House Approves The Employee Free Choice Act!! February 26, 2007
by Kevin J. Allis
Recently, the House Education and Labor Committee approved The Employee Free Choice Act of 2007 ("EFCA"), a bipartisan bill introduced earlier this month by Representatives George Miller (D-CA), Robert Andrews (D-NJ), and Peter King (R-NY). Under the EFCA, if a majority of workers in a bargaining unit sign cards authorizing a union, then the workers get a union.
Under the current law, employers can voluntarily recognize a union upon a showing of interest, 30% of the employees in the bargaining unit, that is usually evidenced by signed authorization cards ("card check"). However, the employer can choose not to accept the authorization cards, and require union recognition through the National Labor Relations Board's ("NLRB") election process. This process allows employees to determine if they wish to be represented by a union through a secret ballot election overseen by the NLRB.
Under the EFCA, when a majority of employees sign authorization forms, the union can file a petition with the NLRB which must then investigate the petition. If the NLRB determines that the authorization forms have been signed by a majority of the employees within the bargaining unit, it must certify the union as the employees' collective bargaining representative.
The secret ballot system has been clearly recognized as the preferred method for determining representation. It allows employees the ability to make a decision without coercion and intimidation, from either the union or the employer. It has also been clearly recognized that the card check process is often wrought with union coercion and intimidation that hinders an employee's ability to make a free choice on representation. The EFCA, which amends the National Labor Relations Act, by giving unions the ability to achieve recognition solely though the "card check," would permit unions to avoid secret ballot elections.
Fraternizing: Employer Beware! February 9, 2007
by Kevin J. Allis
Fraternization rules, seemingly straight forward and harmless, if written improperly can land the employer in hot water. In a recent opinion by the United States Court of Appeals for the District of Columbia,Guardsmark, LLC v. NLRB, __ F.3d __ (D.C. Cir. 2007), such a rule that on its face seemed benign, was ruled to interfere with, restrain, or coerce employees in the exercise of their section 7 rights.
The employer in this matter had the following rule regarding fraternization:
- "While on duty you must not....fraternize on duty or off duty, date or become overly friendly with the client's employees or with co-employees."
The Board found that nothing in the rule ran afoul of the National Labor Relations Act ("NLRA"). Since the word "fraternize" was next to terms such as "date" and "become overly friendly," the Board determined that employees would reasonably understand the rule to prohibit only personal relationships.
However, the appellate court disagreed with the Board's assessment of the fraternization rule. Noting that the rule expressly prohibited dating and "overly friendly" relationships, the use of "fraternize" could only mean something else. The court turned to the dictionary meaning of the word "fraternize." Merriam-Webster's Collegiate Dictionary defines "fraternize" as "to associate or mingle as brothers or on fraternal terms." Since "fraternize" includes fraternal relationships, and unions are fraternal organizations, the court held that employees would reasonably believe that the company rule prohibits fraternal discussions of employment terms and conditions. In summary, the court stated "employees could hardly engage in protected activity without fraternizing with each other." As such, the rule violated the NLRA.
Simply stated, this case highlights the need to carefully scrutinize the words and phrases used when drafting company work rules and policies.
FMLA: Remember to add in prior service! February 8, 2007
by Kevin J. Allis
In a recent 1st Circuit Court of Appeals case, Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006, the court ruled that "the complete separation of an employee from his or her employer for a period of years....does not prevent the employee from counting earlier periods of employment with the employer toward satisfying FMLA's 12-month requirement."
The plaintiff had quit his sales job with the employer five years earlier. Upon being rehired for the same job after the five year separation, the plaintiff, seven months into his rehiring hurt his back and had to take medical leave. The employer fired the plaintiff when he did not return to work after two weeks, reasoning that it had been less than 12 months since he was rehired.
In coming to its conclusion that employees are not prevented from relying on previous periods of employment, even after a break in employment measured by years, the court relied on the DOL's position that it has rejected the limiting of the 12-months of service to the period immediately preceding the commencement of leave. Consistent with, and citing, its regulatory preamble, the DOL maintained that a five-year gap in employment, such as the plaintiff's, does not prevent an employee from using his earlier employment to satisfy the 12-month requirement.
This case highlights the need to ask prospective employees about prior service with the organization during hiring or employee orientation. Any response acknowledging prior employment should be noted for FMLA-eligibility purposes.
Employer Can Waive Employee's Right to Privacy, February 1, 2007
A federal appeals court has ruled that an employer can consent to a search by the FBI of property owned by employees that was brought onto the premises. The employee in question had brought his own computer into the workplace to use, and he used the computer to download child pornography. His employer allowed the FBI to search that computer, which resulted in his criminal conviction. United States v. Ziegler, No. 05-30177 (9th Cir., January 30, 2007).
Noting that the company had a policy advising employees that there was no expectation of privacy in the workplace, the court also noted that there was actual consent to the search by the company. If someone living in your house allows the police to search your bedroom, that is a proper search. The court merely extended that concept to employee property.
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