By now, it’s really not a big surprise when the NLRB reverse course on a prior decision. This week, the NLRB did it again.  My colleague, Jarad Lucan, provides this quick update on temporary/contract employees being allowed to join unions.  Read on.

Lucan_J_WebIn 2004 the National Labor Relations Board in its Oakwood Care Center case said that temporary and permanent workers must bargain separately unless the employer gives consent.

Yesterday, however, the NLRB overturned that precedent stating, “[b]y requiring employer consent, Oakwood has . . . allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”

Now, after a ruling in Miller & Anderson, temporary workers provided by staffing agencies do not need an employer’s permission to join unions that include its full-time employees as long as they share a “community of interest” with full-time workers.

In dissent, board member Philip Miscimarra said that along with the NLRB’s 2015 joint employer decision in Browning-Ferris Industries Inc, the NLRB’s latest ruling would create issues for  companies that use contract labor and force many staffing firms to bargain with unions that represent the full-time workers of other companies.

As we have discussed previously, in Browning-Ferris, the NLRB said companies may be deemed joint employers of contract workers if they have the potential to control working conditions.  Previously, the board required proof of actual, direct control.

With its latest decision, it could now be easier for workers found to be joint employees under the Browning-Ferris standard to unionize.   Of course, the actual impact of both decisions still remains to be seen.

My former colleagues who write the Management Memo blog also shared this tip for employers as a result of the decision:

At a minimum, a detailed risk assessment of an employer’s workforce and its reliance upon its own employees and temporaries, leased and contract labor employed and controlled, in whole or in part, by so-called supplier employers is in order. “User” employers should determine the goals and risks associated with a relationship and determine whether it is possible and/or desirable to attempt avoid a joint employer relationship or embrace it but attempt to control liability. Both “supplier” and “user” employers should look for contractual provisions regarding defining the relationship, including who controls and does not control certain aspects, indemnification provisions, provisions related to responses and responsibilities related to union organizing and collective bargaining and similar concerns. Experienced labor counsel should be consulted to assist in these issues.

Finally, today is Election Day.  

And while the pundits tonight will all look forward to what the next four years might bring, it’s worth taking a quick peek back at Obama’s (first?) four years with a review of some of the posts from 2008-9.

Before his term, there were predictions that he would be good for employers, or bad for employers.   But I think that its fair to say that, with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.

You can chalk it up to a variety of reasons — bad economy, Washington gridlock, to name a few — but compared with the prior four years, in my view, employers haven’t had to worry about a lot of federal legislative developments.  (The rise in social media’s impact on employment, I would argue, has been much more significant.)

In 2008 alone, you had the Americans with Disabilities Amendment Act and the expansion of FMLA for military leave.  You also had new regulations for the Family Medical Leave Act.   

Remember what Obama pledged to get done?  A look at what happened showed a stalling out on a variety of issues.  Here are a few examples:

•Obama and Biden will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. (NLRB strengthened though impact lessoned as various proposals have been tied up in courts; EFCA never passed and has no reasonable likelihood of doing so)

•Obama and Biden will raise the minimum wage and index it to inflation. (While the minimum wage did increase in July 2009 to $7.25, that was as a result of a 2007 compromise bill. No further changes to minimum wage have been made since.)

•Obama and Biden will expand FMLA to cover businesses with 25 or more employees. They will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children’s academic activities; and expanding FMLA to cover leave for employees to address domestic violence. (No substantive changes to FMLA have been made.)

• As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. (Connecticut did pass paid sick leave, but no strong federal support was seen.)

Other bills that have not yet passed include the Employment Non-Discrimination Act, which would prohibit employers from discriminating against employees because of their sexual orientation. 

So what did occur? Among other things: Passage of The Lilly Ledbetter Fair Pay Act (though query whether this has had much impact in the workplace).  And nursing mothers received additional federal protections under “Obamacare”.  The EEOC also released new guidance on the use of criminal records and credit reports.   But overall, the impacts on employers have probably been far less than forecasted.

What do the next four years hold? For that, we’ll just have to wait until tonight.

 

Photo Courtesy of Library of Congress

Yesterday, the HR Examiner came out with Top 25 list of “Online Influencers” in Employment Law.  Through a complex formula, it purports to show who people listen to about employment law online.

Unlike Groucho Marx who famously said “I don’t care to belong to any club that will have me as a member”, I’m thankful to be on the list and think the list is a useful starting point for people looking to see who’s out there in the online world talking about employment law. 

