personally harmful to affirmative action. It requires more careful affirmative action, but it doesn't take away the need and the propriety lawfulness usefulness of affirmative action. It, it just means that that affirmative action has to do more with recruitment and giving people opportunities rather than having a quota system or basing an individual employment decision on the basis of race, sex, and so or so on.

James W. Wimberly (14:06):
Next topic, number four, AI developments, artificial intelligence and how that affects employment. Well there's no question, but the modern AI concept is revolutionary in the sense I mean, it's getting so in the legal profession that you can ask AI to give you an opinion on any legal issue. You can ask AI to write a brief for you and so on. Now, the court systems are really, are cool on this because AI didn't always work, and they can sometimes bring up fictitious things. It's not always accurate. It's kinda like a lie detector test. You know, we know that lie detector tests have some tendencies to be accurate, but they're darn sure not. I used to teach polygraph, believe it or not, many years ago when I was in the military police. And I litigated polygraphs in employment cases, primarily labor arbitration probably 25 times.

James W. Wimberly (15:18):
And you know, they're generally 80% accurate, but, you know, that varies. So AI sort of has the same tendencies. Now, some people think or would say that AI is new to employment. It's really not new, not to mention any names, but I heard a presentation by a major Fortune 500 company. Matter of fact, it was a Fortune two 50 company that it used allic sorry, methods in hiring beginning 10, 15 years ago. They had hired professionals to come in to design a pre-employment system for them that would give them reports on whether they thought a worker would follow directions of management, whether they thought a worker had a tendency to stay with an employer, just to not be a short term employee. And they came out and announced that after coming up with this program they had had counsel and deemed it legally supported by the law, and it was saving 'em a lot of money and hiring good employees.

James W. Wimberly (16:47):
And this was 10, 15 years ago. What we have now in employment is simply an outgrowth of that concept that's really been around for 15 or 20 years. E everybody knows about psychological testing and that sort of thing that's been around longer than that. So this is just, you know, kind of an outgrowth of that concept. And the law applied to such situations is not new. As a matter of fact the EEOC came out with what they call the uniform guidelines on employee selection procedures back in 1978. And that is still the law that will be applied to allegory testing procedures, I would say, to help us select and promote good employees or evaluate applicants or what have you. What these guidelines say, by the way, and I'm gonna simplify it, but if any selection criteria, any selection criteria, any tests, any criteria I litigate, litigated a case all the way to Supreme Court.

James W. Wimberly (18:05):
I was co-counsel. I literally carried the bags of my senior partner back in the seventies in which the plaintiffs alleged that an employer in the trucking industry couldn't require applicants to have a year of experience driving a truck because there weren't many women in trucking. And therefore, having a one year experience requirement adversely impacted female applicants. I've had other cases most recently, one, dealing with a company policy that they weren't gonna rehire a person who'd been employed three times previously. You know, they thought they would reduce turnover by placing limits on rehiring the same people over and over who would then quit and come back and apply later. Now, if the use of these criteria, the education requirements, was the first case company requirement, a person to be a high school graduate, if they adversely impact statistically any protected group and everybody's in a protected group, Caucasians, African Americans, Hispanic, male, female, older people, people, different religions, you go on and on if they adversely affect any of those groups statistically, then it, it's illegal.

James W. Wimberly (19:37):
Unless the employer shows a real business need for that criteria, the law calls a job related business necessity. In other words, does this criteria do what it's supposed to do? Does it lead to a legitimate business decision? Now, all that's more technical really in reality. But I want to give you this overview that AI is really not as new as it's made out to be in terms of making employment decisions. It's been around for 10, 15, 20, maybe more years, and the rules have been out there a long time since 1978. But I do think it offers opportunities in employment. As I say, I heard a presentation from this Fortune 500 or two 50 company years ago. It took 'em a long time to develop their program, but they thought it actually led to better hires, saved them money. Next item number five, new wage hour rule to dramatically increase salary requirements for exemption. Well, in under the wager laws, there are categories of employees to which you don't have to pay overtime for hours worked over 40. The most common and well known in the subject of this new rule is a so-called white collar exemption, which applies to executive administration, administrative and professional employees to come within that category and thus be exempt from overtime. They have to meet two basic standards, number one actually three, they have to be salaried.

