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Some Holiday Gifts For All Employers From…. the NLRB and the DOL

by D. Gregory Valenza | |

The NLRB and U.S. Department of Labor are delivering some holiday cheer this year.

The DOL is revising not only the federal salary basis (scroll down to page 51306 of the PDF here), but also certain regulations governing the calculation of overtime for the non-exempt employees in your life. The idea is to make it easier to calculate the “regular rate of pay,” which is the basis for calculating the overtime rate.  You can read the new final overtime regulations, including the comments and the DOL explanations of the changes, as well as the revised regulations themselves, right here. Note that the overtime calculation regulations are important in California, because California law tends to follow them.

The National Labor Relations Board is primarily known for union-related issues. But the Board is issuing some seriously important decisions at the end of 2019 that affect non-union employers. So, pay attention.

First, in Caesars Entertainment, 368 No. 143 (opinion here) the Board, 3-1, decided that employers may bar employees from using company email for union organizing purposes. The Board overruled the 2014 decision in Purple Communications, 361 NLRB 1050 (2014), which granted employees access to companies’ email systems for non-business use. Read an NLRB summary here.   This is a very big deal for employers that used to have “no personal use” electronic information policies, and then changed them after the Purple Communications decision.  Note that the NLRB does not create an absolute bar to employees’ personal use of company email systems. Employers still will not be able to bar only union-related usage, and will have to carefully draft policies to comply with myriad other laws.  But the Board no longer creates a pro-union organizing “easement” for employees.

Second, the Board inApogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), (opinion here) decided that employers may require employees to maintain confidentiality during a workplace investigation into misconduct.  The Board overruled a 2015 decision— Banner Estrella Medical Center, 362 NLRB 1108 (2015), in which the Board had held that strict confidentiality rules could inhibit employees’ rights to discuss working conditions.

The Banner case, however, also potentially negatively impacted employers’ ability to conduct sensitive workplace investigations, because witnesses might taint each others’ recollection or influence each other by sharing information. Therefore, in light of Apogee Retail, confidentiality rules that apply during workplace investigations are presumptively lawful under the NLRA.  The Board also noted that confidentiality requirements lose some of their importance once an investigation concludes and, therefore, must be scrutinized more closely to evaluate their effect on protected rights under the NLRA.   The NLRB’s summary of the Apogee case is here.


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