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On November 4, 2022, the NLRB published a Notice of Proposed Rulemaking (“NPRM”) inviting public comment on a proposal that would rescind and replace the current “Fair Choice and Employee Voice” rule which was adopted by the prior Board-majority on April 1, 2020.  Three distinct policies regarding election-blocking charges, voluntary recognition, and construction industry bargaining relationships are under consideration.  The Board’s stated intent is to return the law in each of these three areas to that which existed prior to the April 1, 2020 rule. 

Blocking Charges – § 103.20 of the Board’s Rules and Regulations

First, the new rule would resurrect the Board’s “blocking charge” policy.  Under the current rule, a scheduled representation election will not be delayed on the basis of pending unfair labor practice charges.  Instead, the election will proceed as planned and the Regional Director will either count or impound the ballots and certification will remain pending until resolution of the unfair labor practices.  According to the NLRB, the proposed rule will:

[R]eturn to the Board’s long-established “blocking charge” policy as most recently reflected in a 2014 rule. Under that approach, when unfair labor practice charges are filed while an election petition is pending, a Regional Director may delay the election if the conduct alleged threatens to interfere with employee free choice.

Voluntary Recognition Bar – § 103.21 of the Board’s Rules and Regulations

Second, the new rule seeks to eliminate aspects of the Board’s recognition bar policy.  The current rule allows for challenges to the representative status of a union that has been voluntarily recognized by an employer.  As it stands today, a voluntary recognition agreement will not bar the processing of an election petition unless the parties notify the NLRB of the recognition agreement, the employer notifies employees of the recognition and their rights, and no petitions are filed in proceeding 45-day window period.

The Board explained that its new proposal will: “eliminate the required notice-and-election procedure triggered by an employer’s voluntary recognition of a union based on a showing of majority support among employees.” In effect, a voluntary recognition agreement would act as an immediate bar to filing an election petition for no less than six months after the date of the parties’ first bargaining session and no more than one year after that date. 

Section 9(a) Agreements- § 103.22 of the Board’s Rules and Regulations

Last, if enacted, the proposed rule will return to the Board’s prior approach to voluntary recognition in the construction industry. Under the existing rule, bargaining relationships established under Section 8(f) cannot bar petitions for a Board election—proof of a Section 9(a) relationship requires positive evidence of majority employee support and cannot be based on contract language alone.  The Board’s proposal is to rescind § 103.22 of the Board’s Rules and Regulations, and allow previous case-precedent to govern section 9(a) recognition in the construction industry. The Board explained that the changes would include:

restoring a six-month limitations period for election petitions challenging a construction employer’s voluntary recognition of a union under Section 9(a) of the Act (as established in Casale Industries).  It would also include the principle (established in Staunton Fuel) that sufficiently detailed language in a collective-bargaining agreement can serve as sufficient evidence that voluntary recognition was based on Section 9(a) of the Act.

The proposed rule, absent changes pursuant to comments, would read as follows:

§ 103.20 – Election procedures and blocking charges; filing of blocking charges; simultaneous filing of offer of proof; prompt furnishing of witnesses.

Whenever any party to a representation proceeding files an unfair labor practice charge together with a request that it block the processing of the petition to the election, or whenever any party to a representation proceeding requests that its previously filed unfair labor practice charge block the further processing of a petition, the party shall simultaneously file, but not serve on any other party, a written offer of proof in support of the charge. The offer of proof shall provide the names of the witnesses who will testify in support of the charge and a summary of each witness’s anticipated testimony. The party seeking to block the processing of a petition shall also promptly make available to the regional director the witnesses identified in its offer of proof. If the regional director determines that the party’s offer of proof does not describe evidence that, if proven, would interfere with employee free choice in an election or would be inherently inconsistent with the petition itself, and thus would require that the processing of the petition be held in abeyance absent special circumstances, the regional director shall continue to process the petition and conduct the election where appropriate.

§ 103.21 – Voluntary-recognition bar to processing of election petitions.

(a) An employer’s voluntary recognition of a labor organization as exclusive bargaining representative of a unit of the employer’s employees, based on a showing of the union’s majority status, bars the processing of an election petition for a reasonable period of time for collective bargaining between the employer and the labor organization.

(b) A reasonable period of time for collective bargaining, during which the voluntary-recognition bar will apply, is defined as no less than 6 months after the parties’ first bargaining session and no more than 1 year after that date.

(c) In determining whether a reasonable period of time for collective bargaining has elapsed in a given case, the following factors will be considered:

(1) Whether the parties are bargaining for an initial collective-bargaining agreement;

(2) The complexity of the issues being negotiated and of the parties’ bargaining processes;

(3) The amount of time elapsed since bargaining commenced and the number of bargaining sessions;

(4) The amount of progress made in negotiations and how near the parties are to concluding an agreement; and

(5) Whether the parties are at impasse.

