New York Labor And Employment Law Report

New York Labor And Employment Law Report

Employment Law Alliance’s Labor Day Survey Illustrates Disconnect Between Union Promises and Reality

Posted in Uncategorized

Union Organizing Limited by Proactive Employee Engagement and Education

In advance of Labor Day in the U.S. and Labour Day in Canada, the Employment Law Alliance (ELA), the world’s largest network of management-side labor, employment and immigration lawyers, has released the results of its latest “Employer Pulse” survey on traditional labor issues. Bond, Schoeneck & King PLLC is a member of the Employment Law Alliance.

The poll, conducted from mid-July to mid-August, surveyed ELA attorneys across the U.S. and Canada and yielded nearly 400 responses from all 50 U.S. states and each of the 10 Canadian provinces.

Respondents were asked to identify both the stated reasons employees opt to join unions, and what they have found to be the “least accurate” claims unions have made to encourage membership.

“Higher wages and/or benefits” and “Enhanced job security, including protection from layoffs” made the top five in both employee reasoning and inaccurate union representations, suggesting a significant gap between what workers perceive to be a benefit of unionization and the reality as witnessed by a set of highly experienced labor and employment attorneys.

According to respondents, the top two reasons employees reject union membership are: 1) “Cost of dues exceeds value of membership, including objection to use of dues to support and promote union political agenda;” and 2) “Distrust of union leadership and recognition of unrealistic campaign promises.”

One member commented, “I believe the real number one reason (that employees reject union membership) is that employees know and trust that their employer cares about them and runs the business looking out for both the employees’ and owners’ long-term interests. An employer ‘runs on its record,’ and that means it cannot start ‘caring’ or ‘showing that it cares’ only when the union shows up.”

Turning to specific issues, definitive answers emerged on the following:

  • 83 percent of respondents noted that “quickie” or “ambush” election rules issued by the National Labor Relations Board (NLRB) will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.

Regarding “quickie” or “ambush” elections, New Hampshire attorney Charles S. Einsiedler, Jr. of Pierce Atwood LLP offered, “Employers must proactively educate their workforce concerning what unions really can and cannot do, because the board’s new election rules leave insufficient time for employers to provide meaningful employee education once an election is scheduled.”

Given that the poll’s data broadly indicates employees often choose unionization based on misrepresentations concerning enhanced wages, job security and elimination of unpopular supervisors, one respondent noted that inaccurate promises, combined with the natural reluctance of non-union employers to communicate with their workforce about unions and an “ambush” or “quickie” election, have the potential to greatly assist unionization efforts. They added that there is a genuine, economically material onus on companies to consider and prepare for this dynamic.

  • 85 percent of respondents answered that NLRB rulings allowing unions to organize small or micro units of employees will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.
  • 76.5 percent of respondents answered that attempts, if successful, by the NLRB to expand and extend the joint employer test – particularly among franchisors and franchisees – will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.
  • 94.11 percent of Canadian respondents answered that, based on their experience and feedback received from clients and colleagues, the recent change from card-based certification to vote-based certification under the federal Canada Labour Code “Will greatly reduce” or “Will moderately reduce” the success rate of unions in Applications for Certification.

The group was somewhat split on the potential impact of the expansion of overtime eligibility recently announced by the U.S. Department of Labor, with 45 percent of respondents believing that the broadening “Will have limited impact” in terms of assisting unions in their organizing efforts and 38.5 percent answering that it will “Greatly assist” or “Moderately assist” unionization efforts.

Overall, the importance of identifying and dealing with “unpopular,” “rogue” and – at times – unreasonable supervisors was stressed as one key ways to ensure a harmonious, union-free workplace. As one member put it, “Unfair treatment by management – or indifferent treatment – is the overwhelming reason why employees seek to unionize their workplace.”

Having an engaged, educated and committed workforce was consistently cited as central to keeping unionization efforts at bay. One respondent noted, “Happy and engaged workers don’t usually join unions.” Another offered a simple equation, “Poor management plus a lack of information about unions can often lead to a unionized company.”

About The Employment Law Alliance:
The Employment Law Alliance is the world’s largest network of labor, employment and immigration lawyers. With specialists in more than 135 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide. On the web at:

D.C. Circuit Court of Appeals Upholds USDOL’s Revised Regulations on the “Companionship Exemption” Under the FLSA

Posted in Wage and Hour

On August 21, the United States Court of Appeals for the District of Columbia Circuit upheld the U.S. Department of Labor’s revisions to the “companionship exemption” under the Fair Labor Standards Act, and reversed two decisions issued by the U.S. District Court for the District of Columbia that struck down those revisions.  The USDOL’s revised regulations eliminate the companionship exemption for home care workers who are employed by a third-party instead of by the patient or household, and greatly narrow the definition of “companionship services” for purposes of applying the exemption.  According to estimates provided by the USDOL, nearly two million formerly exempt home care workers will now be covered by the FLSA’s minimum wage and overtime requirements. Continue Reading

New York Court of Appeals Advises Employers to Take Time to Present Restrictive Covenants to New Employees

Posted in Employment Contracts, New York Law

It is not uncommon for employers to present restrictive covenants, such as non-competition, non-solicitation, or confidentiality agreements, to new employees in a stack of orientation paperwork.  A recent case from New York’s highest court reminds employers not only that it is important to narrowly tailor restrictive covenants, but also that it is worthwhile to take the time to explain the meaning of those agreements to new employees, and even provide new employees with some time to review them. Continue Reading

