NLRB Delivers A “Holiday Gift” To Employers: New Union Election Timelines

On December 13, 2019, the National Labor Relations Board (NLRB) issued a final rule revising the Obama-era union election procedures (known as “R-Case” rules). The revision to the procedures will become effective 120 days from its publication in the Federal Register next week.


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Most human resources folks know that, under the Family and Medical Leave Act, eligible employees can take leave to care for a child with a serious health condition, and that the FMLA defines “child” as being under the age of 18. But what some perhaps don’t realize is the  FMLA has an additional definition of “child”: one over 18 years who  is “incapable of self-care because of a mental or physical disability.” And even if they’re aware of that definition, they may not understand that the disability can be quite temporary in nature. A recent case, Gibson v. New York State Office of Mental Health, clearly makes this point.

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In a study published in 2000, two professors – one from Princeton, the other from Harvard –concluded that blind auditions exponentially increased the probability of female musicians being selected for seats on major symphony orchestras. In blind auditions, musicians play from behind screens, thus removing the distraction of the person, including the person’s race, age or (the focus of the study) gender. The study collected data from eight symphony orchestras over four decades. The problem is, according to a Wall Street Journal article, the data presented a “tangle of contradictory trends” that did not support the unequivocal bottom line presented by the authors. Indeed, “[t]he paper includes multiple warnings about small sample sizes, contradictory results and failures to pass standard tests of statistical significance. But few readers seem to have noticed. What caught everyone’s attention was a big claim in the final paragraph.”

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By now most everyone has heard about the travails of WeWork arising from the swift downfall of founder Adam Neumann. If you have not heard, you are missing some fascinating stuff.  A Wall Street Journal piece was first to chronicle Neumann’s manic behavior (such as pondering how to become immortal and transporting large amounts of marijuana on a private jet trip, much to the chagrin of the jet’s owner!). In the wake of these disclosures, private equity investment firms that had committed tens of millions to WeWork became skittish, a planned IPO was pulled, and a faction of WeWork board members called for Neumann’s removal as a CEO. Indeed, within roughly a week of the WSJ article, he was forced to vacate his leadership role. Goldman Sachs, Morgan Stanley, and other investment houses now have written down the value of their investments by tens of millions of dollars.
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In May of 2013, some Walmart employees boarded buses bound for Bentonville, Arkansas to attend the Company’s annual shareholders meeting. The buses formed a caravan, picking up employees at Walmart locations on the way. The employees handed strike letters to their managers before departing.

The caravan was dubbed the “Ride for Respect.” It was organized by OUR Walmart, a group formed with the assistance of the United Food and Commercial Worker Union (UFCW). Once in Bentonville, the employees held demonstrations, attended the shareholder meeting, and engaged in other activities to publicize their grievances.
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Debt can alter one’s future trajectory for good or for ill.  The latter is reflected in a recent article in the Wall Street Journal.  Although they are the most educated generation ever in the U.S., Millennials at the tail end of their generation incurred unprecedented debt for college – often six figure debt – then graduated into the Great Recession.  Their employment opportunities were truncated.  As a result, their income potential (and debt repayment capability) has been damaged, seemingly beyond repair. They have collectively put off home buying and starting families, which has ripple effects for the future, from reduced home buying opportunity to delayed or foregone child rearing. 
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$3.8 million dollars. That’s what a Tucson, Arizona jury awarded to a former fire paramedic denied workplace accommodations required under the Fair Labor Standards Act for women who want to pump breast milk for their infants. Under the law, for the first year after the birth of a child, employers must provide non-exempt employees with reasonable breaks to pump. Employers also must provide a place, other than a bathroom, that is shielded from the view of others and that is free from intrusion by coworkers or others.
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On April 23, 2019, a divided U.S. Supreme Court answered a question that had been left open by the Court in 2010: namely, whether an agreement that is ambiguous on the availability of class-wide arbitration could form the basis for an order compelling the arbitration of such claims.  In Lamps Plus, Inc. et al. v. Varelathe Court ruled that such an agreement does not support an order compelling arbitration of class action claims.
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According to Pharmajet Blog, a surprising number of pharmacists suffer from trypanophobia – the fear of giving injections, which most in their profession have to do these days during flu season. As Pharmajet notes, the Americans with Disabilities Act generally does not help the needle-phobic pharmacist because companies have a right to define the essential functions of a job.


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So, you say you want to avoid employment jury trials?  Let’s talk.

The Federal Arbitration Act (and the law of virtually all States that have enacted a version of the Uniform Arbitration Act) favor arbitration.  Contractual agreements that clearly and unmistakably set forth an intent to arbitrate disputes normally will be enforced (barring a judicial “lapse of judgment”).  Key benefit: in arbitration, there is no jury!  Employers know that juries are fickle, and may decide an issue based on empathy and anger rather than the rules of law enunciated in the jury instructions. 
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