But the list has a obvious shortcoming — nearly two thirds of the list are made up of non-lawyers. 

Back in 2009, I put together a list of 10 Twitter handles that you should consider following.  That list, though, didn’t focus just on employment lawyers.  And, like many of you, I use the internet differently than I did back then and listen and interact with different people.   

So, without using any fancy statistics or surveys, here is my brand new official list of ten employment lawyers who you should consider following online (besides, of course, yours truly.  I can be found on Twitter @danielschwartz here): 

  1. @jonhyman — Readers of this blog will know this name well.  Jon Hyman has run the Ohio Employer’s Law Blog for nearly the same time as I’ve been publishing this.   Great employment law insight, particularly for employers. 
  2. @mollydibi — Another familiar name, Molly DiBianca runs the Delaware Employment Law Blog and, as she describes herself, she’s a “genuinely nice person with an asymmetrical haircut.”  She also runs one of the best blogs around.  How’s that for a recommendation?
  3. @shborden — Never mind that he’s a Red Sox fan. Seth Borden runs the terrific Labor Relations Today blog and is a leading voice on, well, labor law issues.  He frequently practices in Connecticut too.
  4. @eric_b_meyer – Eric Meyer – also a member of Red Sox Nation — provides perhaps the most irreverant look at employment law with pithy comments to boot on  The Employer Handbook. If you’re looking for employment law with a bit of snark on the side, Eric’s got the area cornered.
  5.  @robineshea – Robin Shea is perhaps the best lawyer you’re not following online yet.  Her weekly blog posts at Employment & Labor Insider are longer than most, but well-researched and full of non-legalese. 
  6. @jeffreysnowak – Do you want FMLA Insights? Jeff Nowak is your guy. 
  7. @philipmiles – From the middle of nowhere in Pennsylvania (ok, near State College — but really, have you tried to drive through Pennsylvania?), Philip runs the Lawffice Space blog and focuses on various cases. 
  8. @BrianDHallEsq – Brian Hall edits the Employer Law Report for Porter Wright.  While his tweets can be a little inconsistent at times (c’mon, Brian, get with the program), they are nearly always quite re-tweetable. 
  9. @jason_shinn – Jason Shinn’s tweets may not be prolific, but his Michigan Employment Law Advisor has lots of easy to understand and implement suggestions for all types of employers. 
  10. @employeeatty – Donna Ballman’s “Screw You Guys, I’m Going Home” blog may not seem like an obvious read, particularly for employers, but it is worth checking out. Plus, she’s a great curator of content on Twitter. 

This list is, of course, incomplete and, in many ways, arbitrary.  People from 2009 that I continue to follow include @rossrunkel and @manpowerblawg.  And people like @worklawyer or @chaifeldblum are certainly on my follow list too.

So perhaps I’ll do a list of ten MORE people to follow sometime soon that will include some non-lawyers (like Stephanie Thomas) ; I’m certain I’ve left some people out. In the meantime, add your suggestions to the comments below.

As I outlined previously, the state continues to add new laws for employers to consider.

But lost in the new items is the fact that there are several laws on the books that seem outdated or unused. Yet, once a law is on the books, it’s incredibly hard to get rid of it.  As a result, the web for employers to navigate becomes much more complex.

Justice for all...including elevator operators

Cases in point?

  • Conn. Gen. Stat. 31-16 prohibits, among other things, telegraph companies (in cities over 20,000 people) from using minors from delivering messages between 10 p.m. and 6 p.m.  (Raise your hand if you used a telegraph in the last 10 years….)
  • Several statutes, including Conn. Gen. Stat. 31-18 prohibit restaurants and mercantile establishments from having people work between 10 p.m. and 6 p.m.  Who is excluded? Those who are 66 years old (unless they “consent”) and “handicapped persons, so designated by medical or governmental authority, except with their consent and after certification by a physician that the extended hours of work will not be injurious to their health”.  (These statutes seem inconsistent with the idea that employers are not supposed to discriminate against older workers and disabled workers and also have a parental aspect to them.)
  • Or how about Conn. Gen. Stat. 31-25, which restricts minors from operating elevators or being employed as elevator operators. (When was the last elevator operator you saw in Connecticut?)
  • Then there is Conn. Gen. Stat. 31-36 which mandates toilet rooms for foundries.  The requirement for manufacturers and restaurant bathrooms has long since been repealed.  (Why stop at foundries? Or, better yet, why include foundries?)
  • And Conn. Gen. Stat. 31-40u which mandates certain guidelines be established for the use of “video display terminals” by state employees.  (Do we need regulations covering an iPad?)
  • Conn. Gen. Stat. 31-51l provides elected politicians with protected leaves of absences from their existing jobs in the public or private workforce.   (Is it really a good idea to protect the jobs of people who voluntarily seek public office, even years after they have left?)

