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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Chair of Employment, Benefits & Labor Relations Practice Group
Attorney
Wausau Office
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Found 171 Results.

What You Do During A Meal Break May Mean More Pay

Posted on February 5, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Sixth Circuit Court of Appeals addressed whether employees performing certain activities during a meal break must be compensated in the form of pay for that work. Fortunately, the Court of Appeals held in favor of the employer when security guards were asking for pay while on a meal break because they were monitoring their radio in case they were called to address an emergency.  The Sixth Circuit held that these employees were not entitled to pay for time worked during the meal break because the time they spent during their meal break was not “predominantly for the benefit of their employer.” The employees were not allowed to leave the premises and had to listen to their radio during the meal break but were not interrupted during their meal break unless an emergency occurred. This case, brought by security guards at a casino, is important because it clearly holds that employees who are on a meal break are not eligible to count that time as time worked even if they are listening to a work radio that is transmitting information about the happenings in the workplace and they are required to respond if an emergency occurs. The Court of Appeals held that after examining all of the circumstances, it was reasonable to conclude that no substantial job duties were being engaged in during the meal break and that emergency calls rarely interrupted the meal break time. As a result, the Court concluded, on a summary judgment motion, that the time spent during the meal break should not count as time worked for overtime pay purposes. If the guards were called out to respond to an emergency, the time would count as time worked. The Fair Labor Standard Act requires employers to pay overtime after 40 hours of work and count all time worked for purposes of reaching the 40-hour limit. Employers should be very careful when analyzing whether or not an employee is actually performing work for the company because there is a potential that time worked would count toward the 40-hour requirement. A recent budget proposal from President Obama includes an increase in monies for the Department of Labor to conduct investigations regarding overtime pay violations and other violations under the jurisdiction of the Department of Labor (i.e. immigration issues). Employers should recognize that the Department of Labor may be very active during the next two years so it is important to understand and follow all of the requirements of the Fair Labor Standards Act and other federal laws.

Retaliation Claims are at the Top

Posted on February 17, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent report issued by the Equal Employment Opportunity Commission shows that retaliation claims are the largest number of claims that are brought to the EEOC for consideration. Sex discrimination claims rank second and disability discrimination claims rank third, but for the second year, retaliation claims are the most prevalent claims that are brought to the EEOC.  Retaliation claims arise when an employer retaliates against an employee by taking some type of adverse employment action allegedly because the employee complained about a discriminatory practice or assisted someone else in complaining about a discriminatory practice. The difficulty with retaliation claims is that often an employee has alleged some type of discrimination that is not proven but then alleges the employer retaliated against the employee because of the complaint having been brought. In a sense, employees try to claim they have a “protected status” because they raised a complaint about discrimination and now the employer cannot take action against them because they complained. This is not true of course; however employers have to be very careful because they will often face a retaliation claim when they take adverse employment action against someone who had previously complained about discriminatory working conditions or discriminatory conduct. These types of claims often arise in sexual harassment scenarios where an employee has complained of harassment that actually did not occur or was not so pervasive as to constitute harassment but then the employee thinks they have been retaliated against if any type of disciplinary action is taken against them.  The EEOC is also very interested in pursuing retaliation claims against an employer because they do not want any employee who has objected to conduct to be retaliated against by the employer. As a result, the EEOC is very aggressive in pursuing retaliation claims and also is very likely to assume that retaliation has occurred when a complaint is brought to the attention of the EEOC. Employers must be very careful when taking disciplinary action against an employee who has complained about behavior in the workplace. Employers should not feel constrained from taking disciplinary action but must be able to show that the disciplinary action is based upon performance or conduct and not based upon any suggestion of retaliation against the employee for having raised a complaint in the workplace.

Working at Home May Not be a Reasonable Accommodation

Posted on January 8, 2015, Authored by Dean R. Dietrich, Filed under Employment

...In this decision, Taylor-Novotny v. Health Alliance Medical Plans, Inc. 7th Cir., No. 13-3652, November 26, 2014, the company had a policy that allowed employees to work from home on...

