Texas Federal Judge Amos Mazzant has issued a final ruling striking down the overtime rule. In the August 31 ruling, Judge Mazzant used essentially the same reasoning on which he based his temporary injunction ruling. In light of this final decision, the appeal of his temporary injunction likely becomes moot. In addition, Judge Mazzant made clear that he is not finding that the DOL is prevented from ever using a particular salary level, but rather is invalidating this particular rule as going “too far” in essentially eliminating those who perform exempt duties but make less than the high salary threshold.
Bass, Berry & Sims attorney Tim Garrett provided insight into the financial and administrative impact that hospitals encounter as a result of worker strikes and disruptions in work activity. Tim discussed the speculative nature of predicting the costs associated with such disruptions and the logistical challenges hospitals face from an administrative standpoint. In the article, Tim states “they [the physicians] may not want to have to rely on replacement workers in the midst of a walkout, so they may decide not to proceed with a certain surgery if it’s not an urgent situation or may seek other options.”
The full article, “Strike or No Strike, Labor Disputes Can Take a Toll on Hospital Finances,” was published by Becker’s Healthcare on December 20, 2016, and is available online.
Bass, Berry & Sims attorney Tim Garrett discussed a case pending before the U.S. Court of Appeals for the Eighth Circuit relating to a striking employee’s termination for yelling racist comments at replacement workers. Although the employee’s firing was upheld by an arbitrator, an administrative law judge (ALJ) did not defer to that ruling and ordered the company to reinstate the employee, citing protection for the striker’s conduct under the National Labor Relations Act (NLRA). The National Labor Relations Board agreed with the ALJ, and the company has appealed to the Eighth Circuit.
The full article, “After NLRB Gives Job Back To Worker Fired For Racism On Picket Line, Appeal Follows,” was published by Forbes on November 30, 2016, and is available online.
In a recent Advice Memorandum (Pacific 9 Transportation, Inc. (Pac 9), dated December 18, 2015, but released August 26, 2016), the National Labor Relations Board’s (NLRB or the Board) General Counsel (the General Counsel) took the position that misclassifying employees as independent contractors and advising them that only “employees” had a right to request union representation, interfered with the employees’ rights under the National Labor Relations Act (the Act) to organize or engage in concerted activity for their mutual aid or protection.
The United Auto Workers (UAW) is celebrating a rare win among Southern auto plants, after a small unit of maintenance workers at the Volkswagen plant in Chattanooga, Tennessee voted to unionize. The unit makes up only 12% of the 1,400 production and maintenance workers, and they voted 108-44 in favor of the UAW. VW is appealing an earlier ruling by the National Labor Relations Board (NLRB) that allowed a vote of such a small unit of workers within the much larger plant. This appeal sets the stage for a possible legal battle for years to come.
This victory comes almost two years after the UAW lost a much-publicized plant-wide vote in February 2014. Tennessee Governor Bill Haslam, when asked for his reaction to the most recent vote, down-played the UAW win, claiming that the victory came because the union was able to “cherry-pick” the employees who were included in the vote.
This UAW win further informs employers about the impact of the NLRB’s ruling allowing such “micro-units.”
Bass, Berry & Sims attorney Bill Ozier commented on the outcome of the latest union vote at the Volkswagen (VW) plant in Chattanooga, Tennessee. The company’s skilled maintenance employees at the VW plant in Chattanooga voted last week to designate the UAW as their collective bargaining representative. The vote among this smaller group of employees follows the vote against union representation by the company’s entire hourly work force in February 2014. Volkswagen has indicated that it will appeal the decision by the NLRB’s Regional Director to allow the vote among the smaller group to the full NLRB in Washington, D.C., although Bill projects that the Board will follow its recent precedent and not overturn the vote.
The full article, “Tennessee Governor Dismissive of ‘Cherry-picked’ UAW Victory,” was published the Associated Press on December 7, 2015 and is available online.
In a ruling on August 17, 2015, the National Labor Relations Board (NLRB) decided that it should not exercise jurisdiction over the unionization attempts by Northwestern football players. The NLRB “punted” the issue and declined to decide whether the football players were employees permitted to unionize under the National Labor Relations Act. Continue Reading Northwestern Football Players’ Unionization Drive Halted
On December 12, the National Labor Relations Board (the “Board”) finalized a new rule amending its representation case procedures. Employers should be aware of how the new rule will affect union organization in the workplace. The rule is aimed at “streamlining and modernizing” union election procedures so as to “expeditiously resolv[e] questions of representation.” The rule was published in the Federal Register on December 15 and will take effect on April 14, 2015. The new rule:
- Provides for electronic filing and transmission of election petitions and other documents;
- Generally requires the Regional Director to set a pre-election hearing eight days after a hearing notice is served and a post-election hearing 14 days after the filing of objections;
- Generally requires non-petitioning parties to identify any issues they have with the election petition in a Statement of Position one business day before the pre-election hearing opens and then requires the petitioner to respond to such issues at the beginning of the hearing;
- Generally requires employers to provide as part of its Statement of Position a list of prospective voters with their job classifications, shifts, and work locations one business day before the pre-election hearing opens;
- Limits litigation of issues at the pre-election hearing to issues raised and positions taken in the Statement of Position and defers litigation of eligibility and inclusion issues to the post-election stage;
- Provides for oral argument at the close of the pre-election hearing and limits written briefs to when deemed necessary by the regional director;
- Eliminates the need to request review of a pre-election decision before the election to preserve the right to challenge the decision;
- Eliminates automatic stays of elections caused by challenges to the regional director’s pre-election decision;
- Narrows the issues the Board must review in post-election disputes to those issues raised; and
- Requires employers to submit a voter list within two, as opposed to seven, business days following the regional director’s approval of an election agreement or decision directing an election, and requires employers to include voters’ personal email addresses and phone numbers (if available) on the voter list.
As a result of the new rule, elections could theoretically be held in as few as 10 to 12 days.
It is unlikely that the new rule will go unchallenged. The rule has been heavily criticized as sanctioning “union ambush tactics.” Several employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, have already suggested that they intend to file lawsuits. However, employers should not bank on courts overturning the new rule. Employers should instead familiarize themselves with their new obligations and be prepared for expedited elections.
Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Handling Workplace Issues in a Politically Charged Climate” that was published by InsideCounsel on December 17. Citing heightened public interest in an employer’s response to workplace harassment due to recent high profile NFL scandals, the authors remind employers about best practices related to anti-discrimination policies. In the article, employers are encouraged to ensure policies are properly introduced to employees and that managers and supervisors are adequately trained to implement the policies. To read the full article, click here.
Bass, Berry & Sims attorneys Tim Garrett and Dustin Carlton authored the article “Analyzing Recent NFL Scandals: Is Some Conduct Ever ‘Off Duty’?” that was published by InsideCounsel on December 4. In the article, the authors discuss recent allegations involving off-duty behavior of NFL players and how the league responded to the behavior. The authors relate these examples to recent actions of the EEOC to pursue domestic violence cases and the duties of employers when it impacts the workplace. To read the full article, click here.