For employers concerned about union organizing campaigns, the so-called "quickie" union election rules promulgated in 2014 were among the most dangerous things ever to hit labor law - only surpassed by the "card-check" proposals.  Unions try to keep their campaigns secret for as long as possible, so they can develop a solid majority for unionization without the employer having an opportunity to respond.  Unions therefore time their filing of election petitions so as to be filed when there is maximum union strength.  Unions know that in their counter-union campaigns, management will explain the disadvantages of unionization, and therefore unions hope to hold onto their majority in the time period between the filing of the election petition and the holding of the secret ballot election.  The longer the campaign period for the election, the more likely it is that the once-majority support for the union will dissipate.

In the first update to these regulations in 50 years, the Department of Labor on December 18, 2019 published a Final Rule clarifying when payments - such as year-end bonuses - must be included in an employee's "regular rate" (i.e., pay divided by hours worked) for purposes of calculating overtime.  The new rules take effect January 15, 2020.

The joint employment issue is high on the agenda of the main employment agencies, including the NLRB, the Department of Labor (DOL) and the EEOC.  While the joint employment issue has been litigated in a variety of forums, perhaps the most publicized forum was the NLRB case involving McDonald's, in which the Obama-era NLRB General Counsel contended that McDonald's and its franchisees were joint employers. 

The litigation continued for almost three years, and although a settlement agreement was reached, an NLRB administrative law judge denied motions to approve the settlement agreements.  On special appeal to the Board, the Board remanded the case to the judge with the instructions to approve the settlement agreements.  Applying various "reasonableness" factors, the majority found, contrary to the judge, that the settlement agreements are reasonable, they provide a full remedy to all affected employees, and accepting the settlement agreements would serve the policies of the Labor Act.  Significantly, the settlements do not impose joint liability on McDonald's, as the liabilities are basically limited to the franchisees.  Thus, under the settlement, McDonald's avoids any joint employer finding.

Another December ruling dealt with workplace investigations, and the issue whether an employer can have work rules requiring confidentiality during the course of such investigations.  Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144.  The Obama-era NLRB issued a decision requiring employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.  Employers often desire to have such confidentiality to preserve the integrity and privacy of such investigations, particularly involving sensitive harassment issues.  Indeed, the Equal Employment Opportunity Commission (EEOC) encourages such confidentiality.  The EEOC and the NLRB had actually met without success over resolving the issue between privacy rights and workers' rights to discuss job-related issues. 

In the more recent ruling, the NLRB applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.  Because the rule at issue did not limit confidentiality to the duration of the investigation, the Board remanded to determine whether the employer has one or more legitimate business justifications for requiring confidentiality even after an investigation is over and, if so, whether its justifications outweigh the effect on employees' exercise of their Section 7 rights.  Thus, rules that require employees to keep open workplace investigations private are deemed lawful if limited to the life of the investigation.    

In responding to the argument of the importance of workers being able to confer with coworkers, the NLRB said any adverse impact of gag orders on an open investigation is "comparatively slight."  The Board stated:  "The rules at issue do not broadly prohibit employees from discussing either discipline or incidents that could result in discipline . . . .  Rather, it narrowly requires that employees not discuss investigations of such incidents or interviews conducted in the course of an investigation."

The NLRB also ruled in December that an employer's statutory obligation to check-off union dues ends upon the expiration of the collective bargaining agreement containing the check-off provision.  Valley Hospital Medical Center, Inc., 368 NLRB No. 139.  The decision overturned an Obama-era ruling and returned the NLRB to the rule existing for over 50 years.

This ruling can be very helpful to employers during contract negotiations, as unions often drag out such negotiations attempting to secure a more favorable resolution to the union.  If employers have the right to cut off the collection of union dues, however, there will be much more pressure on the union to conclude negotiations so that dues collection can be restored.  The ruling contemplates that employers can unilaterally stop such dues deductions without bargaining to impasse with the union, once the contract has expired. 

