Last week, the National Labor Relations Board signaled two additional areas in which it intends to pursue its labor-favorable agenda over the remainder of the 2022 year and beyond.

First, on October 31, 2022, NLRB General Counsel Jennifer Abruzzo issued a memorandum stating her intention to zealously enforce the National Labor Relations Act (the “Act”) with respect to what she has called “intrusive or abusive electronic monitoring and automated management practices.”

Second, on November 3, 2022, the Board issued a proposal to roll back 2020 amendments to its election regulations with respect to so-called blocking charges.

Technology-based monitoring and surveillance

In her October 31 memorandum, the General Counsel expressed concern that “close, constant, surveillance and management through electronic means” constitutes a threat to “employees’ ability to exercise their rights” under the Act.  The General Counsel specifically stated that electronic surveillance and automated systems can limit or prevent employees from engaging in protected activity, including conversations about the terms and conditions of their employment or of unionization.  She also claimed that employer-issued devices or required applications on employees’ personal devices may extend surveillance to nonworking areas, including to rest areas within an employer’s facilities and non-work areas outside of the workplace.  This, the General Counsel speculated, “may prevent employees from exercising their Section 7 rights” from engaging in concerted activity anywhere and may lead to retaliation and discrimination on the basis of protected activity.  The memorandum goes on to provide a two-pronged approach towards dealing with these perceived threats to employees’ rights.

Continue Reading NLRB aiming to take pro-labor action in the areas of technology-based monitoring and surveillance and blocking charges

With Election Day just around the corner, private employers should carefully review state voting leave laws to ensure they are in compliance. Voting leave laws vary by state, and depend on where the employees are actually located. We have prepared a quick-reference summary of the voting leave laws in those jurisdictions that have them, which you can access here.

There is no federal law requiring employers to give employees time off to vote. However, the majority of states – and even some local ordinances – mandate voting leave time, especially when an employee does not have sufficient time before or after work to vote. Exempt employees who take time off to vote during the day should not be docked any pay; reducing an exempt employee’s pay for time taken to vote could jeopardize their overtime exemption. Now that remote working has become the norm for some companies, it is important to remember that the law where the employee is located generally governs the employment relationship.

As noted above, some states require employers to provide paid time off to vote, including for early or absentee voting, while other states require time off but allow same to be unpaid. State voting leave laws also vary on the amount of time that must be provided and whether the employer can require the employee to take the time off at the beginning or end of the employee’s workday. Some states require employers to provide time off to employees who serve as election officials. Several states even require postings that advise employees of their voting leave rights. In addition to state law, local ordinances should be reviewed for compliance with voting leave rights.

As of the date of this post, 30 states and the District of Columbia have some form of voting leave laws. Employers in states without voting leave requirements may still choose to let employees take time off to vote on Election Day if they have not voted early and they do not have a reasonable amount of time outside of their scheduled work hours to vote.

Reed Smith’s employment attorneys are available to answer any questions you have regarding voting leave laws to help ensure compliance.

In mid-October 2022, Parliament has debated, for the first time, a proposal to implement a four-day working week in the UK. The bill, proposed by Labour, would reduce maximum working hours per week to 32 with no corresponding reduction in pay. Whilst it is unlikely that the bill will get very far (it is not supported by the government), it marks an interesting development in the case for a four-day working week, which is continuing to gain momentum.

In the UK, this increasing momentum is currently focused on a major six-month trial run by 4 Day Week Global involving over 3,000 employees across 70 organisations. The trial involves employees working 80% of their contractual hours for 100% pay with the expectation of achieving 100% productivity. Whilst the trial isn’t due to end until December 2022, the mid-term reported results are positive, with the majority of the companies which responded to the interim survey saying it worked for their businesses and 86% saying they planned to continue with a four-day working week after the trial.

Continue Reading Is a four-day working week the future for UK employers?