(d) In each case where a reasonable period of time is at issue, the burden of proof is on the proponent of the voluntary-recognition bar to show that further bargaining should be required before an election petition may be processed.

(e) This section shall be applicable to an employer’s voluntary recognition of a labor organization on or after [EFFECTIVE DATE OF FINAL RULE].

§ 103.22 [Removed]

Chairman Lauren McFerran was joined by Board Members Gwynne A. Wilcox and David M. Prouty in proposing the new rule, and Board Members Marvin E. Kaplan and John F. Ring dissented.  The proposed rule is still subject to comment and revision, and the deadline to submit initial comments is on or before January 3, 2023.  Reply comments must be received by January 17, 2023.

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On October 24, 2022, the Ninth Circuit Court of Appeals issued an opinion in Cadena v. Customer Connexx LLC holding that the time employees spend booting up their computers is compensable under the Fair Labor Standards Act (the “FLSA”). The decision reverses a 2021 Nevada district court’s decision that came to the opposite conclusion, holding that time spent initiating computers was not compensable.

In Cadena, a group of call center employees brought an action for unpaid wages under the FLSA against their employer for failing to pay them for time spent booting up and turning off their computers at the beginning and end of shifts. In order to answer calls, the employees had to start their computers and log into the phone program. The employees estimated that it took anywhere from six to twelve minutes to boot up the computers, log into the phone program, and clock in to begin their shifts. 

The Portal-to-Portal Act, which amended the FLSA, contains an exception to the FLSA’s general compensation standards which provides that employers are not required to pay employees for time spent on preliminary or postliminary activities. The Nevada district court hearing this case initially ruled that the employees’ activities at issue here were subject to the Portal-to-Portal Act’s exception, reasoning that starting up and turning off computers were not principal activities for which the employees were hired and, therefore, were not compensable.

The United States Supreme Court has previously analyzed the Portal-to-Portal Act’s exception, determining that preparation of equipment necessary for an employee to perform his or her principal activities is compensable. The Supreme Court also determined, however, that activities such as waiting in line to clock in or out and undergoing security screenings are not compensable because they are not integral elements of the job.

The Ninth Circuit, in its opinion, found that the district court erred in focusing on whether the computer boot-up time was a principal activity for which the workers were hired and should have instead focused on whether booting up the computers was necessary for the call center employees to be able to perform their job duties.  Emphasizing this concern, the Ninth Circuit concluded that the employees’ duties could not be performed without turning on and booting up their work computers. Accordingly, the court concluded that the time employees spent booting up their computers was integral to the employees’ job responsibilities and, therefore, compensable under the FLSA.

The court clarified that its holding was limited to turning the computer on at the beginning of an employee’s shift, reasoning that shutting down the computer at the end of a shift was not integral to the employees’ job duties and, accordingly, not compensable under the FLSA. Further, the court addressed that its holding should not be considered to apply to all pre-shift or post-shift tasks employees may be asked to perform. Instead, each of these tasks must be considered on a case-by-case basis to determine whether a task is integral to an employee’s principal activities. Any tasks not satisfying this standard may be excludable from required compensation under the Portal-to-Portal Act’s exception.

In the aftermath of this decision, employers should be cognizant of employees’ pre-shift and post-shift duties and consider the relationship between those duties and the employees’ principal job requirements. At a minimum, this decision establishes that employers will be required to compensate employees for time booting up computers in jobs where computer access is necessary for the employee to fulfill his or her duties. More broadly, however, this decision could open the door for employees to seek and obtain compensation for other regularly performed pre-shift and/or post-shift duties that employers have traditionally not considered compensable.

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The Department of Labor’s Wage and Hour Division is expected to propose new rules on independent contractor classification and overtime entitlement requirements in the coming weeks.  The proposals would alter the qualifications for certain employees to receive overtime payments under the Fair Labor Standards Act when they work in excess of 40 hours in one week.

The Fair Labor Standards Act (“FLSA”) grants the Department of Labor authority regarding overtime eligibility under the statute.  Currently and among other considerations, employees are non-exempt under the FLSA when they earn less than a guaranteed $684 per week or $35,568 per year.  If the DOL raises this salary threshold, as it is considering, an even larger swath of the workforce could be entitled to overtime payments. 

The proposals follow President Biden’s withdrawal of former President Trump’s independent contractor rule in May 2021, which had not yet taken effect when President Biden took office.  However, United States District Judge Marcia A. Crone held in March 2022 that the DOL had not properly followed the requirements for withdrawal as set forth in the Administrative Procedure Act.  In so holding, Judge Crone gave the Trump administration’s independent contractor rule the effect of law as if it had gone into effect in March 2021, as scheduled. The Biden administration’s proposed changes to the existing rule will likely affect the salary basis and exemption requirements of the employee versus independent contractor misclassification analysis under the FLSA.  Employers should prepare for these upcoming changes by reviewing their employee job descriptions and time record procedures.  Employers should also engage counsel to re-examine their employee classifications at large to ensure their exempt employees are truly exempt under the current rules and that they understand that changes may need to be implemented when the new rules take effect.

