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Lawyer to Lawyer Newsletter
March 2016
Dedicated to providing fellow lawyers, as well as accountants and other business advisers, with the latest news on the developing law of the workplace, written by nationally recognized lawyers who are committed to representing employers exclusively in matters of labor, employment, immigration and human resources law.
From the Desk of James B. Sherman, President/CEO:
Court of Appeals Upholds NLRB Decision Backing Employee Posters Aimed at Damaging their Employer's Business During Union Organizing
The Eighth Circuit Court of Appeals has upheld a determination by the National Labor Relations Board which held that a Minnesota Jimmy John's franchise violated federal labor law during a union attempt to organize its employees.  What did the employer do to get in such trouble with the NLRB, you ask?  MikLin Enterprises Inc., the franchisee, was found guilty of removing posters placed near its restaurant entrances by certain pro-union employees and terminating the employees responsible for the postings.  Why would an employer get so upset about a poster, you ask?  The posters in this case complained that employees were not paid sick leave and, therefore, implied that Jimmy John's sandwiches were being prepared by sick employees who might get customers sick.  
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NLRB Judge Rules that Employer Violated Federal Labor Law by Firing Employee for Profanity-Laced Derogatory Comment about a Customer
Employers are likely to put this recent decision in the ever growing category of unthinkable rulings coming from the National Labor Relations Board (NLRB) these days.  An employee of Quicken Loans commented to a co-worker during a conversation that took place in a restroom, that a customer needed to "call a client care specialist and stop wasting my [f-ing] time." When a manager later learned of this, the employee believed to have made the comment was summarily discharged.  Management declared that the offending employee was terminated to uphold a company culture where all employees are expected at all times to display the utmost degree of professionalism and integrity.  However, as is becoming more and more common these days, even for those who are not represented by a union, the employee went to the NLRB to file an "unfair labor practice," or ULP charge. 
8th Circuit Court of Appeals Approves of NLRB's Micro Unit Analysis
In  FedEx Freight v. NLRB , the 8th  Circuit Court of Appeals (which covers Minnesota, Iowa, and a handful of other nearby states) weighed in for the first time and determined that the analysis under the NLRB's controversial 2011 Specialty Healthcare  decision is acceptable under the National Labor Relations Act.   Under this analysis, unions have the ability to organize small "micro units," rather than larger bargaining units encompassing all or a large portion of an employer's workforce.  For example, if the unit meets the test in the  Specialty Healthcare  decision, a union could organize a small unit of 6 out of an employer's 106 employees - or multiple unions could each organize units of 6 employees each, and cause the employer to bargain individually with each bargaining unit!  Unions like these micro units because they are often easier to organize, and provide a way to divide and conquer a larger workforce, while employers are more likely to prefer to deal with an entire workforce as a whole or, a large segment thereof. 
Recently, the U.S. Court of Appeals in Chicago enforced a decision by the National Labor Relations Board (NLRB) which had found AutoNation, Inc. unlawfully laid off some of its unionized technicians in Florida.  What made the company's actions unlawful (besides the fact that the employees had recently joined a union) was that the layoffs were done without first bargaining with the employees' union. The company claimed that dire economic circumstances during the Great Recession, made the layoffs inevitable and, thus, negotiating with the union would have been a waste of time.  The NLRB disagreed, finding that AutoNation was required to negotiate with the International Association of Machinists (IAM) before it could lay off any employees. Because the layoffs were found to be unlawful and the court has now enforced the Board's findings, the next step will be for the NLRB to fashion a standard "make whole" remedy for the laid off workers. Ultimately, back pay for the employees may be huge since the case is many years old due to the fact that prior rulings of the NLRB were invalidated as a result of the Supreme Court's ruling in Noel Canning, which found that President Obama's interim appointments were unlawful.
Minnesota Employee Handbook Updates for 2016
An employee handbook needs to be a living document that is continually reviewed and updated to reflect the rapidly changing state, federal and local laws, as well as changes that new technology brings to the way workplaces operate.  There are many reasons you may wish to revise your handbooks if you have not done so within the past few years, including new laws that require specific handbook provisions, new or revised clauses that may be advisable due to new laws or agency actions, or increased agency scrutiny of certain types of clauses.

The following is a discussion of several types of clauses that should be reviewed for one or more of these reasons.
Attorney James Sherman Presented in March to the Twin Cities Hospitality Association on a Variety of Recent and Ongoing Developments in Labor, Employment and Other Workplace Laws 
 
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Firm President/CEO, James Sherman, gave a presentation this month to the Human Resources Professional of the Twin Cities Hospitality Association (TCHA) on significant legal trends and developments in 2016.  Of particular interest to attending employer representatives from the Twin Cities hospitality industry, were:

1.  Labor issues and NLRB developments;
2.  Religious accommodations for diverse workforces; and
3.  The DOL's anticipated final rule on exempt salaries affecting overtime pay for millions.
 
"By far, the greatest concerns expressed by the audience of human resources professionals from area hotels, restaurants, and other employers in the hospitality industry, involved the DOL overtime rule changes," said Mr. Sherman after his presentation. These employers face having a substantial percentage of their workers essentially "reclassified" from exempt, to non-exempt workers by a stroke of a pen.  
 
Complying with state and federal laws mandating accommodations to the religions of the diverse workforce that exists in the hospitality industry, also drew a great deal of attention from the audience. Mr. Sherman noted: "Employers have a tough time dealing with multiple requests for time off, prayer breaks and refusals to perform certain tasks based on differing employee religious observations.  Balancing religious needs with the business needs of the employer, can be very difficult.  The main thing employers must do is to interact with employees on an individualized basis when it comes to religion (e.g. not all Christians, Muslims, Jews observe their religions in exactly the same way, nor does the law require that they do so).  It is hard to go wrong when a mutually agreeable arrangement can be achieved through dialogue."

 

Things You Need to Know...  About All Things HR: 
A Day of Lists
Join our employment attorneys for an interesting and informative "Day of Lists," an entire day devoted to the most critical aspects of the decisions and issues you face on a daily basis -- and their legal consequences, all in a unique and fun "list" format. 


Cost:  $175 - First person;  $125 - Additional person (same company)   
  
Location: Country Springs Hotel & Conference Center Pewaukee, WI
Early reservation rate: $104 (for hotel registrations made by April 12, 2016)

CREDITS: We are in the process of applying for CLE credits for Minnesota, Illinois, Wisconsin, Iowa and Indiana. Approved credits will be posted. 6.5 CPE and HRCI credits available.
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Sincerely,

James B. Sherman, Esq.
Wessels Sherman
Contact James Sherman at:
(952) 746-1700