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.”
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Sex Shop Workers Unionize
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.
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NLRB Refuses to Count Timely-Mailed Ballots
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!!!Continue Reading NLRB Refuses to Count Timely-Mailed Ballots
NLRB’s Quickie Election Rule Turns One
“I’ve known Bob Rumson for years and I’ve been operating under the assumption that the reason Bob devotes so much time to shouting at the rain was that he simply didn’t get it. Well, I was wrong. Bob’s problem isn’t that he doesn’t get it. Bob’s problem is that he can’t sell it.”
President Andrew Shepherd (played by Michael Douglas) in The American President.
The NLRB’s Quickie Election Rule just celebrated its first anniversary and you know what? The union election win rate remained the same–about 65%. The total number of union petitions filed to hold elections jumped all the way from 2,141 in the year before the new Rule up to 2,144 last year– a “whopping” gain of 3 elections. NLRB statistics do confirm that the median time from the filing a petition to the election decreased substantially, from 38 days down to 24 days.
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Shawe Rosenthal and Worklaw Just Sued the DOL
Although the government is often a thorn in the side of many of our clients, it is not every day that we decide to sue the government. Today was a different story.
On March 31, 2016, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit against the U.S. Department of Labor to block the Department’s new interpretation of the persuader rule. A copy of the complaint can be viewed here.
We discussed the new persuader rule in a previous post. To reiterate briefly, a federal law called the Labor-Management Reporting and Disclosure Act requires people who assist employers to fend off union organizing drives to file reports with the Department of Labor. The law contains an “advice exemption” under which employers and their attorneys do not have to report confidential information protected by the attorney-client relationship. For decades, the Department has correctly held that the “advice exemption” applies to lawyers who advise clients concerning union organizing drives, as long as the lawyers do not communicate directly with employees. Under the new interpretation, effective July 1, 2016, the Department has substantially narrowed the advice exemption. (Actually, the Department would say it substantially narrowed the exemption. I would say the Department completely eliminated it.)
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DOL Issues Persuader Rule
On March 23, 2016, the Department of Labor released the long-pending revisions to the “persuader rule,” drastically expanding employers’ disclosure requirements regarding their use of union avoidance consultants, including attorneys as well as HR consultants and media specialists. Our firm, on behalf of Worklaw, an international management-side network of labor and employment firms, will be filing suit to block implementation of the rule.
Under the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA), employers are required to file reports and disclose expenditures to the DOL each time they engage a consultant to persuade employees regarding employees’ rights to organize. However, the LMRDA provides an “advice exception,” which had been interpreted for over 50 years to exclude an employer’s discussions with its labor relations consultants – including legal counsel – regarding opposition to a union organizing campaign, as long as the consultants had no direct contact with employees.
Under the new rule, however, the scope of an employer’s reporting obligations under the LMRDA has been substantially expanded, and will include a broad range of activities beyond “direct contact” provided by labor relations consultants – including attorneys. The intent of this one-sided rule is to discourage employers from retaining such consultants, and thereby promote unionization.
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Political Paraphernalia in the Workplace
As a follow up to my last post on political discussions in the workplace, I thought it might be helpful to employers to discuss other, material aspects of politics in the workplace – such as campaign posters, flyers, buttons, and clothing.
Given that, as we now know, you can ban (most) political speech in the workplace, most of you will not be surprised that you can ban (most) political paraphernalia in the workplace. There are caveats, of course.
First, you may have a solicitation and distribution policy that would prohibit posters (soliciting political support) in employees’ workspaces, or the distribution of political flyers in working areas. Similarly, your dress code policy may instruct employees that they may not wear clothing with slogans or words (political or otherwise).Continue Reading Political Paraphernalia in the Workplace
Return of the Beast: Religious Accommodation Redux
Back around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!
Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally.
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Union Violates Employee’s Labor Rights
As a management-side labor firm, we are constantly in opposition to unions. So we particularly enjoy the irony when a union – as an employer – is found to have violated the National Labor Relations Act. (Yes, unions do violate the NLRA!) On December 1, 2015, in Amalgamated Transit Union, Local 689 and Tamar C. Simmons, the National Labor Relations Board ruled the Union violated the NLRA by disciplining and threatening to fire one of the Union’s administrative assistants.
The employee was a member of Office and Professional Employees (“OPELU”) Local Union 2, a union which routinely represents workers within the ATU. (Yes, the union itself is unionized!) Her job duties consisted of answering phones, processing grievances, handling incoming mail, and ensuring that a bulletin board was current. OPELU filed a grievance on the employee’s behalf after the president of the Union transferred some of her administrative tasks to non-bargaining unit employees.
The grievance was eventually dropped, but that did not stop the Union President from interrogating the employee about the timing of her break time. He also got “very angry” at the employee for talking about her breaks with another employee and told her to stop doing so. He issued her a warning letter about her attitude and tone, and also counseled her about keeping the bulletin board updated. Of particular significance, he suggested that if the employee was unhappy at work, she should quit.Continue Reading Union Violates Employee’s Labor Rights
NLRB Imposes Expansive (and Onerous) Requirements For Preparation of Voter List
As you may know, the National Labor Relations Board substantially revised the rules governing the union elections process, by which employees choose whether or not they wish to be represented by a union. The controversial revisions greatly sped up the process, with the effect that employer had less time to educate their employees about the impact of unionization before an election is held – which means more unionization (hence the controversy!).
These revised “quickie election” rules took effect in April 2015. Because the rules themselves were not troubling enough for employers, we now have to contend with the Board’s expansive interpretation of those rules. Here’s an example of what I mean.
As part of the election process, the employer must provide a voter list to the union, containing the names and contact information for all employees eligible to vote in the election. Before the revisions, this list consisted of the names and addresses of eligible voters. This information is readily available from a company’s human resources department, through its database or records. The revised rule, however, requires that the list must now include “available” personal e-mail addresses, and home and cell phone numbers.
What does this mean? Well, in the Danbury Hospital of the Western Connecticut Health Network case, the employer generated a list from its HR database. The list contained the addresses and emails for all the eligible voters, and phone number for 94% of them.
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