NEW LAW – Delaware Prohibits Past Salary History Inquiries

On June 14, 2017, Delaware Governor John Carney signed House Bill #1 into law. This new law is intended to address the gender pay gap by prohibiting employers from asking job applicants about their salary history.

Specifically, this new law prohibits an employer or its agent from “screening applicants based on their compensation histories, including by requiring that an applicant’s prior compensation satisfy minimum or maximum criteria” or “seeking the compensation history of an applicant from the applicant or a current or former employer.”  For purposes of this law, “compensation” includes wages as well as “benefits and other forms of compensation.”

The new law does not prohibit employers from discussing and/or negotiating salary demands with job applicants about their compensation – provided that the applicant’s salary history is neither requested nor required. Employers are also not prohibited from discussing the applicant’s salary history with the applicant and/or setting compensation based on prior salary history — if the job applicant voluntarily discloses his/her prior compensation history.

Finally, the law only prohibits employers from actively seeking an applicant’s salary history during the interview process. Once an offer of employment with terms of compensation has been extended, the employer can request and obtain compensation history, but only for the sole purpose of confirming the job applicants’ compensation history.

This new law goes into effect in December of 2017. In the interim, the Delaware Department of Labor is required to post guidance materials on its website relating to this new law. It is recommended that Delaware employers review the provisions of the new law and verify that their application process does not include prior salary inquiries. Delaware employers should also review the materials on the Delaware Department of Labor website once available.

Good News for Franchisors – DOL’s Joint Employer Guidance Has Been Withdrawn

In January of 2016, the Department of Labor issued informal guidance materials (Administrator’s Interpretation No. 2016-1) relating to joint employment. In these materials, the DOL advocated for a broad standard for finding a joint employment relationship.

While the franchisor/franchisee relationship was not directly mentioned in these materials, the accompanying question and answer sheet indicated that a franchisor and its franchisee could be deemed the joint employer of a franchisee’s workers depending on the situation. This guidance was concerning to franchisors because it meant that, if found to be a joint employer of its franchisee’s employees, the franchisor could be liable for any minimum wage or overtime violations by its franchisees.

As of June 7, 2017, franchisors can breathe a collective sigh of relief. On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced that the Department of Labor (DOL) is withdrawing Administrator’s Interpretation No. 2016-1. The DOL’s press release announcing the change is available here.

Warning

While the DOL has withdrawn Administrator’s Interpretation No. 2016-1, the NLRB’s attempts to expand the joint-employment standard may continue. In 2015, the NLRB (in Browning-Ferris Industries of California, Inc.) restated the standard for finding joint employment by holding that indirect control or the reserved right to control, even if unexercised, may be sufficient to find a joint-employer relationship. This case is currently on appeal to the D.C. Circuit Court of Appeals and it remains to be seen how the NLRB will view the joint employer issue in the future.

Violation of Massachusetts “Blue Laws” May Result in Triple Damages

Under Massachusetts’ “Blue Laws”, the general rule is that most employers may not be open for business on Sundays and certain holidays. However, there is an exception for certain “retail employers.”

A retail employer who employs more than a total of seven persons, including the proprietor, on any day throughout the week may remain open on Sundays and certain holidays provided that employees are paid time and a half for their work performed on those days. Employees employed in bona fide executive or administrative or professional positions who earn more than two hundred dollars a week are exempted from this requirement. In addition, retail employers cannot require employees to work on Sunday or retaliate against an employee who refuses to work on a Sunday.

Yet, a retail employer recently learned (in Basset v. Triton Technologies, Inc.) that its failure to pay the “blue law premium wage” (i.e. time and a half) to its employees for work performed on Sunday violated the Massachusetts Payment of Wages Law, who proved to be very expensive for the employer.

The Payment of Wages Law requires employers to pay employees all “wages earned” by its employees. It is a strict liability statute; and employees who prevail under the Payment of Wages Law are entitled to mandatory awards of treble damages and attorneys’ fees.

