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.

• 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.

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

Currently, the law mandates employers report if they hire advisors to help them stay union-free.  These advisors may include attorneys or labor relations experts.  However, this only applies if the advisors talk directly to employees or drafts communications for employers to give to their employees.  If an advisor only consults with the employer, no reporting is required.  Therefore, most employers do not make a report.  This exception made sense in light of the fact that most union avoidance advisers are attorneys, and such reporting would potentially disintegrate the attorney-client privilege.  However, the new law seems to ignore the sanctity of the attorney-client relationship. 

The new law would eliminate this exception, requiring employers to report the hiring of any advisors who “directly or indirectly persuade workers concerning their rights to organize or bargain collectively.”  This would include even an advisor who gives a seminar on how to remain union-free, prepares a speech for the company’s president, or sets forth a company-wide strategy for fighting a union campaign. 

Ironically, this additional reporting requirement applies to employer consultants, but does not apply to unions.  This is on top of the enhanced free speech protections unions already enjoy under the National Labor Relations Act.  Unions cite paid employer-consultants as the main reason why they are not winning union elections (even though their win rate is higher than it has ever been).  Unions have an arsenal of highly paid attorneys and consultants on their staff who assist with every election.  Are they complaining because employer consultants are better at their jobs than union consultants?

There are many implications of this rule.  If passed, many employers may forgo hiring union avoidance consultants in order to avoid the reporting requirements.  They may feel uneasy making such a disclosure, and may not want to reveal the identity of their attorneys and the fees they spend.  But the result may be unprepared employers, making innocent mistakes because they have lost their advisors.  More litigation will ensue, costs will rise for employers and unions will have one more advantage on the “level” playing field.

The DOL is accepting public comments on the proposed rule until August 22^nd.  If you have an opinion, now is the time to speak.  The next step will be the issuance of final regulations.  This proposed rule, coupled with the National Labor Relations Board’s recently proposed “quickie” elections would significantly decrease an employer’s ability to talk to their employees about unions.  These rules would skew the already pro-union legal landscape even further in favor of unions.  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.

The Specifics of the Proposed Rules

The Board proposes the new elections would happen within 10 to 21 days of a party filing an election petition.  The new rules would limit the amount of litigation which could take place before the election.  Any pre-election hearing would happen seven days after the filing of a petition.  (The current schedule is at least 10 days.)  At that time, the employer would be required to file a Statement of Position which would outline all their legal objections to the election.  If the employer did not include an objection, it would be forever waived.  This puts the employer in a difficult position, as it would be very difficult for an employer to effectively evaluate its legal position and all legal issues in only seven days. 

In addition, the new rules would make communication between unions and employees easier.  Employers would be required to provide the union with a list of all eligible voters within two days of the election date being scheduled.  Currently, the employer has 7 days to produce this list.  This list will now have to include the employee’s phone numbers and e-mail addresses.  This allows both the union and the Board to contact employees more easily.  The Board also wants to allow for more electronic filing of documentation, including allowing employees to electronically sign union authorization cards.  This seems like an end run around the Democrat’s failed attempt to pass the Employee Free Choice Act. 

The NLRB’s Reasoning

According to the Board, the new rules would streamline the election process and limit litigation before the election takes place.  The Board claims the current system results in lengthy election processes and prolongs conflict in the workplace.  Currently, the average union election happens within 31 days from the request for an election.  In fact, 95% of elections take place within eight weeks.  This is hardly the drawn-out process the Board makes it out to be. 

Unions claim these new rules are necessary to balance the unequal footing employers currently have in the time leading up to an election.  However, the union’s 67.6% win rate does not show a bias in favor of employers.  While the new rules would eliminate most pre-election litigation, it may just delay the litigation until after the election, making the overall timeline just as long if not longer. 

These proposed rules are obviously designed to benefit unions.  Unions always strive to begin unionizing employees long before the employer has any idea what is happening.  Often, when an employer receives a request for an election, that is the first time it is hearing that its employees are attempting to unionize.  The ensuing time period between the petition and the election may be the only time employers get to discuss the pros and cons of unionization with their employees.  In addition, during that time, employers need to hire counsel and assess their legal positions.  If this time period is shortened, it decreases the time employers have to fight back and the time the employees need to hear the other side of the unionization story.

How Will This Affect the Employer?

If this rule is passed, employers will need to increase their efforts to educate their employees on the benefits of remaining union-free – something employers should already be doing but which is often missed during hard economic times.  Employers will also need to spend more time training their supervisors on what they legally can and cannot say about unions.  Even if the rule is not passed, we recommend managers have conversations about the benefits of remaining union-free with their employees on at least a monthly basis.  This way, when a union does approach the employees, they already formed an opinion. 

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.

