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Searching for Articles published in December 2014.
Found 17 Results.

IRS Issues Changes to Gas Reimbursement in 2015

Posted on December 10, 2014, Authored by Mary Ellen Schill, Filed under Tax Deductions

Attorney Mary Ellen Schill recently authored an update detailing the changes.  2015 Standard Mileage Rates

Management Rights Clauses – Employer’s Ability to Make Policy Changes Depends Upon What Management Writes

Posted on December 31, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

On December 30, 2014, a National Labor Relations Board administrative law judge (“ALJ”) issued his decision in Graymont PA, Inc., available here: Graymont PA, Inc. Decision.   Through Graymont, PA, Inc., the ALJ reminded unionized employers to think twice before implementing workplace policy changes without first notifying the incumbent union and offering an opportunity to bargain about the proposed policy changes.  This is because broadly worded “management rights clauses” are, in my experience, too often viewed by unionized employers as authorizing the unilateral implementation of a wide variety of specific policy changes, under the umbrella of more general language—for example, contract language authorizing the employer to “discipline” or “implement policies.” In Graymont, PA, Inc., the employer unilaterally implemented new policies impacting progressive discipline and absenteeism during the term of its current collective bargaining agreement with the union. The employer made this choice believing its actions were authorized by the following “management rights” language [reproduced in pertinent part]: The Employer retains the sole and exclusive rights to manage; direct its employees; to hire, to assign work, to transfer, to promote, to demote, to layoff, to recall, to evaluate performance, to determine qualifications, to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures….The rights expressly reserved by this Article are merely illustrations of and are not inclusive of all of the rights retained by the Employer…. All of the usual and customary rights of management not specifically abridged or modified by this Agreement shall remain exclusively vested in the Company. The above “management rights” language does clearly make reference to the employer’s right to “discipline” and “adopt and enforce…policies and procedures.” Intuitively, this language appears to support the employer’s actions in Graymont, PA, Inc.  However, through Graymont, PA, Inc., the ALJ reminded unionized employers that notwithstanding this type of broad “management rights” language, making changes without first bargaining with the union is likely to violate the National Labor Relations Act. This is because a union does not waive its right to bargain over most terms and conditions of employment unless the waiver is “clear and unmistakable.” For a waiver to be “clear and unmistakable” in the context of “management rights” language, “contract [“management rights”] language must be specific,” and must “unequivocally and specifically express [the parties’] mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” In other words, an employer that wishes to make policy changes without first notifying the union and bargaining over the proposed changes, must be certain that the collective bargaining agreement contains very specific language that authorizes the employer to make the desired policy change.  For example, if an employer sought to make changes to its safety policy, the “management rights” language should clearly and unambiguously permit the employer to “establish reasonable safety and health rules and policies.” Ultimately, the scope of “management rights” language really depends upon what management “writes” [negotiates] into the collective bargaining agreement during negotiations. When in doubt, ask your trusted labor relations attorney for a second opinion.

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.

Dealing with Employee Facebook Postings can be Dangerous

Posted on December 3, 2014, Authored by Dean R. Dietrich, Filed under Employment

A number of recent decisions have laid out some of the risks related to employee Facebook postings and decisions by the employer to terminate an employee for inappropriate statements on Facebook. These decisions have involved constitutional challenges to a termination of a public employee for liking the Facebook page of a particular candidate for office, and National Labor Relations Board decisions holding that Facebook postings were so egregious and insubordinate they justified the termination of an employee for such conduct. Employers must recognize that the NLRB has rendered a number of decisions over the past several years that have limited the right of an employer to terminate an employee for statements made on Facebook (or other social media sites) that are critical of the employer or how the employer conducts business. The NLRB has held that these postings by an employee are considered protected under Section 7 of the National Labor Relations Act as protected speech because they involve commentary about the working conditions of the employee. A recent decision by the NLRB, however, held the postings by two employees were inappropriate and the company acted properly in terminating the employees. The postings showed a clear intention to engage in insubordinate conduct trying to disrupt the workplace and also involved the use of profane language when commenting about the company and the anticipated activities of the employees. The NLRB held that the statements had such “pervasive advocacy of insubordination” that the statements lost their protection and could properly form the basis for the termination of the employees. In other words, the employees were indicating they were going to act with such aggressive insubordinate activity to disrupt the workplace and therefore the company had a basis to take disciplinary action and terminate the employees.  Another recent decision held that a public employer could not terminate an employee who “liked” the posting of a candidate in the Sheriff’s campaign. When the incumbent sheriff was re-elected, he pursued the termination of the deputy sheriff that liked the Facebook campaign page of the opponent. The Fourth Circuit Court of Appeals held that this statement (the “liking” of the Facebook page by one-click) was considered protected speech under the First Amendment and could not form the basis for a decision to terminate the employee. Terminations for exercising the right of protected free speech are not allowed under the Constitution. These are examples of the types of cases that have arisen regarding employee conduct on social media sites. Employers must be very careful if they are considering some type of adverse employment action against an employee because of Facebook postings. In many instances, the employer will be at great risk of either a finding from the NLRB or a court that the determination based upon the Facebook posting was not appropriate. Caution should be exercised in all instances.

