Monday Morning Minute
In This Issue
Employee Rights To Revoke Union Authorization Cards
Wage & Hour Quiz- Answers
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                  November 4 , 2019
 
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EMPLOYEE RIGHTS TO REVOKE UNION AUTHORIZATION CARDS 
 
The firm recently received an inquiry about whether employees' have a right to revoke authorization cards that they signed during an inchoate union organizing drive.  Employers should be aware that employees have an absolute legal right to revoke any union authorization card after it has been signed.  And it is illegal for a union to restrict the employee's right to revoke a union authorization card that he or she signed.
 
An employee may revoke any union authorization card that he or she signed by simply signing a letter, card, petition, or other document stating that he or she does not support the union. Under the National Labor Relations Board's "dual card" doctrine, when an employee signs two documents with conflicting statements of union support - for example, signing a card both for and against union representation - then neither document is a valid proof of the employee's representational preference. Quite simply, the two documents cancel each other out.
 
Under the "dual card" doctrine, the employee does not need to communicate his or her opposition to union representation to the union or the employer, to invalidate the union authorization card as a matter of law. However, if the employee fails to inform the union or the employer that the union authorization card has been revoked, there is a possibility that the union or employer may count the card during any voluntary card count (even though your card is invalid as a matter of law). Thus, it is strongly recommend that employees notify in writing both the union and the  employer that the card has been revoked to ensure that it is rendered invalid and not counted. We recommend that the employee send a letter by certified mail, return receipt requested, so that there is proof of delivery. 
 
Call Spognardi Baiocchi LLP if you have any questions about remaining union-free.                       
WAGE AND HOUR QUIZ-ANSWERS
 
The US Department of Labor has announced a new salary test for the key 'white collar" exemption from overtime requirements, increasing the qualifying salary to $35,568 per year.  It seems like a good time for a refresher quiz (and answers this week) on these important, and often misunderstood exemptions, and related legal requirements.
 
 
1. It is not necessary to provide unpaid breaks or lunch periods to employees in Illinois so long as you are consistent in this policy. 

FALSE, Illinois law requires that a meal period be provided to employees who work at least seven and a half continuous hours. This break must be at least 20 minutes long and must start no later than five hours after the beginning of the shift. 
 
2 . Under the new DOL rules if an employee makes over $35,568 per year, it is permissible to pay the employee on an hourly basis and not pay that employee overtime.

FALSE, each of the "white collar" exemptions("professional, "administrative", "executive") from overtime require that the employee be paid on a "salary basis" in addition to the "duties" standards set for each. As noted below, the "salary basis" test does not apply to the "inside" and "outside sales" exemptions.

3. In order to be considered exempt under the "white collar" exemptions, under either the new rules or the old rules, it is necessary for the employee to supervise at least two other individuals.

FALSE, this is true and required for the "executive" exemption, but not for the "administrative", "professional" and "inside" and "outside" sales exemptions. 
 
4. Under the new rules if an employee holds a professional degree they can be classified as exempt even if they are not paid a salary of at least $35,568 per year.

FALSE, to qualify for the "professional" exemption, the employee must meet both the "salary" level test(now $35,568) and the "duties" and status requirements of the "professional" exemption, i.e. that the employee hold a professional degree and perform that work as their primary duty.
 
5. Under the new rules, exempt employees, who are paid a salary of over $35,568 per year, can be "docked" pay on an "hour by hour" basis so long as careful records are kept and they have forms of paid leave to use for these docked time periods.

TRUE. This can be done lawfully, but it may be inadvisable to do so as it may cause morale problems and can lead to suits if situations occur if "docking" occurs when the paid leave blank has been depleted. 
 
6. In order to be considered exempt under the "white collar" exemptions, under either the new rules or the old rules, it is necessary that the employee have a managerial title and sufficient authority to back up that title.

FALSE,  as the title and authority that an employee hold 'miss the point' as to the real qualifications for the exemption. The focus of the regulations is on the actual work performed by the employee. If an employee performs too much 'non-exempt' work as a practical matter, the exemption is lost. Many retail store managers and assistant managers have lost the exemption because they spent too much time stocking shelves,  cooking French fries, or other non-exempt work.
 
7. It is not necessary to supervise "two or more" employees to qualify for the "administrative" exemption from overtime under the FLSA.

TRUE. See answer to question 2 above.
 
8. It is not necessary to supervise "two or more" employees to qualify  for the "professional" exemption from overtime under the FLSA.

TRUE. See answer to question 2 above.
 
9. The FLSA has an overtime exemption for "inside sales" employees that remains unaffected by the new rules.

TRUE. Under federal law, the inside sales exemption applies to employees who earn more than 150% of the minimum wage, derive at least 50% of their income from commissions and work within the "retail and service industry" as defined under the FLSA.
 
10. The FLSA has an overtime and minimum wage exemption for "outside sales" employees that remains unaffected by the new rules.

TRUE.  Under federal law, an employee who qualifies for this exemption is exempt from both the minimum wage and overtime premium requirements.   The employee's primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer and the employee must be customarily and regularly engaged away from the employer's place or places of business. The salary requirements of the regulation do not apply to the outside sales exemption.

 
If you have any questions about any of these answers or the regulations general, please do not hesitate to give any SB attorney a call. 
SPOGNARDI BAIOCCHI LLP is  a law firm dedicated to partnering with companies of all sizes to address the full spectrum of legal concerns for its business.  Our commitment is to find common sense solutions that fit each clients' unique situation to labor, employment, human resources and general business needs. 

With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 
 
For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com
DISCLAIMER: All content in this Monday Morning Minute is intended for general information only, and should not be construed as legal advice applicable to your particular situation.  No attorney-client relationship is created. Before taking any action based on the information contained herein, you should consider your personal situation and seek professional advice.