Representative Jackie Speier (D-CA) recently introduced a House bill which would extend COBRA benefits to same-sex couples and their partner’s children.  The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) provides employees the opportunity to continue health insurance coverage after losing their job.  Currently, COBRA benefits only extend to an employee, their legal spouse and legal dependents.  This bill would allow domestic partners and same-sex spouses to receive COBRA benefits as well.  These COBRA requirements would only apply to employers who already voluntarily provide health insurance benefits to same-sex couples.  The bill’s main goal is to protect the children of domestic partners from losing their health insurance.  Republicans oppose the bill, as they say it will increase costs for employers. 

In addition, the Family and Medical Leave Inclusion Act was introduced into the Senate by Senator Dick Durbin (D-IL) which would allow an employee to take leave under the Family and Medical Leave Act (FMLA) to care for a domestic partner, same-sex spouse, or the family members of a domestic partner or same-sex spouse.  Currently, the FMLA does not require an employer to allow such leaves.  Employers should continue to keep an eye on the state and federal laws surrounding this issue.  If the laws change, you may need to change your workplace policies.  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.

New Jersey Statute

Although New Jersey’s unemployment discrimination law sounds like a new headache for employers, it actually requires very little, and does nothing to protect the unemployed.  First, it only outlaws language not conduct.  Specifically, the law prohibits the publication of statements in a job ad stating unemployed individuals will not be considered.  The law does not prohibit actual discrimination in hiring or terms of employment.  Further, the law does not give applicants the right to sue employers.  Only the Commissioner of Labor and Workforce Development can collect the penalties – $1,000 penalty for a first offense and $5,000 for subsequent offenses. 

Proposed Federal Bill

The Fair Employment Act of 2011, proposed in March by Democratic Representative Hank Johnson, would provide all the protections of Title VII of the Civil Rights Act of 1964 to the unemployed.  The proposed bill would accomplish this by adding a sixth protected class under Title VII: “unemployment status,” defined as “being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment.”  The bill is currently in committee, but we would be surprised if is such a sweeping change to Title VII actually became law.

Proposed New York Bill

While a federal bill is unlikely to gain traction, a state statute actually might.  In May, a bill was proposed in the New York Senate prohibiting discrimination based on “unemployment status” and using the same definition as the federal bill.  This law would apply to employers, employment agencies, and licensing agencies in New York State.  Like the federal bill, this one is still in the early stages of the legislative process.  The New York legislature has a history of passing much more liberal employment legislation than Congress, but it remains to be seen whether they will create an unprecedented protected class. 

The bottom line is there’s nothing new for employers to do but wait and see.  We will continue to update you on these and similar bills. 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.

The bill requires employers with fifty or more employees in Connecticut to allow certain employees to accrue one hour of sick leave for every forty hours worked.  The leave is limited to a maximum of forty hours (five days) per year.  Employees can carry over forty hours to the next year, but an employee can only accumulate a total of eighty hours of leave in one year.  Paid sick leave can be used for an employee’s illness, to care for a sick family member, preventative care, or treatment for sexual or domestic abuse. 

The leave requirements apply to “service workers” who are either paid hourly or not exempt from overtime.  The definition of service workers is bound to cause confusion, as it is unclear, and lists several broad categories.  Such categories include secretaries and administrative assistants, office clerks, nurse practitioners, and many restaurant workers.  Most exempt employees and temporary or day workers are not included in this definition.  If your employee does not fit into one of those categories, you will not need to provide the paid sick leave. 

The bill exempts certain manufacturers and the YMCA from these requirements.  If an employer already provides for at least five days of any paid leave, such as vacation days, personal days, sick days or other paid time off, they are not required to provide an additional five days.  This is the case for many employers already, and therefore this bill will not affect them.  However, for businesses, such as restaurants, where employees usually switch shifts around as opposed to get paid for their sick leave, significant changes will need to be made. 

The law requires employers give employees notice upon hiring of their right to take leave, the details of the leave policy, the prohibition against retaliation, and their right to file a complaint with the Labor Commissioner.  In the alternative, employers can post a poster in their workplace which covers all that information in English and Spanish. 

Employers are prohibited from retaliating against any employee (not just service workers) who takes paid sick leave.  Employees are permitted to file a complaint with the Labor Commissioner if they believe their rights under this law have been violated.  The Commissioner may hold a hearing, and could assess a fine between $100 and $500 per violation, depending on the type of violation. 

Democrats and unions supported the bill.  They complain the United States is the only top industrialized country not to guarantee some type of paid sick leave.  Democrats claim this bill will protect workers and the public health, especially families with sick children.  Business owners claim the bill is anti-business and will make it harder to run businesses in Connecticut.

We anticipate Governor Malloy will sign this bill soon.  The requirements promise to create a new headache for employers in Connecticut, as more recordkeeping and legal interpretation will be necessary.  Employers need to revise their leave policies to reflect the new changes by the New Year.  Employers should discuss the new law with counsel to ensure compliance.  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.