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.

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.

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.

TWENTY-ONE STATES RAISE MINIMUM WAGE RATES ON JANUARY 1, 2020

The current federal minimum wage, under the Fair Labor Standards Act (FLSA), is $7.25 per hour which has been in effect since July 2009. States can set a rate that is higher than the federal minimum rate and employers are obligated to pay the higher rate. Currently, there are 29 with laws at the state or local level mandating higher pay than the federal rate.

Voters across multiple states approved ballot measures to raise their state minimum rates over time, with increases occurring through 2020 and beyond. There are 21 states implementing a rate increase on January 1, 2020, including:

1) Alaska
2) Arizona
3) Arkansas
4) California
5) Colorado
6) Florida
7) Illinois
8) Maine
9) Maryland
10) Massachusetts
11) Michigan
12) Minnesota
13) Missouri
14) Montana
15) New Jersey
16) New Mexico
17) New York
18) Ohio
19) South Dakota
20) Vermont
21) Washington

For more details, click on the following link to view the WageWatch Minimum Wage Chart with details of federal, state and local minimum wage increases: WageWatch – U.S. Minimum Wage Increases . (Some states vary wage rates based on company size or annual revenue.) In addition to the statewide minimum wage increase, multiple states have approved minimum wage increases that are higher than the statewide average. (The increases are referenced in the attached Excel spreadsheet). NOTE: There are a few states and cities that increase rates on July 1, 2020, and/or other months throughout 2020; where known, they are noted.

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 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.

EMPLOYEE RETENTION STRATEGY

Employee retention is important for organizations to facilitate achieving a company’s goals and objectives. HR leaders consider improved retention a high priority over the next five years. Although retention is considered a priority, efforts to increase it have been stymied due to competing priorities and a lack of resources. The side effects of turnover are not only financially based, but are noticed in decreased productivity, knowledge loss, and a lowered morale.

Some interesting statistics on employee retention include:

About 3 million Americans have QUIT their job each month since June 2017 (US Bureau of Labor Statistics)
30% of employees leave a new job within the first 90 days of employment (Jobvite)
51% of employees are looking to leave their jobs (Gallup)
Companies that support remote work have 25% lower employee turnover than companies that don’t (Owl Labs)
35% of employees report that they’d look for a new job if they did not receive a pay raise within the next year (Glassdoor)
44% of employees would consider taking a job with a different company for a raise of 20% or less (Gallup)
71% of retirees who returned to work originally retired due to a lack of flexibility in their work (Global Workplace Analytics)

With nearly one-third of employees leaving a new job within the first 90 days after starting a new position, it is important to understand the dynamics causing employees to quit. The top reason cited was that the day-to-day role was not what the employee expected. Other top reasons include: the employee had a bad experience that drove them away and the company culture lacked transparency.

Before addressing retention, the first step is to make sure that you hire the right employees—hire selectively. It is important to ensure that the new hire has the right skills for the position as well as being a good fit with the company culture, the manager, and the coworkers that they will interact with daily.

Once hired, onboarding and orientation activities will help to set new hires up for success. These activities can last for a few weeks or months depending on your organization. Aim to develop an onboarding process in which new staff members not only learn about the job but also the company culture and how they can contribute and thrive, with ongoing discussions, goals, and opportunities to address questions and issues.

Establish mentorship programs to pair a new employee with a mentor. The mentor can provide a wealth of knowledge and resources to the new employee while the new employee can offer a fresh viewpoint to the mentor (mentor should not be the supervisor).

Offering an attractive compensation package is essential in this competitive market. This includes salaries as well as bonuses, paid time off, health benefits, retirement plans, and other perks that distinguishes one workplace from another.

Work-life balance is important; burnout is a factor that impacts retention. What is your company’s culture? A healthy work-life balance is important, and employees need to know that management understands its importance.

Employees like to feel that they have the possibility for advancement. Training and development programs send a message that the employer is interested in their career growth. It is import for managers to ask their direct reports about their career goals and determine how they can help them achieve their goals.

Providing opportunities for open communication and feedback is essential for employee retention. Direct reports need to feel that they can voice their ideas, questions, and concerns. In return, employees want management to be open and honest in their communication, especially feedback about their performance. Employees desire ongoing feedback about their performance.

Recognize the accomplishments of both the individual employee and the team. This can be as simple as a thank-you note or as elaborate as setting up a group excursion. It is important to celebrate successes—to help employees feel engaged in their work environment.

Employee retention matters; it is important to understand what is causing turnover within your organization. Employee exit interviews provide information that can help retain your remaining staff.

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.

WHITE COLLAR THRESHOLD CHANGES ON JAN 1, 2020

On September 24, the U.S. Department of Labor’s final rule released the final rules increasing the minimum salary level for the Fair Labor Standards Act (FLSA) “white collar” exemptions from $455 to $684 per week. Effective January 1, 2020:

The salary threshold for “white-collar” raises to $684 a week or $35,568 (up from $455 a week or $23,660).
For highly compensated employees (HCEs), it raises the annual compensation to $107,432 (up from $100,000 per year).
The rule allows employers to use nondiscretionary bonuses and incentive payment (including commissions) paid at least annually to satisfy up to 10% of the standard salary level.
Revises the special salary levels for workers in U.S. territories and the motion picture industries have been revised to $455 and $1043, respectively.

