Category: Labor Law

January 7, 2020

Union Election Procedures to Change in 2020

In December 2019, the National Labor Relations Board finalized a rule to modify its union election procedures. This action will slow down the election process, giving companies more time to respond to election petitions. It ends a five-year reign of so-called “quickie elections.”

The new procedures will be in place beginning April 16, 2020.

2014 “Quickie-Election” Rules

The NLRB substantially changed its election procedures in 2014. Under the Obama Administration, the Democrat-led NLRB revised the rules to expedite elections. Those changes were primarily intended to reduce companies’ opportunity to respond to union organizing efforts. In other words, making it easier for employees to unionize.

In addition to condensing the timeline, the 2014 rules created a new disclosure requirement for employers. They required companies to provide extensive information about their workforce and response to the election petition in writing often in one week.

More Balanced Approach

As of April 16, 2020, the rules will change again to give employers more time to respond. The now Republican-led Board has not, however, completely reverted to the pre-2014 union election procedures.

There are many nuances to these procedures. Here are just some of the most impactful changes:

More Time Before Pre-Election Hearing

The 2014 rules provided for a pre-election hearing as soon as 8 days after the union filed an election petition.

The new rules delays hearing to the 14th business day. As before, the NLRB Regional office can postpone the hearing for good cause.

Statement of Positions Remains

Employers understandably did not appreciate the new requirement of preparing and submitting a Statement of Position after receiving an election petition. However, the NLRB has decided to keep that requirement in place. But they are making a couple of compromises in this area.

First, employers will now have 8 business days to file the Statement of Position. Under the 2014 rules, they often only had 7 calendar days, with a hearing to follow the next day.

Second, unions must now also file a written Statement of Position. The union has until 3 days before the hearing to do so.

Expanded Scope of Pre-Election Hearings

The 2014 union election procedures limited the subject matter of pre-election hearings to relatively few subjects. Fundamentally, they were limited to determining whether a question of representation exists. This required an appropriate bargaining unit to be identified, but did not allow employers to litigate individual voter eligibility or inclusion in the bargaining unit before the election. If the parties did not mutually agree on those issues, the NLRB would decide them after the election, if necessary, depending on the results.

Under the new rules, voter eligibility and unit inclusion issues usually will be part of the pre-election hearing process. This includes litigation over supervisory status. That question can be significant, as supervisors are not eligible to join a unionized bargaining unit. Moreover, employers can rely on supervisors as part of their election preparations. Thus, it is valuable to know who does and doesn’t qualify in that capacity under the National Labor Relations Act before the election takes place.

The new rules will also bring back the right for parties to call witnesses at the pre-election hearings. The 2014 rules limited the ways parties could present evidence at this stage.

Post-Hearing Briefs

With a focus on quick elections, the 2014 rules eliminated written post-hearing briefs by the parties. They would just be something else taking time to prepare, read, and respond to, after all!

The new union election procedures will allow the parties to summarize their positions in writing after the pre-election hearing. They have 5 business days after the hearing to submit briefs. The hearing officer can allow up to 10 additional days.

Scheduling the Election

Before the 2014 rule changes, union elections usually occurred 25-30 days after the direction of an election. That means, once the parties resolved all preliminary matters, either mutually or by hearing decision, the election would take place about 4 weeks later.

The 2014 union election procedures, moved that timeline up considerably. They required a Regional Director to “schedule the election for the earliest date practicable . . . .” That resulted in reducing the time between petition and election from 38 days to 23 days. The NLRB shows these statistics here.

The rules effective April 16, 2020, will return closer to the pre-2014 timeline. They provide that regional directors “normally will not schedule an election before the 20th business day after the date of the direction of election.”

More Time for Voter Lists

Once an election is scheduled, the employer must give the union a list of all eligible voters with contact information. Under the 2014 rules, companies only had 2 days to do so following the direction of an election. Now they will have 5 days.

Good and Bad News for Employers

Most companies should welcome these changes to the NLRB’s union election procedures. If nothing else, it gives you more time to respond if you do receive an election petition. And most employers will welcome the time to review their options in hopes of staying union-free.

But, there is a potential short-term downside to the rule changes. Significantly, they don’t take effect until April 16, 2020. Before then, the 2014 union-friendly rules remain in effect. This may result in unions rushing to begin election proceedings under the “quickie election” rules.

Companies that have any concern of a potential union organizing effort should evaluate the heightened possibility of an election petition in the first quarter of 2020. It is always better to be proactive if you want to keep a union out. This primarily means doing the right thing by your employees. But it also includes knowing the relevant procedures, legal parameters, and other logistical best practices. If you have any concerns in this area, you should consult with an experienced labor attorney sooner rather than later.

For more on what the NLRB has been up to, check out our upcoming webinar: NLRB 2020: Updates for All Private Sector Employers

December 30, 2019

Top Posts of 2019

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 2019?

These posts reflect some topics that most interested New York employers in 2019. Do they also suggest what will be top of mind in 2020?

Curious about last year? Click to see what posts made the list in 2018.

2020 New York Minimum Wage

Our annual post reminding employers of increases to both minimum wage and the salary threshold for overtime exemptions under state law remained a must-read.

Remember, these changes take effect on December 31, 2019, not January 1st. If you haven’t adjusted accordingly yet, now’s the time!

The required pay levels will continue to rise in the coming years. This post includes charts showing those planned increases.

Recovering Overpaid Wages in New York

Beyond addressing how much you have to pay them, New York also has strict rules about making deductions from employee compensation. Employers can withhold pay to recoup overpaid wages, but must satisfy detailed requirements to do so.