James W. Wimberly (21:39):
They have to have duties which are technically defined and we won't go into today in the interest of time as leading to being determined as executives, administrative or professional. And then finally, their salary must be at a certain level just because their salary doesn't make 'em exempt. The salary has to be a certain level. Well, the salary level necessary to be exempt from over time is varied over the years. It's currently around $35,000. The new rule would raise this to something close to $60,000. It's supposed to come out later this year. We don't know exactly what the new salary test will be. The proposed rules suggest it's gonna be in the $60,000 range. It may end up less. I don't think it'll be more. But a second feature of this new rule is it will be adjusted in line with inflation. So this will be a big deal when it comes out.

James W. Wimberly (22:46):
Now it's gonna be legally attacked. It may be delayed after it initially comes out. And I can't conceive of any effective date before January of next year. It'll probably be later 'cause it'll be delayed probably in litigation. But eventually it's gonna happen. And we'll have to look at all the salaried people we have that we consider exempt and decide, number one, whether we're gonna raise their salary to still be exempt. And number two, whether they're gonna start paying them overtime. And believe it or not, being salaried is considered a very prestigious thing. People like being on the salary. And if we put such persons on an hourly basis, they consider in their own mind they're demoted. So it's it's gonna be complicated, and how we handle this is gonna be complicated. Do we raise a salary? Do we start paying 'em overtime?

James W. Wimberly (23:50):
And then we'll have to figure out what method we're gonna use to pay 'em overtime. And it goes beyond the scope of this program to go into detail on this. But there are two ways to pay a salaried person overtime. One is to pay 'em time and a half. The other is to pay 'em halftime <laugh>. Now you might say, well, I want to choose the halftime option, run the time and a half to save money. You can do that, but there's specific ways to carry that out. The payment for halftime is called fixed pay for fluctuating hours. And essentially it means the salary covers all the hours they work, whether it's 30, 40 or 50. And so to pay 'em time and a half, you only have to pay 'em the additional halftime for the hours worked over 40. So that's the way that method of paying overtime works. Of course, if we take people and put 'em on overtime, we also gotta put 'em on our timekeeping system, and that raises issues as well.

James W. Wimberly (25:01):
Now we move on to number six, new reasonable accommodation rules for pregnancy and religion. In any workforce of any size, we're gonna have numerous people that are religious, that feel strongly about their religion and want to recognize their religious dictates. And also, in any workforce, we're gonna have persons that are pregnant, have been pregnant and want to become pregnant. And there's been a tremendous move in Congress as well as state legislatures to make it easier to be pregnant and less harmful to their employment. And for the longest time really up to now, pregnancy is not considered a disability. So pregnant females couldn't take advantage of the a DA rules, and employers were still allowed to set rules that they equally applied to everybody, and sometimes pregnant females came up short in the process. So Congress made it clear in a rule of law passed this year that it's called the Pregnant Workers' Fairness Act that went into effect on June 27th, 2023.

James W. Wimberly (26:47):
And that now makes pregnant females or pregnancy related conditions, which is a broad term, goes way beyond childbirth. They've expanded the current protections to give pregnant females the rights of a person with a disability. And even more than that. So this is a change in the reasonable accommodations necessary to pregnant females or conditions related to pregnancy childbirth. Just to give you an example of how strongly the reasonable accommodation has to be this is the only such accommodation that I know that goes on to say that even if the pregnant female can't perform all essential functions of the job, then we still have to accommodate 'em, even though they can't do all the essential functions unless it's an undue hardship. So essentially, we now have the a DA concept and more of reasonable accommodation applicable to the broad definition of pregnancy, childbirth, and related conditions.

