More Bad News For Employers from the NLRB
During the past few years, the National Labor Relations Board has been active in scrutinizing employer activity, including finding many common workplace policies unlawful. The bad news continues for employers with two significant developments. First, on December 12, 2014, the NLRB issued final rules that effectively will cut the time period for union elections in half. Second, the NLRB has overruled its 2007 decision in Register Guard, and now takes the position that if an employee is allowed to send or receive emails at work, then the employee must be permitted to use work email to communicate with coworkers about union-related issues. Both decisions were reached by the NLRB on 3-2 votes along partisan lines.
Final Rule on “Quickie Elections”
The NLRB has amended its rules on how it will conduct elections for private employers. The rules, which will be effective April 14, 2015, could shorten the election process in half from approximately 42 days to approximately 21 days. The following are some of the changes:
- Representation petitions may be electronically filed with the NLRB.
- Once the petition is filed, the employer must post and distribute a Board-issued notice to employees about the petition and the potential for an election. This currently is not required.
- Pre-election hearings will be scheduled 8 days after the hearing notice is served.
- One day prior to the pre-election hearing, employers must submit a Statement of Position identifying all of the issues to be litigated at the hearing. Employers also must provide a list of prospective voters and their contact information, job classification, shift, and work location.
- Once the issues are presented, the Regional Director will decide which, if any, voter eligibility questions should be litigated before an election is held. Parties will not have a right to file post-hearing briefs, and NLRB review of a Regional Director’s pre-election ruling generally will not occur absent “compelling reasons.” There will be no automatic stay of an election.
- The final voter eligibility list must be produced electronically to the Region and the Union within 2 business days after the Region issues the direction of election. The list not only must include names and addresses, but also email addresses, phone numbers, shifts, job classifications, and work locations.
The shortened election process is certainly more advantageous to unions as it gives employers very little time to conduct an adequate campaign. This likely will result in increased organizing activity. It is more important than ever that employers be aware of any organizing attempts and be prepared to act immediately if a petition is filed.
NLRB Establishes Presumption that Employees May Use Employer Email for Union Activity
On December 11, 2014 the NLRB overruled precedent and held in Purple Communications, Inc. that there is “a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.” The Board went on to state that “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”
Where special circumstances do not exist to permit a total ban, the Board stated that employers may apply uniform and consistently enforced controls over their email systems “to the extent such controls are necessary to maintain production and discipline.” Thus, employers may, for example, restrict large attachments to email or ban video or audio attachments to ensure that the email system functions effectively.
Employers should review their policies related to the use of email to determine whether they comply with the Board’s new framework. In particular, policies that limit email to “business use only” may need to be revised.
Company-Required Security Screenings Are Not Compensable Under the FLSA
The United States Supreme Court recently held that time spent by employees undergoing post-shift security screenings are not compensable under the federal Fair Labor Standards Act (FLSA). In Integrity Staffing Solutions, Inc. vs. Busk, the Company’s warehouse employees were required to retrieve products from warehouse shelves and package them for delivery to Amazon.com customers. To prevent employee theft, the Company required the employees to undergo security screenings at the end of their shifts. Several former employees sued claiming that the 25 minutes spent each day undergoing the security screenings was compensable. In a 9-0 decision, the U.S. Supreme Court disagreed with the employees and ruled in favor of the Company.
The Court stated that the Portal-to-Portal Act exempted employers from compensating employees for “activities which are preliminary or postliminary” to the performance of the principal activities that an employee is employed to perform. The Court held that “an activity is integral and indispensable to the principal activities that an employee is employed to perform – and thus compensable under the FLSA – if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.”
The screening process at issue, the Court stated, was incidental and not a “principal activity” of the employees’ job duties. The screening also was not “integral and indispensable” to the employees’ duties because it could be eliminated without affecting the employees’ ability to do their jobs.
