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

Failure to Specify At-Will Employment Allows Public Employee to Assert First-Amendment Retaliation Claim

The 7th Circuit issued a ruling today reversing dismissal of a First Amendment retaliation claim brought by a former adjunct professor at an Illinois community college (which is a public employer).  The plaintiff was terminated after writing a letter to an outside organization highly critical of the college's treatment of adjunct faculty.

In reversing the district court's dismissal of the First Amendment retaliation claim, the 7th Circuit held that the plaintiff had a protected interest in continued employment -- even though Illinois is an "at-will" jurisdiction and even though the plaintiff's 1-page employment agreement did not expressly provide for any heightened job protection.  However, the court focused on the absence of any language confirming the plaintiff's at-will status, as well as language in the employment agreement dealing with the specifics of the plaintiff's job responsibilities over the course of the academic year, which the court held could be construed to imply an expectation of employment for the year.

For employers, the key point is that for any employee you consider to be at-will, it is important that any employment agreement or employee handbook make this point clear.


--Jonathan Nadler

--Jon Nadler

NLRB Issues Landmark Decision Applying Fee Shifting for Violations of NLRA

In a split decision (3-2), the NLRB today issued a ruling which -- if not reversed on appeal -- would fundamentally change the long-established framework of available remedies for violations of federal labor law, by requiring employers in some cases to pay the attorney's fees incurred by the government and unions in litigating violations of the NLRA.

"Fee-shifting" provisions are the rule under most employment law statutes (Title VII, ADA, FMLA, and most others), and are the single-largest driver in the filing, handling, and resolution of those cases.  Because the potential liability for attorney's fees often far exceeds an employer's potential base liability in such cases, and because employers almost never recover their attorney fees when they prevail, employers often feel no choice but to settle such cases even where they believe allegations of discrimination, etc. have no merit.

During the 1990s, the NLRB previously attempted to apply a fee-shifting remedy to the NLRA, but that ruling was swiftly rejected by the U.S. Court of Appeals for the DC Circuit.  The NLRB now is trying again, in a case that involves allegations of repeated refusals to adhere to prior orders and federal court injunctions.

While the DC Circuit may well again reject the Board's attempt to expand its powers, in the meantime the Board may continue to apply fee-shifting penalty in other cases it deems egregious.

--Jonathan Nadler

--Jon Nadler

EEOC Regional Attorney Makes Controversial Remarks About Conciliation

Following the Supreme Court's grant of cert to decide the extent to which the EEOC's statutory obligation to engage in conciliation is subject to judicial review, the Regional Attorney for the EEOC's Chicago Office recently made some controversial remarks to Law360, as reported here, including that employer challenges to the sufficiency of EEOC's conciliation efforts are just an excuse to run up billable hours.

--Jonathan Nadler

--Jon Nadler

Noel Canning Fallout Continues

As discussed here, the Supreme Court's ruling in Noel Canning is already causing the Board to spend time re-evaluating -- and, in almost every case, reaffirming -- hundreds of decisions nullified by the Supreme Court's decision.

In the meantime, until reaffirmed by the Board, nullified Board decisions that announced changes in the law are no longer in effect. For example, an ALJ recently ruled that the Board's Noel-Canning-era decision that dues-checkoff provisions survive expiration of a CBA is no longer valid, and therefore dismissed charges against an employer under that theory.

However, because the ideological composition of the Board remains unchanged, most of those decisions will be reaffirmed.

--Jonathan Nadler

--Jon Nadler

EEOC Challenging Employer Wellness Programs

The EEOC has announced it is suing an employer over its employee wellness program, alleging that the manner in which the program was operated violated the ADA.  In particular, the EEOC alleges that participation was mandatory, and required "medical examinations" and made medical "inquiries" of employees.  EEOC alleges that when one employee objected, she was made to pay the full cost of her medical benefits, and later was fired.

--Jonathan Nadler

--Jon Nadler