It will be important for employers to analyze the status of employees who earn below the new salary threshold but were previously exempt. Employers will have to consider whether to reclassify those employees as nonexempt hourly workers or give them raises to bring them up to the new threshold. If employees now classified as exempt are reclassified as nonexempt workers, employers should make sure the newly reclassified employees know what is expected of them as hourly workers.

The quiz below was developed by the law firm, Pautsch, Spognardi & Baiocchi Legal Group.

Answer each question as TRUE or FALSE:

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.
To be considered exempt under the “white collar” exemptions, under either the new rules or the old rules, the employee must supervise at least two other individuals.
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.
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 as long as careful records are kept and they have forms of paid leave to use for the docked time periods.
The FLSA has an overtime exemption for “inside sales” employees that remains unaffected by the new rules.
The FLSA has overtime and minimum wage exemption for “outside sales” employees that remain unaffected by the new rules.

ANSWERS:

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 “inside” and “outside sales” exemptions.
FALSE, this is true and required for the “executive” exemption, but not for the “administrative”, “professional” and “inside” and “outside” sales exemptions.
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 holds a professional degree and perform that work as their primary duty.
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 bank has been depleted.
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.
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.

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.

THANKSGIVING DAY TRIVIA–TEST YOUR KNOWLEDGE

What were the names of the turkeys given to the White House this year?
In what year was the first Thanksgiving Day celebrated?
What President declared Thanksgiving a national holiday?
What year was the first Macy’s Day Parade?
What was the first year the NFL games were played on Thanksgiving?
What is the average cost to feed a 10-person Thanksgiving dinner in 2019?
What U.S. towns have the name of Turkey?
What percentage of Americans celebrate Thanksgiving?
How many questions does Butterball answer on their hotline every year?
What is the average Thanksgiving Day on-line shopping expenditure?

Answers: 1) Bread & Butter; 2) Year-1621; 3) President Lincoln declared on 10-3-1863; 4) Macy’s parade launched 1924; 5) First NFL game-1920; 6) Cost-$48.90; 7) Turkey Creek, LA, Turkey, TX, Turkey, NC, & Turkey Creek, AZ; 8) 96% Celebrate; 9) 100K+ Answers; 10) $3.7 Billion spent in 2018 (a 37% increase from 2017).

We wish you a Happy Thanksgiving Holiday! Your Friends at WageWatch
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LABOR BOARD EXTENDS TIME TO BRIEF STAND FOR EMPLOYEE LOSS OF WORKPLACE PROTECTIONS FOR COARSE LANGUAGE AND CONDUCT

The National Labor Relations Board has extended the time to file briefs in addressing when employees lose the protections of the Act for using coarse or racially offensive language. Amicus briefs not to exceed 25 pages in length were due this past Tuesday, November 12. The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 27, 2019.

On September 5, 2019, the National Labor Relations Board requested briefing on whether the Board should reconsider its standards for losing workplace protections under the National Labor Relations Act (“Act”) for profane outbursts and offensive statements made while engaged in workplace labor disputes. In its notice, the Board invites the public to provide input on whether to adhere to, modify, or overrule the standard applied in previous cases in which profane outbursts and offensive statements of a racial or sexual nature were judged not to lose the protection of the Act.

The Board asks the parties to address either some or all the following questions:

Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
The Board has held that there should be some leeway to consider the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. To what extent should this principle remain applicable concerning profanity or language that is offensive to others based on race or sex?
If the norms of the workplace are relevant, should the Board consider employer work rules, such as those that prohibit profanity, bullying, or uncivil behavior?
To what extent, if any, should the Board continue to consider context—g., picket-line setting—when determining whether racially or sexually offensive language loses the Act’s protection?
What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

The notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016). The Board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as some within the Board, and members of the public.

Contributed by guest author: 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.

PLANNING AN OFFICE HOLIDAY PARTY?

It’s that time of year again…is your company planning to hold a company holiday party? Hosting a holiday party has been a tradition among many companies as a way to reward employees, boost morale, and encourage team spirit. This year, fewer employers are planning to host a party. Based on a recent study, only two-thirds of companies intend to host a holiday party, the lowest percentage since 2009. Economic factors do not seem to be a reason as companies report tax savings and a thriving economy.

Among companies sponsoring a party, nearly 60 percent have real concerns about sexual harassment and inappropriate behavior, especially in light of the #MeToo movement. More than half of these companies have addressed the #MeToo issue this year and if not, one-third indicated that they will do so before the party.

