Music to Their Ears: NLRB Rules Musicians are Employees, December 29, 2011
On December 27, 2011, the National Labor Relations Board ruled 2-1 that a group of orchestra musicians in a petitioned-for bargaining unit were employees, rather than independent contractors. As a result, the American Federation for Musicians local was allowed to proceed with its election petition seeking to represent the musicians (Lancaster Symphony Orchestra, 357 N.L.R.B. No. 152, 12/27/11).
The Board determined that the musicians were employees after applying a “common-law agency test,” which analyzes the work relationship between an employer and a hired individual. It based its decision on evidence that the musical director set the number of rehearsals and controlled the amount of time spent on each program, the musicians were subject to discipline, and the musicians had no entrepreneurial stake in the symphony. It gave little weight to evidence that the musicians were free to turn down work, focusing instead on the fact that once they agreed to accept work, the director controlled the manner and means of the work. It further discounted evidence that the musicians were free to work elsewhere, stating that this was simply a reflection of the part-time nature of the symphony’s performance schedule.
NLRB Postpones Notice Posting Deadline Until April 30
On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule requiring employers covered by the National Labor Relations Act (NLRA) to post workplace notices informing all employees of their rights under the law. The rule requires such employers to post an 11-inch-by-17-inch notice describing employee rights and to publish the notice on an intranet or internet site if the employer regularly uses electronic means to communicate with employees about rules and policies. An employer who refuses to post the notice could be subject to sanctions for an unfair labor practice under the NLRA.
Originally, the posting requirement was to have gone into effect November 2011, however, the board moved it to January 31, 2012 to allow for more time to educate employers.
Recently, two lawsuits, Nat’l Ass’n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629 and Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, challenging the new law were filed in the U.S. District Court for the District of Columbia and the U.S. District Court for the District of South Carolina, respectively. Following a hearing on December 19, 2011 in the District of Columbia proceeding, the NLRB issued a statement that it is now extending the posting requirement date to August 30, 2012 “to facilitate the resolution of the legal challenges that have been filed with respect to the rule.”
Stay Off Your Employees’ Private Twitter and Facebook Accounts, December 22, 2011
A case current pending in the United States District Court for the Northern District of Illinois demonstrates the continuously evolving nature of social media in the workplace, and presents a warning to keep your employee’s social media accounts separate from the company’s. In Maremont v. Susan Fredman Design Group, LTD., 1:10-cv-07811, the Director of Marketing, Public Relations and E-Commerce for an interior design company created a blog called “Designer Diaries: Tales from the Interior” that was hosted on her employer’s website. She was well-known in the Chicago community of interior design and amassed a personal Twitter following of approximately 1,250 followers. Additionally, she had a private Facebook page. Both her Twitter and Facebook pages were not for the benefit of her employer, but they contained links to her blog and her employer’s website. The passwords for both were stored on her employer’s computer. After she was involved in a car accident, her employer used the stored passwords to access both her private Facebook and Twitter accounts to promote itself in her absence, even after she asked them to do it. She later sued her employer under various state and federal statutes. The case recently survived a motion to dismiss and is proceeding under the Lanham Act and the Stored Communications Act. To the extent she can prove actual damages as a result of the use of the accounts, the employee may prevail. Don’t “retweet” this mistake.
NLRB Adopts New Election Rules, December 22, 2011
Today’s Federal Register contains the NLRB’s new Final Rules on Election Procedures. These rules will go into effect April 30, 2012. According to the Board, these rules are enacted to “reduce unnecessary litigation in representation cases” and to “save time and resources for the parties and the agency.” In reality, the Rules limits an employer’s ability to have the Board decide its case and puts more power in the hands of the regional directors. This is accomplished through several substantive changes to the pre- and post-election hearing procedures in an effort to reduce the issues before the Board and to consolidate requests for Board review of pre- and post-election determinations into a single request. Most significantly, it changes review of post-election regional director determination to discretionary. According to the Board’s website, it “create[s] a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases.” This makes the procedure for appeals of post-election decisions mirror the procedure for appeals of pre-election hearings. Now, the regional director’s decision will be final, subject to review only where there is a question of policy.
