COVID-19: IT IS NOW LAW–EMERGENCY PAID SICK LEAVE

The Families First Coronavirus Response Act was signed into law on March 18, 2020, after the Senate sent it to President Trump for his signature. The law becomes effective 15 days after President Trump signed it.

Private employers with under 500 employees will need to provide each employee paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in paragraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Additional Provisions:

Full time employees will be entitled to 80 hours. Part time employees are entitled to the number of hours equal to the hours that such employee works on average over a 2-week period.

In the case of a part-time employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken paid sick time, the employer shall use the following in place of such number:

(i) a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes the paid sick time, including hours for which the employee took leave of any type; or

(ii) If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.

All employees will have access to the full amount of time off under this Emergency Paid Sick Leave immediately and without regard to how long he or she has been employed.

Employers may not require its employees to use any other paid leave provided to him or her by the employer before using the Emergency Paid Sick Leave.

Employers who have employees that are health care providers or emergency responders may elect to exclude such employees from this Emergency Paid Sick Leave law.

Employers will be required to post (where notices are customarily posted), a notice which will be prepared or approved by the Secretary of Labor outlining the major provisions of this law. And this new law also requires that the Secretary of Labor make, publicly available, a notice that meets all necessary requirements no later than 7 days after the date of enactment of this law.

Paid sick time in terms of wages paid to such individual employees do not need to exceed-

$511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; and

$200 per day and $2,000 in the aggregate for a use described in paragraphs (4), (5), or (6) above

SPECIAL RULE FOR CARE OF FAMILY MEMBERS UNDER EMERGENCY PAID SICK LEAVE:
Paid sick time provided for any use described in paragraphs (4), (5), or (6) above need only paid at two-thirds of such employees’ wages.

Wages required to be paid under the Emergency Paid Sick Leave will not be subject to the 6.2 percent social security payroll tax typically paid by employers on such wages.

Employers can employ a “reasonable notice requirement.” After the first workday (or portion thereof) that an employee receives paid sick time under this new law, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.

Also please note that employers are prohibited from requiring, as a condition of

Also please note that employers are prohibited from requiring, as a condition of providing Emergency Paid Sick Leave, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.

Finally, the language of this amended bill suggests that an employee can use his or her Emergency Paid Sick Leave during the initial 10 days of unpaid leave under the expanded FMLA. The Department of Labor is expected to provide additional guidance within the 15 day window before this law takes effect.

This Emergency Paid Sick Leave law is slated to expire on December 31, 2020.

This guest editor for this blog post is: Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs. www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

COVID-19 AT WORK—RIGHTS & RESPONSIBILITIES

My employee has exhibited signs of Covid-19, has been around others who have, or has tested positive for COVID-19—Now What?

As the House re-sends a slightly re-tooled emergency COVID-19 Bill to the Senate, many Employers are left wondering, “How do I deal with employees in the workplace who have come in contact with a COVID-19 person, who are exhibiting signs and symptoms of COVID-19, or have tested positive for COVID-19.”

First of all, please remember that your Human Resource Department along with frontline Supervisors, Managers and the like should re-familiarize themselves with the company’s plans and policies concerning PTO, sick pay, vacation time or any company benefits impacted. While, as of the writing of this article, the nation has no federally required emergency amended FMLA, paid sick leave or other time off, a company may want to implement its own emergency plan to address employees being absent from work. This may include relaxing parameters for how and when employees may use the existing company provided benefits. For example:

In Arizona, employees under the state mandated paid sick leave may not be able to use such sick leave until their 91st day of employment. Perhaps the employer may want to relax this requirement in an effort to persuade new employees, who may feel financial pressure to keep working, to stay home.

If your company policy for vacation time allows it to be used only for vacation and not sick time, perhaps you decide to make an allowance in this environment that any time off accrued can run afoul for what it was originally intended.

These are just but two examples of how companies can incentivize employees and build morale, within its own company issued benefits to keep employees at home and its workplace healthier in this unprecedented time.