In short, the employer was required to pay employee’s triple damages for violating this law.

Take Home for Retail Employers

This law reiterates the point that wage and hour claims can be incredibly expensive – especially when the possible damages are taken into consideration.

The best defense – verify that your organization’s wage payment practices comply with the Massachusetts Blue Laws.

Remember, all work performed on Sundays must be paid at time and a half.

Also remember that the Blue Laws establish three different types of holidays, where the payment terms and conditions under which work can be performed, vary as follows:

  • Unrestricted Holidays: No permit is required and the time and one-half pay and voluntariness of employment requirements do not apply
    • Martin Luther King Day; President’s Day; Evacuation Day; Patriots’ Day; and Bunker Hill Day.
  • Partially Restricted Holidays: No permit is required, but the time and one-half pay and voluntariness of employment requirements apply
    • New Year’s Day; Memorial Day; Independence Day; Labor Day; Columbus Day after 12:00 noon; and Veterans’ Day after 1:00 p.m.
  • Restricted Holidays: A permit is required and the time and one-half pay and voluntariness of employment requirements apply
    • Columbus Day before 12:00 noon; Veterans’ Day before 1:00 p.m.; Thanksgiving Day; and Christmas Day.
    • NOTE: the permit is issued by the Massachusetts Department of Labor Standards and the local police department

NEW LAW – West Virginia Safer Workplace Act Goes Into Effect July 7, 2017

In recent years, West Virginia employers have been somewhat limited in their ability to implement and enforce robust drug and alcohol testing policies. This limitation is due to numerous state court decisions imposing expansive privacy rights for employees, thereby limiting employers’ flexibility to conduct drug and alcohol testing.

Under the new Safer Workplace Act, employers will be able to more easily conduct drug and alcohol testing without fear of running afoul of the law. While the new law does not require employers to have a drug and alcohol testing policy and/or program, the act makes it clear that drug/alcohol testing prospective and current employees is legal.

The act also provides other protections for employers who establish a policy and initiate a testing program in accordance with the new law, for any of the following:

  • Actions the employer takes based on the results of a confirmed positive drug or alcohol test or an individual’s refusal to submit to a test;
  • Failure to test for drugs or alcohol or for a specific drug or other controlled substance;
  • Failure to test for, or if tested for, failure to detect, any specific drug or other substance, any medical condition, or any mental, emotional, or psychological disorder or condition; or
  • The termination or suspension of any substance abuse prevention or testing program or policy.

Employers who establish a policy and initiate a testing program in accordance with the new law are also protected from liability for:

  • actions taken in reliance on a false positive tests in circumstances in which the claimant could show that the employer had actual knowledge that the result was false and ignored the true test result in disregard for the truth and/or with the willful intent to deceive or be deceived
  • defamation of character, libel, slander or damage to reputation of an employee unless
    • The results of that test were disclosed to a person other than the employer or the tested prospective employee and
    • All elements of an action for defamation of character, libel, slander or damage to reputation are satisfied.
  • Actions taken as a result of false negative tests (e.g., negligent retention claims

Another “perk” of implementing a compliant drug and alcohol testing program is limitations on unemployment insurance and workers’ compensation claims. In order to qualify for these limitations, the employer’s written drug testing policy must put employees on notice:

  • that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body and
  • that if an injured employee refuses to submit to a test, the employee forfeits eligibility for unemployment compensation benefits, and if injured, for indemnity benefits under the state’s workers’ compensation laws.

To be considered “compliant” with this new law (and take advantage of its provisions), employers must develop a written drug and alcohol testing policy. This policy must be distributed to all existing employees and made available to job applicants for review.

