Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Union Elections Increasing

Why Are Union Elections Increasing in 2022?

The National Labor Relations Board reports a 58% increase in union election petitions through the first three quarters of the 2022 federal fiscal year. Upon first glance, this statistic may seem to reflect a major uptick in union organizing. And, on the raw numbers, it does. But there appear to be two notable causes for union elections increasing in 2022: Starbucks and COVID.

Union Election Petitions

The July 15, 2022 NLRB press release generally refers to the overall increase in “union election petitions.” There are actually an array of circumstances included in these filings. They don’t just refer to cases where a union seeks an election to determine whether they may represent employees.

There were 1,892 “union election petitions” filed with the NLRB between October 1, 2021 and June 30, 2022. Some of these were filed by unions, some by employers, and others by employees, with various objectives. 1,573 of the petitions did seek union representation of then-unrepresented employees. The second largest group were 236 petitions filed by employees seeking to oust their incumbent union. Of the remaining 84 petitions, 41 sought clarification of an existing bargaining unit, for example.

Representation Election Petitions

Petitions where a union seeks initial recognition are known as representation petitions or RC petitions. This category did indeed rise significantly in the first three quarters of FY 2022 compared the same period in FY 2021. They increased 70% overall. But there’s more to the story.

First, 313 of the 1,574 RC petitions involved Starbucks stores. That’s 20% of total representation petition filings–a highly unusual occurrence for a single employer. So, yes, these Starbucks cases are a big deal for the NLRB, which has to process all of these elections. But they’re something of a statistical anomaly in evaluating the overall state of union organizing in 2022. Very few companies operate like Starbucks, with so many corporate-owned locations scattered throughout the country. Even most quick-service food establishments use the franchise model, meaning there are numerous distinct “employers” rather than a single unionizing target.

Without the Starbucks cases, there was only a 36% increase in representation petition filings so far in FY 2022. Which brings us to the second consideration:

COVID-19.

Once you take out the rampant Starbucks unionization, FY 2022 only resembles NLRB filings before the pandemic began around March 2020. See graphs below.

 

The average number of RC petitions for the first three quarters of FY 2017, 2018, and 2019 was 1,255. Almost exactly the same number as were filed in the first nine months of FY 2022 (1,260).

Decertification Election Petitions

For a check on the COVID impact on NLRB union election petition filings, let’s look at decertification petitions (RD). In these cases, employees currently represented by a union are seeking to vote the union out.

We don’t have to worry about any direct Starbucks influence here. A union has to be in place at least a year before it can be voted out. None of the Starbucks stores have yet had a union for that long.

Like representation election petitions, RD filings are up in FY 2022. The 42% increase is actually higher than the Starbucks-excluded increase among RC petitions (36%).

If the 58% overall increase in “union election petitions” were due to more demand to be unionized (other than among Starbucks employees), then that wouldn’t explain the increase in decertification efforts. So, what does? Again, the answer appears to be a return to previous pre-COVID levels.

Again, remarkably, the average number of RD petitions for the first three quarters of FY 2017, 2018, and 2019 (242) was virtually equal to the number filed in the first nine months of FY 2022 (236).

Will Union Elections Continue Increasing Beyond Pre-COVID Levels?

This question remains to be answered. Historically, about 75% of union representation elections petitions are filed in the first 3 quarters of the NLRB’s fiscal year. That means a proportionally equivalent number should be filed between July 1 and September 30, 2022. If we see that approximately 420 RC petitions (excluding Starbucks) are filed in that period, then it would continue to show a return to normalcy rather than a real shift toward increased unionization. A higher number would require further examination. For example, any apparent uptick could be a remnant of artificially low petitions during the height of the COVID pandemic. In other words, unions may still only be making up for lost time rather than experiencing fundamentally renewed interest.

Of course, if your business is union-free and wants to stay that way, the most important union election petition is the one that is or isn’t filed with your name on it. National trends are only one macro-indicator of interest in unionization. Employers should remain alert to the needs and sentiments of their own employees. Keeping them satisfied and feeling respected is the most likely path to staying out of these NLRB statistics.

 

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All data were obtained from the National Labor Relations Board website.

Military Caregiver Leave

FMLA Military Caregiver Leave

For most qualifying purposes, the Family and Medical Leave Act (FMLA) permits eligible employees to take up to 12 weeks of unpaid leave per year. However, one form of leave can last for much longer. An employee who qualifies for “military caregiver leave” has a right to up to 26 weeks of leave to provide care for an ill or injured military servicemember. But this form of leave is limited in other ways.

FMLA Eligibility

As a threshold for eligibility, an employee must have been with the employer for at least one year and have worked more than 1250 hours in the past 12 months. In addition, the employee must work within a 75-mile radius of at least 50 total employees of the same employer.

For more on FMLA eligibility, read “Who Is an FMLA Eligible Employee?”.

FMLA Qualifying Circumstances

Employees most commonly take FMLA leave due to the birth/adoption of a child or due to a serious medical condition that they or a close family member is suffering.

FMLA leave is also available in two situations involving military service. These scenarios are respectively known as “qualifying exigency leave” and “military caregiver leave.”

