Another Day, Another Rule for Federal Contractors

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As we previously noted, federal contractors have been besieged in recent months with regulatory changes and enforcement initiatives advanced by the Office of Federal Contract Compliance Programs (“OFCCP”) and various divisions within the Department of Labor (“DOL”). The holiday season has not offered any relief, as the DOL recently announced its final rule implementing Executive Order (“EO”) 13672 on December 3, 2014. Continue reading this entry

NLRB’s New Quickie Elections May Allow for Union Ambush Tactics

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The National Labor Relations Board certainly did not wait long to take the next step in changing the landscape of union organizing to promote the success of labor interests in representation campaigns. Only one day after its blockbuster decision, opening up employer email systems to largely unimpeded use for union organizing purposes, the Board changed its election procedures in a step likely to confer substantial advantages to unions in organizing campaigns. As it signaled it intended to do earlier this year, on December 12, 2014, the Board officially rewrote its election regulations in a 3 – 2 vote — based strictly on party lines to purportedly “streamline” the election process — by allowing for much faster union elections after a representation petition is filed. While the democratically-appointed Board majority has claimed these changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation” — although the Board’s own statistics show it has repeatedly met its own published timetables for holding elections — many in the employer community have viewed the changes as effectively green-lighting “ambush elections,” allowing a union to file for and win an election before an employer has the realistic opportunity to oppose unionization and prepare effective (and legally compliant) responses to propaganda circulated during an organizing campaign. Continue reading this entry

Open the Floodgates: “Reply All” Now Also Means “Easy Union Organizing”

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Well we pretty much knew this day was coming. Your email system has just become a union’s most effective tool to organize your employees.

In May of this year, we predicted the National Labor Relations Board would overturn its 2007 Register Guard decision in which the Board determined, along political lines, that employees have no specific legal right to use employer email systems for non-business purposes such as union organizing. Since the ruling, Register Guard has stood as an important decision establishing an employer’s right to control its email system in a manner so as not to permit subversion of the system for union organizing purposes.

As regular readers of our blog, you will remember the many times we have reported on the Obama-era NLRB’s aggressive turn in the direction of expanding employee rights – and more critically, union organizing advantages – which in some cases has included overturning decades of long-followed NLRB precedent. This now indisputable political shift has culminated in what may ultimately become the most significant decision of the Obama-era Board. On December 11, 2014, the NLRB, once again acting strictly along party lines, overturned Register Guard, with the Democratic-appointed majority calling the 2007 decision “clearly incorrect.”

Continue reading about this development on our official update page

Unanimous Supreme Court: Employers Don’t Have to Pay for Security Screenings

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We noted in October that the U.S. Supreme Court recently held oral argument in a case considering whether time spent by employees passing through security screening lines on their way out of the employer’s facility constituted working time requiring compensation. Well, now we have the answer: post-shift security screenings required by the employer are not compensable under the Fair Labor Standards Act and the Portal to Portal Act. In Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court considered whether employees of a staffing company should have been paid for time spent waiting for and undergoing security screenings following their shifts at an Amazon.com warehouse after they had punched out from their shifts. The Court unanimously determined that, although the employer required the employees to undergo the screening before they could leave for the day, the time was not compensable because the screenings were not an “integral and indispensable part of the principal activities” that the employees were hired to perform.

In the majority opinion, Justice Thomas pointed out that the issue of whether the employees should have been paid in this case depends both on the Fair Labor Standards Act and the Portal-to-Portal Act, a federal law that limits liability for employers under the FLSA for activities that are “preliminary” or “postliminary” to an employee’s principal work duties, meaning those activities that employees may perform before clocking in or after clocking out. The Court ruling traced the history of pre- and post-shift activities that had been found to be compensable in various cases and Department of Labor statements on the issue, including a 1951 Department of Labor Opinion Letter that found a pre-shift search of employees for certain items done for both safety reasons and to prevent theft, similar to the facts in the Integrity Staffing case, was not compensable. At its most basic level, the question to be answered was whether the activity at issue is integral and indispensable to the productive work that the employee was hired to perform. Continue reading this entry

Grand Theft PHI – Are Vendors Putting You at Risk for a HIPAA Breach?

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Your vendor’s employee goes home after a long day of collecting wellness questionnaires and biometric screening results only to wake up the next day to discover that her car has been stolen from her driveway. As you can imagine, the theft will likely result in multiple calls to the employee’s car insurance company, but what you may not realize is that it also resulted in a breach of protected health information (PHI) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Continue reading this entry