While the Act does not set forth any content requirements for the policy, it is a good idea to include the following components:

  • List the purposes for drug and alcohol testing current and prospective employees. Under the law, the following are permissible purposes for drug testing:
    • Deterrence and/or detection of possible illicit drug use, possession, sale, conveyance, or distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner, on or off the job, or the abuse of alcohol or prescription drugs;
    • Investigation of possible individual employee impairment;
    • Investigation of accidents in the workplace or incidents of workplace theft or other employee misconduct;
    • Maintenance of safety for employees, customers, clients or the public at large; or
    • Maintenance of productivity, quality of products or services, or security of property or information.
  • Define safety sensitive employees and the positions that are “safety sensitive positions”
    • the law defines “safety sensitive” as a position where an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.
  • List the disciplinary and rehabilitative actions that may be taken as a result of a confirmed positive test or a refusal to submit to a test
  • Provide information regarding counseling, employee assistance programs, rehabilitation, or any other drug abuse treatment programs that are available to employees
    • NOTE: Employers are required to provide employees with information regarding those programs as requested or otherwise appropriate

Finally, the new law sets forth various requirements for testing procedures and the treatment of drug testing samples. Among these requirements, employers must:

  • Pay for testing (which must be done during, right before, or directly following a regular work period)
  • Compensate employees for time spent submitting to tests,
  • Transport or pay for reasonable transportation to and from the testing site, if testing is done away from the worksite.
  • Treat communications concerning drug and alcohol test results as confidential

In addition, employees have certain rights relating to the testing procedures. Among these rights:

  • All positive tests must be confirmed by a second test.
  • Current and prospective employees have the right to voluntarily provide information relevant to the test, like the use of prescription drugs,
  • Individuals who want to challenge the results of an initial sample test have the right, at their own expense, to have a split sample tested by another lab.

Recommendations

West Virginia employers who wish to continue (or start) a drug testing program should review this new law and verify that their program complies with the new requirements.

2017 MINIMUM WAGE MID-YEAR CHECK-UP

With various cities and counties having enacted local minimum wages (many of which are increasing on July 1st) and 3 states (Maryland, Oregon, and Washington DC) increasing their own minimum wages on July 1st, employers should take time to verify that they are meeting the minimum wage requirements of their state/city/county.

The below chart sets forth the minimum wage effective July 1, 2017.

Federal $7.25
State City County  Amount?
Alabama  $7.25
Alaska  $9.80
Arizona — all cities/counties except …  $10.00
  Flagstaff*   $12.00
Arkansas  $8.50
California — all cities/counties except …

small employer (25 or less)

$10.00

large employer (26 or more)

$10.50
Berkeley

Increasing 10/1/2017 to …

Alameda County  $12.53
$13.75
Cupertino Santa Clara County $12.00
El Cerrito* Contra Costa County  $12.25
Emeryville* Alameda County $14.00

small employer (55 or less) *

large employer (56 or more) *

$15.20
Los Altos Santa Clara County $12.00
Los Angeles* LA County $10.50

small employer (25 or less)

large employer (26 or more)

$12.00
Malibu* LA County $10.50

small employer (25 or less)

large employer (26 or more)

$12.00
Milpitas* Santa Clara County $11.00
Mountain View Santa Clara County $13.00
Oakland Alameda County $12.86
Palo Alto Santa Clara County $12.00
Pasadena* LA County $10.50

small employer (25 or less)

large employer (26 or more)

$12.00
Richmond Contra Costa County $12.30
San Diego San Diego County $11.50
San Francisco* San Francisco County $14.00
San Jose* Santa Clara County $12.00
San Leandro* Alameda County $13.00
San Mateo San Mateo County $12.00

For-profit organizations

Non-profit organizations

$10.50
Santa Clara Santa Clara County $11.10
Santa Monica* LA County $10.50

small employer (25 or less)

large employer (26 or more)

$12.00
Sunnyvale* Santa Clara County $13.00
Los Angeles County*

unincorporated areas

$10.50

small employer (25 or less)

large employer (26 or more)

$12.00
Colorado $9.30
Connecticut $10.10
Delaware $8.25
Florida $8.10
Georgia $7.25
Hawaii

 

$9.25
Idaho $7.25
Illinois — all cities/counties except … $8.25
Chicago* $11.00
    Cook County*