James W. Wimberly (28:10):
And it is in effect, and it's the law. Second, change in reasonable accommodations, religious accommodations. The most typical situation is a person being unwilling to work on Saturday, unwilling to work on Saturday, wanting to take different religious holidays and things of that nature, but it goes beyond that. Now, <laugh>, just to give you examples, there are a lot of religious accommodation cases coming up now involving nurses that won't perform abortions or similar actions involving teachers that don't want to call transsexual persons by their claim category if it's not their biological sex. And it's a whole host of ways dress in which religious accommodations become an issue. So for for many years, it was felt that religious accommodations were entitled to less consideration than others. The Supreme Court had suggested in the case years ago, I think, ruled in that case that anything that was more of a de minimist cost to the employer was an undue hardship, and therefore the employer didn't have to accommodate. Perfect example.

James W. Wimberly (29:50):
If you had to pay another employee overtime to work a missing employee straight time, that was an undue hardship on the employer. So the employer did not have to accommodate the religious practice. Well, Supreme Court came out with a new case, they didn't, it's called Gro v DeJoy, if you want the name of it. And it said, we wanna clarify <laugh> de Minimus standard. Now, I don't think they clarified it. I think they changed it, but that's what they said. They were clarifying. Now they say that the de minimus additional cost is not the law. At least it's not the law anymore. And the new test means that undue hardship to the employer is only shown if the religious combination burden is substantial in the overall context of the employer's business, considering all relevant factors, the nature, size, and operating costs of the employer. But then they do say Only God, it, they give us, it's not as major as the undue hardship test under the Americans with Disabilities Act, in which undue hardship can only be met if there's significant difficulty and expense to the employer. And they refuse to give us details as to how this new test applied. They did say, which I think is helpful, that they thought most of the EEOC's current guidance was still applicable. And they gave us a couple of bright line rules as to how they would come down on issues.

James W. Wimberly (31:48):
They said it wouldn't be an undue hardship or considered an undue hardship on the employer if the accommodation of the religious person burdened other coworkers. In other words it's not an undue hardship to allow a Saturday religious accommodation day off or Sunday if other people have to work overtime. So there we are. We have an So we, what we're left with ladies and gentlemen, is we've got now three sets of religious accommodation principles. They're all called accommodations. They all use a version of the concept of undue hardship. And unfortunately, they're all three different <laugh>. So we got one set of reasonable accommodation rules in the case of a person with a disability. And that right now is the most strenuous on employers because the employer has to go a long way to accommodate a disability in the middle. We've got religious accommodations for pregnancy and religion.

James W. Wimberly (33:16):
And then of course we have religious accommodations. Well, it's a DA religion and pregnancy related issues. Those are the three type accommodations that we have to give. Now, what is my word to the audience here as to how to deal with these three? Number one, I think we can help ourselves a lot. Please listen to this by coming up with a religious accommodations policy and procedure publish all employees posted on the bulletin board and employee handbooks. And we should specify coming to a central place where there's a knowledgeable person, most likely your human resource official at that particular facility in which the employee is required to fill out a form to request the accommodation. And I suggest a simple form in which the employee says I'm requesting a reasonable accommodation for, have a check place of the three categories, and then have a a place for them to fill out the details of why they need the accommodation and what the requested accommodation is. The employer is allowed to have such a procedure. The employee is required to follow the procedure with one exception. There are some pregnancy accommodations that are so minor and standard that the employee is not required to fill out any written paperwork to have it granted. It's assumed to be reasonable under the law. Now, it's also important to designate a particular official who, to which such requests should be given, in my opinion. And let me give you a horror story, and I actually had two of these cases litigated.

James W. Wimberly (35:41):
An employee walks off the line production line without asking permission or telling anybody walks by the front of the plant and says to Clark, I'm leaving FMLA company fires the employee walking off the line, a job without permission. First thing I say, well, let me see your FMLA policy understanding under the law we can set forth in our written policy to whom such requests must be made. I found the employee was in full compliance with all the posted company policies on FML Life. We had to settle the case or lose it. So that's an example of why these new obligations to reasonably accommodate or so important, why we need to update our policies to be consistent with these new requirements. Because if we have bad definitions of this, it's gonna be considered illegal, and the presumption is gonna be against us in any claims or litigation.

