New York Labor and Employment Law Report

On April 1, 2020, the Department of Labor (DOL) published the first regulations on the Families First Coronavirus Response Act (FFCRA). As a reminder, the FFRCA became effective on April 1 as well, and provides for Emergency Family and Medical Leave (EFMLA) and Emergency Paid Sick Leave (EPSL). Both laws apply to private employers with fewer than 500 employees, as well as some public employers. 

Read More >> Department of Labor Issues Temporary Regulations on the Families First Coronavirus Response Act

On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act)—a $2 trillion stimulus bill to respond to the coronavirus pandemic. The unemployment insurance portion of this act, known as the Relief for Workers Affected by Coronavirus Act, provides enhanced unemployment benefits including larger benefit amounts, availability for a longer period of time, and extended coverage for individuals who are not typically eligible for unemployment benefits, as outlined below.

Read More >> Unemployment Insurance Benefits Under the CARES Act

The Families First Coronavirus Response Act (FFCRA) provides paid sick leave and amends the Family and Medical Leave Act (FMLA) to include a new qualifying reason for leave related to COVID-19. However, the FFCRA permits employers to exempt “health care providers” and “emergency responders” from eligibility for these benefits.

Read More >> Federal Paid Sick Leave and Expansion of FMLA Benefits – Health Care Provider and Emergency Responder Exemptions

On September 10, 2019, the National Labor Relations Board issued a favorable decision that makes it easier for employers to demonstrate that a unilateral change in terms and conditions of employment was permitted by the collective bargaining agreement.  In M.V. Transportation, Inc., a three-member majority of the Board (over one dissent) abandoned its previous "clear and unmistakable waiver" standard and adopted the more lenient "contract coverage" standard.

Read More >> NLRB Adopts Employer-Friendly "Contract Coverage" Standard for Determining Whether Unilateral Changes Violate the NLRA

On August 12, 2019, the National Labor Relations Board (“NLRB” or the “Board”) published proposed rules with the goal of protecting “employees’ statutory right of free choice on questions concerning representation.”  The proposed rules would amend three Board policies and practices that are not currently set forth in its rules and regulations:  (1) the “blocking charge policy”; (2) the “voluntary recognition bar”; and (3) the standard of proof required to convert a Section 8(f) collective bargaining relationship into a Section 9(a) bargaining relationship in the construction industry.

Read More >> The NLRB Publishes Proposed Rules Amending Procedures in Representation Cases

Early in February 2017, a group of drivers at the Bronx Lobster Place, a wholesale seafood distributor, voted 14-12 in favor of union representation, with one challenged ballot.  Shortly after the election, the Lobster Place retained Louis P. DiLorenzo and Tyler Hendry in Bond's New York City office.  About one year later, after the National Labor Relations Board sustained the Lobster Place's objections to the conduct of the election, a rerun election was held.  This time, the drivers voted 22-3 against unionization.

Read More >> Late Start for Union Election Results in Rerun Election with Very Different Results

In December 2017, the National Labor Relations Board issued some significant decisions reversing precedent that had been established by the NLRB under the Obama administration, and took other significant actions that may help balance the scales that had been tilted heavily in favor of union interests over the past eight years.  Here is a quick summary of those decisions and actions.

Read More >> A Quick Summary of Recent NLRB Activity

Today, July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 to replace the prior form which it released back in late January  of this year. For now, employers will have a 60-day grace period, giving them the option to use the updated form (Rev. 07/17/17 N) or continue using the previous Form I-9 (Rev. 11/14/2016 N) until September 17, 2017. As of September 18, 2017, however, employers must use the updated form for the initial employment verification for all new hires, as well as any applicable employment re-verifications. All prior versions of the Form I-9 will no longer be valid. The new Form I-9 has an expiration date of August 31, 2019.

Initially, the planned revisions to the Form I-9 were primarily meant to address USCIS’ proposed International Entrepreneur Rule, which was originally set to go into effect on July 17, 2017. Under the proposed rule, a foreign passport and Form I-94 indicating entrepreneur parole would be considered acceptable documentation for a foreign entrepreneur to use for employment eligibility verification purposes.  However, with the Trump administration’s freeze on all new regulations, the effective date for the International Entrepreneur Rule has been pushed back until March 14, 2018. Despite the delayed effective date for the proposed rule, the USCIS has still implemented a number of revisions to the form.

The good news for employers is that the current changes are relatively minor and should not have a major impact on the hiring and employment verification process. A summary of the revisions to the new Form I-9 appears below.