There are countless others laws spread out in different sections like Conn. Gen. Stat. 31-51f — which authorizes the Department of Labor to participate in the Manpower Development and Training Act of 1962, a program which expired 3 years later.

So, consider this a modest request: It’s time to clean up the labor & employment laws once and for all.  Have a task force this fall review the labor laws and come up with a omnibus bill to remove or revise outdated laws.

In the process, this task force could put all the laws concerning the employment of minors in one location and write them in plain English.  The task force could also recommend rescinding the laws that have outlived their usefulness like rules regarding video display terminals.

That’s no help to employers now who will have to keep track of still more laws.  Hopefully, with a bit of time, the General Assembly could clarify the laws to make sure that if we are still using 20th century laws, they have some applicability to the 21st century workplace.

Move over, wage & hour law. There’s a new hot topic in the town of Employment Law. Its’ name is Social Media. 

In fact, with so much being written on it, it’s hard to separate out the usual "Beware of Social Media!" articles from those posts that delve more deeply into the subject and add to the general discussion.

This week, there have been two excellent posts on the subject that you ought to take a look at for the impact on employment law.  (If warranted, this type of post may become an occasional feature of the blog.) 

First up is a post by Seth Borden who co-authors the Labor Relations Today blog.  In the guest post for the National Law Journal , he tackles the implications that social media has on traditional labor law.  As he notes, the NLRB is poised to take action soon.

The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace

He goes on to note that the new majority on the board "will surely allow employees access to an employer’s e-mail systems for a broader range of protected union-related activities — especially in cases in which the employer tolerates other nonbusiness use. "

This has implications not only in employers with an existing union presence, but also in those in which employees are considering organizing.  Definitely a subject to keep an eye on over the next year or two.

Another article highlights the growing movement in courts to allow a party access to an opponent’s Facebook page for discovery.  In the 3 Geeks & A Law Blog, a recent posts highlights a New York court decision that required the Plaintiff to provide a release to allow access to her Facebook page.

In this case where the Plaintiff was asking for damages for personal injuries, the Defense was claiming that they had reason to believe that the Plaintiff posted pictures and information that showed she was not suffering from a loss of enjoyment of life. Not only did the Defendant want to access the private portions of the Plaintiff’s account, but they also wanted access to any deleted information. [The judge] agreed…

While the case arises in New York, do not be surprised if you continue to see courts following this trend. As 3 Geeks notes: "Expect everything you post on Facebook or MySpace to be considered public information by the courts, and don’t expect that your self-imposed privacy settings will protect you if you’re ever taken to court."  The ABA Journal has also summarized the court’s findings as well. 

Let’s face it. It’s downright hot today.  On days like this, it’s easy for the mind to wander to thoughts of lobsters at Abbotts or ice cream from the UConn Dairy Bar. 

And depending on your perspective, it’s a hat-type of day — though for most people, a baseball cap is probably the biggest fashion statement people want to make.

What does that have to do with labor & employment law? I’m getting there. 

Sometime ago, I came across a neat little website put on by the Judicial Branch Law Library entitled a "Dose of Connecticut Legal History."  It recaps interesting cases and events in Connecticut history.

One the cases recaps The Danbury Hatters Case at the early part of the 20th century.  If you haven’t heard of it, the law library site recaps it nicely. 

Before current labor laws were instituted, the case arose out of an employer’s failure to recognize a hatters’ union.  The employees went on stike; the employer hired replacements and the workers organized a boycott. Six years later, the U.S. Supreme Court ruled against the strikers. Seven years after that the Court again ruled in favor of the employer allowing the employer to collect damages.  As a result, the workers’ union organized a "Hatters’ Day" asking for an hour’s pay from members to help pay the fines.

With the rise of National Labor Relations Act and the shrinking of union influence in the Connecticut workforce, it’s hard to imagine a time when Connecticut stood at the center of many labor law battles.

But as you don your cap today, you can think of the Danbury Hatters case as one where Connecticut took center stage on the labor law battles from yesteryear.