Light-Duty for Pregnant Employees – The Story Continues

Posted on March 27, 2015, Authored by Dean R. Dietrich, Filed under Employment

On Wednesday, the United States Supreme Court overturned a decision from the 4th Circuit Court of Appeals that granted summary judgment to United Parcel Service dismissing a claim by an employee for pregnancy discrimination. The U.S. Supreme Court overturned the Court of Appeals decision and kept alive a claim by a pregnant employee that the employee should be able to work a light-duty assignment at the company just like other employees who suffered a work-related injury. The employee claimed pregnancy discrimination when the company refused to allow her to perform a light-duty assignment that others were allowed to perform because of a work-related injury. The case now goes back to the Federal District Court for a full trial on the merits of the claim. This decision continues the saga regarding pregnancy discrimination and light-duty assignments for a pregnant employee. Many companies have a policy that limits light-duty assignments to those employees that suffer a work-related injury in order to assist the employee in returning to regular duties. The EEOC recently changed its position and declared that it was pregnancy discrimination to prohibit a pregnant employee from performing light-duty assignments just like other employees. This recent U.S. Supreme Court decision seems to support the EEOC Guidelines and now opens the door for more litigation over what type of limited-duty assignment must be given to a pregnant employee.  While this litigation is being taken under federal regulations, it is still relevant to Wisconsin employers because of the similarity in the state statutes to federal law regarding pregnancy discrimination. Employers will have to watch this case closely and perhaps adjust how they consider the handling of limited-duty work for pregnant employees.

Independent Contractor, Not Employee?

Posted on January 30, 2015, Authored by Dean R. Dietrich, Filed under Employment

There has been a lot of discussion about independent contractor status and initiatives by the Department of Labor to investigate whether a particular worker has been improperly classified as an independent contractor and not an employee of a company. The State of Wisconsin has signed on to cooperate directly with the Department of Labor in these type of investigations. Wisconsin employers should know their determinations of employee status/independent contractor status will now be subject to more intense review by the Department of Workforce Development in cooperation with the Department of Labor.  There are a number of tests that can be looked at to determine whether an individual worker is considered an employee of the company or an independent contractor providing services to the company. Many of the elements of independent contractor status fall under the “right to control” test. This test looks at whether the employer controls the hours of work and working conditions or the worker has the right to set hours of work and working conditions as well as provide his/her own tools for getting the work done. The focus of this test is to determine whether the worker has independent status to determine how best to do the job and when to do the job or whether the employer controls the many aspects of the job suggesting the worker is actually an employee of the company.  Another test focuses on the entrepreneurial aspects of the payments made to the worker. If the worker is paid for a job and is able to reap the benefits of his/her work plan and work activities, the worker will likely be considered an independent contractor. This is compared to a payment by the hour for work performed which closely suggests the worker is an employee of the company.  These are simple explanations about a very complex topic. Employers must understand the Wisconsin Department of Workforce Development will be very closely scrutinizing these situations where an individual worker is considered an independent contractor and not an employee of the company. Employers should take steps to fully investigate how they classify workers that provide services to the company.

Right to Work for Public Sector Employees?

Posted on March 11, 2015, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

Wisconsin has become a right to work state this week. It is clear that the legislation signed by the Governor does not apply to public sector employees such as public safety and transit employees. Local governments will still be required to negotiate over fair share dues for these bargaining units. A case before the United States Supreme Court may, however, change all of that. Recently, the National Right to Work Legal Defense Foundation sought US Supreme Court review of a decision involving teachers in the state of California who are challenging the obligation to pay union fees. This is a suit that was brought against the National Education Association and the California Teachers Association in April of 2013. The National Right to Work Legal Defense Foundation has asked the United States Supreme Court to grant a certiorari petition which would result in a review of the 1977 Abood ruling which allowed states to pass laws requiring public workers to pay fair share dues. The Foundation is looking to overturn the 1977 decision based upon a recent Supreme Court ruling in 2014 that held workers who provided in-home care to Medicaid recipients in Illinois were not required to pay fair share dues to the union that was representing their interests in front of state agencies. This is known as the Harris v. Quinn decision. Although the Harris v. Quinn decision is based on a different set of facts, it signaled the willingness of the Supreme Court to review the 1977 decision that held it constitutional to require public workers to pay fair share dues. It is not clear whether the Supreme Court will accept certiorari and review the decisions involving a challenge to fair share dues from a group of California teachers. Several Justices have expressed an interest in pursuing a further review of the prior decisions on this topic. The end result could be a review of the constitutionality of requiring public sector employees to pay fair share dues in those instances where collective bargaining on all topics continues to occur. For now, Wisconsin employers are still subject to the provisions in the existing labor agreements that call for fair share dues being paid by every employee in the public safety or transit bargaining unit.

