Monthly Archives: February 2017

Successfully Transitioning Employees When Implementing a Business Succession Plan

When a business succession plan includes the transition of employees from one employer to another, it is important for businesses to recognize that there are a host of employment issues that need to be addressed during the transition. From determining whether a sufficient number of employees will be hired by the new employer to avoid the requirements of the WARN Act (if applicable), to whether the new employer will require transitioned employees to complete new applications, background checks, or I-9 forms, it is important to have a well-organized plan. A human resources transition checklist that details the mandatory and suggested labor and employment items to be managed by those implementing the transition is a helpful tool in ensuring that the transition is smooth for both the businesses involved as well as the affected employees.

Advance planning is helpful to a smooth transition. To learn more about business succession planning, check out our colleague John Wagner’s recent interview with the Sarasota Herald-Tribune, in which he addresses why and when business owners should consider succession planning and provides tips for getting started.

This video was originally posted on The Williams Parker Business & Tax Blog. To read more and to subscribe, visit http://blog.williamsparker.com/businessandtax/.

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Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Managing Employee Participation in Social Movements: A National Strike for Women is Planned for March 8, 2017

The organizers of the Women’s March, which on January 21, 2017 drew an estimated three million participants worldwide, have announced that on International Women’s Day, March 8, 2017, they are planning a “General Strike: A Day Without a Woman.” Although the organization has not yet provided many details regarding its call to action, it is likely that as with last week’s national strike, “A Day Without Immigrants,” this event will include a call to supporters to refuse to report to work. Such a call to action will raise questions for employers regarding how they can respond to such political activity.

A walk out in support of a “General Strike: A Day Without a Woman” could be considered protected activity under the National Labor Relations Act, if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. When the motivation for political activity is a national political issue that the employer has no control over, such activity will not be protected and an employee’s discipline for a violation of well-established and neutrally applied policies is legally permissible. On the other hand, when employees leave work and withhold services as an economic tool in their own employment relationship, such activity is protected. For example, a few years ago, McDonalds’ employees held a nationwide strike in support of raising the national minimum wage. Although the national minimum wage was part of the reason workers refused to work, and their employers had no control over the national wage, the employees’ own wages and work conditions were an inherent and primary motivator for their participation in the strike. Thus, the National Labor Relations Board ascertained that a sufficient nexus existed for a finding that the strike was protected activity and filed complaints against several McDonalds challenging the disciplinary actions imposed on participating employees.

Since information is still forthcoming regarding this proposed strike, it is not yet clear whether participation in this event will be protected. Regardless, any action taken against an employee may be challenged through a complaint with the National Labor Relations Board, which has authority to enforce violations of the Act against both unionized and non-unionized employers. If your business is impacted by this event, before you make any disciplinary decisions, it is important to ascertain if the reason for the absence is related to any employment concern in your workforce.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Going into Overtime in the Search for a Secretary of Labor: What is Next for the 2016 Overtime Rule?

For weeks now, rumors have been circulating that the President’s nominee for Secretary of Labor, Andrew Puzder, would withdraw his name. As his confirmation hearing was delayed over and over again (five times), he repeatedly issued statements that he was fully committed to becoming Secretary of Labor and looking forward to his confirmation hearing. However, yesterday, on the eve of his scheduled appearance for questioning before the Senate Committee on Health, Education, Labor & Pensions, he issued a statement withdrawing his name for consideration.

As detailed in a previous blog post, Mr. Puzder is a fast-food executive who many believed would run the Department of Labor in a pro-business manner. Thus, labor organizations were greatly opposed to the President’s nominee and view his withdrawal as a win for workers.

This afternoon, it was announced that the President has selected former U.S. Attorney R. Alexander Acosta to serve as Secretary of Labor. Acosta is a former U.S. Attorney for the Southern District of Florida, a former member of the National Labor Relations Board, and a former assistant attorney general in the Department of Justice’s Civil Rights Division. He currently serves as the dean of Florida International University College of Law. Acosta has a very different background from the prior nominee.

If confirmed, it is not yet clear what approach Acosta will take in handing the pending appeal of the stay imposed on the 2016 overtime rules. The original briefing deadline on appeal was delayed as a result of the DOL’s request for additional time “to allow incoming leadership personnel adequate time to consider the issues.” The existing briefing deadline is currently March 2, 2017. It is possible that the administration will request additional time from the 5th Circuit Court of Appeals now that Puzder has withdrawn his name and Acosta is the new nominee. Oral argument has not been set.

Even though oral argument has not been set in the appeal, Washington is not taking a break from focusing on this issue. Today, a subcommittee of the House Education and the Workforce Committee is holding a hearing on “Federal Wage and Hour Policies in the Twenty-First Century Economy.” It is anticipated that the stayed overtime rule will take center stage at this hearing.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Right-to-Work Movement Gains Momentum

On January 7, 2017, Kentucky became the 27th right-to-work state. Right-to-work laws make it illegal for unions or employers to compel workers to join a union and pay dues as a condition of employment. Florida was one of the first states with a right-to-work law pursuant to a constitutional provision passed in the 1940s. In Florida, and other right-to-work states, even if a worker is included within a bargaining unit of a unionized workplace and legally represented by the union, the employee still has an individual choice on whether to join the union and pay dues. Unions, of course, do not care for such laws or those states that adopt them.

Right-to-work initiatives have picked up steam in recent years with Indiana becoming the 23rd right-to-work state in 2012, followed by Michigan, Wisconsin, West Virginia, and now Kentucky. As a consequence of Republican victories in November 2016 it is anticipated that more states will climb on the right-to-work bandwagon —such laws are pending in Illinois, Missouri, New Hampshire and New Jersey. The driver for the expansion of right-to-work legislation is economics. Although right-to-work laws do not a bar unionization, industry and business typically view right-to-work states as more favorable economically, believing that there is a better opportunity to avoid unionization and the constraints that typically accompany union contracts.

A recent highly controversial issue associated with right-to-work is whether a political subdivision of a state, such as a county or municipality, may enact its own right-to-work law in the absence of state legislation.  A federal appellate court, the 6th Circuit Court of Appeals, just ruled that political subdivisions  of a state are legally permitted to enact their own right-to-work laws. On the other hand, a federal trial court in the Northern District of Illinois (part of the federal 7th  Circuit Court of Appeals ) recently ruled the other way.  It is likely this issue will eventually be addressed and resolved by the U.S. Supreme Court that will hopefully establish a uniform rule on this issue.

John M. Hament
jhament@williamsparker.com
(941) 552-2555