Jeff Hirsch served as faculty for the MCLE webinar “Roadmap to Unionized Workplaces & NLRA/MLRA Rights in Non-Union Workplaces” on March 8, 2023. Providing a management-side perspective on labor law and labor relations issues, Jeff joined fellow panelists to discuss the key aspects of the unionizing process as well as the legal and practical ramifications of what happens once a group of employees has successfully unionized. They also discussed common labor law issues and strategies for navigating them, how labor laws apply to both union and non-union employees, how to bring forward and defend against grievance and claims arising under the parties’ collective bargaining agreements and the labor laws, and how to decipher new case law and initiatives from the National Labor Relations Board.

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Jeff is an experienced attorney, author, and teacher who has practiced management labor and employment law for 40 years. During that time, Jeff has advised and represented hundreds of employers in many diverse fields. He regularly represents employers in labor negotiations, labor arbitrations, union organizing drives, wage and hour cases, discrimination and wrongful discharge cases. He has appeared on behalf of his clients before dozens of state and federal agencies, including the National Labor Relations Board, United States Department of Labor, Equal Employment Opportunity Commission, Occupational Safety and Health Administration, Massachusetts Commission Against Discrimination, Massachusetts Attorney General’s Fair Labor Division, New Hampshire Human Rights Commission, New Hampshire Department of Labor, and state and federal courts. Since 1990, Jeff has also been the author of the widely used book “Labor and Employment in Massachusetts”. He has written similar books analyzing the laws of Connecticut, New Hampshire, and Rhode Island. Jeff also wrote the “Occupational Safety and Health Handbook,” which was distributed nationally. Jeff’s books are relied upon by thousands of lawyers, executives, and human resources professionals around the United States.

MCLE is the Massachusetts legal community’s premier provider of hands-on educational programs and reference materials. Its particular focus is applied law: practical, highly concrete training for attorneys in the essential elements of professional practice. MCLE presents more than 250 programs annually, in a variety of in-person and online formats and has published more than 160 practice manuals.

The National Labor Relations Board (NLRB) took the surprising step of dropping its efforts to defend its recent “Poster Rule” in court.

In our last post about the NLRB notice posting rule – or “Poster Rule,” which required most employers to post an 11” x 17” notice informing employees of their right under the National Labor Relations Act (NLRA) to organize – we explained that the state of the rule was in flux due to a number of pending appeals.

This week, the NLRB took the surprising step of dropping its efforts to defend the rule in court.  The Board declined to appeal two decisions by the federal courts of appeal which had struck down the rule: the first, in May 2013, holding that the rule violated the First Amendment, and the second, in June 2013, holding that the Board had no authority to make the rule in the first place.

In light of this development, employers are free to remove the poster, if they wish, as the Board has declared that the poster is voluntary.  Stay tuned, however: there is little doubt the Board still wants all workers to be informed about their right to organize, and may seek to promulgate a modified version of the Poster Rule in the coming months or years.

Photo Credit: http://3.bp.blogspot.com/-nSwQwhvYQG0/Tc2Ddp3Dp_I/AAAAAAAAAI8/0xkcI-pzMEo/s1600/DSC_0030.JPG

Whatever happened to that controversial National Labor Relations Board (NLRB) notice posting rule? You know the one.

The one that requires most private sector employers to post a notice advising employees of their rights to organize and join unions. The one that the business community has aggressively opposed since 2011 when the rule was first announced. The one that was supposed to go into effect on April 30, 2012.

The NLRB decided early on that the rule would not take effect “until the legal issues are resolved” and suffice to say that the legal issues are far from resolved. Click here  for more information on this decision.

In the latest development (found here), on May 7^th the Appeals Court for the D.C. Circuit unanimously held that the rule is invalid. The Court found that the rule violates an employer’s right to free speech, a right guaranteed in the National Labor Relations Act. The Court also found that the NLRB’s methods of enforcing the rule were impermissible (i.e., treating a failure to post as an unfair labor practice, as evidence of anti-union animus, and as tolling the Act’s six month statute of limitations for filing unfair labor practice charges).

This latest decision is consistent with a lower court decision issued by the U.S. District Court for the District of South Carolina in a separate lawsuit challenging the rule, and can be found here.

If you’re keeping score, the business community is winning 2-0.

But the game is far from over.  The South Carolina decision is currently on appeal to the Fourth Circuit, and if the NLRB prevails on appeal it would set up a circuit court split ripe for resolution by the Supreme Court. Even if the NLRB loses in the 4^th Circuit, the agency will likely appeal the two adverse decisions to the Supreme Court which may, or may not, take up the matter.

What does all this mean for employers?  For one thing, it means that you won’t need to post any NLRB notices for quite some time, as the legal appeal process plays out. Most non-union businesses are opting to not post the notice unless and until they are legally required to do so. It also means, reading the tea leaves, that the harsh penalties imposed by the rule will not likely survive legal scrutiny in the end.  So far,  no judge at any level has found that a failure to post the notice could constitute an unfair labor practice, or toll the 6 month statute of limitations for filing charges.

We will continue to keep you apprised of new developments.

Photo Credit: http://thepointsguy.com/wp-content/uploads/2012/10/Airline-hold.jpg

I recently spoke at a Smaller Business Association of New England (SBANE) event on social media, but before I spoke, I had the opportunity to listen to the keynote speakers.

One was a smart employee side lawyer and the other a veteran member of the Massachusetts Attorney General’s Wage & Hour enforcement group.  Even though I have been doing this kind of work since before the cell phone, when these guys talk, I listen.  The sharp lawyer, representing employees, brings private lawsuits against employers for wage and hour violations. He prefers to bring class actions and the law allows him to collect three times the unpaid wages owed, plus get his attorney’s fees paid by the employer.  At the Attorney General’s Office, the other speaker gets calls from all over the state from employees who don’t think they have been paid properly.

I have created the below checklist to help you avoid the mistakes our keynote speakers commonly see Massachusetts employers make:

1.) Are you paying any individuals by a Form 1099?  If so do they meet the three prong   test in Massachusetts to be an independent contractor?

a.) Prong One: Freedom from Control

b.) Prong Two: Service Outside the Usual Course of the Employer’s Business

c.) Prong Three: Independent Trade, Occupation, Profession or Business

2.) Are you making automatic deductions from employees such as an automatic half hour for lunch whether the employee actually gets the lunch break or not?

3.) Have you asked anyone in the company to defer pay?  You may not defer wages and the President and Treasurer of the company can be held personally liable for these unpaid wages.

4.) Are you reimbursing employees for all transportation expenses incurred when they use their own car, not for commuting, but for work related tasks during the work day?

5.) Are you treating holiday and vacation pay as provided in your policies as wages due and owing?

If you pass this check up, congratulations and rest easy. But if not, call your labor and employment counsel before an employee side class action lawyer finds one of your employees and sues you for treble damages and attorney’s fees.