Monday, March 27, 2017

Ohio Senate Bill Proposes New Protections for Retail & Fast Food Workers

*By Scott H. DeHart

On March 15, 2017, State Senator Michael Skindell (D-Lakewood) introduced Senate Bill 101, the “Retail and Restaurant Employee Rights Act.” The Bill is intended to address hiring and scheduling practices of large retailers and fast-food restaurant franchises that employ part-time workers at relatively low wages, which results in many workers holding multiple jobs. The Bill takes aim at "just in-time" scheduling practices that are perceived to make it difficult for employees to hold second jobs or handle personal needs such as caring for family members.

Senate Bill 101 outlines a series of hiring, scheduling, and other provisions that employers must follow in order to make work schedules fair and predictable for their employees.

  • Under the proposed law, employers would be required to offer additional work to any “available” existing workers before hiring or leasing new employees. “Available” workers include those who are scheduled for less than 35 hours per week and are qualified to perform that work.
  • Employers would also be required to post their employees’ schedules publicly at least 14 days in advance, including both regular and on-call shifts.
  • If an employer cancels a worker’s shift with less than 14 days’ notice, the employee must still be paid some compensation that will vary with the length of notice given. In addition, the legislation outlines pay for on-call shifts.
  • The legislation also includes provisions requiring part-time and full-time employees to be treated similarly regarding hourly wages, employee benefits including healthcare, access to time off, and eligibility for promotions.
  • Successor employers would also be subject to certain requirements to retain existing workers after a transition in ownership.

In a press release about the Bill, Senator Skindell explained that “[t]he proposed legislation would provide hours and retention protections for fair and predictable scheduling and treatment of part-time employees of some chain stores and fast food restaurants. It is imperative that we work toward increasing economic security and providing strong worker protections at the state level.” If enacted, the Ohio Department of Commerce would be responsible for the enforcement of the Bill’s requirements. Remedies for an employer’s violation of the proposed law would include requiring employers to offer additional work, reinstate employees, pay lost wages and penalties, and pay for enforcement costs and attorney’s fees.

Senate Bill 101 has the potential to dramatically increase the legal compliance burdens of retail and fast-food businesses operating in Ohio. Zashin & Rich, Co. L.P.A. will continue to monitor new developments as SB 101 proceeds through the legislative process in the General Assembly.

*Scott H. DeHart is the newest member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding this proposed legislation, contact Scott at shd@zrlaw.com or 614-224-4411.

Friday, January 20, 2017

U.S. Citizenship and Immigration Services Give Form I-9 a “Smart” Makeover

By Scott H. DeHart*

One of the most widely-recognized “new hire” employee forms in the United States has received a twenty-first century makeover. Beginning January 22, 2017, employers must complete a new Form I-9, Employment Eligibility Verification, for all new hires in the United States.

Employers have had to complete Form I-9s since November 1986, when Congress passed the Immigration Reform and Control Act (“IRCA”). The IRCA prohibits employers from hiring workers, including U.S. citizens, for employment in the U.S. without verifying their identity and employment authorization using Form I-9.

The new Form I-9, dated November 14, 2016, includes a number of changes designed to make the form easier for employers to complete. Those changes include the following new “smart” features (i.e., enhancements for completing the form on a computer) and modifications to the form’s content:

Smart Features
  • Drop-down menus, lists, and calendars;
  • Hover text for on-screen instructions;
  • Real-time prompts to notify users that a required field has been left blank or not completed correctly;
  • Automatically marking fields as “Not Applicable,” based on the employee’s selected citizenship or immigration status; and
  • Automatically creating a quick response (QR) code when the form is printed.

Content Changes
  • Instructions for completing Form I-9 moved to a separate document;
  • The “Other Names Used” field replaced with “Other Last Names Used” field;
  • A supplemental page added to designate preparers/translators who assist in completing the form; and
  • A dedicated area for including additional information.

Employers can download a PDF version of the new Form I-9 at the website for U.S. Citizenship and Immigration Services (“USCIS”), along with instructions about how to complete the form: https://www.uscis.gov/i-9. USCIS designed the new Form I-9 so that it could be completed using a computer and then printed for signing. Employers may also print and complete an alternate version of the form (without any smart features and fillable fields) by hand.

Beginning January 22, 2017, companies must begin using the new Form I-9. Employers should review and monitor their hiring processes, and consult with their legal counsel for assistance as needed to ensure that they are using the Form I-9 correctly.