But what does a company do if an employee suddenly falls ill [who has been at work] or informs you that he/she may have come in contact with a COVID-19 infected person or, tested positive for COVID-19? A company may want to consider any or all of the steps below:

Instruct that employee to stay home for at least the recommended quarantined time of 14 days and encourage them to contact a qualified health professional
Ask the employee when he or she first noticed symptoms
Determine an approximate window prior to the first noticed symptoms identified in #2: a 14-15 day window prior to the date the employee indicated any “first” symptoms.
Ask the employee to recall his or her movements at the company from the date the window in #3 establishes to the date he or she was mandated to stay at home by the company. Those areas of the company should be disinfected.
Ask the employee to recall employees and/or clients he or she may have come in contact with from the date the window in #3 establishes to the date he or she was mandated to stay at home by the company.
Contact the employees identified in response to #5 WITHOUT DISCLOSING THE INFECTED EMPLOYEE’S NAME. Advise them of the situation and have them stay home for a 14 day self- quarantine as well as encourage them to reach out to a health care provider to be tested.

To the extent possible, and if not already considered, all employees that have the capability to work from home, should be working from home in this type of environment. Also remember clear, concise and open communication to calm the workplace is needed.

Guest Blog Editor: Spognardi Baiocchi LLP, is a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs. www.psb-attorneys.com.

HOW TO DETERMINE NEW HIRE SALARIES

Without established salary ranges and salary structure, setting a salary can be like spinning the roulette wheel. Most companies have salary offer guidelines based on competitive market data and established salary ranges for positions. Ideally, you will have these established tools and practices in place before you have to make a salary offer. Salary scales are a valuable tool in recruiting and hiring new employees as well as providing baseline amounts in making salary adjustments for existing employees.

There are many things to consider when determining where to set a salary for a new hire including the candidate’s experience and qualifications that are either required or needed for the job, current salaries of employees in the same or comparable worth jobs, salary range, geography, industry conventions, and company budget. Other considerations may be bargaining agreements, prevailing wage contracts or arrangements, and the company’s compensation philosophy.

To determine accurate external wage comparisons, employers should carefully define the appropriate market and competitive set. Defining the market too narrowly can result in wages that are higher than necessary. Conversely, defining the market too broadly may cause an organization to set wages too low to attract and retain competent employees. Paying prevailing wages can also be considered a moral obligation. This focus on external competitiveness enables a company to develop compensation structures and programs that are competitive with other companies in similar labor markets. Employee perceptions of equity and inequity are equally important and should be carefully considered when a company sets compensation objectives. Employees who perceive equitable pay treatment may be more motivated to perform better or to support a company’s goals.

Internal equity is of equal importance to external competitiveness when setting pay. You want employees to feel they are paid fairly as compared to their co-workers as well as to adhere to regulations regarding pay discrimination. If starting salaries are negotiated, ensure that such a practice does not have an adverse impact on women or minority workers. Generally, jobs do not have to be identical for equal pay to be required, only substantially equal in terms of skill, effort, and job responsibility, and performed under similar working conditions. For discriminatory purposes, pay refers to salary, overtime, bonuses, vacation and holiday pay, and all other benefits and compensation of any kind paid to employees. Pay disparities may be allowed under a seniority system, a merit system, or a system measuring earnings by quality or quantity of production. Hardly anyone notices when you pay “above average” compared to the outside world, but any perceived deficiency in “internal equity” can come back to bite you.

As you can see there are many factors and considerations when setting pay and it can sometimes feel like a delicate balancing act. But doing your homework, keeping up with the external market, and addressing internal pay inequities will go a long way to simplifying the task of setting new hire salaries. It is important to ensure that the approach taken is guided by the compensation philosophy and is applied consistently. An effective Salary Administration Program allows a company to meet the basic objectives of compensation: focus, attract, retain, and motivate.

At WageWatch our compensation consultants are focused on your organization’s compensation needs and are ready to help you ensure that your compensation programs support your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys, and pay practice data that will allow you to stay current. This information is beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data, and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

ARE YOU ATTRACTING TOP TALENT?

Many business owners find it to be a huge challenge to attract and retain a group of talented and hardworking employees that are loyal to the company and its mission. Finding high caliber employees with advanced skills to complete important jobs within a company is a challenge that not only exists in today’s marketplace but one that business owners have had to navigate for years. Everyone is looking for top talent, and those companies that excel in attracting and retaining this talent are the ones that will reap the rewards. In addition to a number of other factors, businesses that best retain employees offer great compensation and benefits packages.