NLRB Signals Code Red at Big Blue: Concludes Walmart’s Dress Code Violates NLRA

Posted on December 23, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

As I’ve written in the past, the National Labor Relations Act applies to non-union employers too. I’ve wanted to write about the National Labor Relations Board’s recent “dress code” decision for several days now—however, with the Board's firestorm of significant decisions [email access, here: National Labor Relations Board is "Not-So-Secret" Santa to Organized Labor - Delivers Union-Friendly Gift in Advance of the Holidays and “quickie” election, here: NLRB Finalizes Union Election Rules to "Modernize" and "Streamline" election Process at Nonunion Workplaces], I pushed the dress code decision to the back burner. However, now that the dust has settled a bit, I wanted to remind our employer clients that seemingly innocuous dress code policies may, according to the current Obama Board, violate the NLRA. On December 9, 2014, one of the Board’s administrative law judges (“ALJ”) issued an interesting decision involving Walmart’s dress code. The decision is available here: Walmart Stores, Inc. Decision. Although Walmart generally allowed its employees to wear certain United Food and Commercial Workers union pins and lanyards—as long as these logos were smaller than the Walmart name tag (2 x 3 inches)—the Board determined that the dress code policy was “facially” invalid, and the mere maintenance of the policy violated the NLRA. Walmart’s dress code policy read, in pertinent part: Logos or graphics on shirts/blouses, pants, skirts, hats jackets or coats are not permitted, except the following, so long as the logo or graphic is not offensive or distracting: A Walmart logo of any size; A clothing manufacturer’s company emblem no larger than the size of the associate’s name badge; or Logos allowed under federal or state law. The Board’s ALJ, upon analyzing the above dress code language, first reiterated that “it is well established that employees have a statutorily protected right to wear union insignia on their employer’s premises, including buttons, t-shirts and other articles of clothing.”  This is the default rule. The ALJ also commented, “[h]owever, an employer may lawfully restrict the wearing of union insignia where special circumstances justify the restriction. According to the Board ALJ, “special circumstances” justify restrictions on union insignia and apparel when their display: (1) may jeopardize employee safety, damage machinery or products; (2) exacerbate employee dissension; (3) unreasonably interfere with a public image that the employer has established; or (4) when necessary to maintain decorum and discipline among employees. The ALJ determined that Walmart’s policy violated the NLRA because: The “savings clause” language—“logos allowed under federal or state law”—did not save the otherwise overly broad policy, because it placed the burden on employees to understand that this language permitted the display of certain union insignia and apparel; The policy did not sufficiently protect Walmart’s public image—as Walmart protested—because Walmart “loosely” enforced the policy; The policy did not sufficiently protect Walmart’s public image—as Walmart claimed—because the policy was not sufficiently strict to protect an image of “distinctive clothing” intended to identify the wearer as a Walmart employee [like at “world class restaurants” or “United Parcel Services drivers”]; and The policy applied to physical areas of the store where the “public image” concern is nonexistent or limited.  In light of this decision, employers are encouraged to revisit, and revise if necessary, dress code policies.

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.