*Scott H. DeHart is the newest member of the firm’s Labor and Employment Groups and practices out of the firm’s Columbus, Ohio office. If you have questions regarding your company’s transition to the new Form I-9, contact Scott at shd@zrlaw.com or 614-224-4411.

Thursday, January 12, 2017

Park Your Ride and Your Piece: New Employer Limits on Workplace Weapons Bans in Ohio

*By Helena Oroz

Many employers allow employees to bring some of the comforts of home to work: lunch, music, personal décor, even their pets. Generally speaking, the list doesn’t include firearms, though – in fact, many employers have strict “no weapons” rules on their property, including their parking lots. But what if an employee doesn’t want to part with his or her gun during the workday?

Until recently, Ohio was not among those states with so-called “parking lot laws” on the books: laws that limit or even prohibit employer restrictions on employee storage of firearms and/or ammunition in private vehicles parked on employer property. Private employers were free to establish blanket weapon prohibitions on their property, even as concerned individuals with concealed handgun permits.

As of March 20, 2017, Ohio employers are no longer so free – at least with respect to their parking lots. Ohio Governor John Kasich signed Senate Bill 199 into law on December 19, 2016. Among other things, Senate Bill 199 creates Ohio Revised Code section 2923.10, Ohio’s new parking lot law. The law forbids business entities, including public and private employers, from maintaining or enforcing a rule that prohibits a concealed handgun licensee from transporting or storing a firearm or ammunition in their vehicle, if two conditions are met.

  • First, the firearm/ammunition must remain inside the person’s vehicle while the person is physically present inside the vehicle; or the firearm/ammunition must be locked within the trunk, glove box, or other enclosed compartment within the vehicle.
  • Second, the vehicle must be in an authorized location.

The new law takes effect March 20, 2017.

Takeaways:


  • Ohio’s new law does not create a “take your gun to work day” every day. Employers are still free to prohibit firearms in their buildings, in company-owned vehicles, and basically everywhere other than in employee-owned vehicles permissibly parked in employer-owned parking lots.
  • The law concerns itself only with restrictions on those holding valid concealed handgun licenses, not illegal gun-toters and the like. (Side note: Senate Bill 199 also amends existing Ohio law to specify that an active duty member of the U.S. Armed Forces does not need a concealed handgun license – and, therefore, would seemingly not qualify as an illegal gun-toter – if the member is carrying valid military identification and documentation of successful completion of specified firearms training.)
  • The new parking lot law does not refer to or amend existing Ohio law regarding posting: private property owners may post signage in a conspicuous location on premises prohibiting persons from carrying firearms or concealed firearms onto those premises. Given the new law’s prohibitions, however, any existing signage should be reviewed to ensure compliance.
  • If your Employee Handbook or Workplace Violence policy includes a blanket prohibition on firearms on employer property, including parking lots, revise your policy to ensure compliance with the new law.

If you have questions about Ohio’s new parking lot law, please contact Helena Oroz (hot@zrlaw.com or 216/696-4441).

Thursday, December 22, 2016

Cleveland Minimum Wage Increase Ballot Initiative Thwarted

*By Andrew Cleves

On December 19, 2016, Governor John Kasich signed Senate Bill 331 into law, which prohibits local governments from setting a minimum wage rate higher than the state rate. In effect, this law nullifies the upcoming Cleveland minimum wage increase ballot initiative. Cleveland voters are set to vote on a minimum wage increase on May 2, 2017. Under that proposal, the minimum wage rate in Cleveland would increase from $8.10 per hour to $12.00 per hour in January 2018. Then, the rate would increase another $1 per hour for three years, until it reached $15.00 per hour. Therefore, at least for now, this legislation likely ends attempts to raise the minimum wage rate in Cleveland.

*Andrew Cleves practices in all areas of employment and labor law. If you have questions about Senate Bill 331, Cleveland’s minimum wage increase ballot initiative, or Ohio’s wage and hour laws, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.

Wednesday, November 23, 2016

Texas Court Strikes Again – Halts the Implementation of the DOL’s Revised Overtime Regulations

By Michele L. Jakubs*

On November 22, 2016, the Court in State of Nevada, et al. v. U.S. Dept. of Labor, granted a nationwide preliminary injunction halting implementation of the Department of Labor’s rule increasing the minimum salary threshold required to qualify for the Fair Labor Standards Act’s “white collar” overtime exemptions. The rule was set to take effect on December 1, 2016 and would have increased the minimum salary threshold from $23,660 per year to $47,476 per year. For the time being, the salary threshold for the “white collar” exemptions remains $23,660 per year ($455 per week).