Timecards Not Sufficient To Put Employer On Notice of Employee Clocking In Early To Work, December 16, 2011
In an interesting decision this week from the Seventh Circuit Court of Appeals, the court held that an Indiana manufacturer was not required to pay an employee for pre-shift overtime work done before the start of her shift, even though she was clocking in early on her timecards. The appellate court held that the employer “neither knew nor should have known” that the employee was performing overtime work for the company despite recording her time worked on the time cards the company used to calculate her pay. The reason the employer escaped liability: the employee’s supervisors (actually officers of the company) never personally saw her working prior to her scheduled start time because they arrived hours later; the employee never complained to her supervisors or otherwise that her paychecks did not include the overtime pay; and finally, there was overwhelming evidence that most employees clocked in early to socialize rather than work and the employer had no reason to believe the employee was doing anything differently. The court recognized that “the FLSA stops short of requiring the employer to pay for work it did not know about, and had no reason to know about.” Kellar v. Summit Seating, Inc., No. 11-1221 (7th Cir. Dec. 14, 2011).
With Impending Loss of Quorum, the NLRB Changes the Rules, December 14, 2011
The NLRB, which is designed to operate as a five member board, has been functioning with three board members since Wilma Leibman’s term expired at the end of August 2011. Member Craig Becker, who was an Obama recess appointment, will be leaving the NLRB at this month because the Senate did not approve his nomination, leaving just two Board members in place. In 2010, the Supreme Court had ruled that the authority of the five-member Board could not be delegated to a panel with fewer than three members (which resulted in more than 600 NLRB decisions being tossed aside that had issued from the then two-member Board). With the hopes of avoiding another reversal of decisions, yesterday, the NLRB revised its procedural rules to permit the Chief Administrative Law Judge and Executive Secretary to decide motions and requests in unfair labor practice and representation cases. Those rulings will not be directly appealable, but will all be subject to NLRB review once the quorum is restored. This new rule becomes effective today, December 14, 2011. The NLRB concluded that this new rule revision did not need to go through the typical administrative review process.
Various State Minimum Wage Increases Effective January 1, 2012
While getting ready for the New Year can (and should) often include updating handbooks and related forms, several states are also implementing minimum wage increases. For those employers with multi-state operations, be sure that you remain aware of state (and locality) wage and hour changes that could affect your business. The below states have announced minimum wage rate increases effective January 1, 2012:
| Arizona: | From $7.35 to $7.65 per hour; minimum wage for tipped employees increases from $4.35 to $4.65. | Colorado: | From $7.36 to $7.63 per hour; minimum wage for tipped employees increases from $4.34 to $4.62 per hour. | Florida: | From $7.31 to $7.67 per hour; minimum wage for tipped employees increases from $4.29 to $4.65 per hour. | Montana: | From $7.35 to $7.65 per hour. Montana does not permit employers to take a tip credit against minimum wage for tipped employees. | Ohio: | From $7.40 to $7.70 per hour; minimum wage for tipped employees increases from $3.70 to $3.85 per hour. | Oregon: | From $8.50 to $8.80 per hour. Oregon law does not permit employers to take a tip credit against minimum wage for tipped employees. | Vermont: | From $8.15 to $8.46 per hour; minimum wage for tipped employees increases from $3.95 to $4.10 per hour. | Washington: | From $8.67 to $9.04 per hour. Washington does not permit employers to take a tip credit against minimum wage for tipped employees. |
New Labor Rule Proposed, December 8, 2011
The Department of Labor proposed a new rule that would require government contractors and subcontractors to set a hiring goal of having disabled workers make up at least 7 percent of their workforce. The rule would apply to contractors with at least 50 employees and $50,000 in government contracts. Citing the higher than average unemployment rate for disabled workers, the rule would also impose additional record keeping and reporting requirements on covered employers. While not described as a quota, the rule would undoubtedly increase costs on businesses contracting with the government. Maybe not a good thing in this economy.
