Dykema Gossett PLLC

Dykema Labor & Employment Law Blog

Posts by Robert A. Boonin

Contributors

Photo of Dykema Labor & Employment Law Blog Robert A. Boonin
Member
rboonin@dykema.com
313-568-6707
View Bio

Showing 19 posts by Robert A. Boonin.

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 ›

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 ›

Would You Like Franchisors With That? – NLRB May Super-Size Complaints Against Restaurants Bearing Name Of Fast Food Giant

Leadership within the NLRB wants to bring fast food franchisors to the table to answer for charges lodged against franchisees.  On July 29, 2014 the General Counsel of the NLRB, Richard Griffin, announced he had issued an advice memorandum to the NLRB’s Regional Directors concerning dozens of remaining charges against McDonald’s franchisees for which the NLRB had authorized complaints to be issued.  In this advice memorandum, the General Counsel takes the position that McDonald’s USA, LLC, the franchisor, should be named as an additional respondent in any complaints, reasoning it is a joint employer with each of the various franchisees, already named. 

While the memorandum has not been made public and is not considered law, it certainly reveals the direction and strategy of the NLRB.  The agency purports to stretch the concept of joint employer in a manner that could have far-reaching implications beyond fast food, and perhaps also beyond the franchisor/franchisee model.  As unions seek to organize new industries, including the franchise restaurant industry, this new directive at the NLRB makes clear the stakes are being raised.  Battles will now begin in earnest over how many and what sorts of entities will be joined into charges, complaints and possible bargaining obligations.  The fight over joint employer status will involve analysis and rulings about who has control over what employees and how much.  The legal battles are just beginning on this front, and other industries should beware. 

Summer Is Here – Now Is A Good Time To Review Intern Programs

The popularity of unpaid intern programs—interest in which spiked during several of the economic downtowns in recent years—may be waning as they continue to come under scrutiny by the Department of Labor (“DOL”) and courts. 

In April 2010, the Wage and Hour Division of the DOL issued Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act, which was intended to provide general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act (“FLSA”) for the services they provide.

The guidance applies to “for-profit” private sector employers, noting that unpaid internships in the public sector and for nonprofit charitable organizations are “generally permissible.”  The test has a number of requirements, all of which must be met in order for the internship not to be regarded as employment.  Employers have found a few of the criteria—namely, that the intern is not entitled to a job at the conclusion of the internship, the employer and intern understand that the intern is not entitled to wages, and the intern does not displace a regular employee—not too unwieldy to overcome as long as it is clear that the internship is not a trial period for employment and is of fixed duration. Read More ›

Minnesota's Women’s Economic Security Act: What To Know and How to Comply

Hailed by supporters as a necessary step towards increased economic equality, the Women’s Economic Security Act (“WESA”) became law in Minnesota on May 1, 2014.  WESA passed the Minnesota House and Senate with broad bipartisan support, and many believe that the statute will level the playing field for female employees across Minnesota.  Nonetheless, as with any law that expands employee rights, WESA also imposes additional obligations on companies that employ individuals within the state.  As a result, it is important for employers to understand the specific rights that WESA creates, as well as the steps that they must take in order to comply with the new law.   Read More ›

New Technology Nightmare -- Right to Telecommute As A "Reasonable" Accommodation Under the Americans With Disabilities Act

Until recently, employers were fairly confident that under the Americans with Disabilities Act (“ADA"), except in extraordinary circumstances, an employer had no obligation to accommodate an employee’s disability by allowing him/her to work from home.  Based upon existing precedent, the following principles seemed well established:

  • Attending work on a regular, predictable schedule is an essential function of a job.
  • Excessive absenteeism renders an individual unqualified under the ADA as a matter of law, except in the unusual case where an employee can perform all work-related duties at home.
  • An employer need not accommodate erratic or unreliable attendance.
  • The courts must consider the employer’s business judgment when determining the essential functions of the job.

Based upon what the Sixth Circuit Court of Appeals recently described as an “advancement of technology,” each of these principles is now under attack.  Equal Employment Opportunity Commission v. Ford Motor Company, Sixth Circuit No. 12-2484  (2014)  (“EEOC v. Ford” or “Ford”). Read More ›

EEOC Clarifies Position On Employer Obligations To Accommodate Religious Garb and Grooming At Work

The number of lawsuits and charges over the past few years involving claims of religious discrimination is on the rise. In March, the Equal Employment Opportunity Commission ("EEOC") issued a "rights and responsibilities" document regarding acceptable religious dress and grooming practices, an area of particular focus in several of the recent cases.  The default position of the EEOC is that in most cases, employers must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.  As for what constitutes a “religious” practice or belief, the EEOC casts a wide net to include not only practices followed by traditional organized religions, but also religious beliefs that, for example, are “new”, “uncommon” or “not part of a formal church or sect.”  Read More ›