(except for the Village of Barrington)

$10.00
Indiana $7.25
Iowa $7.25
Kansas $7.25
Kentucky $7.25
Louisiana $7.25
Maine — all cities/counties except … $9.00
Bangor $8.25
Portland $10.68
Maryland* — all cities/counties except … $9.25
Montgomery County

Increases 10/1/2017

$10.75
$11.50
Prince George’s County

Increases 10/1/2017

$10.75
$11.50
Massachusetts $11.00
Michigan $8.90
Minnesota “small employers” (employers with an annual sales volume of less than $500,000) $7.75
“large employers” (employers with an annual sales volume of $500,000+) $9.50
Mississippi $7.25
Missouri — all cities/counties except … $7.70
St. Louis $10.00
Montana $8.15
Nebraska $9.00
Nevada $8.25
New Hampshire $7.25
New Jersey $8.44
New Mexico — all cities/counties except … $7.50
Albuquerque $8.75
Las Cruces $9.20
Santa Fe $10.91
Bernalillo County $8.65
Santa Fe County $10.91
New York “Upstate” employers (excluding fast food employees) $9.70
  “Downstate” employers (excluding fast food employees) $10.00
  “Small” NYC employers (excluding fast food employees $10.50
  Fast food employees outside NYC $10.75
  “Large” NYC employers (excluding fast food employees) $11.00
  Fast food employees inside NYC $12.00
North Carolina $7.25
North Dakota $7.25
Ohio $8.15
Oklahoma $7.25
Oregon* — all cities/counties except … $10.25
Portland* $11.25
Nonurban Counties* (Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klmath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, Wheeler counties) $10.00
Pennsylvania $7.25
Rhode Island $9.60
South Carolina $7.25
South Dakota $8.65
Tennessee $7.25
Texas $7.25
Utah $7.25
Vermont $10.00
Virginia $7.25
Washington — all cities/counties except … $11.00
City of SeaTac (hospitality and transportation workers) $15.34
Seattle $13.00
small employer who does not pay towards medical benefits

(500 or less)

small employer who does pay towards medical benefits

(500 or less)

$11.00
large employer who does not pay towards medical benefits

(501 or more)

$15.00
large employer who does pay towards medical benefits

(501 or more)

$13.50
Tacoma $11.15
Washington DC* $12.50
West Virginia $8.75
Wisconsin $7.25
Wyoming $7.25
 * = increase in minimum wage effective July 1, 2017

 

Caveat: Please be advised that this information is being provided as a courtesy and that ePlace Solutions, Inc. does not track local laws and ordinances and will not update this information with changes in local laws and ordinances.

New DFEH Regulations Regarding Criminal Background Checks Effective July 1, 2017

The California Department of Fair Employment and Housing (“DFEH”) recently finalized new regulations (“Consideration of Criminal History in Employment Decisions Regulations“) that further limit an employer’s ability to consider an individual’s criminal history when making employment-related decisions.  These new regulations come into effect on July 1, 2017.

The new regulations are focused on preventing potential “adverse impact” on protected groups by employer’s overly broad use of applicants’/employees’ criminal history when making employment decisions.

Under the new regulations, employers are required to establish that the criminal history information sought is job-related and consistent with a business necessity. In doing this, an employer must be able to show that the company’s policy or practice of considering criminal history is narrowly tailored to meet the specific circumstances for which the information is sought and that the company takes the following factors into consideration when making an adverse decision based on criminal history:

  • the nature and gravity of the offense or conduct;
  • the time that has passed since the offense or conduct and/or completion of the sentence; and
  • the nature of the job held or sought.

Most importantly, the new regulations created a rebuttable presumption that an organization’s bright-line policy or practice automatically disqualifying all applicants with certain types of past convictions are not sufficiently tailored to the specific circumstances of the job.