Boeing – NLRB Fight May Be Over, December 7, 2011
The fight between Boeing and the National Labor Relations Board may be nearing an end. Members of the Machinist and Aerospace Workers Union covering Boeing’s Northwest facilities are voting today on an extension to their existing collective bargaining agreement. Among other things, the extension would ensure that Boeing would keep the work on its updated 737 line in the Northwest – a significant boon for the union. If ratified, the union has agreed not to pursue the well-publicized case filed by the NLRB against Boeing over its opening of a plant in South Carolina. That case has become a political lightning rod for the Obama administration, as well as the Democratic-controlled NLRB. While both sides hail the extension as a win-win, it is nevertheless disconcerting that the NLRB (in essence, the federal government) would be used as leverage in order to aid the union in negotiating an extension.
Pharmaceutical Sales Representatives Entitled To Overtime Pay? December 7, 2011
The Supreme Court recently decided to hear claims by pharmaceutical sales representatives over whether they are entitled to overtime pay under the Fair Labor Standards Act (FLSA). Christopher v. SmithKline Beecham Corp., docket number 11-204. The question to be decided is whether the sales representatives are “salesmen” pursuant to the FLSA’s outside sales exemption or whether they are more akin to promoters and, thus, would be entitled to overtime pay. The Secretary of Labor has sided with the sales representatives, stating that they do not meet the primary duties test for the outside sales exemption. Approximately 90,000 sales representatives could be affected by the Court’s decision.
White House Announces It Will Veto Bills Designed to Help Business, December 2, 2011
On November 29, senior advisors to President Obama announced that two bills under consideration in the House of Representatives would be vetoed if passed. The two bills, one of which directly applies to OSHA, would require federal agencies to take small businesses into account when issuing regulations and take the least burdensome option. That sounds logical, unless you happen to think businesses are evil. Apparently, the President does.
Even the Devil Says We’re a Safe Workplace, December 1, 2011
There has got to be more to this story, but as reported in the Atlanta Journal-Constitution, a Georgia worker named Billy Hyatt was fired for refusing to wear a sticker that had the number of days the company had gone accident free. Why? Well, the sicker said “666” - the “mark of the beast” in the Book of Revelation. Hyatt, characterized as a devout Christian, believed that he would be condemned to hell if he wore the sticker.
According to the lawsuit alleging religious discrimination under Title VII, Hyatt explained the situation to his manager, who at first seemed receptive to his beliefs and the accommodation. Until the “666” day actually came, however, at which point the manager told Hyatt he needed to wear the sticker if he didn’t want to face a three-day suspension. Hyatt took the suspension, but was fired several days later.
If only he’d turned the sticker upside down - Hyatt could have been a Herman Cain supporter.
Employee Fired Before Her First Day OK, December 1, 2011
A woman was hired to work as a nurse, but before she could start, a doctor the surgery center wanted to hire found out that she was going to work there. Without saying why, the doctor said he would not work in the same office with her. The center, wanting the doctor badly, fired the nurse before she could start.
The nurse, apparently, had testified against the doctor in a sexual harassment case at another facility. She alleged that this termination was, therefore, unlawful retaliation. In large part because the surgery center did not know why the doctor could not work with her, the court found the retaliation argument unconvincing. Wood v. Outpatient Surgery Center Inc., No. 3:10-cv-3114 (W.D. Ark., November 28, 2011).
NLRB In a Panic to Get Anti-Employer Regulations Out, December 1, 2011
The current NLRB has a quorum of three members, one of whom is a moderate Republican. His term expires shortly, though he may resign. His resignation or the expiration of his term will result in a 2-member board, which according to the Supreme Court cannot make decisions. There are several pending proposals for new regulations, notably one making it easier for unions to get quick elections before the employees can hear the employer’s position. The two remaining Obama appointees are doing everything they can to get the regulations out because a 2 to 1 vote is valid, while a 2 to zero vote is not. Stay tuned.
New Hampshire Fails to Override Veto of Right to Work Law, December 1, 2011
In a right to work state, employees cannot be compelled to join a union to keep their jobs. In other states, an employer and a union can agree to make union membership (namely, the paying of dues and fees) mandatory after 30 days of employment. New Hampshire passed a Right to Work law, which was vetoed by the governor. Although the House was in favor of overriding the veto by a vote of 240 to139, it was insufficient under the state constitution.
The governor claimed the bill would prevent employers and unions from free contractual negotiations. Sounds like sophistry to me. It also sounds like the governor was getting help from labor unions opposed to the bill. I wonder if labor unions have contributed to the governor’s election campaigns.
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