This post provides the basics of when and how employers can get their money back through payroll deductions. Don’t try it without this guidance. Even then, be cautious and seek professional assistance.

Readers were also quite interested in this more general review of the New York Wage Deduction Rules.

How Far Will New York Go?

2019 featured the extensive expansion of employee rights, and we expect more in 2020.

In addition to broader employment discrimination laws, New York imposed a statewide salary history ban. As of January 6, 2020, New York employers may not “seek, request, or require the wage or salary history from an applicant or current employee as a condition”:

to be interviewed,
of continuing to be considered for an offer of employment, or
of employment or promotion.

The State Legislature also passed legislation that would have permitted employees to use Paid Family Leave Benefits for bereavement leave. Governor Cuomo vetoed that law in 2019. But there are indications that the State will revisit the subject in 2020.

Workplace bullying was another item of notable interest among our readers. We wouldn’t be surprised to see New York add new protections in this area in the foreseeable future.

What’s Changing Under the FLSA?

The federal Fair Labor Standards Act governs minimum wage and overtime requirements throughout the United States.

In 2019, the U.S. Department of Labor finalized a rule that changes how some companies will calculate their employees’ overtime pay. The rule takes effect on January 15, 2020. It will generally act to decrease overtime rates.

The U.S. DOL also addressed who qualifies for exemptions from overtime pay in the first place. Beginning January 1, 2020, the weekly salary requirement for the FLSA administrative, executive, and professional exemptions will increase from $455 to $684. However, this probably won’t change much in New York, where the exemption threshold is already higher.

Employers Regain Control Over Company Email Use

As in recent years, the National Labor Relations Board has issued several significant decisions at year-end. Our readers have been most interested in this one about whether employees have the right to use company email for nonwork purposes.

For five years, most non-supervisory employees at private companies had that right. Now, most don’t.

Find out more about why the NLRB reinstated employer control over company property here.

Don’t Stop at the Top Posts of 2019!

I hope you find it helpful to look back at what happened last year, but you should also look forward. For some of the reasons stated above, and others, 2020 could be another big year in employment law. Please continue to follow the New York Management Law Blog for updates.

One great way to keep up with emerging topics in New York labor and employment law is to subscribe to our monthly email newsletter. If you want more frequent news and insights, be sure to follow us on LinkedIn!

See you in 2020!

December 26, 2019

NLRB Restores Confidentiality in Workplace Investigations

A December 16, 2019 NLRB decision reinstated employers’ discretion to maintain confidentiality in workplace investigations. In 2015 the federal Labor Board had found that employees’ rights to communicate with each other generally trumped company secrecy in this area. The new ruling allows investigatory confidentiality to be the default, rather than the exception.

Previous Standard

In 2015, an Obama-era NLRB panel with a Democrat majority held companies to the burden of demonstrating a specific need for confidentiality regarding a particular investigation. In other words, the default was the employers could not force employees to keep quiet about an ongoing internal inquiry.

Under the Banner Estrella Medical Center ruling, employers could only require confidentiality upon affirmative evidence that:

witnesses need protection;
evidence is in danger of destruction;
testimony is in danger of fabrication; or
there is a need to prevent a cover-up.

In that decision, the Board found that, absent these factors, employees’ rights under Section 7 of the National Labor Relations Act outweighed company interests in preserving the integrity of an investigation. Section 7 of the NLRA protects employees who engage in concerted activity for their mutual aid and protection regarding terms and conditions of employment.

Concern with Lack of Confidentiality

A strenuous critique of the Banner Estrella Medical Center decision was that it was inconsistent with EEOC guidance encouraging confidentiality in workplace investigations. Specifically including investigations of sexual harassment, the EEOC has long emphasized that employer procedures for resolving internal complaints “should ensure confidentiality as much as possible. . . .”

Over the past few years, the EEOC and NLRB have attempted to reconcile their inconsistent stances. The new NLRB position eliminates the conflict between these federal agencies.

Changing the Presumption (Back)

The NLRB’s 3-1 decision in a case involving Unique Thrift Store once again permits employers to ask their employees to keep investigations confidential. They can do so as the default, without first evaluating prescribed criteria.

Unique Thrift Store maintained the following work rules for employees:

“Reporting persons and those who are interviewed are expected to maintain confidentiality regarding these investigations.”
“The following list . . . are examples of behaviors that . . . may lead to disciplinary action, up to and including termination . . . . Refusing to courteously cooperate in any company investigation. This includes, but is not limited to, unauthorized discussion of investigation or interview with other team members . . . .”

The Board majority overruled the Banner Estrella standard, in part, for its failure “to consider the importance of confidentiality assurances to both employers and employees during an ongoing investigation.”

Open Question on Investigatory Confidentiality Rules

The NLRB’s 2019 Unique Thrift Store decision didn’t actually determine whether the above rules are lawful. The Board withheld ultimate judgment in that regard because the rules themselves weren’t clearly limited to the duration of an investigation. In other words, they arguably required employees to keep quiet even after the company had completed its investigation.

The Board did not feel it had enough information to evaluate whether Unique Thrift Store had sufficient justification for requiring post-investigation confidentiality. So, it sent the case back down for further proceedings regarding that question.

Impact on Employers

Under this new ruling, companies can go back to directing employees to maintain confidentiality during an investigation. They can generally implement and enforce written rules to that effect. But they should be careful in the wording of such rules and directives. Requiring employees to stay silent even after an investigation has concluded may be more problematic. In that situation, your company should evaluate the specific circumstances and, ideally, consult with an experienced labor attorney.

Receive more updates on labor and employment law from Horton Law PLLC. Follow us on LinkedIn or subscribe to our free email newsletter.

Click for the full decision in:

Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019)

Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB 1108 (2015)