To retain talent, it is essential that loyalty is established. In order to do this, the employee must feel that their job is instrumental in achieving the goals of the company, making them excited to come into work each day. It is also important that the work the employee puts in is acknowledged, affirming their place within the company, and offering them opportunities for growth.

While compensation and benefits packages are one of the largest factors considered by employees, it isn’t enough to make top talent to stay. The following are a few ways that you can attract and retain the best employees at your company:

Promote open communication. When a company is completely open with employees, everyone will feel respected. Instead of allowing rumors to spread, let your employees know as soon as possible about anything that is going on in regards to the company. When possible, let your employees be a part of the decision making process. A culture of open communication is very attractive to employees.
Provide opportunities for team building. Most employees enjoy interacting with their coworkers. By encouraging teamwork, employees are able to build great working relationships and establish a trusting, open environment for the company. When working together toward a common goal, employees are more motivated and excited about their jobs, often producing excellent results.
Cater to individual work style. Each employee has a different way that they prefer to work, learn and be managed. When you as an employer take the time and effort to make adjustments for each employee’s needs, they will respect the company more and loyalty will, once again, be built. This will also help you to establish teams that will work best together based on their work styles.
Acknowledge your talent. When an employee does a good job, it is important that you recognize them for their efforts, so they feel that they are a valued member of the team. A majority of employees leaving a company do so because they feel unappreciated. Employees want to feel that the work they are doing is making a difference, so acknowledging their work often is essential. Also, review surveys for 2013 healthcare compensation, 2013 casino compensation and other market compensation data surveys for your industry to determine what benefits and bonuses you should be rewarding your employees with.

Implementing the above suggestions will help your company to build a culture that encourages the retention of employees, which in turn will attract top talent. In addition to providing a great work environment that respects employees and provides opportunities for learning and growth, it is also important that they receive a solid benefits package. At WageWatch, we provide accurate data for hospitality compensation, healthcare compensation, casino compensation, and compensation information for a wide variety of other industries. To learn more about our up-to-date market compensation surveys, call 888-330-9243 or contact us online.

WHAT IS THE COST OF ENGAGED VS. DISENGAGED EMPLOYEES?

Employee engagement levels are at their highest in years! The Gallup Organization has been measuring levels of employee engagement since 2000. Over nearly two decades, the annual percentage of actively engaged U.S. employees has ranged from a low of 26% in 2000 to the recent six-month high of 34% in 2018. On average, 30% of employees have been engaged at work during the past 18 years. Conversely, the percentage of actively disengaged U.S. employees has ranged from a high of 20% in 2007 and 2008, during the heart of the recession, to the current low of 13%. On average 16.5% of U.S. employees have been actively disengaged over 18 years of tracking.

To better understand employee engagement levels, it helps to understand how Gallup categories the three different segments of employee engagement. “Actively engaged” employees are involved, enthusiastic, and committed to their work while “actively disengaged” employees are unhappy at work and aren’t afraid to tell others about it, they are resentful that their needs aren’t being met and act out, potentially undermining coworkers. The biggest group of employees, those “not engaged” are unattached to their work and while putting in the time, there is no energy or passion put into their work. To summarize, the 2018 Gallup survey categorizes employees as:

Actively Engaged = 34%
Not Engaged/Disengaged = 53%
Actively Disengaged = 13%

What is the cost of unengaged employees in an organization? Gallup describes an “actively disengaged” employee costs their organization $3,400 for every $10,000 of salary, or 34%. If the average salary is $60,000 per year, the cost for each disengaged employee is $20,400 ($60,000 x .34). For a company size of 1,000 employees, 13% are actively disengaged, totaling 130 employees; the annual cost to the organization is $2.65 million (130 x $20,400). This loss is only for the actively disengaged employees and does not represent the loss of employees who are “disengaged” (53%). However, it is extremely compelling to understand the cost for the most actively disengaged employees, knowing that the cost of total employee disengagement is higher.
After computing the cost of disengagement, the focus shifts to increasing engagement. Based on attributes measured by Gallup in their employee engagement survey, employees place the greatest importance on a role and organization that offer them:

The ability to do what they do best
Greater work-life balance and better personal well-being
Greater stability and job security
A significant increase in income
The opportunity to work for a company with a great brand or reputation

In terms of an action plan, a first step is for an organization is to develop great managers as their impact trickles down throughout the organization. In turn, managers need to have career conversations with their employees to help guide them in their career development. A component of career development is to provide on-going training opportunities. Employee training helps employees gain new or greater skills which provide them with a better sense of personal worth leading to greater opportunities for income to increase as well as promotional opportunities. From an organization perspective, prioritize diversity and inclusion at all levels which helps employees feel welcome and care more about their role within the organization. To better understand the specific tactics that will increase engagement within your organization, measure engagement through employee surveys to find out what works and doesn’t work at your organization.