As the Court’s ruling is only a preliminary injunction, subject to future modification, we will continue to monitor this case as it proceeds forward and will advise of any additional rulings.

*Michele L. Jakubs, an OSBA Certified Specialist in Labor and Employment Law, has extensive experience defending employers in FLSA actions and is well versed in the nuances of the law. If you have questions about the DOL’s final rule or the FLSA more generally, please contact Michele (mlj@zrlaw.com) at 216.696.4441.

Thursday, November 17, 2016

TRUMPED: Texas Federal Court Permanently Enjoins the DOL’s “Persuader Rule” – Will the DOL Changes to the FLSA Exemptions Thresholds Face the Same Fate?

By Patrick J. Hoban*

Yesterday, the Federal District Court for the Northern District of Texas made permanent the preliminary injunction it issued earlier this year to prevent the U.S. Department of Labor (“DOL”) from enforcing its controversial “persuader” rule (“Persuader Rule”). Judge Sam R. Cummings announced the decision on Wednesday in a concise two-page opinion, in which he concluded that the Persuader Rule violated the federal Administrative Procedure Act, 5 U.S.C. § 706 (“APA”) and is unenforceable. The case, National Federation of Independent Businesses v. Perez, No. 5:16-cv-00066-C (N.D. Texas, November 16, 2016), effectively converts the preliminary injunction granted by the same court on June 27, 2016 into a permanent injunction with nationwide effect.

The Persuader Rule, which took effect on April 25, 2016, dramatically expanded the reporting requirements imposed on employers and their labor relations consultants under the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”). Under the LMRDA, employers and their labor relations consultants are required to disclose agreements to engage in activities to persuade employees regarding their rights to unionize and collectively bargain. These onerous disclosure reports required that employers, attorneys and consultants provide details about the nature and cost of the services consultants provide. Although the reporting requirements were subject to certain exemptions, including an exemption related to the provision of “advice,” the DOL’s guidance on the Persuader Rule made clear that it would decide what services qualified as advice on a case-by-case basis.

Historically, the DOL has interpreted the “advice” exemption to exclude from the reporting requirements an employer’s engagement of consultants, including attorneys, to assist in responding to a unionizing campaign, where: (1) the consultant or attorney had no direct contact with the employees; and (2) the employer retained discretion to reject the recommendations of the consultant or attorney. The DOL’s new Persuader Rule upended this long-standing interpretation by requiring employers and labor relations consultants to report their agreements even in the absence of direct contact between the consultants and the employees.

U.S. Secretary of Labor Thomas E. Perez defended the Persuader Rule from withering criticism, describing the changes as a “matter of basic fairness” to ensure that workers have “the information they need to make informed choices about how they pursue their rights to organize and bargain collectively.” Employers, labor relations consultants, and attorneys opposed the changes. Of particular concern was the extent to which the Persuader Rule would have compelled employers and law firms to disclose information protected by the attorney-client privilege. Absent the Court’s June injunction, enforcement of the Persuader Rule and its new reporting requirements would have begun on July 1, 2016.

Yesterday, Judge Cummings granted summary judgment to those challenging the Persuader Rule and reiterated his previous conclusions that it was “defective to its core,” “arbitrary and capricious,” “violated free speech and association rights,” and was “unconstitutionally vague.” Additionally, Judge Cummings affirmed that the Persuader Rule violated the Administrative Procedures Act and that the DOL did not have authority to issue it. On these grounds, the Court issued a nationwide permanent injunction prohibiting enforcement of the Persuader Rule.

The DOL previously appealed Judge Cumming’s decision granting the preliminary injunction of its Persuader Rule to the U.S. Fifth Circuit Court of Appeals, but that appeal was rendered moot by Wednesday’s summary judgment ruling. However, in June 2016, a federal district court in Minnesota refused to enjoin the Persuader rule.

The Persuader Rule is one among several hotly-contested Obama administration changes to employment and labor relations law. Those changes have caused significant disruption and include the National Labor Relations Board (“NLRB”)’s “ambush” election rules, the NLRB’s Specialty Healthcare decision that opened the floodgates for “micro” union organizing, and the DOL’s changes to the salary threshold for exempt status under the Fair Labor Standards Act (“FLSA”) (which likely takes effect on December 1, 2016).

Like the Persuader Rule, the DOL changes to FLSA exemptions were also challenged in federal court in Texas by twenty-one states and multiple business entities – including challenges under the Administrative Procedures Act. Although the new FLSA exemptions rule takes effect on December 1, the judge in that case announced yesterday that on November 22 he will issue a decision on whether DOL will be prohibited from enforcing the new rule. As a result, we will soon see if the Eastern District of Texas reaches the same conclusion with regard to the changes to the FLSA exemptions as Judge Cummings did for the Persuader Rule.