Revisions to the Form I-9 instructions:

• The anti-discrimination and privacy act notices on the instructions are revised to change the name of the Office of Special Counsel for Immigration-related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section”.
• The phrase “the end of” is removed from the phrase “the first day of employment”.

Revisions related to the List of Acceptable Documents on Form I-9:

• The Consular Report of Birth Abroad (“Form FS-240”) has been added as a new “List C” document. Employers completing Form I-9 online are now able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users are also able to choose Form FS-240 when creating cases for employees who have presented this document for Form I-9.
• All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now combined into one selection within List C.
• As a result of the combination, all List C documents (with the exception of the Social Security card) are now renumbered.

According to a press release issued by the USCIS, in an attempt to make the revised Form I-9 more user friendly, all of the latest changes to the form will be included in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Although the changes to Form I-9 are minimal, with the new administration’s heightened immigration enforcement, employers should consider reviewing their I-9 procedures and records to ensure compliance with the Immigration Reform and Control Act (“IRCA”). If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Prior to Alan Ritchey, employers had been able to continue to impose discipline consistently with past practices while initial negotiations with a recently certified union were ongoing, and they were able to do so without providing notice and an opportunity to bargain.  Employers can no longer comfortably do so without risking a violation of the National Labor Relations Act.  Instead, employers who are engaged in negotiations with a recently certified union will need to provide the union with notice and an opportunity to bargain over any discipline that will materially alter an employee’s terms of employment (i.e., termination, suspension, demotion, etc.). However, the duty to bargain will not apply to discipline that does not materially alter the terms of employment (i.e., a verbal or written warning).  The obligation also does not apply if the employer and the recently certified union have separately agreed on a disciplinary process. Employers who are in the process of negotiating an initial collective bargaining agreement with a recently certified union should be mindful of this obligation going forward.

In Browning-Ferris Industries of California, Inc., the National Labor Relations Board (“NLRB” or “Board”), in a 3-2 decision, expanded who may be considered a joint employer under the National Labor Relations Act (“NLRA” or the “Act”).  The Board’s decision significantly lowers the threshold for joint employer status, making it more likely that entities such as staffing agencies, franchisors, and contractors will be considered joint employers under the Act. A joint employer finding is significant because this means that an entity may be subjected to joint bargaining obligations and potential joint liability for unfair labor practices or breaches of collective bargaining agreements. Joint Employer Analysis Before Browning-Ferris Prior to the Board’s decision in Browning-Ferris, the standard for establishing joint employment was that both entities in question had to share the ability to control or co-determine essential terms and conditions of employment.  Hiring, firing, supervising, and directing employees were generally considered to be the essential terms and conditions of employment.  Board decisions further clarified that the type of control over the essential terms must be direct and immediate, and the alleged employer must have actually exercised that control -- it was not enough that it may have reserved some level of control through a contract.  Rather, the control had to be exercised in practice. Joint Employer Analysis After Browning-Ferris The Board significantly modified this approach in Browning-Ferris.  The Board’s stated new test, which sounds similar to the old test in words, but not in application, is that:

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.

The application of this test is where the Board makes sweeping changes.  The Board will now evaluate the evidence to determine whether an alleged employer affects the means or manner of employees’ work and terms of employment, either directly or indirectly.  In other words, the control no longer needs to be direct or immediate.  Additionally, the Board found that it is not critical that the entity actually exercise such authority so long as it possesses or reserves the right to do so. The Board also expanded on those items found to be “essential terms and conditions” beyond just hiring, terminating, supervising, and directing employees.  The Board included such things as dictating the number of workers to be supplied, setting work hours, controlling seniority and approving overtime, and assigning work and determining the manner and method of work performance. In short, the new test makes widespread changes by finding indirect control significant in establishing an employment relationship, not requiring that such control actually be exercised, and including more terms and conditions of employment as relevant in this analysis that were previously not considered to be “essential.” Applying the New Test in Browning-Ferris The issue before the Board in Browning-Ferris was whether Browning-Ferris, which operated a recycling facility, was a joint employer with LeadPoint, a staffing company that supplied employees to perform various work functions at the facility.  Under the Board’s old test, it is almost certain there would have been no joint employer finding.  LeadPoint set its employees’ schedules, engaged its own human resources manager to work at the Browning-Ferris facility, and had the sole responsibility to discipline, review, evaluate, and terminate its own employees.  In addition, LeadPoint employed an Acting On-Site Manager, three shift supervisors, and seven line leads to manage and supervise LeadPoint employees working at the facility. Nonetheless, applying the new test, the Board found sufficient evidence of direct and indirect control (relying on control both exercised and reserved by contract) to support its joint employer finding.  The Board relied on the following facts in making its determination:  Browning-Ferris gave LeadPoint supervisors fairly detailed directives concerning employee performance that the LeadPoint supervisors then communicated to their employees; Browning-Ferris set some conditions on hiring that LeadPoint was contractually bound to follow (must have appropriate qualifications and meet or exceed Browning’s own standard selection procedures and tests); Browning-Ferris had the authority to discontinue the use of LeadPoint employees; Browning-Ferris determined when overtime was necessary; and Browning-Ferris' contract with Leadpoint prohibited LeadPoint from paying its employees more than Browning-Ferris paid its own employees who performed comparable work. Takeaways and Potential Implications The primary change resulting from Browning-Ferris is that indirect control over terms and conditions of employment may now be enough to create a joint employment relationship.  Unfortunately, the Board’s decision fails to provide any real clarity on just how much indirect control may be sufficient to create such a relationship.  The two dissenting members take issue with how broad the majority’s decision appears to be, stating that “the number of contractual relationships now potentially encompassed within the majority’s new standard appears to be virtually unlimited.”  The dissent then lists the following examples:

