On June 26, 2015, the National Labor Relations (NLRB) Board issued two decisions which significantly impact the confidentiality of employer investigations into employee misconduct.

In the first case, Banner Health Systems, 362 NLRB No. 137, a 2-1 Board majority reaffirmed an  earlier decision which had been vacated by the D.C. Circuit Court of Appeals since the Board lacked a proper quorum based upon the Supreme Court’s Noel Canning decision.
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Amendments to the National Labor Relations Board’s (NLRB) election rules went into effect on April 14, 2015.  The new rules have already had a major impact on the timing of and procedures for union elections.

The history leading up to the adoption of these amendments was discussed in Schiff Hardin’s February 7, 2014 and December 15, 2014 Labor & Employment Alerts.  As noted in those alerts, the practical effect of these amendments will be to shorten the time between the filing of a petition for an election and the actual election, thus giving employers less time to communicate with their employees about issues relating to unionization.  As we predicted, the time between the filing of a petition and the actual election has decreased significantly.  According to statistics recently released by the NLRB, since the rules took effect, the average time between the petition and the election was about 23 days.  Prior to the new rules, the average time between petition and election was 38 days.  Thus, as a result of the new rules, the employer’s time to communicate with its employees prior to the election has been shortened, on average, by about 2 weeks.
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On June 30, 2014, the Supreme Court ruled unenforceable an Illinois “fair share” law that requires in-home health care service providers to pay union fees. Harris v. Quinn, 573 U.S. ____ (2014). The Court described the petitioners as “partial public employees,” and therefore, compelling them to pay fees to a union that they did not wish to join or support violated their First Amendment rights.
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The U.S. Supreme Court’s January 27, 2014 decision in Sandifer v. United States Steel Corp. brings clarity to a hotly contested area of law for unionized workplaces. Under the Fair Labor Standards Act (“FLSA”), employees are generally entitled to compensation for the time it takes them to don and doff-put on and take off-required protective gear at the beginning and end of each workday, provided that the gear is integral and indispensable to the employees’ principal work activities. At the same time, FLSA Section 203(o) provides that the time employees spend “changing clothes” at the beginning and end of each workday can be treated as non-work time, and therefore non-compensable, by way of express terms of, or by custom or practice under, a bona fide collective bargaining agreement. 29 U.S.C. § 203(o). In other words, the FLSA enables unionized employers to bargain collectively not to compensate employees for the on-site time they spend changing into and out of clothes. The issue before the Supreme Court in Sandifer was whether donning and doffing protective gear constitutes “changing clothes” for purposes of the application of Section 203(o).
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