Category: Labor Law

Top Posts of 2018

Top Posts of 2018

As the year ends, we again review the most viewed New York Management Law Blog posts from this year. Did you miss any of the top posts of 2018?

These posts reflect some topics that most interested New York employers in 2018. Do they also suggest what will be top of mind in 2019?

Curious about last year? Click to see what posts made the list in 2017.

2019 New York Minimum Wage

Like last year, our post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law caught readers’ eye.

Remember these changes take effect on December 31, 2018, not January 1st. If you haven’t adjusted accordingly yet, don’t delay any longer!

And there are still more increases scheduled for the years to come. This post includes charts showing those planned increases.

Sexual Harassment Draws More Attention

Well-publicized harassment allegations beginning in October 2017 put sexual harassment prevention on the top of our minds this year. Both the federal and New York state governments took deliberate action to address the unfortunate reality.

In April 2018, the New York Legislature enacted extensive legal requirements aimed at workplace sexual harassment. These included the obligation that all employers in the state adopt written sexual harassment policies and provide annual sexual harassment prevention training to all employees.

Employers were eager to learn more about what the New York Department of Labor would expect from them to meet the policy and training requirements. This made “First Look: NYS Model Sexual Harassment Policy & Training” one of our top posts of 2018. When the DOL updated its guidance closer to the October 9, 2018 effective date, we likewise offered an update.

In October, we also received telling data from the U.S. Equal Employment Opportunity Commission (EEOC). We examined this in “EEOC Releases 2018 Sexual Harassment Statistics.” The EEOC initially reported that after steadily declining over the previous decade, sexual harassment charges went up more than 12% in the fiscal year ending September 2018. In “EEOC: 2018 Sexual Harassment Data Even Worse” we discussed the final numbers showing a 13.6% increase.

The FMLA Is Always a Hot Topic

All the hype in 2017 was about the launch of New York’s Paid Family Leave Program. In 2018, the federal Family & Medical Leave Act (FMLA) turned 25 years old. But employers remain interested in learning more about what it means and how it works.

One of the most viewed posts of the year contrasted these two significant legal regimes. “New York Paid Family Leave vs. FMLA” takes a look at employer coverage, employee eligibility, qualifying circumstances, compensation, and other issues under these laws.

And after a year of learning when an employee might have rights under the New York Paid Family Leave, employers became even more interested in double checking “Who Is an FMLA Eligible Employee?”

Drugs in the Workplace

Another issue that hasn’t gone away is employee drug use. Amidst a continuing national debate over the legalization of marijuana, readers were interested in what existing employment laws say about drugs generally.

What Does the Drug-Free Workplace Act Require?

This federal law doesn’t go as far as most people probably think. First, it only applies to businesses that have sufficiently large contracts with the federal government.

The Drug-Free Workplace Act requires these covered employers to adopt a drug-free workplace policy and establish a drug-free awareness program. However, it does not force these companies to fire employees who bring drugs to work or work under the influence of illegal drugs.

Drug Testing New York Employees

Employers in New York (and most other states in the U.S.) have broad rights to test employees for drug use. But many sources of law touch on the subject. That’s probably why this post was so popular with readers trying to determine their rights and obligations in various situations. (It was the #1 most viewed post on the New York Management Law Blog in 2018!)

Vacation Pay in New York

New York employers don’t have to let employees take paid vacations. But if they do offer a vacation benefit, the parameters must be clearly described in writing.

If you haven’t done so recently, now’s a good time to review your vacation pay policy. Use this post as a starting point.

What is Executive Order 11246?

You’d be surprised how many people asked that question in 2018. (I was.) This was actually our second most viewed post of the year. So, what is it?

Signed by President Lyndon B. Johnson in 1965, this Executive Order imposes anti-discrimination and affirmative action requirements upon covered federal contractors. For example, companies with more than 50 employees and a contract with the U.S. government for at least $50,000 must maintain written affirmative action plans.

Although the Executive Order remains in place, the federal Office of Federal Contract Compliance (OFCCP), which oversees Executive Order 11246, has occasionally made the news over the past year or so. It recently announced several new policies on November 30, 2018.

What Are Employees Up To?

Two other top posts of 2018 addressed the reality that your employees don’t always want to be working (at least, for you).

Should You Let Employees Watch the World Cup?

Though less popular in the United States, the 2018 FIFA World Cup was one of the biggest global events of the year. For one month this summer, fans around the world cheered their favorite soccer nations. Before the contest began, we considered some pros and cons of letting employees watch the matches during work time.