Bah Humbug: NLRB’s Long-Awaited E-Mail Access Decision Is Sure to Put a Damper on Holiday Cheer for Non-Union Employers

Posted on December 12, 2014, Authored by Ruder Ware Attorneys,

On December 11, 2014, a divided [3-2, along partisan lines] National Labor Relations Board ("Board") issued its long-awaited decision in Purple Communications, Inc., which many management-side labor relations professionals correctly predicted would fundamentally change how union organizing is conducted at nonunion workplaces [a copy of the Board's decision is available here]. Through Purple Communications, Inc., 361 NLRB No. 126 (2014), the Board concluded that employees who are afforded access to employer email systems "in the course of their work" are permitted, absent "special circumstances" [more about that later], during "nonworking time," to utilize such email systems to freely communicate with one another about unionization and other terms and conditions of employment. In doing so, the Board reproachfully overturned the Bush-era Register Guard decision [351 NLRB 1110 (2007)], long lauded by management as establishing a fair, realistic approach to employee solicitation through employer e-mail systems. The Register Guard decision allowed employers to prohibit employees from using company email systems to engage in union-organizing solicitations and communications—during nonworking time and working time—as long as restrictions on the use of company email systems did not discriminate against rights protected by the National Labor Relations Act. In other words, under Register Guard, nonunion employers could lawfully approve the use of company email systems for employee communications about girl scout cookies, wedding invitations and sports tickets—and could, at the same time, prohibit communications about unionization, as long as one side of the debate was not favored. This is the so-called “unequal treatment of equals” analysis. However, through Purple Communications, Inc., the Board indicated that the Bush-era Board’s reasoning in Register Guard focused “too much on employers’ property rights,” and is “clearly incorrect.”  Thus, the Board established a new standard, under which employees who have been granted access to employer email systems in the course of their work are entitled to use the system to engage in communications about unionization and terms and conditions of employment [e.g., wages, benefits, work environment, safety, managerial style and deficiencies, job security, etc.] while on nonworking time, absent special circumstances that make a prohibition during nonworking time necessary in order to maintain production or discipline. According to the Board, “special circumstances” that might justify a partial or total ban on employee use of email systems during nonworking time include an “employer’s interest in protecting its email system…from damage or from overloads due to excessive use.” The Board concluded that employers are free to establish “uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.” However, according to the Board, “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”  The Board opined that employers are permitted to continue monitoring employee use of computers and email systems [e.g., to ensure productivity and prevent workplace harassment], without fear of creating an unlawful impression of surveillance, as long as monitoring practices are not “out of the ordinary.” In other words, the Board will be very suspicious of employers that alter regular monitoring practices on the heels of organizing activities. The Board also instructed that its decision did not prohibit an employer from notifying its employees that it monitors (or reserves the right to monitor) computers and emails for legitimate purposes, and that no reasonable expectation of privacy exists.  The Board ostensibly narrowed its holding, declaring that its Purple Communications, Inc., decision does not apply to nonemployees, does not require employers to grant employees access to email systems where it has not chosen to do so, and does not apply to electronic media beyond email—such as Facebook, Twitter and YouTube [although the logical leap is not a difficult one to make]. Nevertheless, the Board all but conceded the expansive nature of its decision, when it acknowledged employer concern about routine monitoring of employee use of company computing systems for legitimate management reasons.  The “win” for unions cannot be understated. Recently, in Conagra Foods, Inc., the Board instructed that employers may not prohibit “union-related conversations” during working time, because “union-related conversations” do not rise to the level of solicitations an employer may lawfully prohibit. Reading Conagra Foods, Inc. together with Purple Communications, Inc., one can reasonably predict that the Board will, in the future, conclude that employees are permitted to engage in “union-related email communications” during working time—as long as the email does not present, and seek to obtain a signature of, a union authorization card. In the aftermath of the Purple Communications, Inc. decision, employers may choose to immediately revisit workplace electronic communications and computing equipment policies, or may choose to do nothing until the decision is appealed to a federal court—which is likely to happen given the gravity of the ruling. We strongly recommend that employers reexamine and revise policies that are out of step in light of this decision. In the interim, the attorneys of the employment, benefits and labor relations practice group will closely monitor all legal developments in this area.