Yesterday’s decision is subject to appeal. However, as President-Elect Donald Trump will take office in January, there is reason to believe the Trump DOL will not seek review. The Court’s ruling on the Persuader Rule provides employers with relief from reporting requirements and potential liability. As we look to the future, it is anticipated that Trump administration appointments at DOL and the NLRB may offer employers a more level playing field.

*Patrick Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the DOL’s persuader rule or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.

Friday, November 11, 2016

Specialty Healthcare Five Years Later – Despite Assurances to the Contrary, Micro-Union Organizing Proliferates

By Andrew J. Cleves*

Five years ago, the National Labor Relations Board (“NLRB”) altered the union organizing landscape by changing its analysis of union-proposed bargaining units. In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”), the NLRB established a new standard for determining whether unions may propose a unit comprised of only a small group of employees (a “micro-unit”) over an employer’s objection.

Under the Specialty Healthcare standard, a union-proposed bargaining unit is presumptively appropriate and employers must prove that the excluded employees share an “overwhelming community of interest” with the employees included in the union-proposed unit.

Justifiably, the NLRB’s Specialty Healthcare decision concerned employers. It allows unions to cherry pick “micro” bargaining units comprised almost exclusively of union-supportive employees. This offers unions a strategic foothold even in businesses where a majority of workers do not support unionization. Furthermore, the NLRB’s new requirement for an “overwhelming community of interest” makes it more difficult for employers to effectively challenge a union-proposed unit.

Anticipating criticism, the NLRB went to great lengths to assure employers of Specialty Healthcare’s limited change and impact when it announced the decision. The NLRB claimed that it merely “clarified” the criteria used in instances “where a party argues that a proposed bargaining unit is inappropriate.” The NLRB also insisted the Specialty Healthcare decision “did not create new criteria for determining appropriate bargaining units outside of healthcare facilities.”

However, those assurances have rung hollow as employers across numerous industries have experienced an uptick in union organizing activities targeted at small fragments of their workforces. As the U.S. Chamber of Commerce highlighted in its Trouble With The Truth: Specialty Healthcare and the Spread of Micro-Union Report, released on October 31, 2016, the following industries have felt the sting of the NLRB’s approval of “micro” bargaining units:

  • General Aviation Service: The proposed unit included only 34 “line service” employees in a general aviation service business with 110 employees overall.
  • Telecommunications: The petitioned-for bargaining unit included 16 T-Mobile field and switch technicians who worked in Long Island, NY but excluded employees who worked in New York City’s boroughs and both Long Island counties.
  • Rental Car Facility: All 109 employees did not share an overwhelming community of interest with 31 rental service agents and lead rental service agents.
  • Retail Department Store: In a Macy’s department store of 150 employees, including 120 sales associates, the approved bargaining unit included only 41 cosmetics and fragrance sales representatives.
  • Fast-Casual Dining: The NLRB approved a bargaining unit which included 17 out of 43 bakers working at six out of 17 Panera Bread cafés.
  • Automobile Manufacturing: The NLRB approved a micro-unit of 152 maintenance workers at a Volkswagen plant despite the fact that the union disregarded the company’s shop structure and essentially “invented” a new maintenance department.

Employers are likely to face the reverberating effects of Specialty Healthcare for years to come. To date, federal courts of appeals have upheld Specialty Healthcare’s “overwhelming community of interest” test and legislative proposals to overturn the decision have proven unsuccessful.

Furthermore, recent NLRB changes have compounded the effects of Specialty Healthcare and more changes may be on the horizon. As Zashin & Rich reported in March 2015, the NLRB’s “ambush” election rules have made it significantly more difficult for employers to run an effective campaign against unionization. In addition, the NLRB may address the following topics before the end of the current presidential administration: regulatory actions related to joint-employment; “captive audience” meetings; and the definition of independent contractors, further hampering employer’s efforts to remain union-free.

Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to any sign of a union organizing effort. Additionally, upon receiving notice that a union has filed a representation petition, no matter how small or fragmented the proposed unit may be, employers should immediately contact counsel to manage the risk of a union gaining a foothold among their workforce.

*Andrew J. Cleves practices in all areas of labor and employment law. For more information about “micro” bargaining unit organizing, the NLRB, or its regulatory decisions, please contact Andrew (ajc@zrlaw.com) at 216.696.4441.