James W. Wimberly (36:57):
And given a designated person to which the accommodations should be made, all of these forms that I would ask them to fill out are gonna be short and simple. They will contain a few particulars that will assist us in carrying out the process, which means engaging in an interactive process with the person. You know, that's the magic term from the a DA from the religious or from the pregnancy accommodation rules. And you might as well extend it to the religious accommodation rules too. We have an interactive plot process with the employee, the idea that the employee tell us what they want to change, how they want to change it, and we discuss with 'em the, our ability or inability to grant that request. Sometimes if you go through all the right procedures, you end up the right way in court. Sometimes you can have a good case, a good defense, but you hadn't followed the proper procedures and you get nailed in court words to the wives.

James W. Wimberly (38:07):
Number seven, independent contractor regulation. I gotta move faster. Now. this new independent contractor rule was issued on January 10th, 2024. I cheated a little bit. I I did say last 12 months rather than calendar year 2023. But they, these rules go into effect March 11, which is what, 10 days, days off, I think. They don't change that much, but they do make some changes. In short, it used to be under the Trump rule, during the Trump administration that the difference between a worker, an independent contractor is that if you're a a, a A work a worker, the employer reserves the right to direct the manner in which the job is done as opposed to just the end result. It was the element of direction and control that may one, an employee or an independent contractor, the new rule expands that and makes it more difficult to be considered an independent contractor.

James W. Wimberly (39:29):
Indeed during the Obama administration guidance memo, not effective law came out that said, we think all workers are employees. That's the presumption. And it's only through these strict exceptions that we would consider a worker to be an independent contractor. It's not that the new rule doesn't go point that far. Uber even came out and said, we think we can live with a new rule. Now, some say they did that to police shareholders rather than fact, but in any event the new rule sets forth a multi-factor analysis that I don't really have time to get into. It just complicates it a bit more. So what's the words to the wise on that? If you've got a contract worker, have a contract and the contract better be very correctly and specifically work. That's the words to the wise. This you know, vitally affects all employers because whether you're a worker or an independent contractor makes a big difference. An independent contractor doesn't have the rights under the employment rules. They can be discriminated against in some cases. They can't organize a union, they don't have to have taxes with them. All kind of considerations are applicable to employees, but not to independent contractors. Number eight, gotta pick up the speed here.

James W. Wimberly (41:08):
Major union successes and changes in organiz. I'm going to be very brief on this one. Although the percentage of workers in the private sector that are members of labor unions is an all time low. 6%. You heard me right? 6%. Now, some say, oh, I heard it's 10%. Well, that's all employees, public and private. But in the private sector, it's just 6%. Gallup indicates the most accurate poll to me, at least the one that's been around the longest, that 70% of the public approves the labor unions near an all time high. Unions are winning 75%. You heard that right? 75% of secret ballot elections, I think an all time high, at least since the 1930s, union lawyers are running all the federal agencies dealing with labor organizations. That's not an exaggeration.

James W. Wimberly (42:20):
And the NLRB in its pro-union approach is trying to eliminate the most common ways that an employer stays union free. What are they? The Labor board calls 'em captive audience meetings. The employer simply brings its workers together in larger small groups and tells 'em why it's a union free employer and wants to stay that way. Labor Board's now saying, you can't do that. Now, when I say the Labor Board, their general counsel is their prosecutor. The Labor Board itself hasn't ruled on this issue yet, but they're bringing complaints. The prosecutor is on this ca subject, second most common way an employer remains union free, goes around and speaks to its employees, nobody one by one. Joe, you've been for this long time. I hope you think I've been fair. I hope you know that if you have a problem, you can come to me.

James W. Wimberly (43:26):
And I just want you to know, we don't want to have union trouble here. We'd rather deal one to one and get things done rather than fight among ourselves with a union. Labor Board says that's a form of a captive audience speech. They're trying to keep us from us, meaning management from free speech. I think it's awful. Now, that's just the tip of the iceberg. So what can employers do? Well, boy you better because of this in the Cemex ruling, which is the first topic I had today, let employees know why you want to stay union free. Secondly, if you tell 'em that it not only encourages 'em to be union free, but they'll come to you when they hear unions around and say, Hey, you talked to us about this. I want you to know, an organizer came around and visited me last night.