The NLRB Unanimously Shuts Down Attempt to Unionize Northwestern’s Scholarship Football Players

Posted in National Labor Relations Board, Union Organizing

In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union.  This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”).  Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. Continue Reading

NLRB Revisits and Overturns Longstanding Precedent Regarding Disclosure of Witness Statements

Posted in Labor Relations, National Labor Relations Board

As we reported in an earlier blog post, the National Labor Relations Board issued the American Baptist Homes of the West (“Piedmont Gardens”) decision in December 2012, overturning more than 30 years of precedent shielding witness statements from disclosure.  In June 2014, however, the Supreme Court handed down the Noel Canning decision, in which it found that President Obama’s January 2012 Board appointments were invalid and thus the Board lacked the necessary quorum of three members to issue valid decisions from that date until August 2013 (when a full five-member Board was properly appointed).  As Piedmont Gardens was one of the Board decisions invalidated by the Noel Canning ruling, the Board issued an order setting aside the decision but retained the case on its docket.

After reconsidering the case, the Board issued a decision on June 26, 2015, reaffirming its earlier decision.  In doing so, the Board overruled the blanket exemption — first established by the Board’s 1978 Anheuser Busch decision — that allowed employers to withhold witness statements in response to pre-arbitration requests for information.  Arguing that the Anheuser Busch rationale was “flawed,” the Board held that such statements are now subject to the same standard applicable to all other union requests for information:  an employer must furnish “relevant” information that is “necessary” to the union’s proper performance of its duties as collective bargaining representative. Continue Reading

According to the EEOC, Sexual Orientation Discrimination is Prohibited By Title VII

Posted in Employment Discrimination

There are many protected categories under the federal employment discrimination laws, but none of those laws mentions “sexual orientation” as a protected category.  Versions of the Employment Non-Discrimination Act (“ENDA”), which would explicitly prohibit employment discrimination on the basis of sexual orientation, have been introduced in almost every session of Congress since about 1994.  However, the legislation has never made it to the President’s desk.

According to the Equal Employment Opportunity Commission (“EEOC”), federal legislation explicitly prohibiting employment discrimination based on sexual orientation is unnecessary because such discrimination is already prohibited under Title VII of the Civil Rights Act (“Title VII”).  In a December 2, 2014 blog post, we wrote about a decision issued by the EEOC against a federal agency (the Bureau of Tobacco, Firearms and Explosives) holding that transgender discrimination is a form of sex discrimination prohibited by Title VII.  Therefore, it should come as no surprise that the EEOC has now also issued a decision against another federal agency (the Federal Aviation Administration) on July 16, 2015, holding that sexual orientation discrimination is also a form of sex discrimination prohibited by Title VII. Continue Reading

Wage Board Recommends an Increase in the Minimum Wage for Fast Food Workers to $15.00 Per Hour

Posted in New York Law, Wage and Hour

On July 22, 2015, the Fast Food Wage Board (which was empaneled at the direction of Governor Cuomo to investigate and make recommendations regarding an increase in the minimum wage for employees in the fast food industry) passed a resolution recommending that the minimum wage for employees in the fast food industry be raised to $15.00 per hour.  The recommended increase will be phased in to take effect by December 31, 2018, in New York City, and by July 1, 2021, for the rest of the state.  Governor Cuomo has publicly applauded the Wage Board’s recommendation, which will almost certainly be accepted and adopted by the Commissioner of Labor. Continue Reading

USDOL Issues Guidance Regarding Misclassification of Employees as Independent Contractors

Posted in Wage and Hour

On July 15, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued Administrator’s Interpretation No. 2015-1, which provides guidance regarding the misclassification of employees as independent contractors.  According to the WHD Administrator’s Interpretation, “most workers are employees” under the Fair Labor Standards Act (“FLSA”). Continue Reading

Second Circuit Sides With Employers in Two Cases Involving Unpaid Interns

Posted in Wage and Hour

In two recent cases decided on July 2, the Second Circuit Court of Appeals held that in many instances, unpaid interns may not necessarily be employees covered by the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).  In both cases (Glatt v. Fox Searchlight Pictures and Wang v. The Hearst Corporation), plaintiffs who had obtained internships at major media companies argued that they were entitled to wage payments under the FLSA and NYLL; in addition, they sought to bring their claims as class and/or collective actions, which would drive up the costs of litigation and significantly increase the potential liability.  The Second Circuit adopted a standard that will likely make it more difficult for unpaid interns to establish employment status, and will likely make it more difficult for unpaid interns to litigate their FLSA and NYLL claims in a class or collective action. Continue Reading

USDOL’s Proposed Revisions to the Exemption Regulations Significantly Increase Salary Requirements, But Leave Duties Requirements Untouched

Posted in Wage and Hour

The U.S. Department of Labor released its highly anticipated proposed rule on the Fair Labor Standards Act white-collar overtime exemptions today, along with a fact sheet summarizing the proposed rule.  The proposed rule more than doubles the salary requirement to qualify for the executive, administrative, professional, and computer employee exemptions from the current level of $455 per week to an amount that is expected to be $970 per week by the first quarter of 2016, and significantly increases the salary threshold to qualify for the “highly compensated employee” exemption.  The proposed rule also includes a procedure to automatically raise the minimum salary levels to qualify for the white-collar exemptions from year to year without further rulemaking.  The USDOL estimates that nearly five million employees who are currently classified as exempt will immediately become eligible for overtime pay if the proposed rule is adopted as the final rule. Continue Reading