This is an NPA Issue Alert. Although employers understandably have been focused on COVID-19 issues, as some states reopen and employees return to work, employers should review favorable rulings by the National Labor Relations Board (NLRB) at the end of last year. As you navigate human resources management in 2020, take note of four key NLRB decisions helpful to employers.
Misclassification of a Worker as an Independent Contractor: In Velox Express, Inc. it was held by the NLRB that an employer’s misclassification of a worker as an independent contractor instead of an employee does not by itself violate the National Labor Relations Act (the NLRA).
Restricting Use of Company Email Non-work/Non-business: In Caesars Entertainment, the Board reversed Obama-era precedent and held that an employer can restrict employee use of the company email system during nonworking time for nonbusiness purposes as long as it is done consistently for all nonbusiness purposes. This reestablishes an employer’s right to prohibit employees from using corporate email to engage in union organizing and other union activities, unless the employer’s email system is the only reasonable means for employees to communicate with one another, which is rare.
Changes to Collective Bargaining Agreements: In MV Transportation, Inc., the Board majority made it easier for employers to make unilateral changes under collective bargaining agreements. The NLRB decided to abandon the “clear and unmistakable waiver” standard and adopt the “contract coverage” standard.
Under this standard, the NLRB will examine the plain language of the collective bargaining agreement “to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally.”
As an example, the Board stated that “if an agreement contains a provision that broadly grants the employer the right to implement new rules and policies and to revise existing ones, the employer would not violate Section 8(a)(5) and (1) by unilaterally implementing new attendance or safety rules or by revising existing disciplinary or off-duty-access policies.”
Confidentiality During Workplace Investigations: In Apogee Retail, the Board reestablished that employers can again generally require confidentiality during ongoing workplace investigations, as long as they do not discourage employees from discussing their own actual or potential discipline or, if they are represented by a union, discussing it with their union representatives. After an investigation is completed, employers still need to demonstrate that confidentiality is necessary and not outweighed by the negative impact on employees’ NLRA rights to engage in protected concerted activities.
Suspending Deduction of Union Dues after CBA Expires
In Valley Hospital Medical Center Inc. the NLRB ruled that dues checkoff provisions requiring the automatic deduction of union dues from employee paychecks do not remain in effect after a collective bargaining agreement (CBA) expires.
NPA members can update their policies and procedures to benefit from these more
pro-business rulings. Prepared by NPA Legal Counsel Michael Stevens of Arent Fox LLP.