News

COMPANY EMAIL USE UNDER JANUS

JANUS IMPACT: What does it mean for use of Company email for organizing activities? In the NLRB’s opinion, Janus has no impact on its 2014 decision permitting use of company email for union organizing activities (Purple Communications, 9th Circuit). However, NLRB GC has spoken of his interest in revisiting the decision, and we expect to hear more about changes to Company resources soon.

 

https://www.reuters.com/article/labor-emails/nlrb-says-no-impact-from-janus-on-employee-email-case-idUSL1N1UE1L9

 

EIGHTH CIRCUIT UPHOLDS SUBCONTRACTOR’S CRIMINAL LIABILITY IN FATAL EMPLOYEE FALL

The 8th Circuit U.S. Court of Appeals upheld $500,000 fine and Class B Misdemeanor against DNRB, a construction contractor whose employee fell to his death, having not ensured its employee secured his personal protective equipment, even though it provided it to him. The Court held that the employer willfully violated the OSHA regulations and used a previous citation as evidence to support its finding.

DNRB_OSHACRIMINALLIABILITY

NLRB LYFT MEMO FURTHER DEFINES EMPLOYEE RULE BOUNDARIES

NLRB LYFT MEMO FURTHER DEFINES EMPLOYEE RULE BOUNDARIES: Last week, NLRB upheld Lyft’s prohibition on employees sharing their logo without explicit permission and use of User information, holding that neither policy was unlawfully broad. The NLRB’s recent memorandums continue to indicate a significant change in the Board’s view of employee rules and employee handbooks.  https://www.nlrb.gov/case/20-CA-171751

MISSOURI VOTERS TO VOTE ON RIGHT TO WORK IN AUGUST PRIMARIES

Will RIGHT TO WORK prove to be right for Missouri? On August 7, Missouri voters will decide if the state’s private sector unions can mandate workers to join or pay dues to a union as a condition of employment. A YES vote on Proposition A will support allowing employees to elect out of paying union dues; a NO vote will continue the practice requiring employees to join a union as assigned by the collective bargaining agreement. Should Prop. A pass, it would extend the recent SCOTUS Janus decision further in the state, applying right to work to private sector unions as well as the public sector. The official ballot language is listed below:

 

Official Ballot Title
Proposition A

[Proposed by Referendum Petition]

Official Ballot Title:

Do the people of the state of Missouri want to adopt Senate Bill 19 (“Right-to-Work”) as passed by the general assembly in 2017, which prohibits as a condition of employment the forced membership in a labor organization (union) or forced payments of dues in full or pro-rata (fair-share); make any activity which violates employees’ rights illegal and ineffective; allow legal remedies for anyone injured as a result of another person violating or threatening to violate employees’ rights; and which shall not apply to union agreements entered into before the effective date of Senate Bill 19?

State and local government entities expect no costs or savings.

 Fair Ballot Language:

A “yes” vote will adopt Senate Bill 19 (“right-to-work”), passed by the general assembly in 2017.  If adopted, Senate Bill 19 will amend Missouri law to prohibit, as a condition of employment, forced membership in a labor organization (union) or forced payments of dues or fees, in full or pro-rata (“fair-share”), to a union. Senate Bill 19 will also make any activity which violates employees’ rights provided by the bill illegal and ineffective and allow legal remedies for anyone injured as a result of another person violating or threatening to violate those employees’ rights. Senate Bill 19 will not apply to union agreements entered into before the effective date of Senate Bill 19, unless those agreements are amended or renewed after the effective date of Senate Bill 19.

A “no” vote will reject Senate Bill 19 (“right-to-work”) and will result in Senate Bill 19 not becoming Missouri law.

If passed, this measure will have no impact on taxes.

