Michigan Labor & Employment Law Blog
In an effort to guard against workplace meetings or discussions being recorded and uploaded to social media for all to hear, and to protect employees against surreptitious recording of their conversations, many employers have implemented "no recording" policies. One such employer was Whole Foods Markets, which had two no-recording policies in place.
In a growing trend nationwide, owners of companies whose employees die in the workplace from workplace related accidents are increasingly looking at jail time, not just high OSHA or state OSHA penalties.
It is not typical that a single racial epithet used by a supervisor toward a worker is enough to establish a hostile work environment under federal labor law; however, the (liberal) U.S. Court of Appeals for the Second Circuit recently disagreed.
In what will seem to be a shock to anybody reading this blog, because it is, unions won 72 percent of every National Labor Relations Board election held against a non-union employer in 2016. This is the highest rate in history. In fact, in bargaining units with a smaller number of employees, i.e. employees less than 50 in number, the unions won 74 percent of all their elections. While unions have won more than 60 percent of all NLRB elections in the last 12 years, this is a real stunner.
In the first of its kind, members of an international construction union voted to make drastic cuts in their already earned pensions. Members of Local Ironworkers 17 in Cleveland, Ohio approved serious cuts in January of this year to their pension plan. It was the first time ever the employees of a multi-employer pension fund had ever conducted such a vote, let alone voted to cut their own benefits. There are over 2,000 plan participants and while less than half actually voted, two-thirds of the votes did vote in favor of the cuts.
Many business people in the State of Michigan (which is a “state plan vs. federal plan state”) routinely consider a citation from MIOSHA to be a mere nuisance and no more intimidating than a slap on a wrist or a parking ticket. Nothing could be further from the truth. We have had companies cited for workplace fatalities where the Presidents of the companies were actually tried on manslaughter charges. There will be an increased federal push to go after corporate executives in serious workplace fatality injury cases from now on. Being cited for a willful or repeated violation is not at all uncommon. There is a very low standard for being charged with “willful”, i.e. you merely had to know that what you were doing was probably wrong to be charged with a willful violation. Currently the minimum payment penalty for a willful violation is $5,000. It will shortly jump to $8,908, almost a 53 percent increase. Similarly, the maximum penalty for a willful will jump from $70,000 per violation to $124,709 per violation. That should be enough to get any CEO or CFO’s attention. On top of that, it is not unusual for MIOSHA to itemize citations or violations such that if there were three injuries caused by the same situation, they could be cited as three separate $124,000 violations.
A Federal court in Texas issued a temporary injunction yesterday against the new Department of Labor (“DOL”) overtime regulations that were set to go into effect December 1st.
The injunction follows court arguments heard on November 16th in a lawsuit brought by 21 states alleging the new DOL’s rules exceeds the DOL’s authority and violated administrative law requirements. The new regulations propose to raise the salary threshold for exempt employees from $23,660 to $47,476 and provide for an automatic increase to the threshold every three years.
In a recent case before the National Labor Relations Board where a union organizing drive was agreed to via a formal Election Agreement, the employer lost the organizing election by a vote of 17 to 14.
In a stunning decision, a Federal Court denied overtime claims of a salaried union organizer for the Laborers Union in New York City.
The organizer normally would spend his time trying to persuade non-union employees to sign union cards to organize their employer. Part of his duty was running picket lines. And typical with any picket line over the last 20 years, there was an inflatable rat on the picket line maybe 15 to 20 feet tall. This gentleman, Mr. Krupinski, argued that any time he spent setting up, operating or disassembling inflatable rats involved manual labor and therefore was above and beyond his normal exempt status as a paid organizer. The Court threw this out quickly concluding that even though he might have done some manual labor, it did not per se defeat his normal “exempt” status. The Court concluded actually, that by his “interfacing with non-union workers, he engaged in a form of marketing and public outreach, which disqualified him from overtime eligibility."
In a consistent pattern of protecting employees' right to speak out on Facebook without consequence, usually against the players, the NLRB in a recent case against Laborers' Union Local 91, held that a union member who went on Facebook to complain about a political endorsement by the union as well as a change in apprenticeship policies was totally protected by the National Labor Relations Act Section 7. Moreover, in that case, after the employee's ranting on Facebook, he was brought up on charges by the head of the union as well as removed from the union's "out of work list" thereby precluding him from getting work. While eventually the International Union ordered the local union to take back its punishment, the NLRB still got involved and ruled that a Facebook posting chiding union's leadership was "protected concerted activity" under the NLRB Act, and the angry union member had a right to make common cause on behalf of his fellow union members.
Finally, a pro-employee decision from the NLRB which slams the union for a change.
