New Legislation: Banning the Salary Question

By Amanda Warford Edge

At a job interview, a candidate is often asked: “What’s your current or most recent salary?” Usually, this question is feared.  After all, a low figure could limit the candidate’s starting pay, but a high number could make the candidate seem expensive.  Now, in a growing number of states and cities, the question is off limits, as employers face legislation that bars them from asking job candidates about their salary history or benefits.

Proponents of the new legislation argue that banning the salary question is necessary to ensure pay equity for women.  The argument is that by basing future salaries on previous wages, employers have been perpetuating the earnings divide.  In other words, because employers have historically relied heavily on salary history, the gender pay gap has

U.S. Chamber Files Suit to Block NLRB’s New Election Rule Which Would Speed Up Elections

By Edwin S. Hopson

On January 5, 2015, the Chamber of Commerce of the United States and several other business groups filed suit in federal court in Washington, D.C. against the National Labor Relations Board attacking the NLRB’s recent final rule which significantly changes the NLRB’s representation procedures to speed up the holding of elections and increase the amount of information unions would receive about the employees voting in the elections. The NLRB’s new rule, passed by a vote of 3-2, is set to go into effect April 14, 2015, if not enjoined by the court pending the outcome of the proceedings. The lawsuit alleges the NLRB violated the Administrative Procedures Act, the National Labor Relations Act, and the U.S. Constitution. The plaintiffs also allege that in issuing the final rule the NLRB majority exceeded its jurisdiction and authority and, in so acting, was arbitrary, capricious, and abused its discretion.

NLRB Rules Employers Must Allow Employees to Use Its Email System for Union Activities

By Edwin S. Hopson

Recently the NLRB issued its decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), holding that an employer’s email system must be made available to its employees for the purpose of engaging in union activity and other protected activity under Section 7 of the National Labor Relations Act, so long as such use occurs during non-working time. The decision, rendered by the three Democrat Members, was sharply criticized by the two dissenting Republican Members on the Board. The decision in this case also overruled the Register Guard case issued in 2007, which had held such use of an employer’s email system not protected where the employer’s email policy prohibited such use.

An employer can avoid this new rule “by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Many employers have in their employee handbooks or policies provisions which restrict the use of the employer’s email system to strictly business use. Those policies now run likely afoul of the NLRB’s new rule.

Therefore, to be safe, employers should review their email policies carefully to determine whether changes should be made to them.

NLRB Issues Rule to Speed Up the Scheduling of NLRB Representation Elections

By Edwin S. Hopson

The National Labor Relations Board, by a vote of 3 to 2, has issued a final rule published in the Federal Register on December 15, 2014, amending the Board’s representation–case procedures to, among other things, reduce the time between the filing of a petition for representation election with the NLRB and the date of the NLRB election. The rule is to take effect on April 14, 2015.

The final rule was approved by Democrats Mark Gaston Pearce, Kent Y. Hirozawa and Nancy Schiffer, with Republicans Philip A. Miscimarra and Harry I. Johnson III dissenting.

The final rule:

■ Provides for electronic filing and transmission of election petitions and other documents;

■ Adopts best practices and uniform procedures across all NLRB regional offices;

■ Requires that additional contact information for employees voting in the election (personal telephone numbers and email addresses) be included on voter lists to be turned over to the union, to the extent that information is available to the employer; and

■ Consolidates all election-related appeals to the Board into a single appeals process post-election.

The bottom line is, unions will be able to obtain much faster scheduling of elections, substantially reducing the time between the filing of the petition and the election during which the employer can campaign.

Supreme Court Holds that Employer-Required Security Screenings Are Not Compensable Time in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ___ (2014).

On December 9, 2014, the Supreme Court unanimously held that warehouse employees were not entitled to be compensated for time spent at the end of their shifts in security screenings. The Court held that the post-shift screening activity was not compensable because it was not “integral and indispensable” to the principal activities the employees were hired to perform.

The employer, Integrity Staffing, provides warehouse  employee staffing to Amazon.com in various locations throughout the U.S. The Plaintiffs were hired to locate products in a warehouse and prepare them to be shipped. Id. at 1-2. Integrity Staffing required that its warehouse workers undergo security screenings at the end of their shifts to protect against employee theft. These screenings involved employees removing items like wallets, keys and belts, and passing through metal detectors. This process sometimes took up to 25 minutes. Id. at 2.