WageWatch offers accurate, up-to-date HR metrics, benefit survey data, market compensation data, and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. The PeerMark™ Wage Survey is a custom-built survey tool that allows individual survey participants to select their competitive set for comparison purposes. Our experienced compensation consultants can assist with your organization’s compensation needs. We can help you ensure internal equity and compliance with regulations as well as help structure your compensation programs to support your company’s business strategy and objectives. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

THE BOOMER GENERATION IN THE WORKPLACE

It is not uncommon for baby boomers to now work side by side with co-workers from generation X and generation Y. Each of the generations in the workplace today grew up in times with widely varying political and social issues, technology, and other factors, which have affected their attitudes on everyday life. As an employer, it’s important to understand each generation’s needs and to provide them with the work environment and rewards that make them happy.

The basic employment packages for businesses are based on the needs of baby boomers, a very loyal generation of workers, typically staying with the same company for many years. Employees of this generation value their benefits, such as health insurance, life insurance, and vacation time. To determine if their company is providing salaries and benefits that are on target with the industry average salary, many employers turn to market compensation and benefit survey data. These baby boomer employees that have stayed with a company for most of their careers have invaluable knowledge and experience that is essential to business operations; because of this knowledge, it’s valuable to keep them happy and reward them for their loyalty.

While it is important to keep baby boomers satisfied by analyzing market compensation data, benefit survey data and salary reports, it is also essential for employers to look at the needs of the upcoming generations. Many baby boomers are in management positions but will start to retire around the same time leaving a large number of open positions. It is essential that skilled employees of the X and Y generations be ready to take their place.

The new generations of workers enjoy benefits like the baby boomers, but these employees prefer additional incentives and small tokens of appreciation for their efforts. This generation is not as loyal to the companies they work for, and have no problem moving to a job at another company every two or three years. For this reason, it is even more important to build loyalty with employees of these generations by providing them with the benefits and incentives they desire. It is very beneficial for companies to use benefit survey data, market compensation data, and salary reports to determine the types of compensation, including incentives that are standard for the industry. Having this data will help companies to stay competitive with other employers by creating appealing benefits packages that will attract and retain top talent.

Today’s world moves fast, and as an employer, you should constantly be monitoring and adjusting your business operations to meet the ever-changing wants and needs of your employees. At WageWatch, we offer accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including market compensation data, benefit survey data, and salary reports, please call WageWatch at 888-330-9243 or contact us online.

HOW ABOUT A SIX HOUR WORKDAY?

Can a move to a six-hour workday increase productivity and the happiness quotient of employees and their families and at the same time increase productivity and company profits? In the U.S., more than 60 years after workers, through their unions, began organizing for an eight-hour day in the 1860s, President Franklin D. Roosevelt signed the Fair Labor Standards Act in 1938 for all workers to see limits on working hours – initially, it was set at 44 hours a week, then reduced to 42 hours, and by 1940 the workweek was reduced to 40 hours.

Some businesses in Sweden have experimented with a six-hour workday with the hope of getting more accomplished in a shorter amount of time and ensure that employees have the energy to enjoy their private lives. This change is purely experimental—one that has not been mandated by law nor implemented nationwide.

A Toyota vehicle service center in Sweden’s second-largest city, Gothenburg, moved to shorter days fifteen years ago. The service center reported a happier staff, a lower turnover rate, and an increase in profits during that time. The new system keeps the garages open longer and generates new business. Employees are doing the same amount in the six-hour workday, often more than they did in the eight- hour day. The service center reports that employees have more stamina to do this heavy work, and they have seen greater profits and customers because cars are getting fixed faster.