James W. Wimberly (44:22):
Keeping employees informed, not breaking promises, training supervisors, so forth. Number nine, getting towards the end end, because I'm pretty much at the end of 1245 two federal agencies are trying to outlaw non-compete agreements. Now, what a non-compete agreement is, it says that if you leave our employment for any reason, you can't go to work for one of my competitors or solicit my customers for a year or two or whatever the time period is. They're quite common. As a matter of fact, I think half or more of Amer of employees in this country under some kind of non-compete agreement, they're currently legal in 49 states. States. NLRB wants to do an a away with 'em for statutory employees under the Labor Act shouldn't includes management people. The, the labor board prosecutor, again, the Labor Board itself hadn't ruled on this. It's bringing complaints against non-compete agreements among rank and file employees. 'cause They say that deter or chills their efforts to organize a union and improve their working conditions pay, et cetera. And number two, the FTC Federal Trade Commission, which is sort of a analogy to the antitrust laws, wants to issue a rule at some point in the future banning non-compete agreements. So what's the meaning to employers?

James W. Wimberly (46:03):
Well, the non-compete arena has not changed, but the direction has changed. Non-Compete agreements are being attacked. So the lesson to employers is only use 'em among those that you really have a need to use 'em for, which normally does not include hourly employees have 'em legally and properly prepared. Now, these rules generally don't apply to trade secret rules and confidentiality agreements. I warned you about confidentiality agreements. The Labor Board, again, this Labor Board prosecutor says they have to be very explicitly worded detailed because if you just say confidential information, well, that keeps employees from talking about and comparing their wages, benefits, working conditions, all these kind of things.

James W. Wimberly (47:04):
Okay, number 10, labor Board of Tax Handbook rules. What would you think if you had a rule? And I bet you do, I bet all of you do. It says something like our company requires professional and respectful behavior by applause. Sound okay to you? I guarantee you've got rule something like that. Labor Board says it's illegal. They wrote, that's not just a prosecutor, that's an administrative law Judge ruling came out a couple of months ago. The Labor Board has its board cases that say the same thing by the full board in Washington, or something very similar. They say any rule that an employee who dependent on the employer might say it is chilling to that employee's desire to form a union or get other employees to start talking and have the employer make improvements in pay or terms and conditions of employ might chill that or discourage that is unlawful unless it's very specific, very narrow and serves legitimate employment purpose. Now, if you think that's bad if you enforce an overbroad rule the discipline may be unlawful itself. There are exceptions to that, but the general rule is the enforcement of an unlawful rule leads to unlawful discipline. And then finally, it can be considered an unfair labor practice and bring about a court check. We talked about that earlier. There we go ladies and gentlemen. I didn't, wasn't sure I was gonna complete this, but, and just five minutes over my 1145 cutoff. We're through the top 10 for 2023.

Speaker 2 (49:14):
Yeah, you look, Jim, you did, you did such a great job with your presentation. I guess you didn't leave us with any questions. You did a good job. I as always appreciate your your insight and your reference to practical applications, which is usually the kind of the more difficult part of how to deal with these these rulings and these changes that come about through you know, through the agencies these days. And you know, I think that there's still a lot of gray area. You know, I think that's, that's, you know, one of the takeaways for me is that, you know, there's still a lot of gray area about, about many of these changes that occurred over the last year. And we're just gonna have to continue to to monitor, you know, what goes on you know, in the, in, in the world around us to see what a lot of it means. Would, would you say that's true?

James W. Wimberly (50:14):
I I would and and I'll tell you you know, I enjoy more totalizing on these issues because I figure I can give more value added. And so I'm gonna take the liberty of editorializing on one issue, having to do with company rules. Something near and dear to everybody's heart. There are so many rules that we use now that as borderline, whether the Labor Board is gonna consider 'em over broad and thus illegal or not. So my common strategy in dealing with those type rules, let's take social media for example. We all kind of gotten into social media rules, is to add at the end of a potentially controversial rule, provided that this rule will not be interpreted or applied to any activity protected by section seven of the National Labor Relations Act.