2018-R002

 

POSSIBLE CHANGES FOR FAMILY LEAVE

The US Senate Finance Committee will discuss proposed legislative changes to FMLA tomorrow. Led by Sen. Bill Cassidy (R-LA), the members will discuss proposed changes, including the Democratic bill, which provides for an additional employer payroll tax to fund 12-weeks of paid leave for new parents and the Republican version, which permits parents to borrow from Social Security when a child is born to fund leave. The hearing has a lot of public policy interest, as family leave is said to be a priority of Ivanka Trump as well as other prominent members of the Trump Administration. #socialsecurity  #legislation

 

https://www.finance.senate.gov/hearings/examining-the-importance-of-paid-family-leave-for-american-working-families

SUCCESSOR LIABILITY IN ASSET PURCHASES EXPANDED BY 9TH CIRCUIT

In its recent decision in Heavenly Hana, the court held a private equity group that purchased a hotel and related assets was liable for the employees’ pension benefit plan’s withdrawal liability because the group had “constructive notice” of the withdrawal. As a key takeaway, asset purchasers can no longer rely on the seller’s representations on the funded status of the multiemployer pension plans and whether withdrawal liability exists. Under the constructive notice standard, asset purchasers are deemed to have knowledge of unfunded liability if due diligence or reasonable care would cause the discovery.

Heavenly Hana – Case No. 16-15481

EMPLOYEE HANDBOOKS POST-BOEING – New Balancing Test

In June, National Labor Relations Board General Counsel Peter Robb issued a memorandum further discussing the Board’s decision in Boeing. The Boeing decision created a balancing test to review employee handbooks to determine whether or not the employee policies were interfering with an employee’s right to organize or begin such a process. Per GC Memo 18-04, Robb stated that the NLRB Regions generally should consider the following types of rules lawful (absent special circumstances or unlawful application), and therefore treat them as “Category 1” under the Board’s Boeing framework.

  • Civility rules, courtesy rules, and rules prohibiting disparagement of coworkers
  • No-photography and no-recording rules
  • Insubordination, noncooperation, and refusal to cooperate rules
  • Disruptive behavior rules
  • Rules prohibiting the disclosure of confidential, proprietary, and customer information (so long as no reference is made to “employee” or “wage” information)
  • Rules prohibiting defamation/misrepresentation
  • Rules prohibiting using employer’s logos or intellectual property
  • Rules requiring authorization to speak on behalf of the Company
  • Rules prohibiting disloyalty, nepotism, or self-enrichment

Robb’s full memorandum is attached.

GC 18_04 Guidance on Handbook Rules Post_Boeing.pdf

 

EASTERN DISTRICT APPEALS COURT FURTHER DEFINES SUNSHINE LAW

Public employers have always battled the release of employee documents while complying with the state’s Sunshine Law. Last week, the Missouri Eastern District Court of Appeals provided additional clarification. The Sunshine Law requires government records to be available for inspection and copying unless an exception applies. If a state agency claims an exception, then it has the burden of proving it. The Eastern District Court of Appeals upheld the City of St. Louis police departments’ holding its internal affairs investigation as a personnel disciplinary matter, and therefore upheld the closed record, even though the police department had considered, but not filed, criminal charges against the police officers who arrested the Plaintiff in this case. https://lnkd.in/gK-JkMH

SCOTUS RULES AGAINST PUBLIC UNIONS

This morning, SCOTUS in a 5-4 decision ruled that public union sector employees who choose not to join unions cannot be required to pay agency fees to the unions to subsidize their work. Arising out of the state of Illinois, the decision is expected to significantly change public sector unions and their powers across the nation. The decision is attached, HM Attorneys will provide additional analysis in the coming days. SCOTUS RULES AGAINST PUBLIC UNIONS

PROPOSED COMBINATION OF FEDERAL EDUCATION AND LABOR AGENCIES

Last week, the Trump Administration proposed combining two federal agencies, the Department of Labor and the Department of Education. Specifically, the seven enforcement agencies in the Department of Labor, Wage and Hour, Mine Safety & Health Administration and Occupational Safety and Health Administration would be combined under “Worker Protection.” Critics have voiced concern that the only agency protecting American workers is being diminished. https://lnkd.in/eKEScmV