NLRB Finalizes Union Election Rules to “Modernize” and “Streamline” Election Process at Nonunion Workplaces

Posted on December 15, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

On December 12, 2014, the National Labor Relations Board finalized its much-maligned representation election rules designed to make union organizing drives at nonunion workplaces much easier. The new rules make organizing easier by: (1) significantly reducing the time between when a representation election petition is filed and when the secret-ballot election is held [some observers predict a shift from 38 days to as few as 9 days, which will make running an effective campaign more difficult for employers]; and (2) creating new procedural requirements that force employers to focus their attention on matters other than running an effective “counter” election campaign—at a critical time in the battle for the hearts and minds of employees.  In Orwellian fashion, the Board, however, characterizes the move as an effort to “modernize” and “streamline” the process for resolving representation disputes. There is no question the new rules trim some employer-friendly fat from the current process. The new, more “union friendly” rules are set to take effect on April 14, 2015. Labor relations wonks and rubes alike can find useful information, including a handy comparison chart comparing the current rules to the new rules on the Board’s “NLRB Representation Case-Procedures Fact Sheet” page, found here: The most controversial aspects of the now-finalized rules are: Elimination of the current 25-30 day waiting period between the pre-election hearing [used to establish the composition of the appropriate proposed bargaining unit] and the representation election—a period of time that is designed to facilitate appeals. Requirement that employers must furnish the voter list within two business days following a determination that an election will be held, instead of the current seven-day period. Requirement that employers must furnish employees’ personal telephone numbers and personal email addresses (if available to the employers—which, of course, generally are available to employers). Requirement that employers must now create and file a pre-hearing “Statement of Position” prior to the pre-election hearing—a high pressure document that must set forth all of the employer’s objections to the petition and other issues in dispute, or all objections and issues are forever waived. In light of this recent development, and the Board’s December 11th email access decision [see my previous blog post here National Labor Relation Board is "Not-So-Secret" Santa to Organized Labor - Delivers Union-Friendly Gift in Advance pf the Holidays], nonunion employers are encouraged to work closely with labor relations counsel to prepare for an anticipated uptick in union organizing activities. Preparation should include standard union awareness training and the development of union campaign materials.

Pregnancy Discrimination Law May Leave Some Employers Feeling Like a Babe in The Woods

Posted on December 1, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Running a business is, undeniably, a daunting task. On top of the challenge of running a business, today’s employers are also responsible for staying current with the latest and greatest legal developments impacting their workplaces. One area of increased emphasis for enforcement agencies like the EEOC, and plaintiffs’ attorneys as well, is pregnancy discrimination. Employers have good reason to ensure that their practices and policies are in compliance with current law. Recently, the EEOC released an updated enforcement guidance on pregnancy discrimination claims under the Pregnancy Discrimination Act [a copy of the guidance is available here:]. I recently attended a national employment and labor relations conference at which the EEOC’s General Counsel, David Lopez, reinforced the importance of pregnancy discrimination cases within the EEOC’s enforcement agenda. Interestingly, this week [December 3rd to be precise] the Supreme Court of the United States will hear oral arguments in Young v. United Parcel Service, a case most observers anticipate will be used by the Court as a vehicle to determine whether the EEOC, through its recent guidance document [see the link above], correctly interprets the Pregnancy Discrimination Act in concluding that an employer is “obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” In Young, the lower federal court ruled in favor of UPS, holding that a light-duty policy that reserved light-duty work/positions exclusively for employees who have sustained occupational injuries [and those employees who have disabilities within the meaning of the ADA, and who have lost their certification to drive commercial motor vehicles], was “a pregnancy-blind policy,” and consistent with the Pregnancy Discrimination Act [a copy of the decision is available here: Young. Also, a federal jury in California recently awarded $185 million in punitive damages to a former AutoZone Stores, Inc. manager who claimed AutoZone terminated her employment after she complained about being demoted as a result of giving birth [I know, it’s California—but the decision is still noteworthy in terms of trends]. AutoZone probably has a good argument that the award should be reduced based upon statutory caps on damages, or because the award is unconstitutionally excessive—but the award is a stark reminder to employers to proceed with caution when dealing with pregnant employees.

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.

Gas Goes Down, IRS Mileage Reimbursement Rate Goes Up?

Posted on December 10, 2014, Authored by Mary Ellen Schill, Filed under Employment

This afternoon the IRS issued the standard mileage rates for determining the deductible cost for operating automobiles for various purposes (business, medical, charitable) beginning January 1, 2015. Details can be found here. Even with declining gasoline prices, the reimbursement rate for business purposes actually will increase from 56 cents per mile to 57.5 cents. The standard reimbursement rate takes into account not just gasoline prices, but also insurance and wear and tear. Maybe the cars themselves are getting more expensive to purchase and expensive to maintain? Anyway, employers that base employee reimbursements on the standard mileage rate will have to shell out more money next year per mile. In prior years with fuel price volatility the IRS has issued mid-year adjustments in reimbursement rates, so stay tuned.

