Workforce Bulletin

Employees’ free choice and their right to a secret-ballot election on union membership are potentially at risk, given the latest development from the Office of the General Counsel of the National Labor Relations Board (“NLRB” or “Board”). On April 11, 2022, the NLRB’s General Counsel filed a brief urging a change in long-standing precedent, demanding that the Board force employers to recognize unions as the representative of their employees without first allowing employees the opportunity to cast their votes on union membership in a secret-ballot election held by the Board. The only real requirement for this dramatic result is that the union present signed authorization cards from a majority of the employees that ostensibly confirm the employees’ desire to be represented by the union and that the employer decline recognition of the union without a good faith doubt as to the union’s majority. This brief is General Counsel Jennifer Abruzzo’s first major move to follow through on her previously stated goal of restoring this standard—known as the Joy Silk doctrine—which was abandoned more than 50 years ago.

On April 7, 2022, Jennifer Abruzzo, General Counsel of the National Labor Relations Board (“NLRB” or “Board”), issued Memorandum GC 22-04, titled “The Right to Refrain from Captive Audience and other Mandatory Meetings” (“GC Memo”). It is no secret that the General Counsel has been an advocate for policies and practices that would increase union representation and make it easier for unions to gain recognition and win votes on representation. This includes restricting steps employers can take to share their views with employees. Such a step that the GC Memo calls for is a series of restrictions on what have been called “captive audience speeches,” that is, meetings on company time where employers present their views.

Earlier this month, Governor Mike DeWine signed Senate Bill (SB) 47, which formally adopted sections of the Portal-to-Portal Act (Portal Act) amendments to the federal Fair Labor Standards Act (FLSA), exempting employers from paying overtime under certain circumstances. SB 47 also eliminates so-called “hybrid” collective/class actions for Ohio plaintiffs by adopting the FLSA’s “opt-in” requirement for individuals seeking to join a wage and hour lawsuit on Ohio state law claims for failure to pay overtime. The law takes effect on July 6, 2022.

Portal-to-Portal Act

As featured in #WorkforceWednesday:  This week, we look at the increased focus on non-compete agreements across the country.

Due to a surplus in the Universal Paid Leave Fund (the “Fund”), D.C. employees who are covered by the District’s Paid Family Leave (PFL”) program will soon be eligible for the maximum amount of paid family leave benefits permitted under the law.

As discussed in our previous Insight, starting in 2022, under the Universal Paid Leave Emergency Amendment Act of 2021 (“PLEAA”), the District’s Chief Financial Officer (“CFO”) may modify the maximum duration of leave available under the PFL program annually depending upon the projected balance of the Universal Paid Leave Fund.  On March 1, 2022, the Acting CFO certified that the Fund has enough money to increase the potential maximum duration of qualifying paid leave available to D.C. employees as follows:

As featured in #WorkforceWednesday:  This week, we look at compliance and enforcement developments at the federal level and in the specific jurisdictions of New York City and California.

Employers take note: the Massachusetts Supreme Judicial Court (“SJC”) ruled this week for an employee seeking treble damages for untimely paid wages under the Massachusetts Wage Act (“Wage Act”), even though the employer had corrected its mistake and paid the wages before the employee filed suit. Writing for the majority in Reuter v. City of Methuen, Justice Scott L. Kafker interpreted the “strict time-defined payment policies” and liquidated damages provisions under the Wage Act to find that the employer was responsible for treble the amount of late wages, and not treble the amount of interest, even though the wages were ultimately paid before the complaint was filed. This underscores the importance of paying all wages, including vacation or PTO in a timely fashion.

On March 29, 2022, the U.S. House of Representatives passed H.R. 2954, entitled “Securing a Strong Retirement Act” (“Secure 2.0”), which would, among other things, impose additional requirements on employers that sponsor 401(k) and 403(b) plans. Secure 2.0 has not yet been passed by the Senate, and is likely to undergo changes, if passed by the Senate.  Nevertheless, the following overview of some of the provisions included in the House version of Secure 2.0 provides a preview of the types of changes that retirement plans sponsors may be required (or permitted) to implement, as early as this year or in 2023:

In a recent post addressing the U.S. Supreme Court oral argument in Viking River Cruises v. Moriana, we mentioned that employers in California will want to consider the “pros and cons” of arbitration agreements should an employer-friendly decision be issued in that case, rather than rush to implement them.

In response, more than a few people have asked the same or similar questions -- What are the “cons” of arbitration agreements? Why wouldn’t an employer want to use arbitration agreements, particularly if they will foreclose Private Attorney General Act (“PAGA”) actions in California?

There are “cons” to these agreements -- and they are not insignificant.

The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq.

On March 31, in Badgerow v. Walters, by an 8-1 majority (opinion written by Justice Kagan, and a lone dissent by Justice Breyer), the Court reversed an order of the Fifth Circuit and held that the federal courts do not have authority to “look through” an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.