Archbright™ Insights January 2015


Unionization has just gotten easier. The National Labor Relations Board (NLRB) recently adopted a “Final Rule” on “Representation-Case Procedures,” set to go in e>ect on April 14, 2015, which contains a number of rule changes designed to expedite the union election process. In enacting what has been referred to as “Ambush” or “Quickie” election rules, the NLRB greatly enhanced the prospect of unionization, particularly for unwary employers, who do not act quickly after an election petition has been filed. Expedited procedures worth highlighting, include: 1. Advancing the pre-election hearing – where, among other things, issues over the scope of and appropriateness of the NLRB Announces Rules Expediting Union Elections proposed bargaining unit are decided – up to eight days after a notice of hearing is served. 2. Requiring the employer to prepare and file a comprehensive position statement, a day before the hearing, identifying all the issues it wants to litigate before the election. 3. Accelerating the eventual election to be held the “earliest date practicable.” 4. Expediting the employer’s requirement to provide the union with its list of employees eligible to vote in the election and expanding the employee information required to include, among other things, the employees’ personal phone numbers and personal email known to the employer. The new rule’s end results will be union elections that happen MUCH faster (in as little as 2-3 weeks, rather than the typical 8-week period), giving employers less opportunity to educate their employees about unionization, while providing unions with more tools to quickly access employees to convey their message. Employers seeking to avoid union representation should therefore not wait until an election petition is filed before it educates its employees on the advantages of remaining union-free. Now more than ever, an employer that learns of potential union organizing e>orts even before an election petition should immediately contact counsel to develop a strategy for how to timely and appropriately respond, given these expedited procedures. Employers should devote time to train management and supervisors to spot early signs of union organizing. Source: Archbright™ HR Advice & Counsel

Time spent in security checks not compensable, unanimous Supreme Court holds HR Advice and Counsel warehouse workers who must undergo antitheft security screening before leaving the warehouse each day are not entitled to pay for the time spent waiting to undergo those security checks, or actually undergoing them, a unanimous Supreme Court has ruled. Reversing a Ninth Circuit decision to the contrary—which had erred by focusing on the fact that the employer had required the activity—the High Court held the security screenings at issue here are noncompensable postliminary activities under the Portal-to-Portal Act and thus not compensable under the FLSA (Integrity Stajng Solutions, Inc v. Busk, subcontractor filed a putative class action alleging their employer violated the FLSA and state law by failing to pay them for the 25 minutes or so each day they spent both waiting to undergo security screenings and then actually undergoing the screenings. Contending that this time was solely for the benefit of the employer, in that its goal was employee theft deterrence, the employees urged that the time was compensable. principal activities, and thus they were noncompensable postliminary activities. Reversing, the Ninth Circuit held the time was compensable. It reasoned that the screenings were “necessary” to the employees’ primary work and were carried out for the benefit of the employer. The Solicitor General, weighing in on this case, had agreed, adopting the DOL’s position as first set forth in a 1951 opinion letter. There, the DOL made no distinction between employee searches December 9, 2014, Thomas, C.). Two Nevada warehouse workers employed by an The district court held the post- shift screenings were not integral and indispensable to the workers’

done for the safety of the employees themselves and those carried out for the purpose of theft prevention. In either case, the security checks were not compensable under the Portal-to- Portal Act. “Required” is not the test. The Ninth Circuit had gone wrong by focusing on the fact that the security screenings were mandatory, the Supreme Court explained. What matters with the “integral and indispensable” test is not whether the activity is required, but whether it is “tied to the productive work that the employee is employed to perform.” If the fact that the activity was mandatory were enough to satisfy the text, the Court reasoned, “it would sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address,” adding too that “[a] test that turns on whether the activity is for the benefit of the employer is similarly overbroad.” It could have been de minimis. The warehouse workers had argued that their employer could have easily reduced the time that they had to spend waiting to undergo the security screenings by adding more security screeners, or staggering their shifts so that they weren’t all stuck waiting to be screened at the same time. But the fact that the employer could have reduced their waiting time to a de minimis amount held little sway with the Court. “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform,” it wrote. That was an argument to be made to the employer at the bargaining table— not to a court by way of an FLSA claim. Source: Lisa Milam-Perez, J.D.

Washington State continues to have the highest state minimum wage. E>ective January 1, Washington’s minimum wage increased to $9.47 per hour. Oregon is a close second at $9.25 per hour. Reminder: MinimumWage Increased January 1


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