NLRB Continues Full Throttle Assault on Employer Solicitation and Distribution Policies

Posted on December 5, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

This post follows, and builds upon, my November 26, 2014 post Labor Unions Have Another Reason to Be Thankful:  NLRB Serves Up Holiday Season Gift. On November 26, 2014, the National Labor Relations Board issued another union-friendly decision in connection with employer solicitation and distribution policies. The case is Mercedes-Benz U.S. International, Inc. (MBUSI), 361 NLRB No. 120. In Mercedes-Benz, the Board—not surprisingly—echoed its rigid, “all or nothing” discrimination rule in the context of workplace solicitation, writing: As a rule of thumb, if an employer allows its employees to discuss any nonjob-related subject while they work, they may discuss forming a union. In other words, unless an employer universally prohibits workplace discussions concerning any nonjob-related topic—for example, sporting events, school fundraisers or perhaps even lawn care tips [I’m taking the Board’s logic to the extreme here]—the employer may not prohibit solicitation about forming a union. This rigid rule is consistent with the Board’s previous decision, in which it has taken the position that “union-related conversations” [as distinguished from the Board’s new, narrow interpretation of “solicitation”—see my November 26, 2014 post] may never be prohibited—even during working time. Also, the Mercedes-Benz decision is the most-recent reminder that employer anti-distribution policies may violate the NLRA if enforced in so-called “mixed use” areas of an employer’s business—those areas that are used for both work/production purposes, as well as recreational purposes. Employers are encouraged to reexamine whether such “mixed use” areas exist, and if so, whether distribution policies are being enforced in such areas [or whether a policy maintained may be interpreted to apply to a “mixed use” area].

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.

National Labor Relations Board is “Not-So-Secret” Santa to Organized Labor – Delivers Union-Friendly Gift in Advance of the Holidays

Posted on December 12, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Yesterday, the National Labor Relations Board issued its long-awaited email access decision in Purple Communications, Inc. There is no question that this decision is a “game changer” in the area of union organizing activity at non-union worksites. For details about the decision, and how it will impact your workplace, please read the E-Alert I prepared, available at this link - Bah Humbug: NLRB's Long-Awaited E-Mail Access Decision Is Sure to Put a Damper on Holiday Cheer for Non-Union Employers.

Ruder Ware Donates 148 lbs. of Food and Toiletries

Posted on December 16, 2014, Authored by , Filed under Community

Employees at Ruder Ware participated in a month long food drive to benefit The Neighbors' Place (TNP). Ruder Ware's Jamie Schaefer, COO, and Lisa O'Flyng, Marketing Director, delivered the food and toiletries just in time for the Holidays. It's estimated that 2,500 people seek food assistance a week in Marathon County. If your organization is interested in donating food and toiletries, a full list of TNP's food pantry needs can be found at: The Neighbors' Place is a unique, locally supported nonprofit organization. Their mission is a simple one: to help people in need.  

2015 Standard Mileage Rates

Posted on December 10, 2014, Authored by Mary Ellen Schill,

The Internal Revenue Service has announced the optional standard mileage rates for computing the deductible cost of operating an automobile for business, medical, and moving expenses for 2015. Effective January 1, 2015, the optional standard mileage rates will increase to 57.5 cents per mile for business transportation, and decrease to 23 cents per mile for travel relating to medical and moving transportation expenses. These mileage rates apply only to those expenses incurred or paid by a taxpayer on or after January 1, 2015 (and if reimbursed by an employer, reimbursed by the employer on and after that date). Expenses incurred prior to January 1, 2015 (whether reimbursed by the employer before or after that date) are still subject to the old 2014 rates (56 cents for business transportation, 23.5 cents for medical and moving transportation). The standard mileage rate for the deduction for charitable contributions remains unchanged from 2014 at 14 cents per mile. This change in mileage rates is relevant to employers that reimburse employees for business transportation based on mileage. While there is no legal requirement that employees be reimbursed at the IRS standard rate, many employers have a policy of doing so. As a reminder, any payments to an employee based on business travel at a rate in excess of the IRS standard rate generally is taxable income to the employee. If you have questions regarding the above, please contact Mary Ellen Schill, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.