• Insurance companies that require employers to take certain actions with employees in order to comply with policy requirements for safety, security, health, etc.;
• Franchisors;
• Banks or other lenders whose financing terms may require certain performance measurements;
• Any company that negotiates specific quality or product requirements;
• Any company that grants access to its facilities for a contractor to perform services there, and then continuously regulates the contractor’s access to the property for the duration of the contract;
• Any company that is concerned about the quality of the contracted services; and
• Consumers or small businesses who dictate times, manner, and some methods of performance of contractors.

The dissent’s list showcases the potential reach of the Board’s new test and the potential to significantly alter the landscape of how employment is understood under the NLRA. While employers wait for the Board to issue more decisions further delineating the scope of this test, there are some practical steps employers can take.  Employers can revise their contracts to clarify that control over terms and conditions of employment rests with the contractor, use as little detail as possible in directing the work of the contractor, and stay out of all hiring, firing, and wage-related decisions.  Alternatively, some employers may choose to wait to make any changes until this decision is eventually challenged in federal court.  Employers should discuss with counsel how to best respond to this change. Ultimately, because of the wide array of factual arrangements involving contingent workers, franchisees, and independent contractors, and the reality of business relationships, there will certainly be some situations where letting go of some level of operational control is not a practical option.  This must be weighed against the risk of being found to be a joint employer, and carefully evaluated when entering into and reassessing all business relationships.

As we reported in an earlier blog post, the National Labor Relations Board issued the American Baptist Homes of the West (“Piedmont Gardens”) decision in December 2012, overturning more than 30 years of precedent shielding witness statements from disclosure.  In June 2014, however, the Supreme Court handed down the Noel Canning decision, in which it found that President Obama’s January 2012 Board appointments were invalid and thus the Board lacked the necessary quorum of three members to issue valid decisions from that date until August 2013 (when a full five-member Board was properly appointed).  As Piedmont Gardens was one of the Board decisions invalidated by the Noel Canning ruling, the Board issued an order setting aside the decision but retained the case on its docket. After reconsidering the case, the Board issued a decision on June 26, 2015, reaffirming its earlier decision.  In doing so, the Board overruled the blanket exemption -- first established by the Board’s 1978 Anheuser Busch decision -- that allowed employers to withhold witness statements in response to pre-arbitration requests for information.  Arguing that the Anheuser Busch rationale was “flawed,” the Board held that such statements are now subject to the same standard applicable to all other union requests for information:  an employer must furnish “relevant” information that is “necessary” to the union’s proper performance of its duties as collective bargaining representative. Under this new standard, an employer that seeks to withhold the production of witness statements on “confidentiality” grounds must first establish that:  (i) witnesses need protection; (ii) evidence is in danger of being destroyed; (iii) testimony is in danger of being fabricated; and (iv) there is a need to prevent a cover-up.  As the Board took pains to point out, “a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.” If the required confidentiality showing can be made, the Board would then weigh the employer’s interest in confidentiality against the union’s need for the information.  Even if the Board finds that the confidentiality interest outweighs the union’s need, the employer cannot simply refuse to provide the information but “must seek an accommodation that would allow the [union] to obtain the information it needs while protecting the [employer]’s interest in confidentiality.” This decision places yet another unnecessary burden upon employers.  The Board cites no evidence that the old standard hamstrung unions in performing their collective bargaining duties.  Under Anheuser Busch, unions were still entitled to witness names and could conduct their own investigations.  Now employers can offer no assurance of confidentiality to employees, who will likely be more hesitant than ever to provide truthful accounts against their union brethren for fear of reprisal. In the wake of this decision, employers should reassess their investigatory methods, including best practices for preserving confidentiality, and avoid blanket rejections of union requests for witness statements.

