Tag Archives: attorneys

Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees

As previously reported, the U.S. Department of Labor issued a proposed rule addressing exemptions for bona fide executive, administrative, professional, and outside sales employees (the “white-collar” exemptions”) under the Fair Labor Standards Act. Presuming the rule goes into effect, the new minimum salary threshold for these employees will be $35,308 per year (or $679 per week).

Beyond changing the minimum salary threshold for the “white-collar” exempt employees, the DOL also proposed increasing the exemption threshold for a smaller category of employees: “highly-compensated” employees. Previously, any employee whose primary duty was performing office or non-manual work and who customarily and regularly performed at least one duty or had at least responsibility of a bona fide executive, administrative, or professional employee could be exempt–if the employee made at least $100,000 a year and received at least $455 each week on a salary or fee basis. In essence, the “highly-compensated” employees exemption combines a high compensation requirement with a less-stringent, more-flexible duties test in comparison to those used under the “white-collar” exemptions.

Like the DOL’s proposed changes to the “white-collar” exemption, the DOL’s proposed changes to the “highly-compensated” exemption does not alter the duties requirements. Rather, the DOL proposes an increase to the annual and weekly salary thresholds. But in this instance, the increase is substantial. The proposed new threshold jumps from $100,000 under the current rules up to $147,414, of which $679 must be paid weekly on a salary or fee basis. That is an approximate 50 percent increase, and it is about $13,000 higher than what had been previously proposed when changes were considered in 2016.

Now, despite the change raising eyebrows, one could question whether it would have significant impacts because most workers paid $100,000 or more often already fall into one or more of the other exemptions. The DOL itself acknowledges in the proposed rulemaking that it estimates only about 201,100 workers nationwide would become eligible for overtime due to this salary increase. In comparison, the DOL expects the “white-collar” salary change will impact approximately 1.1 million workers nationwide.

The common view remains that the new minimum salary thresholds will likely go into place later this year (2019) but likely no later than January 1, 2020. Although that later date is almost seven months away, that deadline is rapidly approaching. Hence, it is worth reiterating that employers should begin evaluating their staff to determine who, if anyone, may be affected and determine how to proceed. Similarly, this rule change provides employers an opportunity to audit all of their employees (even those unaffected by the proposed rule changes) to make sure each one is properly classified. And if they are not, employers can time any reclassifications with those made to meet the new rule changes to possibly minimize bringing attention to and potential liability for any past misclassifications.

In the meantime, the DOL will accept comments from interested parties until May 21, 2019 at 11:59 PM ET. The public will be able to provide electronic comments at regulations.gov (after searching for RIN no. 1235-AA20) or via mail to the address below (identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA20).

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

John C. Getty
jgetty@williamsparker.com
(941) 329-6622

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same! (Part II)

As we mentioned in Part I of this post, this year the U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and other strategies to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA).

How do employers know if Homeland Security Investigations (HSI) has initiated an audit or administrative inspection of their businesses? The inspection process begins with HSI serving a Notice of Inspection (NOI) on an employer compelling production of Forms I-9 and frequently other supporting documentation such as payroll reports, a list of current employees, articles of incorporation, and business licenses. Employers have at least three business days to produce the Forms I-9, after which HSI will conduct an inspection for compliance following ICE’s inspection process, give the employer 10 days to correct technical or procedural violations, and assess applicable fines and penalties.

Form I-9 best practice tips for employers include:

