As you may remember, Shawe Rosenthal joined with other law firms in Worklaw® Network in a lawsuit against the U.S. Department of Labor to block its implementation of the controversial “persuader rule” in order to protect your right to seek counsel on employment, labor and HR matters with privacy and confidentiality. Here’s a brief recap of the milestones: Continue Reading Persuader Rule Lawsuit Update
As a die-hard management-side labor and employment attorney who has been frustrated with the recent flood of anti-employer decisions coming out of the National Labor Relations Board, I enjoy those infrequent moments when a union experiences a little of that pain – such as in the recent case of Laborers Union Local 91.
To give a little background, all employees (whether unionized or not) have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activity regarding the terms and conditions of employment for their “mutual aid or protection.” The Board has issued a number of rulings finding that employees’ social media activity (e.g. Facebook posts and likes, and tweets) criticizing, disparaging, and otherwise describing their employers in ways I (and many others) would find offensive is protected under Section 7. (Meaning that the employer cannot discipline or terminate the employee for engaging in seemingly inappropriate behavior against the employer). Unions, of course, have been supportive of these decisions. But it appears that at least one of them did not realize the same rule applies to unions. Continue Reading Union Violates Employee’s Right to Engage in Protected Social Media Activity
As I mentioned in a recent post, “SEIU Fights Its Own Unionization,” the Service Employees International Union has been behind the push at the National Labor Relations Board to extend joint employer status to franchisors, like McDonald’s (meaning that McDonald’s would be deemed an employer of its franchisees’ employees). And now, it is further extending this push – to the Equal Employment Opportunity Commission. On October 5, 2016, (as first reported by The Guardian) Fight for $15 (which is backed and funded by SEIU) announced that it had helped 15 McDonald’s employees (who are also Fight for $15 activists, unsurprisingly) file charges with the EEOC, claiming that they had been sexually harassed by their employers. Apparently only one of the charges was filed against a corporate McDonald’s store – the rest were filed jointly against franchisee stores and McDonald’s Corporation. Continue Reading SEIU Expands Joint Employment Fight to the EEOC
As I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?
As many of you may have heard and as we discussed in our August E-Update, last week in The Trustees of Columbia University in the City of New York, the National Labor Relations Board reversed a twelve-year precedent in holding that student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act and can therefore unionize.
There has been a flurry of employee-friendly decisions issued by the Labor Board in recent weeks to coincide with – not surprisingly – the conclusion of Member Hirozawa’s three-year term on August 27, 2016. This case, however, irks me more than most. The Majority stated that preventing graduate assistants the right to unionize “deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction” because, according to the Majority, “even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act.” And yet, in 2004, the Labor Board reached a contrary conclusion – that graduate assistants are not statutory employees who have the right to unionize, because the Labor Board acknowledged that graduate assistants have a primarily academic, not economic, relationship with their universities. So what’s changed? That is a rhetorical question. Obviously, nothing has changed, but the make-up of the Labor Board and its current desire to expand the reach of the Act. Continue Reading The NLRB Changes Its Mind Again
I enjoy those cases where those (sometimes uppity) government agencies get a taste of their own medicine. I previously told you about the EEOC being sued for failing to accommodate its own employee’s disability, for example. Here’s another one – the U.S. Department of Labor, which is the federal agency that enforces the Fair Labor Standards Act (FLSA), including its overtime provisions, just agreed to pay $7 MILLION to settle a claim that it failed to pay overtime to its own employees!!! Continue Reading DOL Settles Its Own Multi-Million Dollar Overtime Suit
In another blow to management, on July 11, 2016, a divided National Labor Relations Board issued Miller & Anderson, in which it reversed course after more than a decade to return to the rule established in the 2000 case of M.B. Sturgis, Inc., whereby employees supplied by a staffing agency can be included in a single bargaining unit — and vote in an NLRB representation election — with an employer’s regular employees without the consent of both employers.
In 2004, M.B. Sturgis was itself reversed by Oakwood Care Center, in which the Board held that a union could organize a bargaining unit consisting of an employer’s regular employees and employees supplied by a staffing agency only if both the employer and the staffing agency consented to a combined secret ballot election.
The U.S. District Court in Minnesota ruled, on June 22, 2016, that the Department of Labor’s new interpretation of the advice exemption from the persuader rule is “untenable” and “flawed.” The Court did not issue an injunction against the new interpretation, which goes into effect July 1, 2016, but that was based on its finding that the DOL suspended the most objectionable reporting requirement after the lawsuit was filed. The challenge to the new interpretation was filed by Worklaw Network, a national alliance of labor and employment firms of which we are a member. Our firm, along with Seaton, Peters & Revnew, P.A. of Minneapolis, represented Worklaw, as we discussed in a prior post, “Shawe Rosenthal and Worklaw Just Sued the DOL.” Continue Reading Court Finds DOL’s New Persuader Rule “Flawed”
That’s an eye-catcher of a title, isn’t it? As reported by the New York Times, Babeland, an adult toy store, became the first sex shop to become unionized. Workers at three New York City locations voted to be represented by the Retail, Wholesale and Department Store Union, one of the country’s largest retail unions.
Why did they choose to unionize? There were several typical reasons – wanting more transparency around hiring, promotions and discipline, as well as better ways of addressing workplace disputes and grievances.
But there were some other, less typical reasons. One is the customers. I’m sure you aren’t surprised to hear that Babeland’s customers can be, well, difficult. Some of them seem to believe that it’s ok to sexually harass sex shop workers. The workers want management to provide better training and support in dealing with these folks. Continue Reading Sex Shop Workers Unionize
In a perplexing – if not shocking – decision, the National Labor Relations Board determined that there is substantial difference between an employee having the opportunity to vote in a mail ballot election, and his or her vote in fact being counted.
In Premier Utility Services, LLC, the employer, a utility company with 101 employees living and working in New York City’s five boroughs, participated in a mail ballot election from October 20 to November 4, 2015 to determine whether Communications Workers of America, Local 1101 would represent the petitioned-for employees. However, as of November 4, 2015, the NLRB Regional Office had received only four (!) ballots. As a result, the parties postponed the tally of ballots until November 12, 2015, a somewhat usual departure from the NLRB’s usual election procedures. By November 12, 2015, the NLRB only received 34 ballots out of the possible 101. Nevertheless, the Region counted the ballots and the Union received a majority of the votes counted, 20-14.
Following the count, the NLRB Regional office received an additional 55 ballots, including 48 ballots that were postmarked before November 4, the end of the original voting period. The Regional Director, however, refused to count the 48 ballots that were postmarked before November 4 because they were received after November 12. As a result, the union was certified as the bargaining representative based on only 34 votes out of 101 eligible voters, even though a large number of additional ballots had been timely mailed!!!