Must Companies “Ban the Box” in Wisconsin?

Posted on February 4, 2015, Authored by Dean R. Dietrich, Filed under Employment

“Ban the box” legislation has become popular throughout the country. Fifteen states and a number of local jurisdictions have adopted legislation that involves arrest and conviction record discrimination and specifically “bans the box" that must be checked on an employment application if an applicant has been arrested or convicted of a crime. Many employers have a question on their application form that requires an employee to indicate whether they have been arrested for a crime or have been convicted of a crime; usually reference is made to crimes other than traffic violations. Various jurisdictions are passing legislation that requires an employer to eliminate this question from an employment application in order to help applicants that may have been convicted of a crime in the past from being summarily removed from employment consideration. This legislation does not mean an employer must hire an employee that has been convicted of a crime but rather changes the process to determine whether or not an applicant has a criminal record that must be considered.  Wisconsin has yet to consider legislation of this nature. Wisconsin does, however, have a rigid non-discrimination statute relating to arrest and conviction record discrimination.  An employer may not discriminate against an employee who has been arrested for a criminal violation but rather may defer the consideration of that applicant until a time after the criminal proceedings have been completed. A Wisconsin company may not refuse to hire an applicant who has been convicted of a crime unless the circumstances of the crime substantially relate to the job duties that would be performed in the position being filled. This requires the employer to have a clear understanding of the circumstances relating to the conviction and assess whether those circumstances substantially relate to the job duties that would be performed by someone in the position. The focus should be on whether the job duties of the position would afford an opportunity for the applicant to engage in conduct that is similar to the conduct which resulted in the criminal conviction. Cases relating to arrest and conviction record discrimination are very dependent upon the facts involved; however, the employer must be very careful to avoid making a decision that is solely based upon some type of arrest or conviction in order to avoid the risk of a discrimination complaint.  Wisconsin has not adopted the “ban the box” legislation as other jurisdictions have. It is still acceptable for a Wisconsin employer to ask a question on the employment application that would disclose whether or not an applicant has been arrested or convicted of a crime. The employer must make it clear, however, that the mere arrest or conviction will not result in the applicant being summarily removed from consideration for the vacant position. Employers must be careful that their employment application is in compliance with Wisconsin discrimination law.

NLRB Changes Standard – Two Chances to Protect Employee Rights

Posted on December 19, 2014, Authored by Dean R. Dietrich, Filed under Employment

A decision issued last week by the National Labor Relations Board significantly changed the “deferral standard” that was used by the NLRB when considering whether a grievance arbitration award properly addressed the protection of employee rights to communicate about union activities.  In the recent decision of Babcock Wilcox Construction Co., Inc. the NLRB decided that it will apply a new standard if it is considering whether a grievance arbitration award properly protects the Section 7 rights of an employee under the National Labor Relations Act. Under the previous standard, the NLRB would defer an issue to grievance arbitration and rely upon a grievance arbitration award between the employer and the union if the issue in the arbitration award was “factually parallel” to any claim of an unfair labor practice for violating Section 7 rights. In other words, the NLRB would, with some regularity, defer to a grievance arbitration award and not pursue a separate unfair labor practice charge alleging a violation of employee rights. The employer would therefore litigate a case once before the grievance arbitrator and have a decision made as to whether or not the conduct properly alleged a violation of Section 7 rights. Under the new standard, an employer may have to litigate a claim of violation of Section 7 rights in two forums. One forum would be the grievance arbitration process and the other forum would be an unfair labor practice proceeding before the NLRB. The new standard adopted by the NLRB will require the employer to prove that the NLRB should properly defer an unfair labor practice claim to arbitration by showing that the statutory issue was properly presented to the arbitrator and the arbitrator considered the statutory requirements for an unfair labor practice charge in the grievance arbitration proceeding. In other words, the employer will have to show that the case was properly litigated under the unfair labor practice/Section 7 rights criteria before the grievance arbitrator, otherwise the NLRB will continue to pursue a claim against the employer even though the issue has already been litigated in a grievance arbitration forum. This means employers may have to litigate a matter twice in order to prove they did not violate an employee’s rights.  This adds another tool to employees and their union representatives for bringing a claim against the company. The claim can be litigated in the grievance arbitration forum and the NLRB unfair labor practice forum at the same time or sequentially depending upon the various schedules. These types of cases often arise when a company is dealing with discipline against a local union steward with the union alleging that the employee was being disciplined or terminated because of their union activities. This may result in a more “protected” status for employees who serve as union stewards.