The NLRB has re-established the right of an employer to restrict employee use of its email system if it does so on a non-discriminatory basis.  Caesars Entertainment, Inc., 368 NLRB No. 143.  This case reversed an Obama-era ruling that employees given access to the employer's email system had a presumptive right to use that system, on non-working time, for union or other concerted activities.  In the current ruling, the Board stated that employees do not have a statutory right to use the employer's email and other information-technology (IT) resources to engage in non-work-related communications.  The ruling indicates that employers may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications.  The Board in essence reinstated the rulings that existed prior to the Obama NLRB.

In doing so, the Board agree with business groups that employers have property and First Amendment rights to limit the use of their own email systems.  An exception will remain, however, for cases "where an employer's email system furnishes the only reasonable means for employees to communicate with one another."

One of the most debated, publicized, and contentious issues in employment law in recent years has been the NLRB "quickie election" rule, which only allowed 20 days or so between the filing of the union election petition and the election itself.  Unions felt that shortening the time period for an election would increase their chances of success, while employers complained that there was no time to inform employees of the other side of the story.  Employers cited to political elections and the lengthy time periods necessary for the voters to understand the issues. 

In December, the NLRB announced more than a dozen changes to the quickie election procedures.  The changes include clarifications to procedures prior to an election that better insure the opportunity for litigation and resolution of unit scope and voter eligibility issues.  The changes also permit parties additional time to comply with the various pre-election requirements instituted in 2014.  The Board issued the procedural changes as a final rule pursuant to its authority to change its own representation case procedures.  The final rule will be effective 120 days from the date of publication in the Federal Register, which is anticipated to be December 18, 2019.  The NLRB's regulatory agenda says the Agency may roll out other amendments to the quickie election procedures next year.

Significantly, some of the changes extend the election process.  All time periods will be calculated in business days, rather than calendar days under the quickie election rule.  The dissenting Democrat on the Board states that: "With this rule, my colleagues claim the dubious distinction of becoming the first Board in the Agency's 84-year history to intentionally codify substantial delay in the representation case process, to the detriment of the mission of our Agency." 

Because of the importance of the new rule, it will be more fully discussed in a subsequent newsletter.  In the meantime, please let us know if you have any questions or want a copy of the new rule. 

The sole Democratic member of the National Labor Relations Board (NLRB), Lauren McFerran, reached the end of her term on December 16, 2019.  Traditionally, the departure of a Board member triggers large numbers of rulings, particularly if the case has overturned existing precedent and so a new member does not have to start all over in reviewing the pending cases.  It is likely that the Board will continue to function with the three Republicans for some time, but at some point in the future there will likely be Democrats nominated to the Board as part of some type of compromise with other appointments.  The Obama-era NLRB also functioned with three members of the Democratic Party for about eight months.

As of this writing, several encouraging rulings or developments were issued in December with pro-management implications.  These rulings were generally by three-one margin, with the sole Democrat dissenting.

The U.S. Supreme Court heard arguments on November 11, 2019, as to whether President Trump could rescind the Deferred Action for Childhood Arrivals Program, commonly known as DACA.  Based on questions and comments made by the justices, many commentators suggest that we may be looking forward to another 5-4 decision, with five of the justices allowing the President to cancel the program.  One of the justices, Chief Justice Roberts, suggested that he saw DACA as illegal from the start, while another justice, Justice Brent Kavanaugh, suggested that he was satisfied with the explanation for the cancellation.  The other justices like Justice Sotomayor said the President had told DACA-eligible people "that they were safe under him and that he would find a way to keep them here." 

Following the hearing, the President suggested that a ruling in his favor would force Democrats to negotiate a way to keep the DACA recipients in this country.  President Trump tweeted:   "A deal would be made with Dems for them to stay!" 

Currently more than 660,000 people have active DACA status.  A vast majority of these DACA recipients are currently employed in the U.S.

A Gallup Poll released in October shows that 40% of employed Americans believe they are in good jobs, versus 44% in mediocre jobs, and 16% in bad jobs.  The poll shows that how employees rank the quality of their job has a strong correlation with how they view their quality of life.   A majority of those making more than $140,000.00 a year, the top 10-percent, characterized their job as good, while less than a third of those making less than $24,000.00 felt their jobs were good.  About half of the workers were satisfied with their current pay, again closely correlated to their income.  Another significant finding was that only 37% found improvement in any single aspect of work besides pay over the last five years.  The study also found race, ethnicity and gender to be strongly correlated with perception of job quality