James W. Wimberly (51:22):
I just believe that ultimately that concept is gonna protect us a lot in some of the rules that we wanna have. And yet we're worried about them being overbroad. I still wanna make 'em as narrow as I can, but I don't wanna, you know, some of us, these rules are so what we consider to be critically important to our business, that we just don't wanna bury our head in the sand and say we're gonna eliminate rules. Such this is not a pro to a way to go. So that's my own strategy in dealing with it. Now, some smart people may come back and say, why don't we just put that at the beginning of our rules or the handbook or at the end of our rules and handbook. Is that good enough? No, I think the case law on this subject, those are called disclaimers, by the way. That's the legal term disclaimers. If a disclaimer is going to be effective, it needs to be next to the rule involved and not just at the beginning of the end, the whole set of rules.

Speaker 2 (52:27):
So even if you have to repeat it 10 times or 20 times through your handbook, then do it.

James W. Wimberly (52:34):
That's my advice at the current time. And some would go further than I would and narrow the rule so much as to, in my opinion, take away the rule <laugh>. And I'd rather take a little risk on the rule and have that disclaimer, because I'll tell you, another thing I'm thinking about, Jim, is that there's gotta be some sanity somewhere. And this prosecutor at the NLRB who in my opinion is just way off the charts even if the NLRB in Washington goes along with her, I got a right to go to a court of appeals on this and court of appeals think more like you and I do, Jim, if something seems reasonable by gosh that's the way it ought to be. So anyway, that's my answer. And that my practical advice on some of those, see you, there's even a case that say you can't have a rule about walking off the job.

James W. Wimberly (53:44):
'Cause That would deter people from going on strike. How far are we going to go in this thing? And it's great tension between the equal employment rules and the labor law rules. Two best examples, I won't bore you with this 'cause we're, well, we still got a number of people on and somebody's interested in this, that and what the Labor Board says, people on strike can utter racial epithets at non-striker crossing pick. That's part of legitimate protected activity. But God, CEO CD be all over that. And the EOC and NLRB got together one time to try to reconcile one saying that you can't tell employees to keep EEO or harassment investigations confidential. And the EEOC suggestion that a harassment investigation ought to be kept confidential. They had two different conflicting rules. EEOC and NLRB got together in the same room to try to work out a reconcile the two, they couldn't do it.

Speaker 2 (55:02):
Right. And now, isn't it true now that last year that there was a overt statement that that came out that was indicating that the EEOC and Department of Labor are are now going to be sharing information with each other? Is, is that something you wanna speak to or at

James W. Wimberly (55:26):
All? Yes. Yes. And let me, let me just say this. There's a lots of those sharing agreements now, not just the ones you're indicating. And do I worry about that? Yeah, I don't, I don't lose sleep over it though. But I'll tell you one that worried me even more. In years past on the independent contractor issue, what's the most common way an independent contractor issue comes up? Unemployment comp hearing person applies to unemployment. Lawyer says that person's not employed, independent contractor doesn't get unemployment compensation. You settle or go to a herring and lose and become, does IRS find out about it? Does the NLRB find out about it? So, yeah, I, I were, and, and I remember one time I litigated a case in California involving sales reps who were considered independent contractors because this company had sales reps all over the country. And I feared that a ruling there in California would let all these other agencies know and create all kind of problems. So, yeah, I that's true. And yeah, it is something to worry about, but we can't do anything about it. Jim, I, I learned that was, I've been trying to train myself that you shouldn't worry about things that you can't do anything about now. Wife

Speaker 2 (57:17):
Wife's conclusion, <laugh>,

James W. Wimberly (57:20):
Thank you guys for attending. We'll see you next time.

Speaker 2 (57:25):
Thanks, Jim.

James W. Wimberly (57:26):
Thank you.