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Dykema Labor & Employment Law Blog

Dykema Labor & Employment Law Blog

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NLRB Gives Examples of “Illegal” and “Legal” Handbook Provisions and Work Rules

On March 18th, the NLRB’s General Counsel published a 30-page “Report of the General Counsel Concerning Employer Rules.” The Report provides a fairly comprehensive summary of the types of rules the NLRB has found to be contrary to Section 7 of the National Labor Relations Act, the provision that guarantees employees—in both union and non-union workplaces—the right to engage in “concerted activity.” Read More ›

NLRB Shows Expanded Interest In Nonunion Employers

Please note: This article was first published in Law360 on January 16, 2015

It wasn’t too long ago that the National Labor Relations Board rarely concerned itself with the policies and practices of nonunionized employers, particularly when union activity, such as organizing activity, otherwise was not present in the workplace. Lately, though, the NLRB is applying what were often regarded as virtually dormant legal concepts to the nonunionized workplace. Read More ›

Sixth Circuit Affirms Limits on Employees’ Ability to be Paid for Minor Impositions Made During Meal Breaks

This week, the Sixth Circuit Court of Appeals decided two cases affirming that under the Fair Labor Standards Act, employees seeking compensation for work related activities performed during lunch breaks have the burden to show that they spent their meal time predominantly for the employer’s benefit, and that employees are precluded from recovering when they do not follow an established reporting procedure.  These cases clearly establish that minor burdens during meal breaks, such as monitoring radios or being available for emergencies, are not significant enough to convert the breaks to compensable work time.  Consequently, the Sixth Circuit further clarified its stance that, so long as the break is still primarily for the employees’ benefit, the time need not be counted for overtime pay calculation purposes. Read More ›

2015 Brings Significant Changes To Wage Laws

A new year brings new state minimum wages….

Though employers always need to be aware of changes in minimum wage laws in the locales where they operate, it seems that a tidal wave of those changes go into effect in states and municipalities across the country each January 1. Those changes, as well as a number of other issues on the horizon, must be in the forefront of employers’ minds as this new year begins. Read More ›

NLRB Adopts “Quickie Election Rules”: Its Threat Was, After All, A Promise

After announcing its intentions in 2011, by a 3-2 vote the NLRB published its final rules to overhaul the way it will handle petitions filed by unions to represent employees.  The NLRB is advertising the new process as a means for “modernizing” and “streamlining” how petitions and representation disputes will be handled.  The employer community views the changes as a blatant attempt to assist unions in their efforts to organize employees. 

The “quickie election rules,” as they are commonly referred to, will shorten the period from when an election petition is filed with the NLRB to when the actual election is to be held from the typical 6 weeks to as few as 2 weeks, provide unions with more access to employees during the campaign period, and limit an employer’s ability to object to an petition.  The new rules will go into effect on April 14, 2015. Read More ›

NLRB Reverses Itself: Employer Email Systems Now Can be Used by Employees for Union-Related Communications.

In 2007, the National Labor Relations Board held in its Register Guard decision (decided 3-2) that an employer was within its right to manage its property and prohibit use of its email systems for non-business related purposes, including union organizing.  Today, in a 3-2 decision, the NLRB took a “180” and held in the Purple Communications case that its earlier decision was wrong and such use is permitted under the National Labor Relations Act.   Read More ›

Unanimous Supreme Court Finds Time Spent for Security Screenings is Not Compensable

On Tuesday, December 9, 2014, the U.S. Supreme Court issued a unanimous decision providing clear guidance as to what constitutes compensable work under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. 

The case, Integrity Solutions, Inc. v. Busk, involved a contractor to Amazon.com whose employees retrieved products from the shelves in Amazon’s warehouses and packaged them for delivery to Amazon’s customers.  At the end of each shift the employees were required to undergo a security screening before leaving the warehouses.  The employees claimed that the time spent waiting for and undergoing the screenings entailed about 25 minutes per day, and through the lawsuit, they were seeking overtime compensation for that time.  They also claimed that the time could have been significantly shortened to a de minimis period if the shifts were staggered or more screening stations were available.  Consequently, they claimed, the time devoted to the screening was for the benefit of the employer or its customer Amazon.com, and therefore should have counted as part of their compensable workweeks. Read More ›

OSHA Provides Interim General Guidance for Workers and Guidance for Workers in Fields at Increased Risk of Ebola Exposure

In a recently published Interim Guidance regarding the control and prevention of Ebola, OSHA  has provided interim general requirements and recommendations for workers whose duties are performed in circumstances that are known or reasonably suspected to be contaminated with the Ebola virus (e.g., due to contamination with blood or other potentially infectious material). OSHA differentiated such workers from those who have direct contact with persons with Ebola Hemorrhagic Fever. Read More ›

Retaliation under Title VII: A Three-Year Gap Is Not Enough to Refute Causation Under Certain Circumstances

In retaliation cases under Title VII of the Civil Rights Act, the question that frequently arises in evaluating the requisite element of causation is whether “timing is enough.”  Many courts have held that although temporal proximity between the protected activity and the adverse employment action is sufficient to establish a prima facie case, such close timing, standing alone, is insufficient to meet plaintiff’s ultimate burden of proof.  But in Malin v. Hospira, Inc.,___ F.3d ___, Case No. 13-2433 (August 7, 2014), the Seventh Circuit addressed the converse question.  The issue addressed in Malin was whether a three-year gap conclusively refuted a retaliation claim.  The appellate court expressly rejected the principle that “the passage of a particular amount of time between protected activity and retaliation can bar [a retaliation] claim as a matter of law.”  Slip op. at 2.   Read More ›

Sixth Circuit Limits Enforcement of Key Employment Contractual Waivers in FLSA Cases

Over the past few years, there has been considerable litigation over whether employees may contractually waive their right to bring class or collective actions against their employers.  For example, the NLRB in its D.R. Horton line of cases believes that arbitration agreements limiting employees in their right to bring collective or class actions are not enforceable since they arguably waive an employee’s Section 7 right to engage in concerted activities. The courts have not agreed with the NLRB, and applying the Supreme Court’s recent line of cases upholding arbitration agreements proscribing class relief, have held that the congressional support for arbitration vis-à-vis the Federal Arbitration Act is a stronger policy than other rights relating to the ability to seek class relief. Further, the courts have construed the FAA to hold that unless an arbitration agreement clearly permits the seeking of class relief through arbitration, such relief is not available – through arbitration or otherwise. See generally Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054-55 (8th Cir. 2013)(arbitration agreement containing class action waiver is enforceable in claim brought under FLSA); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 295-96 (class action waiver must be enforced pursuant to the U.S. Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)); Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 486 (2d Cir. 2013) (undisputed that arbitration agreement did not provide for arbitration agreement on class-wide basis); Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1134-36 (11th Cir. 2014) (arbitration agreement which waives collective claims is enforceable); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 558-61 (5th Cir. 2013) (class and collective action waivers are not inconsistent with the NLRA’s Section 7 concerted activity protections, and therefore such waivers in arbitration agreements between employers and employees are enforceable); Reed Elsevier, Inc. v. Crockett, 734 F. 3d 594, 600 (6th Cir. 2013) (where agreement is silent on the availability of class relief through arbitration, class relief is not available). See also Huffman v. The Hilltop Companies, LLC, 747 F.3d 391, 398 (6th Cir. 2014) (contract silent on right for bringing class claim in arbitration precludes the arbitration of class claims).   Read More ›