Interacting with the Public is a Disability?

Posted on March 30, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 4th Circuit Court of Appeals has opened the door for a lawsuit by an employee claiming that she suffered from a “social anxiety disorder” which impacted her ability to have personal interaction with others. In a decision involving the North Carolina Administrative Office of the Courts, an employee has claimed discrimination because she suffered from a disorder that impacted her ability to work with the public and provide customer service at the front counter of the Office.  In this decision, Court of Appeals allowed the case to proceed to trial and was very critical of the Federal District Court decision that granted summary judgment for the North Carolina Administrative Office of the Courts. In its decision, the Court of Appeals criticized the Administrative Office of the Courts for failure to acknowledge the disabling condition suffered by the employee and failing to engage in an interactive process with the employee to determine whether reasonable accommodations could be provided for her “social anxiety disorder.”  The important aspect of this decision is that the Court of Appeals agreed with the EEOC that “interacting with others is a major life activity” for which protection must be provided in the form of an accommodation if an employee cannot engage in such activity without restriction or limitation. The Court of Appeals also acknowledged that the recent edition of the Diagnostic and Statistical Manual (DSM-IV) describes social anxiety disorder as a condition that “interferes significantly with the person’s normal routine occupational… functioning, or social activities or relationships.” Under this analysis, the Court of Appeals held that social anxiety disorder is a disability and must be accommodated by an employer. As this case proceeds to trial, the Administrative Office of the Courts will have to show why it failed to engage in an interactive process with the employee to discuss the physical and mental limitations the employee experienced based on this disorder and whether the employer could reasonably accommodate these limitations. The Court of Appeals recognized that the employer must engage in an interactive process and the failure to do so is a potential defect to the employer’s position which could ultimately find the employer liable for a failure to accommodate the disabling condition. Employers are reminded that the interactive process is a critical item that must be addressed when learning an employee suffers from a disability that must be accommodated by the employer.

Congress Tries to Stop Quickie Election Rules

Posted on March 31, 2015, Authored by Dean R. Dietrich, Filed under Employment

Action was taken by the United States Senate seeking to stop the implementation of the “quickie election” regulations scheduled to take effect in April. The Senate passed Senate Joint Resolution 8 to attempt to stall the implementation of these new Rules. While this is an effort that has support from the majority in the Senate and House of Representatives, it is unlikely that this legislation will pass the review from the President. The end result will continue to leave the “quickie election” rules in limbo. The Joint Resolution passed by the Senate calls for blocking of rules covering disputed representation cases and require the NLRB to get congressional approval to implement any similar type of rule. These rules are to take effect in mid-April and would greatly affect the union election proceedings that result in a vote to determine whether a group of employees wish to be represented by a union. Please see these past posts for more background information.  NLRB Finalizes Union Election Rules to "Modernize" and "Streamline" Election Process at Nonunion Workplaces Lawsuit Challenges NLRB Rules on Quickie Election A Quick Fix to the Quickie Election Rules? It is certainly not clear whether this Joint Resolution will really have any impact at all.  The attempt is to show there is not legislative support for the actions being taken by the National Labor Relations Board. There is litigation pending in the D.C. Federal Court to block the enforcement of these new regulations, but the status of that litigation is also unclear. It is not clear whether the litigation will stop the initial implementation of these rules. Employers should be careful about the potential for union election petitions being filed for representation of company employees. It is better to be prepared than to rely upon potential litigation to possibly block the implementation of these rules.  

