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HERE'S YOUR HOLIDAY BONUS: NEW DOL RULES CLARIFY WHEN PAYMENTS MAY BE EXCLUDED FROM THE REGULAR RATE

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.

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NLRB APPROVES McDONALD'S SETTLEMENTS THUS DISALLOWING JOINT EMPLOYER

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.

NLRB RULING PROVIDES GREATER CONFIDENTIALITY IN WORKPLACE INVESTIGATIONS

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."

EMPLOYERS MAY DISCONTINUE UNION CHECK-OFF ON CONTRACT EXPIRATION

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. 

EMPLOYERS MAY AGAIN RESTRICT USE OF THEIR EMAIL SYSTEM

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."

NLRB CHANGES QUICKIE ELECTION PROCEDURES

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. 

END OF DEMOCRAT'S TERM ON LABOR BOARD TRIGGERS LARGE NUMBER OF PRO-MANAGEMENT RULINGS

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.

SUPREME COURT MAY LET TRUMP CANCEL DACA

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.

GALLUP REPORTS ON JOB SATISFACTION

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

GOOGLE CONTINUES TO BE AFFECTED BY CORPORATE CULTURE ENCOURAGING OPEN DEBATE

This newsletter has noted in prior articles the significance that Google places on its workplace culture designed to encourage open debate. The culture has resulted in numerous attempts by Google employees to influence corporate policies, most notably pressing management to cancel certain contracts, including those related to the image-recognition system for the Pentagon and certain technology for use by China. Google has also run afoul of NLRB rules on employee speech, most recently in an NLRB settlement requiring it to rescind discipline against a Republican engineer who accused the company of discriminating against conservative workers.

For various reasons, the company has put in place new rules beginning this August that discourage workers from discussing politics, at least during working time. Its new guidelines are an attempt to curb disruptive internal political debates. The latest rules ask staff "to do the work we've each been hired to do, and not to spend working time on debates about non-work topics."  Google also announced it would appoint employees to moderate the company's internal message boards, in effect acknowledging that the discussions have gotten out of control.  The fear is that the level of debate has driven a wedge between those with opposing views as well as between management and an activist workforce.  The plan is for Google to flag content that doesn't align with the new guidelines. 

 

Last year, Google warned the employees that it would discipline anyone who discriminates or attacks colleagues or engages in discussions that are "disruptive to a productive work environment." In those guidelines, Google also advised employees to avoid name-calling, including making blanket statements about groups or categories of people.

 

Google's experiences also show the tension with NLRB rules which allow employees to discuss numerous issues relating to wages, hours, and terms of condition of employment, at least on non-working time.

NATIONAL SAFETY COUNCIL PUBLISHES EMPLOYER TOOLKIT FOR DRUG POLICIES AND ISSUES

The National Safety Council has published an Employer Toolkit for drug policies and issues, which is very informative and comprehensive.  The Toolkit furnishes an employer an excellent "checklist" of various items to consider, including such things as how opioids affect tolerance and ultimately lead to addiction, how to confront an employee, sample employee buy-in approaches, sample policies, and the like.  The policies recommend balancing the safety needs of the employer and workers' health, and suggest the following components:

  • Statement of the purpose and scope of the program.
  • Definition of what constitutes misuse, including alcohol and all forms of impairing drugs, prescribed, over-the-counter, legal, illegal, synthetic or otherwise.
  • Statement of who is covered by the policy and/or program.
  • Statement describing under what circumstances drug or alcohol testing will be conducted, including confidentiality of test results.
  • Procedures to ensure fair testing process (confirmation testing, use of medical review officers, worker protections against retaliatory testing).
  • Training for employees, supervisors, and others in identifying impaired behavior and substance use.
  • Employee education (e.g., a substance-free awareness program).
  • Procedures for dealing with impaired workers.
  • Assistance for those who voluntarily seek help for impairment issues.
  • For further information, go to org/opioidsatwork.

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