“Regarded As” Disability Discrimination Claims Prohibited Under Connecticut Law
The Connecticut Supreme Court reversed the decision of the Connecticut Appellate Court and held in Desrosiers v. Diageo N. Am., Inc. that the Connecticut Fair Employment Practices Act (CFEPA) prohibits employers from discriminating against individuals whom they regard as physically disabled. In reaching its decision, the Court acknowledged that the CFEPA does not expressly prohibit “regarded as” claims. However, the Court based its decision on the legislative history of the CFEPA, Connecticut case law, and the Commission on Human Rights & Opportunities’ interpretation of the CFEPA.
In Desrosiers, the plaintiff took vacation from December 21, 2004 through January 4, 2005. When she returned to work, she informed the Company that she would need to take time off from work to undergo surgery for a tumor on her right shoulder. The next day the plaintiff was told that her employment was terminated. The plaintiff alleged, among other claims, that the Company unlawfully terminated her employment because it “regarded her” as disabled.The Company’s position was that it terminated the plaintiff because of poor performance. The trial court granted the Company’s motion for summary judgment on the plaintiff’s “regarded as” claim and the Company received a verdict in its favor at trial on the remaining disability discrimination claim. The plaintiff appealed the trial court’s dismissal of the “regarded as” claim and the Appellate Court affirmed, holding that Connecticut law does not recognize such a claim. The plaintiff appealed and the Connecticut Supreme Court reversed.
The Court found that failing to recognize “regarded as” claims (which are recognized under the Americans with Disabilities Act) would lead to bizarre results. The Court stated, ‘‘under the plain language of [CFEPA], if an employee has a chronic disease, the employer may not discharge the employee on that basis. If, however, the employee is undergoing testing that leads his employer to believe that he has a chronic disease, the literal terms of [CFEPA] do not protect the employee from discharge on that basis, despite the fact that the employer’s action, in both cases, was premised on the same discriminatory purpose. That scenario is contrary to the very idea of an antidiscrimination statute and is inconsistent with the legislature’s clear statement ‘that discrimination based on a physical disability is prohibited.’”
Justice Zarella issued a dissenting opinion. He stated, “[although the majority’s interpretation of the relevant statutory language may be the better public policy, and although the legislature might adopt that policy if the matter is brought to its attention, that is not sufficient reasoning for abandoning the plain and unambiguous directive in the statute itself.”
Massachusetts Follows Connecticut’s Lead and Adopts Paid Sick Leave
On July 15, 2015, a new law in Massachusetts, enacted by referendum, will require covered employers to provide up to 40 hours of sick leave to eligible employees. Employers with 11 or more full and part-time employees must provide paid sick time, while smaller employers can provide unpaid sick time.
The new Massachusetts law is similar to Connecticut’s law in various respects. Some of the key requirements include:
- Full and part-time employees begin to accrue sick leave on their hire date, but cannot use any sick leave until they have worked at least 90 days.
- Employees accrue one hour of paid sick leave for every 30 hours worked.
- Accrued but unused paid sick leave must be carried over from year to year, although employers can cap accrual at 40 hours.
- Sick leave may be used in at least hourly increments.
- Employees may take sick leave for their own medical condition or for the medical condition of a child, spouse, parent, or parent of a spouse, including taking time off for routine doctors’ appointments and preventative treatment.
- Employers are not required to pay for accrued but unused sick leave upon separation of an employee’s employment.
- Employers may require a medical certification if the employee has used earned sick time for more than 24 consecutively scheduled work hours.
- Massachusetts’ attorney general will prepare a notice describing employees’ rights under the new law. This notice must be posted in a conspicuous location at each worksite in Massachusetts. Employers also must provide employees with a copy of the notice.
Employers with employees in Massachusetts should review their sick leave policies and make any necessary revisions to ensure compliance with the new law.
If you have any questions, please contact any member of the Carmody Labor and Employment Practice Group for more information.
- Vincent Farisello
- Sarah S. Healey
- Howard K. Levine
- Giovanna Tiberii Weller
- Mark F. Williams
- Domenico Zaino