Impact on California Employers

Employers should reexamine their current policies and practices of using criminal histories in employment decisions and verify that their practices comply with the new regulations as well as any local ordinances (like the Los Angeles and San Francisco Ban-the-Box ordinances) before these regulations take effect.  If you have any concerns about your organization’s practices, please consult with an HR Professional or competent legal counsel.

DOL Overtime Rule Update – R.I.P. Overtime Rule?

Since the injunction against the Department of Labor’s Overtime Rule was issued on November 23, 2016 (see FLSA Overtime Rule Blocked by Texas Federal Court), employers have been wondering when (if ever) the DOL Overtime Rule will go into effect.

Until recently, the Department of Labor has kept (relatively) silent about the fate of the Overtime Rule. However, last week (June 7, 2017) Secretary of Labor Acosta said that he will soon formally request the public’s input on new overtime regulations. Many experts believe this comment indicates that the DOL is considering dropping its defense of the litigation challenging the injunction against original rule.

When asked about the DOL’s plans concerning the Overtime Rule, Acosta said that the DOL plans to look at the overtime rule “as a general matter.”

I think that any rule that has a dollar amount that isn’t updated for as long as this … is a problem because life gets a lot more expensive,” he said. “But I also think that the way it was done created a shock to the system and the department is in the process of drafting a request for information that I think will be filed in … probably the next 2 to 3 weeks asking for public information and public comment on the overtime rule.

While these comments do not reveal the DOL’s ultimate plans for the Overtime Rule, they do indicate that the fate of the Rule will soon be revealed. Until such time, we recommend that employers who did not already take action to comply with the DOL Overtime Rule continue to delay any action until the status of the Overtime Rule is known. It is also recommended that employers take the opportunity to review their exempt positions against the duties tests.

Arizona Employers – Are You Prepared For The New Paid Sick Time Law?

On July 1, 2017, the paid sick time portion of the Arizona Fair Wages and Healthy Families Act (Proposition 206) goes into effect.

Under this law, all Arizona employers are required to provide employees with paid sick time as follows:

  • Employers with less than 15 employees (“Small Employers”): Employees are entitled to accrue 24 hours of earned paid sick time per year
  • Employers with 15 or more employees (“Large Employers”): Employees are entitled to accrue 40 hours of earned paid sick time per year.

Paid sick time may be provided to employees on an “up front” or “accrual” basis.

If an employer chooses to advance (“up front”) the earned sick leave, employers must makes the full amount of sick leave for the year (24 hours for small employers and 40 hours for large employers).

If employers choose to use the accrual method, then employees must accrue a minimum of one (1) hour of paid sick time for every thirty (40) hours worked up to a maximum of twenty-four (24) hours (small employers) or forty (40) hours (large employers) in a calendar year.

Regardless of the method used, employees must be allowed to “carry over” unused, accrued paid sick time as follows:

  • Small Employers: Employees are entitled to carry over 24 hours of accrued, unused paid sick time per year
  • Large Employers: Employees are entitled to carry over 40 hours of accrued, unused paid sick time per year.

The carry over of unused, accrued paid sick time does not prevent the employee from accruing the full annual accrual in the following year; however, employers are still only required to allow an employee to use 24 hours (small employers) or 40 hours (large employers) of paid sick time per year.

Alternatively, in lieu of carry over, an employer may elect to pay an employee for unused earned paid sick time.

An employee becomes eligible to use paid sick time when he/she has on the 90th calendar day after his/her first day of employment. At that point, the employee is eligible to use any available paid sick time in his/her bank

An employee may use his/her accrued paid sick time for the following purposes:

  • An employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care;
  • Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; care of a family member who needs preventive medical care;
  • Closure of the employee’s place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for oneself or a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or
  • Absence necessary due to domestic violence, sexual violence, abuse or stalking, provided the leave is to allow the employee to obtain for the employee or the employee’s family member:
    • Medical attention needed to recover from physical or psychological injury or disability caused by domestic violence, sexual violence, abuse or stalking;
    • Services from a domestic violence or sexual violence program or victim services organization;
    • Psychological or other counseling;
    • Relocation or taking steps to secure an existing home due to the domestic violence, sexual violence, abuse or stalking; or
    • Legal services, including but not limited to preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence, sexual violence, abuse or stalking.