The Plaintiff/employees argued that they were entitled to be paid under the Fair Labor Standards Act (FLSA) for time spent waiting in line to undergo security screenings. They argued that the security screenings were solely for

NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors

By Edwin S. Hopson

In FedEx Home Delivery, 361 NLRB No. 55 (2014) decided September 30, 2013, the National Labor Relations Board found certain FedEx drivers based in Hartford, Connecticut to be employees of FedEx Home Delivery. The National Labor Relations Act covers “employees” as defined in the NLRA, but does not offer protection to “independent contractors.”

In analyzing the factors as to who are employees and who are independent contractors, the NLRB relied upon the Restatement (Second) of Agency § 220 (1958), as mandated by a number of Supreme Court decisions.

Previously, the U.S. Court of Appeals for the District of Columbia had on similar facts held that the FedEx employees in the case before them were independent contractors and therefore could not unionize under the protections and rights of the NLRA. However, the Board in FedEx Home Delivery, refused to follow that decision, and noted that the U.S. Court of Appeals for the Ninth Circuit had reached an opposite conclusion in a FedEx case.

The FedEx Home Delivery Board majority followed Roadway Package System, 326 NLRB 842 (1998) (Roadway III), which had rejected as the predominant factor the “right to control” test, i.e., did the person in question control the manner and means of performing the work. It concluded that “the great majority of the traditional common-law factors, as incorporated in the Restatement (Second) of Agency, point toward employee status” for the drivers in question, namely that:

-FedEx exercised control over the drivers’ work;

-the drivers were not engaged in a distinct business;

-the work of the drivers was done under FedEx’s direction;

-the drivers were not required to have special skills;

-drivers had a permanent working relationship with FedEx;

-FedEx established, regulated, and controeds the rate of drivers’ compensation and financial assistance to them;

-the work of the drivers was part of the regular business of FedEx; and

-FedEx was in the same business as the drivers.

The Board also noted that “[t]wo of the traditional factors—who supplies the instrumentalities of work, and whether the parties believed they have created an independent-contractor relationship—we view as inconclusive, but they would in any case not outweigh the remaining factors.” However, the Board did find that what the driver was selling was created by FedEx, and remained under FedEx’s control, as did the configuration of the route, the route volume, the customer base, recruitment and pricing.

The three Democrat Members signed onto the decision, while one Republican Member dissented; the other Republican Member recused himself from the case.

 

Senate Committee Holds Hearing on Nomination of Sharon Block to be a Member of the NLRB

By  Edwin S. Hopson

On September 9, 2014, the U.S. Senate’s Health, Education, Labor and Pensions Committee (HELP) conducted a hearing on the nomination of Sharon Block, a Democrat, to once again be a Member of the National Labor Relations Board. She was nominated to take the place of Nancy Schiffer, a Democrat, who apparently did not seek another term on the Board.

Schiffer’s term expires December 16, 2014. If Block is not confirmed, the NLRB after December 16, 2014, would effectively be deadlocked, with 2 Democrat Members, and 2 Republican Members.

The ranking member on the committee, Lamar Alexander (R-Tenn.), raised objections to the nomination citing Block’s earlier service on the Board as a recess-appointee, which appointment was invalidated by a unanimous Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), as well as Block’s refusal to step down when the D.C. Circuit found the recess appointments of Block and two other Board Members to be invalid.  Senator Alexander and other Republican Senators had called for her and the other recess-appointees to resign after the D.C. Circuit Court ruling.

Block was also asked if she had a conflict of interest in sitting on cases invalidated by the Supreme Court’s Noel Canning ruling which she had previously decided as a Board Member; Block indicated she would refer any such question, if confirmed, to the appropriate government ethics person.

The committee did not vote on Block’s nomination at the conclusion of the hearing, and Chairman Harkin left the record of the hearing open several days for any additional comments or questions.

Since the Democrats hold majorities on both the HELP committee and in the Senate at the present time, and in light of Senator Reid and the Democrat’s change in the filibuster rules, Block is likely to be confirmed.