There are seven substantive changes:

• A pre-election hearing is only “to determine if a question of representation exists” and thus related issues should be handled post election;
• Pre-election Hearing Officers have the authority to limit evidence about voter eligibility and inclusion;
• Pre-election Hearing Officers have discretion over what post-hearing briefs can be filed;
• Eliminates the recommendation that the Regional Directors should ordinarily not schedule an election sooner than 25 days after the decision and direction of election, which provided the Board an opportunity to rule on a pre-election request for review before the election;
• Narrows the circumstances under which special permission to appeal to the Board will be granted; and
• Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides the Board has discretion as to whether to review any remaining post-election disputes.

On their face, the new rules merely limit the issues that can be resolved pre-election.  In fact, this streamlining will seriously limit employers’ opportunity to explain the downsides to unionizing because most elections will occur within two to three weeks of a petition being filed.  However, unions will continue to have as much time as they want to campaign before requesting an election.  This is the true unevenness of this labor playing field. 

Legislative and judicial challenges to the new rule are underway.  At least three lawsuits were filed in December.  They are being consolidated into one case.  The House of Representatives passed the Workplace Democracy and Fairness Act, which would require a 35-day period between the filing of an election petition and the representation election.  It would also require a two-week waiting period before a hearing on the petition could be held.  Senator Mike Enzi is threatening to overturn these rules by filing a challenge under the Congressional Review Act.  If all these challenges fail, the rule will go into effect on April 30, 2012.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Groups as varied as the Motor & Equipment Manufacturers Association, the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce have lodged legal challenges to the new poster.  The Motor & Equipment Manufacturers Association, for instance, argues the poster violates section 8(c) of the 1947 Taft-Hartley Act, a key employer-friendly amendment to the National Labor Relations Act.  Section 8(c) prevents the NLRB from attempting to take away employers’ rights to free speech even when unfair labor practices were also found.  Other claims include that the new notice-posting mandate unlawfully compels employers to promote the NLRB’s agenda and infringes upon the free speech rights in the United States Constitution, which protect employers from being compelled to deliver the Government’s message.  Despite these challenges, the NLRB claims all of these issues will be resolved by the updated April 30, 2012 effective date.

In other NLRB news, President Obama made three recess appointments to the Board, two Democrats and one Republican.  The new members are Sharon Block, previously the Deputy Assistant Secretary for Congressional Affairs at the Department of Labor; Richard Griffin, an attorney for labor unions such as the AFL-CIO and the International Union of Operating Engineers; and Terrence F. Flynn, a lawyer who specializes in the NLRB’s guiding law, the National Labor Relations Act.

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

• Connecticut Paid Sick Leave- Who Qualifies?
• Connecticut First In The Nation To Provide Paid Sick Leave

The  law mandates certain employers provide up to 40 hours  of paid sick leave to their employees.  Sick leave will accrue at the rate of one hour per 40 hours worked, up to the 40-hour maximum.  The law also requires employers to permit workers to carry over up to 40 hours (five days) of unused accrued sick leave each year.  This could be an issue.  For employers whose policies differentiate between sick days and vacation/personal days, this process is straightforward.  But employers who embrace the more flexible “paid time off” approach have a new challenge.

In a “paid time off” plan, employers offer a set number of days off to be used for any reason, including illness.  The new law explicitly allows employers to continue using this method, as long as the plan allows the accrual and use of sick days at least as quickly as the law requires in general.  But employers do not need to allow employees to carry over 40 hours of vacation time or personal time, so employers who do not document the reason for the time off will not know how much sick time, if any, they must allow the employee to carry over.  For example, an employer that offers 10 days of paid time off does not need to allow any time to be carried over if an employee used at least five sick days.  But, if the employee took eight vacation days, the employer must allow two days to be carried over as sick time.

Because the employer’s obligations to allow carryover will differ based on whether time off is sick leave or time taken for another purpose, employers must document the reason for the time off if they want to limit the amount of carryover.  The law permits employers to request “reasonable documentation” supporting the request to use sick leave when the employee uses sick leave on three or more consecutive days. But what about using sick leave for a one day absence? While documentation may not be required, a simple question – were you out sick – should be allowed.  Under the law, “sick leave” includes time taken to care for a child or spouse who is ill or for medical or psychological treatment following family violence or sexual assault, so make sure to ask a broad enough question, without being invasive.  Probing too far into the employee’s reasons could lead to issues under the ADA, GINA, or other state and federal laws.  Exact guidance on this line has yet to be announced. 

If you would rather not get into this complexity and you will not just allow the carryover of whatever time is unused, there are still alternatives.  The Connecticut Department of Labor has said employers do not need to allow carryover at all if they grant at least 40 hours of paid sick leave each January 1^st.  Another way to avoid carryover is to pay out the extra sick days at the end of the year, but this option is available only if the employee voluntarily decides to take it.

Especially because the Paid Sick Leave law is the first state law of its kind, there are many unresolved questions.  Using ambiguities to avoid compliance is dangerous.  Have an attorney review your sick leave policies to ensure it will comply.  We will continue to publish refinements to this law as they are announced.   You non-Connecticut employers, beware; you may be next!