  • Establish a uniform written Form I-9 compliance policy and train staff accordingly.
  • Avoid discrimination claims by educating staff on the appropriate way to verify documents and treat all job applicants the same regardless of their citizenship or immigration status or their national origin.
  • Put in place a “tickler” system to notify HR staff of upcoming re-verifications for individuals that possess temporary employment authorization.
  • Establish a best practice method for proper cataloging and retention of Forms I­-9—separate former and active employees’ Forms I-9.
  • Keep Forms I-9 organized and separate from general personnel files. Establish a consistent policy regarding obtaining and retaining copies of verified documents.
  • Purge old Forms I-9s that are past the retention period on an annual basis (three years from date of hire or one year after termination, whichever is longer).
  • Conduct routine formalized self-audits and document each internal audit, preferably with guidance from legal counsel.
  • Call legal counsel immediately if you are served with a Notice of Inspection as the time to respond is short and it is critical to submit well-organized documents only after receiving legal advice.
  • Do not consent to an immediate inspection if agents arrive without warning – employers have three days to submit documents.
  • Only submit what is requested – nothing extra.
  • Do not let agents take original records without retaining copies.
  • Do not allow agents to talk with any employees or company officers before contacting legal counsel.
  • If the U.S. Department of Labor (DOL) agents arrive for an inspection of Forms I-9 without notice, decline the inspection. They will notify ICE.  (Note – if DOL agents seek to inspect wage and hour or FMLA records, decline the inspection and contact your legal counsel to schedule it at a convenient time.)
  • If U.S. Department of Justice Immigrant and Employee Rights Section (IER) agents arrive for an inspection of Forms I-9 without notice or deliver notice of intent to conduct a worksite enforcement audit, call legal counsel immediately to help coordinate a response. See also IER’s Employer Best Practices During Worksite Enforcement Audits.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

Form I-9 Audits Soared in Fiscal 2018 – Be Ready for More of the Same!

In 2019, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) will continue to focus on the use of Form I-9 audits and civil fines to encourage employers’ compliance with the Immigration Reform and Control Act of 1986 (IRCA), along with criminal prosecution of employers who knowingly violate IRCA.

Last year ICE I-9 audits increased by 340 percent, resulting in 779 criminal arrests of employers; 1,525 administrative arrests of unauthorized employees; and more than $10.2 million in judicial fines, forfeitures, and restitutions. While most employers do not intentionally falsify Forms I-9 or knowingly accept fraudulent documents from employees, employers’ honest mistakes related to Forms I­9 can be costly. Civil fines, per form with one or more mistakes, range from $216 to $2,156. Thus, the same mistake made on each form could increase the fine exponentially. Moreover, do not forget that the U.S. Department of Justice Immigrant and Employee Rights Section (IER) also conducts Form I-9 audits to ensure that businesses are not engaging in citizenship discrimination.

Employers should protect their businesses by ensuring Form I-9 compliance programs are in place, up-to-date, and followed. For instance, employers should confirm they are using the current form, which has an August 31, 2019 expiration date, and properly following the instructions. Take care to avoid common Form I-9 mistakes, such as an employee’s failure to sign or date the form or the employer’s failure to complete Section 2 by the third business day after the date the employee begins employment. For guidance from ICE regarding Form I-9, visit “I-9 Central” or review ICE’s list of Common Mistakes and How to Avoid Them.

Also, employers should conduct routine Form I-9 internal audits and properly remedy identified errors in order to be legally compliant and to help avoid liability should ICE or IER select your company for an inspection. See Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

In the next couple of weeks, part II of this post will address the ICE inspection process.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

FMLA: Forgetting Minutiae Leads to (legal) Actions – Part II

As we continue through the convoluted maze of arcane rules known as the FMLA, we turn our focus to what makes an employee eligible for FMLA leave.

Generally, an employee of a covered employer is eligible to take FMLA leave, if the employee satisfies three requirements. They are:

(1)  the employee has been employed by the employer for at least 12 months;

(2)  the employee has been employed by the employer at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and

(3)  the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of the worksite.

These requirements do not apply to flight attendants and flight crew members. Persons in such positions are subject to special eligibility requirements that are not covered in this series.

Although these three requirements may seem pretty straightforward, they are not as clear cut as they appear. Accordingly, below you will find a few questions and answers designed to assist in understanding the concept of the “covered employee.”

Does the 12 months of service have to be consecutive?

No. The 12 months of service need not be consecutive. Generally, any combination of 52 weeks equals 12 months. Even so, a seven year break in service with the employer generally cuts off any prior service except in certain limited circumstances. Such circumstances include, but are not limited to, military service covered by The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) or written agreement, including a collective bargaining agreement.

When should it be determined if the employee meets the months of service requirement?

The determination of whether an employee has been employed by the employer for a total of 12 months must be made as of the date the FMLA leave is to start.

How are the hours of service calculated?