The General Counsel for the National Labor Relations Board (“NLRB”) recently published a guidance memorandum that provides specific examples of lawful and unlawful employee handbook rules in the areas of confidentiality, professionalism and employee conduct, use of company logos, copyrights and trademarks, conflicts of interest, photography and recording, and interaction with the media and other third parties.  The memorandum also includes General Counsel-approved handbook rules that were adopted as part of an unfair labor practice settlement with the fast-food chain, Wendy’s. Over the past few years, the NLRB and its General Counsel have aggressively scrutinized many frequently used employee handbook provisions.  The basis for this scrutiny is the alleged infringement of the right of employees to engage in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).  Section 7 activity includes the right to discuss, challenge, question, and advocate changes in wages, hours, and other terms and conditions of employment in both unionized and non-unionized work environments.  Of course, it also includes the right to engage in union organizing.  A majority of the current NLRB will deem an employee handbook provision to violate the NLRA if it specifically prohibits Section 7 activity or if “employees would reasonably construe” the rule as prohibiting such activity.  It is this “reasonably construe” language that has resulted in many common employee handbook provisions being declared unlawful by the majority of the current NLRB. While one could editorialize at length regarding the razor-thin distinctions drawn between the provisions found lawful and unlawful, the usefulness of the guidance for employers lies in its concrete examples, some of which are highlighted below. Confidentiality Rules A confidentiality policy will be deemed by the current NLRB to violate the NLRA if it specifically prohibits employee discussions regarding terms and conditions of employment, such as wages or workplace conditions, or if employees would reasonably construe the policy to prohibit such discussions. Unlawful

• Do not discuss customer or employee information outside of work, including phone numbers and addresses.
• Never publish or disclose the employer’s or another’s confidential or other proprietary information.  Never publish or report on conversations that are meant to be private or internal to the employer.

Lawful

• No unauthorized disclosure of business secrets or other confidential information.
• Do not disclose confidential financial data, or other non-public proprietary company information.  Do not share confidential information regarding business partners, vendors, or customers.

Employee Conduct/Professionalism Rules The memorandum reinforces that employees have the right to criticize their employer’s policies and actions toward its employees, and therefore, any policies prohibiting disrespectful, inappropriate, or rude conduct toward the employer have been deemed unlawfully overbroad.  In contrast, rules requiring employees to be respectful to co-workers, clients, and customers have generally been found to be lawful. Unlawful

• Be respectful of the company, other employees, customers, partners, and competitors.
• No defamatory, libelous, slanderous, or discriminatory comments about the company, its customers and/or competitors, its employees, or management.

Lawful

• No rudeness or unprofessional behavior toward a customer or anyone in contact with the company.
• Being insubordinate, threatening, intimidating, disrespectful, or assaulting a manager/supervisor, co-worker, customer, or vendor will result in discipline.

Use of Company Logos, Copyrights, and Trademarks The NLRB has found that a broad ban on use of an employer’s name, logo, or other trademark is unlawful because it may restrict the use of the company name and logo on picket signs, leaflets, and other protest material. Unlawful

• Do not use any company logos, trademarks, graphics, or advertising materials in social media.

Lawful

• Respect all copyright and other intellectual property laws.  For the employer’s protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks, and other intellectual property, including the employer’s own copyrights, trademarks, and brands.

The release of this guidance suggests the NLRB will continue to aggressively enforce and scrutinize the employment policies of union and non-union employers.  An unlawful policy is itself a violation of the NLRA, and if an employee is disciplined or terminated for violating an unlawful policy, the discipline could be rescinded and the employer could be ordered to restore the employee to his/her position with back pay. As seen in the examples above, tweaking one or two words or adding additional context and clarification to what would be an otherwise overbroad policy can mean the difference between an unlawful or lawful policy.  Employers should, therefore, use this memorandum as a guide in reviewing and revising their handbooks and other employee rules.