In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases. In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements. Instead of a blanket rule, the majority followed the Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”
On March 18, 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a report (General Counsel Memorandum GC 15-04) summarizing recent NLRB enforcement action regarding many common employment policies. The report is relevant to nearly all private employers, regardless of whether they have union represented employees. It is troubling because it finds that many seemingly innocuous, sensible employer handbook provisions and policies are unlawful because they could potentially be interpreted to chill employees’ rights to engage in concerted protected activity under the National Labor Relations Act.
The National Labor Relations Board’s (“NLRB”) General Counsel’s Office has again signaled its commitment to expanding the scope of the current test for joint employment. In a move that could have implications for a broad array of franchise relationships, on December 19, 2014, the General Counsel of the NLRB announced that it has issued complaints against both McDonald’s franchisees and McDonald’s USA, the franchisor, as a joint employer. The decision to name McDonald’s as a respondent is consistent with the General Counsel’s recent advocacy that the current joint employment standard is too narrow.
With a Notice of Proposed Rulemaking (“NPRM”) issued earlier this month, the National Labor Relations Board’s controversial proposed regulations on union elections are once again making headlines. A near reincarnation of a 2011 proposal that was ultimately struck down, the proposed regulations look to “streamline” the union election process. The changes, however, make some substantive revisions that may negatively impact employers. READ MORE
Given the difficulty of finding a job in today’s economy, unpaid internships are becoming increasingly popular, particularly for students looking to gain resume-boosting experience. Yet just because someone is willing to work for free and will derive some benefit from an unpaid internship, it does not make it legal under state and federal law. Class litigation regarding unpaid interns is on the rise, and likely will increase even more given the recent ruling in Glatt v. Fox Searchlight Pictures. READ MORE
In a series of recent verdicts since 2011, Higher Labor Courts in Germany have increased the employer’s scope to monitor and control employees’ use of provided company IT and to sanction breaches of contract and statutory law discovered hereby. While the protection of the employee’s privacy and right to self-determination regarding his personal data had been the focus of the jurisdiction in the past, labor law jurisdiction has now strengthened the employer’s rights of ownership (as to their company IT) and of profession. This enables employers to track unlawful action committed by their employees on electronic devices in a more efficient way and will support employers particularly in the maintenance of their business operations, in litigation procedures against employees as well as in internal company (compliance) investigations.
1. Verdict by the Higher Labor Court Berlin-Brandenburg from February 16, 2011 (4 Sa 2132/10)
Until 2011, the employer’s possibility to access and control the computer of an employee, which was furnished by the employer in order for the employee to fulfill his contractual obligations, with regard to possible breaches of law depended on whether the employer had allowed the use of such computer for business purposes only or also for private use. According to lower German labor courts and German scholars, the grant of private use of company IT qualified employers as “providers of telecommunication services” in the sense of the German Telemedia Act (Telemediengesetz; “TMG”) and German Telecommunications Act (Telekommunikationsgesetz; “TKG”) to the effect that the employers were deemed to be subject to the requirements of the “secrecy of telecommunications” (Fernmeldegeheimnis). Such secrecy of telecommunication bans the respective service provider from reviewing “the contents and the detailed circumstances” of any communication that takes place via its communication channels. Lower German labor courts and German scholars argued that, due to the grant of private use of email and internet, employers could not be treated in a different way than professional providers of telecommunication services, such as AOL or T-Mobile, as the respective communication would no longer only relate to internal affairs of the company. Instead, there would be a risk that the employer takes note of private communication as well even if he intends to check business communication only. READ MORE
A new ruling from the Northern District of California, Morvant v. P.F. Chang’s Bistro, Inc. (May 7, 2012), confirms the enforceability of class action waivers despite contrary California law and the National Labor Relations Board’s opinion in D.R. Horton. READ MORE
A new opinion from the Department of Labor (“DOL”) makes clear that the department will treat the burden of proof in whistleblower retaliation claims under the Sarbanes-Oxley Act (“SOX”) differently from typical retaliation claims under Title VII. In an opinion issued in late March – Zinn v. American Commercial Lines Inc. – the DOL’s Administrative Review Board (“ARB”) reversed an administrative law judge’s decision that applied Title VII’s “burden shifting” framework to dismiss Zinn’s whistleblower retaliation claim. Specifically, the ARB removed the third prong of the traditional “burden shifting” analysis as discussed further below.
Under Title VII, once an employee makes a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate non-retaliatory reason for taking the adverse employment action at issue in the case. If an employer provides such a reason, the burden then shifts back to the employee to show that the employer’s reasons were actually a pretext for retaliation. In Zinn, the ARB found it was incorrect to apply this framework and “conflat[e] the SOX burden of proof standard with the Title VII burden of proof.” Under SOX, the employee needs to show that she engaged in protected activity that contributed to an adverse employment action. The burden then shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the same adverse action absent the protected activity. However, the ARB clarified that it was unnecessary for the employee to then show that the employer’s actions were pretextual. Instead, once an employer produces evidence to support that its actions were non-retaliatory, an administrative law judge should “weigh the circumstantial evidence as a whole” to “gauge the context of the adverse action in question” and determine whether the case should proceed. With this distinct standard and its rejection of the familiar Title VII framework, the DOL has made it evident that SOX whistleblower cases will continue to be a unique and developing area of employment law.
California’s highest court held that a party who prevails on a claim for an alleged failure to provide meal or rest breaks is not entitled to attorney’s fees under either Section 1194 or Section 218.5 of the California Labor Code. Kirby v. Immoos Fire Protection, Inc., Cal. Sup. Ct. S185827 (April 30, 2012). Section 1194 is a “one-way fee-shifting statute” that authorizes an award for attorney’s fees only to employees who prevail on minimum wage or overtime claims. By contrast, Section 218.5 is a “two-way fee-shifting statute” that authorizes either an employee or an employer to recover attorney’s fees as a prevailing party in an action brought for the nonpayment of wages.
The court concluded that neither of those sections is applicable to claims for unpaid meal or rest breaks as such claims do not fit under the terms “minimum wage” or “overtime” specified in Section 1194, or the terms “nonpayment of wages” used in Section 218.5. Thus, employers cannot recover attorney’s fees for failed meal and rest break actions. On the other hand, neither can employees. Reading this decision in the context of the California Supreme Court’s April 12, 2012 Brinker decision, plaintiffs’ lawyers may be more cautious as to which meal and rest break claims they pursue as they will not be entitled to recover attorney’s fees as a result of those in which they prevail.