The FLMA’s definition of “hours of service” applies for the calculation of 1,250 hours. Accordingly, hours of service does not include those hours for which an employee is paid but does not work, such as holidays, paid vacation, and sick leave. Hours worked does include time worked as a part-time, temporary, or seasonal employee.

An employee returning from USERRA-covered military service is credited with the hours of service that would have been performed but for the period of absence from work due to or necessitated by USERRA-covered service in determining the employee’s eligibility for FMLA-qualifying leave.

If an issue arises with respect to employee coverage, the Department of Labor takes the position that the employer has the burden of showing that the employee has not met the hours of service requirement.

When should it be determined if the employee meets the hours of service requirement?

The determination of whether an employee meets the hours of service requirement must be made as of the date the requested FMLA leave is to start.

How does an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

First, it has to be determined where the employee’s worksite is. An employee’s worksite is the site where an employee reports. If the employee does not travel to a specific location to work, then the worksite is the location from where the employee receives assignments.

For employees with no fixed worksite (e.g., construction workers, transportation workers, salespersons), the worksite is the site that is assigned as their home base, from which their work is assigned, or to which they report. With very few exemptions, an employee’s personal residence is not considered a worksite.

The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee needing leave is employed.

While public-sector employers are covered regardless of the number of employees employed, to be an eligible employee entitled to take FMLA leave, the public-sector employee must still be employed at a worksite in which the employer employs at least 50 employees within a 75-mile radius.

When should an employer determine if there are 50 employees within a 75-mile radius of employee’s worksite?

The determination of whether 50 employees are employed within 75 miles of the worksite is made when the employee gives notice of the need for leave.

What happens when an employee does not meet all three requirements until after the employee’s need for leave has begun?

An employee’s full FMLA rights are triggered as of FMLA eligibility. An employer cannot designate leave happening before the eligibility date as FMLA leave; and therefore, the employee becomes entitled to the full 12 weeks of FMLA leave in addition to any previously taken leave.

The first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth. The next FMLA posts in this series will address the FMLA’s original qualifying reasons for leave and then the qualifying reasons added in 2008.

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

FMLA: Forgetting Minutiae Leads to (legal) Actions

This post was co-authored by Jennifer Fowler-Hermes and John Getty.

The Family and Medical Leave Act (or the FMLA) is often viewed as a convoluted maze of arcane rules. Generally, the FMLA requires covered employers provide qualifying employees up to 12 weeks of unpaid leave for certain qualifying events. This simple explanation belies how technical the FMLA can be. Because it is very technical, the FMLA is one of the laws that employers most frequently ask questions about. Taking one wrong turn can easily lead to employer liability. This post is the first in a series to help employers stay on the right path.

In this series, we will review not only the basics of the FMLA, but also several areas where employers often go astray. Our journey through the FMLA starts with a handy map summarizing the steps an employer should follow when dealing with the FMLA labyrinth.

Step 1:  An employer determines whether or not it is a covered employer.

Step 2:  If it is covered, an employer should then prepare and share an FMLA leave policy with its employees and must post certain notices to its employees.

Step 3: If an employee requests FMLA leave, or the employer learns that an employee’s absence may be for a qualifying reason, then a covered employer must determine whether the employee is eligible for FMLA leave. If the employee is not eligible, the employer must notify the employee of the decision and utilize the appropriate designation form. If the employee is eligible, the employer must proceed to the next step.

Step 4: Provide the employee eligibility and rights and responsibilities notices to the employee.

Step 5:  The employer must then determine if the leave request is for an FMLA-qualifying reason.

Step 6: The employer should determine whether the employee qualifies as a “key employee” for whom specialized rules apply. Key employees will be addressed in a separate post in this series.

Step 7: The employer may require the employee go through a certification process, which is optional.

  • If the certification process is utilized, then the employer should notify the employee about the certification and provide time for certification.

Step 8: The employer must either grant or deny the leave request and provide a designation notice to the employee.

Step 9: After leave is granted, then the employer must:

  • Restore the employee to the same or an equivalent position at the end of the leave (unless the employee is a “key” employee); and
  • Maintain benefits during the leave (with exemptions – which will be discussed later in the series).