The Arizona Earned Paid Sick Time Poster must be displayed where employees can easily read it. The poster is available in both English and Spanish.

Take Home For Employers

The Industrial Commission of Arizona has published Frequently Asked Questions (FAQs) About Minimum Wage and Earned Paid Sick Time to help employers understand this new law. It is recommended that all Arizona review these FAQs.

New Wage and Hour Restrictions For NY City Fast Food And Retail Industry Employers

New York City Mayor Bill de Blasio recently signed the “Fair Workweek” bills into law. This “bill package” includes 5 bills that will place new restrictions on retail and fast food employers with regard to employee scheduling, hiring, and pay practices starting November 26, 2017 (when the laws go into effect).

Retail Employees

Only one of the bills (Int 1387) in the package effects retail employers in NYC by imposing new requirements relating to the scheduling of retail employees. For purposes of this law, a retail employer is a business with 20 or more employees primarily engaged in the sale of consumer goods at one or more stores in New York City.

Under this law, retail employers are:

  • Prohibited from scheduling retail employees to “on-call” shifts (i.e. Requiring a retail employee to be available for a defined period of time without guaranteeing the employee an actual shift)
  • Required to provide retail employees with a written copy of their work schedule at least 72 hours before the start of the employee’s first shift
  • Required to provide retail employees with at least 72 hours’ advance notice before adding, canceling or changing a retail employee’s scheduled shift
    • Exceptions apply for special circumstances, like a state of emergency or natural disaster and
    • Employees are still able to voluntarily trade shifts and voluntarily request time off

The new law also imposes new recordkeeping and posting obligations on retail employers:

  • All work schedules for a location must be “conspicuously posted” at least 72 hours prior to a shift. If a work schedule is normally distributed electronically, then the schedule must be circulated electronically within this timeframe.
  • Retail employers must keep employees’ schedules for any week for a period of 3 years and provide copies of past schedules upon request.

Retail employees who are covered by a valid collectively bargaining agreement are exempted from these requirements provided that

  1. the CBA expressly addresses scheduling and
  2. the provisions of the bill are expressly waived in the CBA.

Fast Food Employers

The remaining four bills effects fast food employers in NYC. For purposes of these laws, a fast food employer is an establishment:

  • with the primary purpose of serving food or drink;
  • where patrons order and pay before eating;
  • that are part of a chain; and
  • that are one of 30 or more establishments nationally (considering franchisor and franchisee together).

The first bill (Int. No. 1388) prohibits fast food employers from scheduling employees to work “consecutive work shifts”. Under this law, fast food employees must be provided a minimum of 11 hours between the end of one shift and the start of another. If an employee works a consecutive shift, the employee must be paid $100 for each consecutive shift worked.

The second bill (Int. No. 1395) addresses fast food hiring. Under this law, when a new shift comes available, fast food employers are required to offer the new shifts to existing employees at that location before hiring a new employee to work the shift and/or before transferring an employee from another location.

In addition, when a new shift is available, fast food employers are required to post a notice indicating that a shift is available and keep this offer open for at least three days. This notice must also be provided to employees electronically. Finally, if a current employee accepts the shift, the employee may be entitled to receive a “shift change premium” (explained below).

The third bill (Int. No. 1396) requires fast food employers to provide employees with advanced notice of their work schedule. Under this law, fast food employers are required to provide employees with their schedules for a 7-day workweek at least 14 days before the first scheduled shift. Failure to adhere to these scheduling requirements results in a “shift change premium,” being paid to effected employees, which can range from $10 to $75 per occurrence.

The fourth bill (Int. No. 1384) allows employers to, upon receipt of written authorization from the employee, deduct voluntary contributions to covered not-for-profit organizations from employees’ paychecks. In addition, once an employee authorizes such a deduction, employers are required to remit the deducted monies to the organization no later than 15 days after the deduction is made.

