5. NATIONAL LABOR RELATIONS ACT
Covers most private-
sector employees
“Section 7” rights to
engage in “concerted”
and “protected”
activities with other
employees
Protected activities include:
• Discussing wages, discipline, unions
• Complaining about policies,
supervisors
• Complaining about terms/conditions
of employment
NLRB counsel: not “new” but “catch up”
6. NLRB POLICY SCRUTINY
Prohibitions/Policies NLRB Says Can Be “Overbroad”
– Inappropriate Discussions
– Social Media
– Gossip
– Defamation
– Disparagement
– Privacy/Surveillance/Monitoring
– Restricted Use of Company Name, Address and Logo
– Confidentiality
7. NLRB OVERREACH? CONFIDENTIALITY
• Boeing Co. decision handed down
August 2015
• Past practice: keep investigations
confidential
• Distributed revised notice about
confidentiality in investigations
9. NLRB STRIKES DOWN BOEING POLICY
Recommend = Request = Direct
• Communicated clear desire
• Employees required to sign
• No assurance that employee could decline
Need for Confidentiality > Section 7 Rights
• Opposed to universal application to all investigations
• Articulate legitimate business justification “in this
specific situation”
10. NLRB BEST PRACTICES
Avoid “blanket” rules
Intentionally consider need for
confidentiality vs. employee rights
Memorialize each investigation to justify
confidentiality
Modify policies to permit flexibility
11. NLRB COMPLIANT
CONFIDENTIALITY POLICY
Articulate interest
– Protect witnesses from
harassment, intimidation,
retaliation
– Destruction of evidence
concerns
– Prevent cover-up
Articulate future objectives
– Company may decide in some
circumstances to maintain strict
confidence in investigation
– If Company reasonably
imposes such a requirement
& employee does not comply
– discipline
14. FLSA: GOING BACK IN TIME
• FLSA established in 1938
• Minimum Wage and Overtime
15. EXEMPT VS. NON-EXEMPT STATUS
Exempt employees:
No overtime
Must meet BOTH
• Duties Test
• Salaried Basis Test
16. “DUTIES” TEST FOR EXEMPTION
“White Collar Exemptions”
• Executive
• Administrative
• Professional
• Highly Compensated
Employee
17. EXECUTIVE EXEMPTION
Primary duties test includes all of
the following elements:
• management of
enterprise/department
• directs the work of 2+ FT
employees
• authority to hire and fire
18. ADMINISTRATIVE EXEMPTION
Primary duties test must include:
• office or non-manual work
• directly related to management
or operations or customers
• exercises discretion and
independent judgment
concerning matters of
significance
20. SALARIED BASIS TEST
(1) Minimum $455/week
(2) No reduction for variations in
quality or quantity of work
(3) Pay full salary for any week in
which any work performed
• Improper deductions from salary
can imperil exempt status!
21. DOL REGULATION TIMELINE
2004
Salary Threshold
Updated
March 13,
2014
Signal that Overtime
Regulations Need to be
Modernized & Updated
July 6,
2015
Proposed Regulations
Published
September 4,
2015
Deadline for Accepting
Written Comments
2016
Implementation Date?
32. NLRB: MODIFYING SETTLED LAW
NLRB will consider, but no longer
require, that an entity exercise:
direct and immediate control
over employment terms and
conditions
control in more than a limited
and routine manner.
NLRB will now find relevant whether
the entity:
reserved authority to control
employment terms and
conditions
exercises indirect control of
employment terms and
conditions
August 2015 NLRB decision changes 1982 doctrine
33. FUTURE IMPACT OF NLRB CHANGES
• Larger entities are more likely to be joint
employers of contractors’ employees
– Contractors may be economically dependant
– Greater leverage for advantageous contract terms
• Franchises
34. TITLE VII (EEOC) & JOINT EMPLOYER
Fourth Circuit Case (2015)
Butler v. Drive Automotive
• Plaintiff: temp staffing employee
• Alleged sexual harassment
• Drive: We aren’t the employer
Appellate Court: multiple entities could be
“employers”
35. BUTLER FACTORS
• Authority to hire and fire the worker
• Day-to-day supervision and discipline of the worker
• Furnishing of equipment and place of work
• Possession of and responsibility over employment records (payroll, insurance, taxes)
• Length of service between the worker and the entity where he/she works
• Provision of formal or informal training to the worker
• Similarity of the work to the duties performed by regular employees of the entity
• Exclusivity of the assignment (i.e., whether the worker is assigned to other entities)
• Intent to enter into an employment relationship
36. BUTLER FACTORS: CONTROL
Three “control” factors are more equal
Power to hire and fire
Day-to-day supervision
Dictating where and how work takes place
41. ECONOMIC REALITIES TEST
Is work integral part of employer’s business?
Does worker have opportunity for profit/loss?
Relative investments of worker/business?
Does work require special skill and initiative?
Is relationship permanent or indefinite?
Nature and degree of control over worker?
42. WHAT IS NOT DETERMINATIVE AS
ECONOMIC REALITY?
Label employer gives
the working relationship
Agreement between employer
and worker designating or
labeling the worker as an IC
Form 1099
43. FUTURE
More workers found to be employees
Harder to contract out of employment
relationship
Increased liability
IRS: Me too!
47. EEOC GUIDANCE
“Even when employers apply criminal record
exclusions uniformly, the exclusions may still
operate to disproportionately and unjustifiably
exclude persons of a particular race or
national origin.”