Under the FMLA, employees are limited to 12 weeks of leave per year based on birth/adoption of a child, serious medical conditions, and qualifying exigencies. Only military caregiver leave has a separate maximum leave period.

Covered Servicemembers

Employees may be eligible for military caregiver leave based on the serious injury or illness of a family member who is a “covered servicemember.”

Covered servicemembers are current members of the U.S. Armed Forces, including a member of the National Guard or Reserves, who are either:

  • receiving medical treatment, recuperation, or therapy;
  • in outpatient status; or
  • on the temporary disability retired.

The above conditions must be based on a “serious injury or illness.”

Serious Injury or Illness

Under the FMLA, a “serious injury or illness” is one that a servicemember incurred in the line of duty on active duty that may cause the servicemember to be medically unfit to perform the duties of their office, grade, rank, or rating. Pre-existing injuries or illnesses aggravated by active duty service also qualify.

Family Relationship

To take military caregiver leave under the FMLA, the covered servicemember must be the employee’s spouse, child, parent, or next of kin.

Available Leave

An employee may take up to 26 weeks of FMLA to care for a covered servicemember. However, unlike other forms of FMLA leave, this leave is limited to a single leave period that does not recur annually. More specifically, the 26 weeks must be taken in a single 12-month period that begins when the employee first takes military caregiver leave for the particular servicemember and illness/injury.

Note; If the employee’s covered servicemember relative has a different serious illness or injury, then the employee may be eligible for another leave of up to 26 weeks in a new single 12-month period.

Certification

As with other forms of FMLA leave, employers may require employees to provide documentation certifying their eligibility to take military caregiver leave.

The U.S. Department of Labor provides an optional “Certification for Serious Injury or Illness of a Current Servicemember for Military Caregiver Leave under the Family and Medical Leave Act” form.

Process FMLA Requests Carefully

As with all forms of FMLA leave, an employee doesn’t have to specifically request “military caregiver leave” or even “FMLA leave.” Once the employee provides enough information that they may qualify for leave protected by the FMLA, employers must provide appropriate documentation of employee rights and eligibility. Failing to do so or to designate leave as FMLA leave could result in an employee retaining the right for protected leave at a later date, among other potential negative consequences to the employer.

New York Pay Disclosure Law

New York City Pay Disclosure Law Finalized

With recent amendments, the anticipated New York City pay disclosure law will take effect on November 1, 2022. Covered employers advertising for positions that could be performed in New York City must identify the minimum and maximum salary or wage for each job.

Covered Employers

The New York City pay disclosure law will apply to employers with at least 4 employees as long as one of them works in NYC. Anyone employing one or more domestic workers in the city is also covered.

Covered Job Postings

The law applies to all jobs, including promotions and transfers, that could be performed “at least in part” in New York City. Covered positions may be working either in a facility operated by the employer or remotely, such as in the employee’s home. Even positions with a combination of work locations would be subject to the New York pay disclosure law if part of the job could be performed in New York City.

Covered job advertisements include “any written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants.”

However, the law does not require employers to advertise or post for available positions. It only requires that if an employer chooses to post an opening, they must include the compensation range.

Required Pay Disclosure

Covered job advertisements must state both a minimum and maximum annual salary or hourly wage for the available position(s). By law, “the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”

Though there is little guidance so far on what will qualify as a “good faith” pay range, the New York Commission on Human Rights emphasizes that the range cannot be open-ended. For example, only stating a minimum hourly rate or a maximum salary would be insufficient.

Though unsaid, presumably the New York City pay disclosure range refers to the starting compensation level.

This law does not require employers to advertise any additional information about compensation or benefits such as overtime rates, insurance benefits, or bonus eligibility.

Penalties

A violation of the New York City pay disclosure law will constitute employment discrimination under the New York City Human Rights Law.

Any applicant or employee who feels aggrieved by an alleged violation of the New York pay disclosure law will be able to file a complaint with the New York City Commission on Human Rights. Potential remedies include awarding lost wages and emotional distress damages, among other available relief.

The law contains partial limits on liability, but it is not clear that they will do much to protect employers.

Only current employers may commence a civil lawsuit for a violation of the New York City pay disclosure law. But, again, a much broader scope of individuals have the attractive option of going through an administrative proceeding with the NYC Commission on Human Rights.

The law also provides for no monetary civil penalty for a first violation if the employer cures it within 30 days. However, this does not preclude an aggrieved individual from pursuing and potentially receiving damages in an administrative proceeding. And the NYC Commission on Human Rights may impose penalties of up to $250,000 for uncured or subsequent violations.

Next Steps for NYC Employers

If you have an employee working in New York City, you may need to include a wage or salary range in job postings beginning November 1, 2022. Do you have 4 total employees? Or at least one domestic worker in New York? Could the job you’re hiring for be performed in NYC–even if that’s not the most likely or preferred location?

NYC employers may have the option of not advertising for positions for which they don’t want to disclose a pay range. But if you do post, you will need to decide what a “good faith” wage or salary range is for each position advertised.

 

Could pay disclosure requirements be coming throughout New York State? Follow Horton Law on LinkedIn for our latest updates.