NLRB Implements Final Rule on "Quickie Elections"

In one of a flurry of important actions taken just before the end of Member Sharon Block's term on December 16, 2014, the NLRB has announced that it has approved the final rule overhauling representation election procedures.  The NLRB voted to approve these regulations 3-2, with both Republican Board Members dissenting.

These regulations will implement the most sweeping changes to NLRB election procedures in decades.  Designed to hasten the already rapid pace of the election process, under the new regulations pre-election hearings must be set to begin no later than 8 days after the representation petition is filed.  By noon on the first day of the hearing, the employer must submit a written statement of position listing all prospective voters, and addressing potential legal arguments regarding unit placement and voter eligibility.  For the first time, these lists must include not just employee addresses, but telephone numbers and email addresses.  The regulations also eliminate the right to NLRB review of Regional Director determinations, and replace the process with a discretionary review process.

These regulations, which go into effect on April 15, 2015, will have critical implications for employers, which often are unaware of any organizing activity until a petition is filed.

--Jonathan Nadler

--Jon Nadler

Unanimous Supreme Court Rejects FLSA Claim for Time Spent in Mandatory Security Screenings

The Supreme Court has ruled, in a 9-0 decision, that employees working at an Amazon.com warehouse are not entitled to compensation for time spent waiting to complete mandatory security screenings following their shifts.  The Court explained that to be compensable under the Fair Labor Standards Act, the activity at issue must be "integral and indispensable" to the principal activities that the employee is employed to perform.  In this case, the security screenings -- which could take as long as 25 minutes -- did not meet that test.  As Justice Sotomayor explained in a concurring opinion, the primary job of the employees (working in the warehouse) could be safely performed without the security screenings, unlike the case of a battery plant worker, who could not safely perform the job without taking time to put on (and then take off) protective gear, in which case that time would be compensable.

This decision further clarifies the circumstances in which tasks required before and/or after performing work are compensable, and will impact a number pending FLSA class actions relying on similar theories.


--Jonathan Nadler

--Jon Nadler