Brody and Associates regularly advises management on complying and remaining up to date with state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 A substance abuse counselor working for a nonprofit company went on FMLA leave to recover from knee surgery in 2003.  He took FMLA leave again in September 2008, for knee pain.  He exhausted his FMLA leave in the middle of December.  The employee submitted a doctor’s note stating he would need leave for a longer period of time. 

When his leave was exhausted, he failed to give a return to work date or a fitness for duty certificate.  Instead, he asked that the employer make a reasonable accommodation – hire a substitute counselor and allow him to take an indefinite leave of absence until he was fully recovered.  The employer terminated his employment while he was still on leave, claiming this accommodation created an undue hardship. 

The employee sued under the ADA.  The court found his request was not a reasonable accommodation and the employer was justified in terminating him.  Under the ADA, an employee has to be able to perform the essential functions of his job, with or without a reasonable accommodation.  The Court found the employee was unable to perform one of his essential job functions – coming to work regularly and on time.  Often, an accommodation allows the employee to perform the job without pain or with greater ease.  However, here, the accommodation request of an indefinite leave did not enable him to work.  More importantly, its indefinite tenure was unreasonable.

Employers should always take great stride to consider an employee’s request for accommodations; remembering that such consideration should be an interactive process between the employee and the company.  With the new amendments to the ADA, it is likely there will be increased accommodation requests.  Employers should consult with counsel or their Human Resources staff when evaluating such requests.  Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Beyond the Board’s delay, there are challenges pending in the courts over the legality of this rule.  The U.S. Chamber of Commerce, as well as two other groups representing businesses, have filed suit claiming the Board does not have the statutory authority to impose this new rule.  Among other things, the U.S. Chamber of Commerce argues the Board failed to consider the significant impact this rule will have on small businesses.  These challenges seek, among other things, an injunction delaying enforcement of this rule until a final ruling issues.  It is very likely that by January 31st, at least one of these challenges will have been heard.  As a result, it is possible further delays will follow.  We will keep you advised.   

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

When a collective bargaining agreement (“CBA”) expires, the employer cannot make a unilateral change in the terms and conditions of employment.  Instead, the union and employer must negotiate over these issues and reach agreement or an impasse before any changes can be made.  There has been much litigation over what is and is not a term and condition of employment.  Generally, anything that benefits the employees is considered a term or condition of employment.  Wages and hours are some of the most concrete examples of ‘terms and conditions of employment’ but the list goes much further.   

A union security clause is a clause in a CBA which requires all employees in the bargaining unit to join the union or be fired.  The union security clause is usually followed by a dues checkoff clause, which requires the employer to automatically deduct the employee’s union dues from the paycheck and send them to the union.  Previously, the Board found union security clauses and dues checkoff clauses are not terms or conditions of employment (in both Right to Work and non-Right to Work states) and therefore an employer could unilaterally discontinue the dues checkoff after the CBA expired. 

Certain states, called Right to Work states, mandate that employees cannot be forced to join a union if their workplace is unionized.  Therefore, union security clauses are not allowed, and dues checkoff for everyone cannot be part of a CBA.  In this case, the CBA expired, and the employer stopped dues checkoff without first negotiating with the union.  The union argued the employer unilaterally changed a term or condition of employment.  The Court agreed, finding that in a Right to Work state, dues checkoff is a term or condition of employment because it directly benefits the employees.  So an employer in a Right to Work state cannot stop dues checkoff after expiration of the CBA without first bargaining with the union and reaching agreement or an impasse.  The Ninth Circuit overturned the Board’s decision and asked the Board to review the case again. 

The Ninth Circuit covers California, Nevada, Arizona, Idaho, Oregon, Washington, Montana, Alaska and Hawaii.  It is possible that other circuit courts will follow suit and the Board may even change its position given the Democratic majority of the current Board.  If your current union contract is about to expire, it is important to consult with legal counsel over what you can unilaterally change.  As you can see, the answer is not always intuitive. 

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

All employers who are covered by the National Labor Relations Act, which is practically everyone, will have to display this poster wherever they normally post notices to employees.  The poster tells employees their rights to unionize, provides the National Labor Relation Board’s contact information, and supplies a list of illegal acts an employer can commit.  In addition to posting it in the workplace, if an employer normally posts information to employees on an internet or intranet site, the notice must be placed there as well. 

Failure to post the notice may result in the filing of an unfair labor practice against the employer.  Also, the Board may choose to toll the statute of limitations for filing an unfair labor practice charge during the time period the notice was not posted.  If the Board finds the employer willfully failed to post the notice, the Board may use this as evidence of the employer’s bad motive in other cases.

A copy of the poster can be found here.  Between now and November, employers should train their supervisors on how to discuss union issues with employees.  Every supervisor needs to know what they can and cannot say to employees about unions.  Hopefully this poster will not foster an increase in litigation against employers or union activity but you need to be prepared.  Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.