A high-profile case is the publicly funded Svartedalens nursing home in west Sweden. They began a trial a six-hour day to determine if the cost of hiring additional staff members to cover the hours lost, was worth the improvements to patient care and the boosting of employees’ morale. The nursing home had 80 nurses working six-hour shifts (maintaining their eight-hour salaries) while 80 staffers at another nursing home worked their standard hours. Halfway through the test period, the nursing home with the six-hour workday had half the average sick leave, the nurses were happier, and the care was better. The study, however, equates productivity with a quality of care, which doesn’t necessarily translate to white-collar work.

Several startup companies announced that they are testing the concept. The companies include Background AB, a creative communication agency in Falun, Dalarna and Filimundus, an app developer based in Stockholm. Linus Feldt, Filimundus CEO believes that staying focused on a specific work task for eight hours is a huge challenge. During an eight or more hour workday, employees take frequent breaks and look for distractions and diversions such as social media to make the workday more endurable. With the six-hour workday, staff members at Filimundus are not allowed on social media, meetings are kept to a minimum, and the company does it’s best to eliminate other unproductive distractions.

Most of the companies who have made the shift to the six-hour workday have reported a positive impact, from increased efficiency to better communication and fewer staff sick days. A 2014 Stanford University research paper found a “non-linear” relationship between hours worked and productivity, as well as too much work, can impinge productivity. According to a study by the Families and Work Institute, overworked employees make more mistakes. Research has shown that condensing work into more efficient hours is very unlikely to hurt productivity. There is no need to lower pay and in fact, companies are likely to save money through less sick and personal leave, less stress leading to better health, and lower turnover costs.

The six-hour workday would be less acceptable in the U.S. because the eight-plus hour workday ethic is so deeply embedded in our culture. According to Gallup’s 2014 poll, full-time employees in the U.S. work an average of 47 hours per week. However, even with encouraging results, it’s unlikely that the U.S. will shift to shorter days any time soon. The rest of the world (outside of Europe) a 40-hour workweek would be a very nice improvement as well.

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

STRATEGIC ISSUES AND THE PAY MODEL

Perceptions of compensation vary. It is seen as a measure of equity and justice. Stockholders are focused on executive compensation. Legislators may view average annual pay changes as a guide to adjusting eligibility for social services. Employees see compensation as a reward for their services and a job well done. Managers will view compensation from the perspective of a labor cost, but also from a competitive perspective that enables them to recruit, engage and retain employees. The four basic compensation policy decisions that an employer must consider in managing compensation are: 1) internal consistency, 2) external competitiveness, 3) employee contributions, and 4) administration of the pay system. The balance between the four policies becomes the employer’s compensation strategy.

It is valuable for companies to link an organization’s overall goals and strategies with the Human Resource strategy. Not doing so, can lead to serious issues of employee retention, engagement, and productivity that can be laborious and expensive to repair. Compensation for many organizations is the single largest business expense and is visible and important to employees, managers, and stockholders. Therefore it is important to strategically plan and regularly evaluate compensation systems. Working with your company’s executives is critical to ensuring your compensation philosophy is supporting business objectives. Strategic objectives will include significant challenges and priorities now and over the next two to five years. Some examples are business growth plans, key talent and training objectives, market competition, and whether or not you are in a union environment. Some other key considerations for your compensation program are:

Attracting the appropriate skill sets and types of employees when needed
Rewarding employees for their efforts, such as increasing workloads, taking on new tasks and projects
Employee morale and perceived value of a company’s benefits, incentives, and work environment
A mix of base pay, incentive pay, work environment and benefits that makes the most sense for the organization
The link between base and incentive pay with performance
Legal issues such as wage and hour

An example of a compensation strategy that aligns with other Human Resource initiatives is matching pay ranges to the desired outcome. If quality, experience, and a sophisticated skill set are a strategic advantage to an organization, then it will not be successful in hiring employees significantly below the market rate. Determining whether the organization wants to lead, lag, or match the market is a key decision. A ‘mixed market position’ approach has become more common as employers realize that a one-size-fits-all strategy does not fit the entire workforce. For example, location and market competitiveness will impact your pay levels and certain key or hard to fill or retain positions may require pay well above the market, while other positions may be ok with a lag approach.

