Biden NLRB Alters Precedent, Allowing Union Certification Shift

In an unprecedented move this Friday, August 25, the Biden-appointed National Labor Relations Board (NLRB) has overturned a longstanding 70-year precedent. The ruling establishes that a Union will now be presumed as the collective bargaining agent for an employee unit by demonstrating majority employee representation. This marks a departure from the traditional requirement of an employee vote. Under the new process, employers will be obligated to file for an NLRB election only if they raise allegations of certain unfair labor practices.

Referred to as "card check," this change has raised concerns over employee voting rights and their freedom to choose. Congress has consistently rejected the implementation of such a measure in the past. Observers speculate that passing legislation mandating an employee vote before union certification would face challenges in garnering sufficient support. Even if such a law were to be passed, it's anticipated that the President would exercise a veto.

In response, businesses seeking to maintain their non-Union status are being advised to implement tailored legal preventive maintenance strategies that align with their unique circumstances and organizational culture. Several employers have already begun engaging with our Firm in this process to safeguard their operations by engaging with our firm.

If this new union certification process takes effect, a notable shift is expected in the landscape of labor relations. This adjustment could bring about a significant transformation in labor dynamics for both employers and employees.

Employer "Dos and Don'ts": Compliance Reminders for the FMLA

By: E. Fredrick Preis, Jr. and Philip Giorlando

The Family and Medical Leave Act (FMLA) is a Federal law which grants eligible employees the right to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain qualifying reasons, such as the birth, adoption, foster care of a child, a serious health condition of the employee or an immediate family member, or a military exigency. Additionally, up to 26 weeks of unpaid job-protected leave are allowed to care for a service member with a serious injury or illness. The FMLA also provides other benefits and protections to employees who take leave, such as continuation of health insurance coverage and restoration to the same or an equivalent position upon return. Employers have multiple obligations and responsibilities under the FMLA, as well as some rights and options to manage their workforce effectively. Here are some “dos and don'ts” to help employers comply with the FMLA and avoid common pitfalls.

Dos:

Comply with notice requirements. You must post a notice explaining the FMLA in a conspicuous place where employees can see it and include information about the FMLA in your employee handbook or other written policies. You must also provide a written notice to each employee who requests or takes FMLA leave, outlining their specific rights and obligations.

Provide training for your managers and supervisors. They should know how to recognize when an employee may be eligible for FMLA leave, how to respond to leave requests, how to document and track leave usage, and how to avoid interfering with or retaliating against employees who exercise their FMLA rights.

Verify the eligibility and certification of employees who request FMLA leave. Before granting leave, you must confirm that the employee meets the eligibility criteria, which include working for you for at least 12 months, working at least 1,250 hours in the 12 months before the leave, and working at a location where you have at least 50 employees within 75 miles. You must also obtain a certification from a healthcare provider or other authorized source to verify the need for leave based on a qualifying reason. You may request recertification periodically during the leave, as allowed by law.

Communicate with your employees on FMLA leave. You should stay in touch with your employees on leave to monitor their status and expected return date, as well as to provide any updates on their benefits, pay, or job. You should also inform them of any changes in their position or duties that may affect their reinstatement rights. However, you should not contact them excessively or for reasons unrelated to their leave, as this may be seen as interference or harassment.

Be flexible and reasonable when administering FMLA leave. Employers should remember that FMLA is not the only law at issue when an employee seeks medical leave; State and Federal laws requiring accommodations for disabilities may apply as well. So, employers should attempt to accommodate their employees' needs when it comes to scheduling, duration, and frequency of leave, if it does not cause undue hardship to your business.

Don'ts:

Discourage or prevent your employees from taking FMLA leave. You should not make negative comments, threats, or promises to influence your employees' decision to take or not take FMLA leave. You should not impose unreasonable conditions or requirements on their leave request or approval. You should not change their work conditions or expectations because they take FMLA leave.

Retaliate against your employees for taking FMLA leave. You should not take any adverse action against your employees because they request or take FMLA leave, such as demoting, disciplining, terminating, reducing their pay, benefits, or opportunities. You should not exclude them from training, promotions, bonuses, or other rewards because they take FMLA leave.

Count FMLA leave against your employees' performance or attendance records. You should not use FMLA leave as a negative factor in evaluating your employees' performance, productivity, or quality of work. You should not count FMLA leave as an absence that triggers disciplinary action under your attendance policy.

Deny reinstatement to your employees after FMLA leave. You must restore your employees to the same position they held before taking FMLA leave, or an equivalent position with equivalent pay, benefits, and terms and conditions of employment. You may not place them in a lower or less favorable position because they took FMLA leave. The only exception is if you can prove that they would have been laid off or otherwise affected by a legitimate business decision unrelated to their FMLA leave.

Violate the confidentiality of your employees' medical information. You must keep any medical information you obtain from your employees or their healthcare providers in connection with FMLA leave in a separate and secure file, and limit access to those who have a legitimate need to know. You must not disclose or discuss your employees' medical information with anyone without their consent, unless required by law or for legitimate business purposes.