The new law also imposes new recordkeeping and posting obligations on fast food employers:

  • All work schedules for a location must be “conspicuously posted” at least 72 hours prior to a shift. If a work schedule is normally distributed electronically, then the schedule must be circulated electronically within this timeframe.
  • Fast food employers must keep employees’ schedules for any week for a period of 3 years and provide copies of past schedules upon request.

Take home for NYC Retail and Fast Food Employers

As stated above, these new laws go into effect on November 27, 2017. Prior to the effective date, it is recommended that NYC retail and fast food employers take the following actions:

  • Review the new laws and familiarize yourself with the new obligations under these laws;
  • Train your managers, supervisors, and persons responsible for creating the schedule on the new scheduling requirements and create procedures for these employees to follow when scheduling employees;
  • Develop a system to track/verify that the scheduling requirements are being met and to track for schedule changes that occur after notice deadlines have passed, so that employees can receive the “shift change premium;”
  • Consult with your payroll provider and verify that they have the ability to include the “shift change premium” payments in payroll;
  • Implement record-retention practices that are consistent with these new laws; and
  • Prepare consent notices to be issued to employees who voluntarily agree to shift changes or trade shifts with other employees.

 

New NLRB Ruling = Cautionary Tale for Employers

In a recent case (In-N-Out Burger, Inc., 365 NLRB No. 39.), the National Labor Relations Board (NLRB) determined that a West Coast fast food restaurant (In-N-Out Burger) violated the National Labor Relations Act (NLRA) by prohibiting employees from wearing any type of unauthorized buttons or insignia on their uniforms.

The Case

The company had a rule prohibiting employees from wearing any type of buttons, pins, or stickers on their uniforms – unless specifically required by the company.

The claim arose after a manager directed an employee to remove a “Fight for $15” button from his uniform. The “Fight for $15” button represented a union-sponsored effort seeking a $15 per hour minimum wage for fast-food restaurants and other related industries.

While the employee did remove the button, as directed, he also filed a unfair labor practices charge against the company claiming that the company’s rule violated the NLRA – specifically, employees’ rights to engaged in protected concerted activity.

The Ruling

It is well-settled that an employer violates the NLRA when it prohibits employees from wearing union insignia (including buttons/pins representing a nationwide movement relating to minimum wage) at the workplace, absent special circumstances. These special circumstances are where the wearing of buttons/pins would

  • Jeopardizes employee safety, damage machinery or products,
  • Exacerbates employee dissension in the workplace, or
  • Unreasonably interferes with a public image that the employer has established as part of its business plan.

These special circumstances are a narrow exception to the overall rule and it is the company’s burden to prove that the special circumstances exist to warrant the exception to the rule.

Here, the company argued the purpose of the rule was to maintain In-N-Out Burger’s carefully cultivated public image of being a “sparkling clean” restaurant, which is supported, in part, by the bright white uniforms and strict grooming requirements for employees; therefore, the exception applied.

The NLRB did not agree and instead found that the company failed to provide sufficient “public image” evidence to justify the company prohibiting employees from wearing a small “Fight For $15” button on their uniforms. The company was ordered to revoke its existing rule and to distribute a revised appearance policy to all employees that either policy that (1) does not contain the unlawful rule, or (2) provides the language of a lawful rule.

Takeaways for Employers

The NLRB’s ruling reminds all employers (union and non-union alike) that unless very specific and very limited exceptions apply, employers cannot prohibit employees from wearing buttons/stickers/pins that support union-related activity and/or address other terms and conditions of employment (like wages).

In addition, this case also reemphasizes the fact that most private employers – including non-union employers — are covered by the NLRA. As such, all private employers must follow the uniform policy standards established by the NLRB

Employers should review their policies carefully and ensure that all policies comply with NRLB standards. If there are any uncertainties regarding any policies, please seek the guidance of an HR Professional.

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