Lawsuit Challenges NLRB Rules On Quickie Election

Posted on January 13, 2015, Authored by Dean R. Dietrich, Filed under Employment

As we have previously discussed on this blog site, the National Labor Relations Board has published new election rules often described as the “quickie election” rules. A blog summarizing the rules can be found here. These rules are to take effect on April 14, 2015, but a legal challenge has been filed to seek overturning of these new election rules.  The U.S. Chamber of Commerce along with other employer associations, has filed suit challenging the legality of the new rules published by the National Labor Relations Board. This legal challenge focuses on allegations that the new rules deny employers their constitutional right to freedom of speech and freedom of commercial speech. The litigation has been filed in the federal district court in Washington D.C.  The Chamber of Commerce has had success in the past challenging various rules adopted by the NLRB on the grounds that the NLRB was over-reaching in the wording of the rule and violating the constitutional rights of employers. Some of those challenges focused on the lack of authority of the NLRB which is not an issue to be litigated in this case. There are still questions regarding the appropriateness of the NLRB rule and the breadth of the rule but whether this legal challenge will cause the rule to be rescinded by the NLRB or overturned by the federal court remains to be seen.  Employers should be careful to not rely upon the past successes and assume the “quickie election” rule will not be implemented in April. Steps should be taken now by companies to ensure they are prepared in the event the election rules apply and a union organizing effort is initiated. Companies will not have the opportunity to address the myriad of issues that could arise in a union election proceeding if these new rules are in effect.

New Year Present from EEOC – Review of Wellness Programs

Posted on December 22, 2014, Authored by Dean R. Dietrich, Filed under Employment

As we think about Christmas presents, the EEOC recently announced its initiatives for the next year. One of those initiatives will be a review of wellness programs and the incentives that an employer provides to employees to participate in a wellness program. The EEOC is trying to coordinate the requirements of the Affordable Care Act with the requirements of the Americans with Disabilities Act. Its concern is whether various incentives provided by an employer for its employees to participate in a wellness program are actually penalties that discriminate against persons with disabilities who are not able to participate in a wellness program or choose not to because of their disability. Many companies have initiated wellness programs to try to reduce health care costs going forward. Under many plans, an incentive is given to an employee in the form of reduced premium contributions if the employee participates in the wellness program. In some cases, an employer will be more aggressive and try to insist upon an employee participating in the wellness program to improve the employee’s health and reduce insurance costs. These are the instances that are under review by the EEOC as a type of discrimination against individuals who may have a disabling condition. The EEOC is establishing new guidance for employers in an attempt to make sure that participation in a wellness program is clearly voluntary. This does not mean incentives cannot be provided but rather the incentives cannot be so one-sided that they are discriminating against persons with a disability.  New regulations will be introduced by the EEOC in the spring. Employers using a wellness program will have to monitor these regulations to make sure their incentives and participation requirements do not run afoul of EEOC’s view of disability discrimination laws.

Quickie Election Rules Likely Veto of Legislation

Posted on March 24, 2015, Authored by Dean R. Dietrich, Filed under Employment

On March 19, the U.S. House of Representatives passed a resolution to block the National Labor Relations Board from implementing the “quickie election” (or “ambush election”) rule. This legislation was previously approved by the U.S. Senate and now goes to the President for consideration. It is likely the President will veto this legislation which means the “quickie election” rules would still be in effect and are intended to be implemented on April 14. There is pending litigation that may stop the implementation of these new rules that address the processing of a union representation election but any court action is still up in the air.  As we have noted, the “quickie election” rules are scheduled to go into effect on April 14. They contain a number of changes to the current union representation election proceedings including eliminating a twenty-five day delay that can occur throughout the process and limiting the amount of arguments an employer can make to exclude employees from eligibility to vote in the union election.  The practical effect of these election rule changes is to significantly expedite the election process and thereby prevent an employer from having the time to effectively advocate for non-union status at the company facilities. Employers must be very sensitive to whether there are union election activities occurring in the workplace because there will be a very limited time to advocate against union representation if an election petition is filed and these rules are still in force. The company will be required to respond almost immediately with a list of eligible employees and will not be able to argue for exclusion of certain employees from the election process until after the election has been held.  Many employers are preparing a union election campaign strategy and putting that in place in order to be ready if a union election petition is filed. Hopefully, the courts in Washington D.C. and Texas will issue a temporary injunction to block the implementation of these new rules; however, there is no guarantee that will happen.