These “dos and don’ts” only scratch the surface of an employer’s responsibilities and obligations under the FMLA, and employers must continue to stay up-to-date regarding how the FMLA operates in each specific situation that arises.

Recent Fifth Circuit Ruling Significantly Expands Reach of Title VII

By: Jerry L. Stovall, Jr.

On August 18, the full Fifth Circuit, which has jurisdiction over cases in Texas, Louisiana, and Mississippi and which has historically been one of the more conservative courts of appeal, ruled in Hamilton v. Dallas County that employees are not limited to bringing Title VII claims only when they are subjected to “ultimate employment decisions.” Rather, the court expanded the scope of actionable conduct to include all sorts of lesser actions.

The Fifth Circuit reasoned that Title VII does not limit unlawful discrimination to “ultimate employment decisions.” Holding that in addition to ultimate employment decisions such as hiring, firing, and refusing to promote, it also prohibits an employer from otherwise discriminating against an employee in “compensation, terms, conditions, or privileges of employment.”

The 5th Circuit ruled that all terms, conditions, or privileges of employment should be protected under Title VII, and provided several examples of actions that fell short of ultimate employment decisions yet which could still serve as the basis of a Title VII discrimination claim: denying seniority privileges to females while allowing males to exercise theirs; requiring females to work weekends but not males; assigning night and day shifts based on race; and requiring black team members to work outside, while allowing white team members to work inside. A key change is that the action does not need to result in financial damage in order for it to be the basis of a discrimination claim.

The court said that there is a floor for determining the type of actions that can serve as the basis of a Title VII claim, and that the law doesn’t cover “trivial” actions. However, the court declined to define the exact measure of materiality that will apply in order to have actionable harm, instead leaving that question “for another day.”

Action Items: Employers should review their policies and practices to ensure they comply with the new standard. More importantly, Human Resources and Supervisors must be aware that employees are going to be able to successfully assert discrimination claims for what we used to consider relatively minor employment-related actions. Being able to objectively justify these decisions will be absolutely key. Think about these decisions and if the “feel funny” get someone else involved.

What Version of Louisiana Law Governs Your Non-Compete Agreements?

By: Jude C. Bursavich

In today’s competitive marketplace, non-compete agreements can be a valuable tool for your company. They prevent individuals from learning your business and then leaving with your company information to compete with you. To protect your business interests, and in order to enforce your agreements, you need to know which version of Louisiana law governs your non-compete agreements.

The validity and enforceability of non-compete agreements in Louisiana is controlled by a single statute, La. R.S. 23:921. Louisiana case law is clear that the version of La. R.S. 23:921 in effect at the time your non-compete agreement was executed controls.

Effective August 1, 2020, La. R.S. 23:921 D was legislatively amended. This amendment affects non-compete agreements used between corporations and shareholders, partnerships and partners, and limited liability companies and their members. The August 1, 2020 amendment expanded the reach of these non-compete agreements.

Prior to the amendment, a corporation, partnership and a limited liability company could stop a shareholder, partner or member from opening their own competing business with an otherwise valid non-compete agreement. However, it could not stop them from going to work for an established competitor. After the effective date of the amendment, these entities can now stop a shareholder, partner or member with an otherwise valid non-compete agreement from opening their own competing business and/or from going to work for an established competitor.

For complete protection, any corporation/shareholder, partnership/partner, or limited liability company/member agreements containing non-compete provisions, executed prior to August 1, 2020, should be re-executed to take advantage of the amendment to La. R.S. 23:921 D. Otherwise, those agreements executed prior to August 1, 2020, are subject to the old law which fails to offer complete protection.

Recent NLRB Decision Prompts Employers to Double-check Handbooks

By: Jerry L. Stovall, Jr.

Earlier this month, the National Labor Relations Board issued an opinion in the case of Stericycle, Inc., that should cause most employers to take a second look at their policies and employee Handbooks. In short, the Stericycle opinion reverses years of Board precedent regarding when employer policies violate employees’ Section 7 rights, by improperly chilling the employee’s propensity to engage in concerted activity with fellow workers.

After Stericycle, the Board will now consider whether an employer's workplace policy has a "reasonable tendency to chill" employee rights and whether a more "narrowly tailored" rule could equally serve the employer's interests. The standard outlined in Stericycle is much stricter on employers and will make it significantly easier for employees to successfully assert an unfair labor practice charge based upon such policies.

Under the new Stericycle standard, the NLRB found that employer handbook policies violate the NLRA if the policies have a “reasonable tendency" to discourage employees from engaging in protected activity, including discussing terms and conditions of employment with colleagues. An employer's intent is "immaterial” according to the NLRB. The analysis will focus on whether a worker could "reasonably interpret the rule to have a coercive meaning."

The new standard will be interpreted “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity." If an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel of the Board will have met her burden" of establishing a presumption that the rule is unlawful "even if a contrary, noncoercive interpretation of the rule is also reasonable." An employer "may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule." This will be a very tough standard for an employer to meet.

Action Items: Employers should double-check their employee policies, and especially their Handbooks, to determine if they contain any policies that could violate this new standard.