Step 10: Maintain records for the entire decision-making process.

Because it’s part of the first step in navigating the FMLA maze, and it represents a core concept of the FMLA, below you will find a serious of questions and answers designed to assist in understanding the concept of the “covered employer.”

What is a covered employer? 

It’s an  employer that has legal obligations under the FMLA.

Who are covered employers?

There are a couple types of covered employers subject to the provisions of the FMLA. One of the main covered employers are private employers with 50 or more employees during 20 or more workweeks in the current or previous calendar year.

Public agencies, regardless of the number of employees the public agency employs (public agencies include state, local and federal employers, and local educational agencies), are also covered employers. In addition, public and private elementary and secondary schools are covered employers, regardless of the number of persons employed.

Finally, covered employers also include any person who acts in the interest of the employer toward any of the employees of such employer, and any successor in interest of the employer.

How does a private-employer count employees to determine coverage?

With few exemptions, any employee whose name appears on the employer’s payroll will be considered employed each working day of the calendar week and must be counted regardless of whether compensation is received for the week. However, employees added to the payroll after the beginning of a calendar week or terminated before the end of a calendar week are not counted.

There are special issues that arise when an employer does not by itself have the requisite number of employees but is considered a joint employer with a second company. For example, when two or more businesses exert control over the workplace or working conditions, it is possible that the employees of both businesses are counted together.

What about employees on paid or unpaid leave?

They are counted so long as the employer reasonably expects the employee to return later to active employment.

Does the same rule apply for employees on disciplinary suspensions?

Yes, again, so long as the employer reasonably expects the employee to return later to active employment, the employee is counted.

What about employees who are laid off?

Employees on temporary or permanent layoff are not counted.

The questions and answers above summarize the main issues with that crop up at Step 1.

*The next FMLA post in this series will skip ahead to Step 3 and address what makes someone an employee eligible for FMLA leave, since it is one of the other important concepts to understand while navigating the FMLA.

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

John Getty
jgetty@williamsparker.com
(941) 329-6622

Business Resolutions: Ensuring Your Business Starts the New Year Off Right

When was the last time that your business had a wage audit to evaluate whether your employees are properly classified under the Fair Labor Standards Act, or had your employee handbook reviewed and revised to bring it up-to-date with the law and current company practices? If it has been a few years, then this may be the year that your business resolves to invest in a wage audit and/or handbook review.

Wage audits include an evaluation of your job positions, pay and overtime policies, as well as payroll records of each position within an organization or department. Sometimes, audits can also include interviews with employees to ascertain if there are any issues that management should be aware of. Audits can reveal if a business has any issues with, not only misclassification of employees as exempt when they should be non-exempt, but whether managers are following the organization’s policies regarding overtime. As a company grows and changes, often the duties of its employees also change. Sometimes these changes are significant enough that a change in classification is in order and a failure to adjust the classification could result in liability. Further, a wage audit can often help to determine if an organization’s accountant or payroll company is calculating overtime in accordance with the applicable regulations. Many a lawsuit are filed against employers who believe that since they have enlisted the assistance of a third party, employee overtime is being calculated appropriately. That is not always the case.

Employee handbooks should be reviewed every couple of years, not only to ensure that the handbook reflects the current state of the law, but also that it reflects the actual practices of a company. Businesses grow and change, and actual practices can start to diverge from what is reflected in the handbook. It is always better to have a handbook that provides policies and procedures that the company is currently using and enforcing. It is never recommended for a company to have policies that it does not follow.

This post is part of a series of business resolutions to consider for the new year. In case you missed them, our previous posts in the series discussed Florida minimum wage and employee performance management.

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

A Clue to the NLRB’s Future Focus?

In regulatory action last week, the current board of the National Labor Relations Board not-so-subtly identified several areas where the Board wants to reverse course. Specifically, on October 16, 2018, the Board’s General Counsel released four advice memorandums issued during the Obama administration addressing several topics, including dress codes, replacement of striking employees, and video recordings of workplace strikes.

