Author Archives: Martin J. Saunders

NLRB CHANGES SUCCESSOR LIABILITY

Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor.  If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment. MergeAhead

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CLASS ARBITRATION – WHO DECIDES?

Employers tend to like certain aspects of arbitration.  Often it provides a faster and more economical resolution to a dispute than litigation.  Parties can represent themselves, without the need for counsel, before an impartial decision maker chosen by them.  Most arbitrators have some level of experience or expertise in the subject matter of the controversy they will be deciding.  Courts and juries generally will have no such experience.  Employers also believe that an arbitrator’s economic self interest, the desire to be selected for future cases, will prevent an arbitrator from entering a “runaway jury” size adverse award significantly beyond the actual, documented losses and, where appropriate, prevailing party attorney fees. Read More »

OBAMA’S NLRB COMES TO OSHA’S RESCUE

Retaliation against an employee who has filed a complaint, testified, or exercised any right under OSHA is a violation of that Act.  OSHA, however, has a small window of opportunity for an employee who believes he has been retaliated against by his employer to bring a claim before OSHA.  To be timely, an employee must file his whistleblower complaint with OSHA within thirty days from the date of an adverse action. alphabet-soup-save-me-7040755

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DID THE FLSA’S DE MINIMUS RULE SURVIVE SANDIFER v. UNITED STATES STEEL CORP.?

Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time.  In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time.  The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.  

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MUST ACCOMMODATIONS UNDER THE ADA GO BEYOND ESSENTIAL JOB FUNCTIONS?

As regular readers of this blog know, the Equal Employment Opportunity Commission’s focus on disability discrimination – and the circumstances under which a reasonable accommodation of a disability needs to be made – has been in the news several times in 2013. While the question of whether leave is a reasonable accommodation may be the one we hear about the most, employers frequently get unusual or unique accommodation requests.  For instance, must an employer consider an employee’s request for free onsite parking as a reasonable accommodation?  That question was recently addressed by the Fifth Circuit Court, and the decision of the Court is a useful reminder for employers everywhere.  

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OBAMA’S NLRB CONTINUES TO TURN THE LABOR RELATIONS WORLD UPSIDE DOWN

While the validity or invalidity of the National Labor Relations Board’s early 2012 recess appointments has been all the rage in labor relations news recently, it’s important not to overlook all of the other things the Board has been doing in recent months.  Like overruling 34 years of precedent on when witness statements must be exchanged between the employer and union. 

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IRON TIGER LOGISTICS: THE NLRB MANDATES AN RSVP – PROMPTLY

You have employees, some of whom are represented by a union.  The union makes a request for information or documents concerning some of your non-union employees and the work they are performing.  Do you need to do anything; and if so, what and when?  A recent decision by The National Labor Relations Board in Iron Tiger Logistics, Inc. answered these questions. 

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SHOULD PENNSYLVANIA EMPLOYERS RELY ON CREDIT HISTORY IN MAKING EMPLOYMENT DECISIONS?

The Equal Employment Opportunity Commission has taken the position that an employer cannot use credit history background checks unless the credit screening is job-related.  This position, however, is based upon an adverse impact theory – in other words, that an employment practice neutral on its face is unlawful if it disqualifies a disproportionate number of members of one protected class, as compared to other groups, without being sufficiently related to successful job performance. 

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EMPLOYERS BEWARE: HANDLE CONSUMER REPORTS CAREFULLY TO AVOID FAIR CREDIT REPORTING ACT VIOLATIONS

The Fair Credit Reporting Act has been around for a while, but still trips up many in the HR profession.  In fact, we could probably post a piece on the FCRA every 6 months and it wouldn’t be reminder enough.  How does this Act cause so many problems for employers?  Please read on.

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