Indiana Supreme Court Holds Right-to-Work Law is Constitutional

Posted on December 4, 2014, Authored by Dean R. Dietrich, Filed under Employment

Several months ago, there was a lot of media coverage about a law adopted by the Indiana Legislature known as the Right-to-Work law. This law provided that a union could not force union members to pay union dues or be required to join a union that represented employees at a company. This law was subject to several legal challenges. The federal court for the Seventh District (which also includes Wisconsin) previously held that the law was constitutional and an appropriate exercise of legislative authority by the Indiana Legislature. Several state trial court cases held, however, that the law was unconstitutional because of peculiar language in the Indiana Constitution. The Indiana Supreme Court has now held that the law is constitutional and it was appropriate for the Legislature to pass a law which prohibited unions and employers from entering into a collective bargaining agreement which required all employees to join the union or pay dues to the union. Thus, Indiana employers who are negotiating with local unions are not required to negotiate on language which would require mandatory payment of dues and mandatory enrollment with the union if an employee wished to stay employed by the company. There has been talk about the Wisconsin Legislature passing a “right-to-work law” for Wisconsin employers. It is too early to tell whether this will become an issue in the upcoming legislative session, but the ruling by the Indiana Supreme Court is very helpful to those advocates who seek adoption of a right-to-work statute in Wisconsin. Recently, a group has come out advocating for right-to-work legislation in Wisconsin. It appears that the Legislature is interested in talking about this topic, although no promises have been made or assurances given that the Legislators approve this type of legislation.  If such a law is adopted, Wisconsin employers would be prohibited from negotiating a union shop clause which requires all employees to join the union to remain employed by the company and prohibits a Wisconsin employer from negotiating mandatory dues deductions from all employees who are part of the union membership. Wisconsin employers should be careful as they go to the bargaining table to be aware of what may happen in the Legislature and adjust their bargaining strategy as may be appropriate.

Sex Discrimination of All Types Will Be Enforced

Posted on December 16, 2014, Authored by Dean R. Dietrich, Filed under Employment

The Equal Opportunity Employment Commission has filed a complaint against two different companies alleging discrimination against individuals because of their actions to change gender and allegations the employee was terminated because of such conduct. These are the first cases brought by the EEOC since it took the position in 2012 that transgender discrimination is prohibited as a type of sex discrimination. In one case, a medical clinic terminated a properly performing employee who was biologically male but began dressing as a woman and informed the employer that she was transgender. In the other case, a funeral home terminated a biologically male employee after she informed the company she was planning to transition from male to female and would soon be coming to work dressed as a woman. Both of these cases focused on discrimination based on sex as a violation of Title VII which prohibits discrimination based on sex under federal law.  This is a new area of enforcement being pursued by the EEOC. We cannot say that this is a trend but it certainly sends a signal that employer actions based upon some level of consideration of the transgender employee and his/her conduct will be subject to review and scrutiny by the Equal Employment Opportunity Commission. We are not aware of any initiatives in Wisconsin by the Equal Rights Division, but there certainly is anticipation the Equal Rights Division will take the same position. Employers must be cautious if they are confronted with this situation to avoid being accused of sex discrimination in the manner in which they handle the employment status of a transgender employee.

