Not Beating Around the Am-Bush: Republican Senators Seek to Undue NLRB Ambush Election Rule

 By: Michael Saqui and Gregory Blueford

On Thursday, a group of Republican senators introduced the “Employee Rights Act” which seeks to undo several Obama-era National Labor Relations Board rules, including the much-derided ambush election rules. In general, the ambush election rules dramatically “streamlined” the process of elections and shortened the time between when a putative union requests an election and the election itself. Once a request for an election is filed, an election could occur in as few as 11 days. This bill would completely negate that rule.

Cheryl Stanton, current head of South Carolina’s workforce agency, has been selected by President Trump to head the Department of Labor (“DOL”) Wage and Hour Division. The Wage and Hour Division enforces federal wage and overtime laws. Stanton served in the George W. Bush administration as the White House legal liaison to the Labor Department and spent many years as an employment defense attorney.

On August 21, 2017, the First Appellate District in California issued a decision in OTO, LLC. v. Ken Kho, granting a car dealership’s petition to compel arbitration in litigation with its former employee. In that case, employee Kho filed a claim for unpaid wages with the California Labor Commissioner (“Commissioner”) against his former employer, OTO, LLC, doing business as One Toyota of Oakland (“employer”). When employees seek resolution of claims through the labor commissioner, those claims may be resolved either through settlement, through an informal “Berman” hearing, or through the commissioner’s direct prosecution of the action. A Berman hearing is an administrative hearing conducted by the Commissioner to review a wage claim. It is intended to be a speedy, informal, and affordable method for employees to resolve a wage claim.

Today, a Texas federal judge invalidated the Obama administration’s proposed overtime exemption rule that was initially supposed to go into effect on December 1, 2016. The proposed overtime rules, explained here, sought to increase the federal “white collar” salary basis threshold for overtime exemption from $23,660 to $47,476. The proposed rule had been blocked from going into effect (here) by the Texas federal court after a challenge from 21 states since November 2016.

In California, employers are faced with an increasingly complex rulebook for what they may and may not ask about either a current or prospective employee’s criminal history. Effective July 1, 2017, employers may not consider any non-felony misdemeanor conviction related to marijuana possession that is more than two years old in any employment decision. This prohibition not only includes hiring and firing of an employee, but advancement or promotion opportunities as well.

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