If you are planning a holiday party, there are proactive steps to take to help lessen your company’s liability:

Establish written anti-harassment policies and publish in employee handbooks; reference the policies before the holiday party
Send a memo to remind employees to act responsibly and professionally (address the company’s stance on pictures being posted to social media as well as the dress/attire for the party)
Ensure employees understand attendance is voluntary (especially when held outside of normal work hours)
The focus for the holiday decorations, music, and gifts should be seasonal and not religious
Emphasize to management that they should lead by example
Consider having a holiday party in which no alcohol is served
Hold the party offsite; it limits the company’s liability
Set-up a cash bar—guests will drink less if they are required to pay
If alcohol is served, set a tone of moderation. Consider providing a limited number of drink tickets per guest, restrict the types of alcohol served, and/or only serve alcohol for a limited time
Consider featuring activities/games at the party, it encourages team-building and diverts attention away from cell-phones (also limits focus on drinking)
When alcohol is present, offer non-alcoholic beverages and always serve food
Stop serving alcohol toward the end of the evening and switch to coffee, tea, and soft drinks
Arrange for alternative transportation; encourage employees and guests to use it if they consume any alcohol

While these tips are not a guarantee against holiday party problems, they can be a good foundation for an effective defense against liability if problems should come to pass.

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.

Benefits & Perks to Attract & Retain Top Talent

In today’s tight job market, many employers realize that they need to take a closer look at their benefits package in an effort to attract and retain employees. How often have you found a qualified candidate that you hope to hire only to learn that they decide to go with another position? Most likely, the candidate has found another job in which the benefits offered by the competition were more attractive.

When reviewing the development of benefits and perks for your company, it is valuable to understand the differences. Benefits are a form of non-wage compensation that supplement salary (e.g., health insurance). Perks are a form of non-wage compensation (e.g., work from home Fridays), but unlike benefits, are more loosely defined and vary greatly.

Glassdoor indicates that 57% of job seekers list benefits and perks among the chief determinants when evaluating jobs. Benefits and perks impact recruiting efforts as they help to get prospective talent interested in a company and through the door.

The primary benefits and perks that prospective job seekers value most when considering a new position include (listed in order of importance):

Better health, dental, and vision insurance
More flexible hours
More vacation time
Work from home options
Retirement benefits; pension plan, 401K

Although there are some new, innovative benefits and perks being offered such as free-snacks or nap pods—the top benefits/perks valued by many employees are those that improve their work/life balance.

Some innovative, non-traditional benefits/perks offered by large companies and tech-based companies include:

Unlimited vacation
Student loan assistance
Free gym membership
Free child day care services
Free fitness or yoga classes offered on-site
Catered breakfast and/or lunch
Company-wide retreats
Paid volunteer days
Paid parental leave for moms and dads (16+ weeks)
Dedicated game rooms
Nap rooms

Although the benefits and perks offered can help get prospective talent through the door of your organization, once hired, it is the culture, values, and career opportunities that are the leading factors in employee satisfaction. Employee interests vary depending on company size, industry and demographics. To find the benefits package that best fits your business, it’s important to survey employees about what they value most.

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 you 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.

SUPREME COURT ACCEPTS THREE (3) CASES SEEKING TO LIMIT LAWSUITS AGAINST BUSINESSES

There are three new law cases, impacting employers and business enterprises, that are on the docket of the Supreme Court this Fall. These cases have been relatively ignored by the media and have the potential to greatly impact businesses.

Case I – Racial Discrimination

Comcast is attempting to stop a lawsuit by Entertainment Studios Networks Inc., which says racial discrimination is the reason it couldn’t get its channels onto the carrier’s cable systems. At issue is a provision known as Section 1981, a Reconstruction-era law that bars racial discrimination in contracting. Comcast says the appeals court improperly made it easier to sue under that statute than under other civil rights laws. Entertainment Studios, owned by comedian and producer Byron Allen, says it tried for years to get its channels carried by Comcast. The suit alleges Comcast officials refused to reach a deal, even while expanding offerings of less-known, white-owned channels. The case was dismissed in federal court, but the 9th Circuit revived the lawsuit concluding that the plaintiff only had to show that race was a factor, not that it was the motivating or “but for” to prove discrimination. The Supreme Court’s decision will decide whether this type of contractual discrimination lawsuit (which can be brought by an enterprise) must be proven by a tougher standard.

Case II – Age Discrimination

In Babb v. Wilkie, the Court will consider the standard of proof for federal government workers who bring claims under the Age Discrimination in Employment Act, as opposed to private-sector employees. The federal government argued that a strict “but for” standard should apply to federal workers’ claims, meaning that the employee must show the adverse employment action would not have been taken “but for” the employer’s bias. The employee in the case argued that a more lenient standard should apply that considers whether age bias was a motivating factor for the negative employment decision.

Case III – Employee Retirement Income Security Act

In Intel Corp. Investment Policy Comm. v. Sulyma, a former employee filed a lawsuit against Intel’s retirement plan committee for allegedly breaching fiduciary duties by making poor investments. The committee defended based upon ERISA’s three-year statute of limitations to file such claims. Intel argued that the lawsuit is barred because the employee received all the relevant plan investment information more than three years before he filed the complaint. But the employee argued that his claim is timely because he did not discover the problem until he read the investment information, filing the lawsuit. A result against Intel will result in more claims against employer investment fiduciaries.

WageWatch Inc. 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.