Micro-Union Ruling is Start to Lengthy Legal Process

Posted on January 14, 2015, Authored by Dean R. Dietrich, Filed under Employment

The National Labor Relations Board has confirmed an Administrative Law Judge (ALJ) decision that Macys, Inc. is obligated to bargain with a small bargaining unit of cosmetic and fragrance sales persons instead of holding that these employees have a community of interest with other Macys, Inc. employees and should not be in a separate (small) bargaining unit. This decision is the next step in a legal journey to review the policy of the NLRB about union elections under its new majority that minor bargaining units or what some call “sub units” of an employer may be recognized for collective bargaining purposes. The concept is often called “micro-unions” and is based upon an initiative by unions to organize small groups of employees first and then pursue representation of a large group of employees after “getting their foot in the door.” The recent ruling by the NLRB sets the stage for legal challenges as to whether or not the concept of a “micro-union” is appropriate. The NLRB has always operated under a “community of interest” standard which meant that the bargaining unit should be comprised of all employees that had a similar community of interest. This allowed for the expansion of a potential bargaining unit in some instances, but also affected the majority vote needed by the union to be recognized as a bargaining representative for those employees. The concept of a “micro-union” will now be used by unions to start the union organizing process with a small group and then use that opportunity to expand to a larger group at a later time. This is the start of a legal process that may run several years. Employers must recognize that a micro-union election petition may be coming in the future although, it will be a lengthy period of time before the courts determine what standard should be applied to those type of union recognition petitions.

A Quick Fix to the Quickie Election Rules?

Posted on February 13, 2015, Authored by Dean R. Dietrich, Filed under Employment

The United States Chamber of Commerce and several trade associations have filed a motion for summary judgment in a federal court in Washington D.C. seeking to overturn the “quickie election” rules recently adopted by the National Labor Relations Board. These rules are scheduled to go into effect on April 14 and are designed to create a very expedited process for holding an election to determine whether employees of a particular company wish to be represented by a union.  The NLRB adopted these rules in December and a federal lawsuit has been filed seeking to vacate the rule by arguing that it is inconsistent with the legal requirements of the National Labor Relations Act. The arguments focus on the rule being allegedly over-broad and interfering with the free speech and due process rights of an employer. Unfortunately, the National Labor Relations Board has asked for more time to file an answer to the complaint and a response to the summary judgment motion. It is still unclear whether the April 14 effective date will actually be implemented. Employers must watch this litigation very closely. If the “quickie election” rules are allowed to take effect, employers will be subject to election petitions from unions seeking to represent employees and the employer will have little time to respond to such a petition or even be able to effectively argue that certain employees listed in the petition should not be allowed to vote because of their supervisory status. The United States Chamber of Commerce argued that the process being proposed under this rule resembles legislative proposals that were rejected by Congress in 1947 and 1959. The Chamber also argued that the premise behind the rule for a quick election was contrary to the legislative history of the National Labor Relations Act which indicated that Congress felt there should be a period of at least 30-days between the petition and the election in order to ensure that employees are adequately informed before they are called upon to vote.  Even though this legal challenge is being pursued, companies should consider having non-union information and materials ready to go if a union election petition is filed. Companies should also recognize the potential for employee dissatisfaction in the workplace and work hard to address any concerns before they rise to the level of causing a union election petition to be filed.

And Now There are Five

Posted on January 29, 2015, Authored by Dean R. Dietrich, Filed under Employment

The United States Senate has confirmed Lauren McFerran as the fifth member of the National Labor Relations Board. The Board now stands fully staffed with a majority being labeled pro-employee. This means “beware” for employers. The confirmation of Lauren McFerran as Obama’s appointment to the National Labor Relations Board sets the stage for more pro-union and pro-employee decisions from the Board. As we have blogged over the past twelve months, a number of NLRB decisions have been issued recognizing an employee’s Section 7 rights, particularly in the area of speech and use of social media to complain about working conditions. Other Board decisions have struck down employer policies that restricted the speech and activities of employees or supposedly, discouraged employees, from engaging in union organizing activities. We can anticipate these types of decisions will continue to be issued by the Board. Perhaps the two most important Board actions that will affect employers in the near future are: The Purple Communications Decision which held that employees have the right to use an employer e-mail system for union organizing activities and that limitations on the use of a business e-mail system can only be focused on conduct that could impact the security of the e-mail system; The new “quickie” election regulations that will take effect in April and require employers to react very swiftly to any union election petition filed to organize a large group or small group of employees. Employers will have a very limited time to communicate its position that a union is not necessary in the workplace. These actions by the NLRB may be subject to further legal challenge but have the potential to significantly impact the workplace environment. Employers must be very careful to recognize and understand the need to be sensitive to workplace communications and employee activity.

