E-Blasts

Today, the National Labor Relations Board (“NLRB”) released the long-awaited final version of a new rule on the legal test for determining whether two or more companies are joint employers for the purposes of collective bargaining and liability for violations of the National Labor Relations Act (NLRA).  The joint-employer rule has a complicated history dating back to 2015 when the NLRB overturned the previous long-standing joint employer standard of 30 years which required “direct and immediate control” of the terms and conditions of workers’ employment.  

Board Revives Rule Allowing Restrictions on Employee Use of Company Email

The National Labor Relations Board (“Board”) issued a decision this week upholding the right of employers to prohibit the use of work email by employees for non-business purposes.  This decision, Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, overrules a 2014 decision that required employers to permit employees use of work email for union-related activity.

This week’s decision revived an older rule, established in 2007, which stated that policies prohibiting the use of work email for non-work purposes are generally permissible, as long as the policy does not discriminate against union-related activity.  In other words, a policy must not prohibit use of emails for union-related activity only, while allowing employees to use emails for other non-work purposes; the policy must apply equally to all kinds of non-work-related activity.    

This case reinforces the principle that there is no statutory right under the National Labor Relations Act for employees to use employer equipment, including email and other IT resources, for union-related activity in the typical workplace. However, the Board added an exception that allows employees to use work emails for union-related activity only in the rare case that work email is the only reasonable means for employees to communicate with one another on non-working time during the workday.  The Board did not give any explanation of when work email would be the only “reasonable means” for communicating, leaving it to future cases to flesh out when this exception would apply.

COUNSEL TO MANAGEMENT:

The Board affirmed that employers have a property right to control the use of their email and IT systems.  However, policies restricting the use of those systems by employees must be sure not to discriminate against unions and need to consider whether employees have other reasonable ways of communicating with each other during non-working time.  If you are unsure whether your company’s policy complies with this standard, contact the experts at the Saqui Law Group, a Division of Dowling Aaron Incorporated.

 

Board Expands Protection of Confidentiality Rules for Workplace Investigations

The Board issued another decision this week protecting employment rules that require confidentiality in workplace investigations.  The case, Apogee Retail LLC d/b/a Unique Thrift Store, overrules a 2015 Board decision that made such confidentiality rules unlawful unless employers could show, on a case-by-case basis, that the need to protect confidentiality outweighed the employees’ statutory rights to discuss discipline and investigations.

In setting out the new standard, the Board applied the Boeing test to the confidentiality rules at issue.  See our previous articles discussing the Boeing test here and here.  The Board held that rules requiring confidentiality in workplace investigations are presumed to be lawful as long as they, by their terms, apply only for the duration of ongoing investigations.  However, if a rule is not limited on its face to ongoing investigations, the employer will have to show that the reasons for maintaining confidentiality after the investigation is over outweigh any rights employees may have to discuss the investigation. 

COUNSEL TO MANAGEMENT:

Confidentiality is critical during workplace investigations.  It encourages the reporting of policy violations and participation in investigations, improves the quality of information gathered during investigations, and discourages the fear of retaliation for those who participate in investigations.  If you have questions about how this new rule impacts your business, contact the experts at the Saqui Law Group, a Division of Dowling Aaron Incorporated.

The National Labor Relations Board (“Board”) issued a decision on Monday restoring its long-standing rule regarding union dues checkoff when a Collective Bargaining Agreement (“CBA”) expires.  Since 1962, the Board’s established rule was that an employer’s obligation to check off union dues (i.e., deduct the dues from employee wages and pay them directly to the union) ends when the CBA containing the checkoff provision expires. 

Under Governor Newsom, the California Child Day Care Facilities Act gets its license to bargain at the big kids’ table this past week. The Governor signed into law AB 378 allowing  family childcare providers to form, join, and participate in union organizing for pay rates, reimbursement, training and personal development, grievance arbitration, strike and lockout provisions. Advocates hope the law will increase the wage for childcare providers and promote training opportunities meanwhile the state will be looking around for its wallet on this one.

The National Labor Relations Board (NLRB) recently issued a ruling applying the Boeing test to uphold a California employer’s workplace rules.  The Boeing test, adopted in late-2017, allows for a fairer, less restrictive approach to whether an employer’s workplace policies infringe on its employees’ rights under the National Labor Relations Act (NLRA).  See our prior article on the NLRB’s adoption of the Boeing test here.

AB 5 has far reaching impacts for employers, but the Governor’s Signing Statement on AB 5 made it clear that the Governor sees AB 5 as an “important step” along the way—focused now on a future of “creating pathways for more workers to form a union…” The Statement, available here, also says that the Governor will convene leaders from the Legislature, the labor movement, and the business community to step “in where the federal government has fallen short and granting workers excluded from the National Labor Relations Act the right to organize and collectively bargain.” 

While there are no concrete steps laid out on how the Governor intends to reach this goal, it is clear that increased union activity is part of the plan. If you have questions about how AB 5 impacts your business or labor relations, contact the experts at The Saqui Law Group, a division of Dowling Aaron.

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