Your Employee Has a Side Hustle

Many employees with regular full- or part-time jobs are also working on a personal business venture on the side. This is not necessarily good or bad in itself. Situations vary. But this post raised many legal considerations for employers ranging from conflicts of interests to federal leave laws.

Don’t Stop at the Top Posts of 2018!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2019.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to our monthly email newsletter. It not only recaps our recent blog posts, but also announces upcoming free webinars that help you stay in compliance.

See you in 2019!

Union Basics for Employers

Union Basics for Employers (Webinar Recap)

On September 20, 2018, I presented a complimentary webinar called “Union Basics for Employers.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here to watch the webinar now.

In the webinar, I discuss:

  • Representation Procedures
  • Grievances and Unfair Labor Practices
  • Negotiations
  • Strikes and Lockouts

This webinar may be helpful both to companies that are currently unionized and those that are not. The content primarily focuses on private companies subject to the National Labor Relations Act. This includes most businesses other than governmental entities.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Union Basics for Employers”

Let’s face it, most employers would rather not have to deal with a union. While this webinar mentions some tips for staying union-free (i.e., be a good employer), the emphasis is on explaining what it means to have a union.

Topics include how unions come to represent employees in the first place and what happens once the union is in. I also describe the primary procedure for employees to vote their union out.

The webinar is also a good primer for human resources personnel joining a unionized company for the first time. Learn what to expect and what it all means for your company.

If nothing else, learn how to better co-exist with a union in your workplace here.

Don’t Miss My Future Webinars!

Click here to sign up for my email newsletter to be among the first to know when registration is open for upcoming programs!

Union Decertification

Union Decertification

Private sector employees unhappy with their union can initiate a decertification process through the National Labor Relations Board.  If successful, this process removes the union as the employees’ exclusive bargaining representative and relieves them of the obligation to pay dues or other fees. Once the union is out, employees can deal directly with their employer concerning terms and conditions of employment.

Common reasons union members vote to decertify their union are they don’t believe the union is worth the dues, they prefer to resolve issues directly with management, or the union is no longer useful. Employees can also decertify their union to replace it with another union.

No Company Involvement

Companies cannot be involved in the union decertification process. Efforts to decertify a union cannot occur on work time, in work areas, or while using company equipment. If management assists in any decertification procedures, the employer may have committed an unfair labor practice. Employees wishing to decertify their union can seek outside assistance.

Filing Period

Employees may only attempt to decertify their union at certain times.

Employees cannot try to decertify a new union until one year after its certification. Once a year passes, employees may only ask for decertification during a 30-day “window period.” This window is typically open between 60 and 90 days before the expiration of a collective bargaining agreement. For healthcare institutions, the window period runs from 90 to 120 days before contract expiration.

Once a collective bargaining agreement expires or remains in effect longer than three years, employees may ask for decertification at any time.

Decertification Petition

The process of decertifying a union begins with a petition demonstrating the desire to decertify. Any employees in the bargaining unit, including non-union members, may sign the petition. Signatures must occur off work time and at a non-work location. The petition must bear the signatures of at least 30% of the bargaining unit for the NLRB to conduct a secret ballot election. (In some cases, an employer may withdraw recognition of the union if at least 50% of the employees in the bargaining unit sign a properly worded petition demanding withdrawal.)

Employees should submit this “showing of interest” petition to the NLRB regional office. Then the employees must serve certain forms on the employer and the union. The required documents can be electronically filed and served, mailed, or delivered in person.

Decertification Election

Following receipt of a valid decertification petition, the NLRB will administer a secret ballot election. If at least half of the employees vote against the union, it will no longer represent the employees.

Employers and unions cannot ask how employees are voting. Harassment or threats by either side about voting can constitute unfair labor practices and may overturn the election results.

Public Employees

Since the National Labor Relations Act only covers the private sector, employees of public employers must follow different procedures. A recent Supreme Court decision (Janus) could create a wave of public sector union members walking away from unions (at least by withdrawing financial support). If so, private-sector employees might become more eager to do so as well.

Employer Cautions

Remember that management cannot organize a decertification effort. Companies who learn of employee interest in potentially removing a union should consult with experienced labor counsel to review applicable parameters. Any violations of the National Labor Relations Act by supervisors could unduly undermine employees’ ability to choose to be union-free.

 

For more on what it means it to have a union in your workplace, check out this webinar on Union Basics for Employers.