A successful compensation program will focus on top priorities, guide employees to where their effort can create the most value, create financial and non-financial consequences for success and failure, drive and reward the development of skills and encourage teamwork and collaboration. Many organizations today keep an eye toward aligning workers’ interests with company goals through innovative types of rewards in the workplace, including skill-based pay and goal sharing. The right total rewards system is a blend of monetary and nonmonetary rewards offered to employees and can generate valuable business results. These results range from enhanced individual and organizational performance to improved job satisfaction, employee loyalty, and workforce morale.

Maintaining a competitive advantage and being able to retain key employees is increasingly important. At WageWatch, our compensation consultants can assist with your organization’s compensation needs and help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit survey data, market compensation data and salary reports that will allow you to stay current with the times. This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards. For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

NLRB REVERTS TO FORMER STANDARD ON USE OF EMPLOYER EMAIL SYSTEMS

Shortly before Christmas, the National Labor Relations Board re-established the right of an employer to restrict employee use of its email systems to business use only, if it does so on a nondiscriminatory basis. The new decision overrules the standard set in the 2014 Purple Communications, Inc. case and returns to the standard set in the 2007 Register Guard case.

At issue is when employers can restrict the use of their e-mail and other information technology (IT) systems and when doing so interferes with employee rights guaranteed in Section 7 of the National Labor Relations Act (NLRA). In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, the Board overruled the controversial case of Purple Communications, Inc., and held that employees do not have a statutory right to use employers’ email and other information-technology (IT) systems to engage in non-work-related communications, including Section 7 protected, concerted or union activity.

In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7. But the new decisions change the standard, giving more weight to employers’ property rights that the previous decision. The Board reestablished that employers have the right to restrict the use of their equipment, including their email and other IT systems to business and work-related use, provided that in doing so, they do not discriminate against the union or other protected concerted communications. Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.

The Caesars Entertainment decisions reaffirm a long line of decisions holding that the NLRA generally doesn’t restrict an employer’s right to control the use of its equipment. The National Labor Relations Board’s (NLRB) decision to allow employers more leeway in restricting the use of their email and other communication systems for union organizing is just the latest decision reversing standards set by the Obama-era Board. If your employee handbook or work rules were revised in 2016 or after to comply with Purple Communications, you may wish to reconsider returning to a business-use-only position in 2020.

Guest Blog Editor: Spognardi Baiocchi LLP, is a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs. www.psb-attorneys.com.

NLRB MODIFIES “QUICKIE” UNION REPRESENTATION RULES

On December 13, 2019, the Board issued a final rule amending its election procedures. The NLRB uses these procedures to determine whether employees are unionized. The new amendments extend deadlines and add steps to ensure certain disputes are resolved before employees vote. Chairman John F. Ring announced, “These are common-sense changes to ensure expeditious elections that are fair and efficient.” The new rules provide:

The rule amendments allow more time for employers to prepare for the pre-election hearing. The new rule extends the time for holding a pre-election hearing from eight calendar days to 14 business days after the petition is filed. This allows the employer for a longer period before the opening of the hearing than is currently the case. It also allows the parties and the Board more time to try to resolve issues without a hearing, rather than litigating issues that might have been resolved through negotiation and agreement.
The employer will now be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing. The prior rules required posting and distribution within two business days. The additional time will permit employers to balance this requirement with other obligations imposed on them by the filing of a petition and guarantee that employees have the benefit of the Notice of Petition for Election for a longer period before the opening of the hearing than is currently the case.
The new rule requires unions to respond to the employer’s position statement. Previously, the entire burden leading up to a pre-election hearing rested on the employer, including the filing of a position statement, or risk waiving the issues at the hearing. Under the new rule, some of the burdens are shifted to the union. The union is now required to file a response to the employer’s position statement, or risk having their petition dismissed or the employer’s position on bargaining unit issues accepted by the Region.
The new rule allows employers to litigate who are supervisors and who is included in the bargaining unit before the election. Employers will once again know who is eligible to vote in the election and customize their communication to those employees who will be voting. Employers will also know in advance who its supervisors and front-line management are during the critical campaign period and who its union-free communications team is.
The new rules provide employers with more time to conduct a union-free campaign before the election. The new rule directs Board officials to set elections no fewer than 20 days after approval of consent election agreement or order and direction of election. This change will come close to returning the pre-election timeline to the pre-expedited election rules average.