It is uncommon for advice memos to be released, especially those from prior administrations.  Most times, such releases happen after a matter has been resolved or the General Counsel has directed a region to dismiss a case. When memos are released, it is because the Board wants to draw attention to a trending topic or point of emphasis. In this instance, the Board released advice memos that were quite favorable to labor unions and workers:

  • In two advice memos involving Walmart dating to 2013, the Board’s General Counsel at that time recommended that the regional director bring unfair labor practices when the retailer (1) told a plainclothes security guard that he could not wear union clothing while undercover; and (2) prohibited workers from wearing union insignia shirts and then disciplined them for engaging in a work stoppage (which the General Counsel opined was not an unprotected sit-in strike);
  • In a different 2013 memo, the General Counsel found that Boeing acted unlawfully when it recorded union solidarity marches that happened on its property while it also had a rule in its employee handbook that blocked employees from using cameras on its property; and
  • In another advice memo issued in early 2017, the then-General Counsel concluded a California fishery committed an unfair labor practice when it unlawfully replaced striking employees by giving temporary employees permanent positions.

These memos are noteworthy since the current General Counsel, Peter Robb, and the Board at large are unlikely to support the positions espoused in the Obama era memos. For instance, in December 2017, the Board has changed course in the Boeing matter, concluding that the Board’s previous edicts on handbooks gave too much credence to employees’ rights and too little to employers’ interests.

Considering the reversal in Boeing matter, the fact that the General Counsel released the other advice memos on the same day potentially signals those advice memos do not reflect the Trump-era General Counsel or Board’s position. For that reason, employers may wish to challenge similar unfair labor practice findings in other settings.

Still, although these advice memos may be a relic of the Obama-era Board, another administration’s Board could renew the legal theories and positions contained in the advice memos. Thus, at the very least, employers should remain mindful of the views taken in the advice memos and consider potential protective steps.

John Getty*
jgetty@williamsparker.com
(941) 329-6622
*Admitted in Louisiana and Georgia

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).

A NLRB Christmas Story

If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”

However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:

We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.

*  *  *

In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”

The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.

[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]

In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.”  With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining  “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”

We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.

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

The NLRB’s Holiday Gift to Employers

The new General Counsel for the NLRB recently issued a memorandum explaining that the NLRB would be moving swiftly to review several of the more controversial, and arguably anti-employer, decisions issued in the last eight years.  On December 14, thirteen days later, on the third night of Hanukkah, nine days before Festivus, and less than two weeks before Christmas, the NLRB took the first steps towards fulfilling this promise, when it issued two employer-friendly decisions that overturned two of the most controversial rulings of the NLRB under the Obama administration.  Happy Holidays, Employers!

First, in Hy-Brand Contractors the NLRB overturned the Browning-Ferris joint employer standard. When issued, the Browning-Ferris decision was shocking as it changed years of NLRB precedent. Through the Hy-Brand decision, NLRB has returned to the long standing test for joint employment that focuses on whether joint control is exercised (rather than merely reserved), whether such control has a “direct and immediate” impact on employment terms (rather than a merely indirect impact), and whether such control is not merely “limited and routine.”

Next, in Boeing Co. & Society of Professional Engineering Employees in Aerospace, the NLRB overturned the somewhat paternalistic Lutheran Heritage standard that has been used to invalidate policies in employee handbooks if it was determined by the NLRB that employees could “reasonably construe” the policy as barring them from exercising their rights under the NLRA. In application, the Lutheran Heritage standard was often applied in a way that caused employers to opine that the NLRB thought employees were lacking in intellect or common sense if they were to construe the policies as chilling or prohibiting their rights.  On pages 3-4 of the Boeing opinion, the NLRB states that the new standard will be as follows:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1).

As the result of this balancing, in this and future cases, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.

Although this standard is somewhat complicated, it should provide employers more confidence in their ability to have appropriate policies for their workplaces, including those that have business justifications which outweigh potential adverse impacts on employees’ protected rights.

In addition to the foregoing, on December 12, 2017, the NLRB issued a Request for Information Regarding Representation Election Regulations and in doing so provided employers with hope that the 2014 “quickie election rule” may eventually be a rule of the past.

Hopefully, the holiday gifts from the NLRB continue through the season.

This post was co-authored by Gail E. Farb and Jennifer Fowler-Hermes.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

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