Caution: Union Organizing Activity Can Come Quickly

Posted on December 17, 2014, Authored by Dean R. Dietrich, Filed under Employment

We have written several blogs about the recent activity of the National Labor Relations Board that directly affects union organizing efforts. Recent action by the NLRB has authorized the use of company e-mail for union solicitation communications by employees. The NLRB has also published major revisions to the union election rules which expedite the union election process and drastically reduce the time for a company to raise objections to the list of employees that would be eligible to vote in the union election. Under the recent NLRB ruling, employers may not prohibit an employee from using company e-mail to send information about union organizing or a possible solicitation for union representation. This means that employees have direct access to other employees by e-mail to advocate joining a union. While this case will be subject to further judicial review, employers may have to open the door through e-mail to much easier communication amongst employees.  The changes to the union election process allow an individual to file an election petition by e-mail and requires an employer to disclose available personal e-mail addresses and phone numbers of employees that would be deemed eligible to vote in a union election. As a result, the speed of technology will make for very quick election proceedings and employers will have little opportunity to engage in a campaign against the effort to seek union representation by employees. This means that companies must be prepared to act, on a moment’s notice, to respond to potential union organizing activities. Companies should have information and draft communications ready to go quickly if there is evidence of a union organizing campaign amongst its employees.  We anticipate there will be legal challenges to this recent NLRB decision about use of e-mail and the recent NLRB rules on “quickie” elections but while those legal challenges are being processed, employers are at risk of a very quick and effective union campaign to organize the employees at a particular facility or throughout the company. It is now up to employers to be ready to respond immediately if they become aware of a union organizing initiative.

U.S. Supreme Court will Answer the Question of Who Must Give Notice of an Accommodation

Posted on February 26, 2015, Authored by Dean R. Dietrich, Filed under Employment

Yesterday, the United States Supreme Court heard oral argument in a religious discrimination case that asks the question whether an employee/applicant needs to request an accommodation of religious beliefs in order for an employer to be required to consider an accommodation. In this case, an applicant for a position with Abercrombie Fitch Stores, Inc. appeared at the interview wearing a hijab. The Company decided not to hire this person because that attire did not comply with company dress code standards for its sales persons. The applicant never asked for an accommodation based upon her religion to allow for the wearing of the hijab but company representatives assumed this would be a requirement of her religion and would not meet the company dress code.  The question being litigated in the Supreme Court case is whether the employee has to make a request for religious accommodation in order for a company to be required to consider an accommodation as part of the working conditions for the applicant. A trial court said that the company was obligated to consider an accommodation even though the employee made no request for an accommodation. The Court of Appeals ruled differently and held that the company was not obligated to provide an accommodation to the requirements of the company dress code because no request was made by the applicant. The United States Supreme Court will likely decide in late spring whether the applicant really had to make a direct request for an accommodation if she was to be hired for the sales position with the company. The oral argument before the Court suggested that this will be a closely debated decision. Religious discrimination cases do not happen often and mostly involve time-off to attend religious services or a requirement of certain clothing or facial hair as part of requirements of a particular religious sect. What happens far more often is a request for an accommodation due to a disability suffered by an employee or applicant. This case before the Supreme Court addresses religious discrimination but the same concepts apply in cases of disability discrimination.  The decision by the Supreme Court will give some guidance to employers as to whether they must assume a disability and an accommodation request from an employee simply because of physical characteristics or whether the request for an accommodation must come from the employee before an employer is required to consider whether or not it can make an accommodation for a disabling condition. Disability discrimination laws require an interactive process between an employer and a disabled employee but there is always a question whether that interactive process must be initiated by a request from the employee or whether the employer must engage in that interactive process when it seems obvious an employee needs assistance. Of course, disabilities relating to mental health are not obvious or easy to discern so the question of the employer’s duty to pursue a discussion about an accommodation becomes even more complex in mental health disability cases. Employers need to watch this decision. It is hoped that we will get guidance as to whether or not an employee must initiate a request for an accommodation whether it be for religious beliefs or due to a disability. More to come on this topic.