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HuntonAK employment law partners Emily Burkhardt Vicente and Roland Juarez were selected as 2022 Leaders of Influence: Labor and Employment by the Los Angeles Business Journal.

The LABJ list recognizes Los Angeles based labor and employment attorneys for their professional achievements, community leadership, milestones, and notable accomplishments throughout the past year.

Emily was recently named a 2022 Visionary by the Los Angeles Times’ Business of Law Magazine, honored as a finalist for the 2021 LABJ “Leaders in the Law” awards, shortlisted for the LABJ’s 2021 Best Diversity & Inclusion Executive of the Year award and listed as one of the LABJ’s 2021 Women of Influence.

Roland has been recognized by the LABJ in 2022 as a “Top 100 Lawyers,” “Minority Leaders of Influence: Attorneys” in 2021 and 2022, and, for four consecutive years, “Leaders of Influence: Top Litigators & Trial Lawyers.”  Roland was also listed on the Daily Journal’s “Top Labor and Employment Lawyers 2020” awards.

Please read the firm press release for more information. A full list of award nominees can be seen here.

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On October 19, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released the new “Know Your Rights: Workplace Discrimination is Illegal” poster, which updates and replaces the previous “EEO is the Law” poster.  Covered employers are required by federal law to prominently display the poster at their work sites.

The new poster updates the earlier “EEO is the Law” poster in several ways, including that it:

  • Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, and gender identity;
  • Identifies harassment, including unwelcome verbal or physical conduct, as discrimination;
  • Provides information on equal pay discrimination for federal contractors;
  • Uses more straightforward formatting and plain English to summarize the laws prohibiting job discrimination in ways that are easier for employees to understand.

Like the earlier poster that it replaced, the new poster outlines and describes the Federal laws prohibiting job discrimination based on:

  • Race, color, sex (including pregnancy and related conditions, sexual orientation, or gender identity), national origin, religion,
  • Age (40 and older),
  • Equal pay,
  • Disability,
  • Genetic information (including family medical history or genetic tests or services), and includes,
  • Retaliation for filing a charge, reasonably opposing discrimination, or participating in a discrimination lawsuit, investigation, or proceeding.

The poster summarizes these laws and explains that employees or applicants can file a charge if they believe that they have experienced discrimination.  The poster also includes a QR code for applicants or employees to link directly to instructions for how to file a charge of workplace discrimination with the EEOC.

The poster must be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. In addition to physically posting, covered employers are encouraged to post a notice digitally on their websites in a conspicuous location.

The Americans with Disabilities Act (ADA) requires that notices of Federal laws prohibiting job discrimination be made available in a location that is accessible to applicants and employees with disabilities that limit mobility. Printed notices should also be made available in accessible format, as needed, to persons with disabilities that limit the ability to see or read.

Although the EEOC has not set a compliance deadline, employers should immediately update their postings to include the new “Know Your Rights: Workplace Discrimination is Illegal” poster at all worksites.  Covered employers will be subject to fines for noncompliance of up to $612 per separate offense (i.e., location). Copies of the poster are available in both English and Spanish on the EEOC’s website here.  For more information, employers should visit the EEOC’s website and consult with counsel to ensure that they are keeping up-to-date with all their compliance requirements.

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On Monday, October 31, National Labor Relations Board General Counsel Jennifer Abruzzo issued GC Memo 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.”  Specifically, the Memo seeks to address the growing employer use of “a diverse set of technological tools and techniques to remotely manage workforces.”  Examples of these technologies include wearable devices, security cameras, GPS tracking devices, keyloggers, and audio recordings.

Continue Reading NLRB GC To Urge Board to Regulate Electronic Worker Monitoring and Management
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On September 15, 2022, the United States Department of Labor (“DOL”) announced an update to the Occupational Health and Safety Administration’s (“OSHA”) Severe Violator Enforcement Program (“SVEP”).

Continue Reading DOL Updates OSHA’s Severe Violator Enforcement Program
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It is no secret that legislators and regulatory agencies have taken note of companies’ increasing reliance on artificial intelligence (“AI”).  In the employment context, vendors market AI as an efficiency tool that can streamline HR processes and guard against human bias and discrimination.  But as we have previously blogged, undisciplined use of AI may accelerate or introduce discrimination into the workplace.

Continue Reading A Bill of Rights for the Information Age: White House Outlines Principles for Artificial Intelligence Design & Use
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Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.

Continue Reading DOL Proposes Updates to Independent Contractor Requirements
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We previously posted about Washington, D.C.’s new law governing non-competes, which became effective on October 1, 2022.  D.C. employers, however, should be aware of a provision buried in the law that has nothing to do with non-competes and requires action by the end of this month.   

Continue Reading What Most Employers in Washington D.C. Need to Do Before October 31