As we previously reported, effective tomorrow (November 1, 2022), New York City law will require that virtually all internal and external job postings include the minimum and maximum salary/wage rate that the employer in “good faith” believes it is willing to pay for the advertised job, promotion, or transfer opportunity. The New York City Commission on Human Rights (the “NYCCHR”), the agency that will enforce the law, has published a fact sheet on the new law to assist employers in compliance.

Of particular importance, the NYCCHR takes the position that the new job posting law applies to any advertised role that will or can be performed in the Big Apple. This means that fully-remote roles — i.e., roles that can be performed from any location — are likely covered by the law, even if the employee does not have a physical presence in New York City.

Damages for violations include monetary damages to affected employees, as well as affirmative relief that may be levied by the NYCCHR such as amending advertisements and postings, creating and updating policies, conducting trainings, providing notices of rights to employees and applicants. All New York City employers should therefore immediately review and set salary ranges for all existing positions, revise current and future job postings to set forth the salary ranges in accordance with the amended law, and revise related human resources documents to ensure consistency and compliance as of November 1, 2022.

Continuing a string of pro-union decisions, the National Labor Relations Board recently overruled a 2019 Board decision and held that employers violate federal law if they fail to transmit membership dues to unions after the expiration of a collective bargaining agreement.

In its 2019 decision in Valley Hospital Medical Center, Inc., 68 NLRB No. 139 (2019) (Valley Hospital I), the NLRB held that employers had the right to cease contractual dues checkoff obligations after a CBA expired. There, the NLRB stated that dues checkoff provisions were mandatory subjects of bargaining that were exclusively created by a CBA and, therefore, were enforceable only for the duration of the CBA.

On October 3, 2022, the NLRB issued its decision in Valley Hospital Center, Inc. (Valley Hospital II), on remand from the United States Court of Appeals for the Ninth Circuit, finding that an employer may not unilaterally stop union dues checkoff after a CBA expires. In Valley Hospital II, the NLRB returned to pre-Valley Hospital I precedent, under which an employer, following contract expiration, must continue to honor a dues-checkoff arrangement established under the CBA until either the parties have reached a new agreement or the parties have reached impasse after bargaining, thereby permitting unilateral action by the employer. The NLRB also applied the new rule retroactively and concluded that the employer in Valley Hospital II should pay the union dues that were not collected after it ceased dues deductions.

Board Members John Ring and Marvin Kaplan dissented, citing long-standing precedent established in Bethlehem Steel, 136 NLRB 1500 (1962), under which employers were allowed to unilaterally cease dues deductions upon expiration of a CBA. Board Members Ring and Kaplan reasoned that checkoff provisions are unique and have a “special status separate from other terms and conditions of employment” because the duty to deduct dues arises directly from a CBA.

In light of this recent decision, employers should review their policies to ensure they continue to honor dues-checkoff agreements after expiration of a CBA until either (1) a new agreement is reached, or (2) the employer and union have reached impasse following a good-faith bargaining process. Employers can further protect themselves by inserting language into a CBA specifically providing that a check-off provision survives only for the duration of the agreement.

On 23 September 2022, the new Chancellor, Kwasi Kwarteng, unveiled the Growth Plan 2022 detailing the UK government’s set of economic policies aimed at, as the name suggests, boosting economic growth in the UK by improving competition and improving living standards by allowing people to retain more income. Much has been said in recent days on the merits and dangers of the plan and whilst we have seen an immediate impact on the value of the pound, it remains to be seen whether in the longer term the plan meets its aims and supports the country in navigating the likely impending recession. In the meantime, we summarise below the key elements of the plan from a UK employment perspective:

  • National Insurance cuts: On 6 April 2022, national insurance contributions (NICs) were increased by 1.25 percentage points, with a plan that this would make way for a new health and social care levy at the same level from April 2023. These have now both been scrapped. The NIC increase will be reversed from November 2022 and the health and social care levy will no longer be introduced next year. This is intended to make it cheaper for employers to employ staff, and allow more workers to keep more of what they earn.
  • Income tax cuts: The basic rate of income tax will reduce by 1 percentage point, from 20% to 19%, from April 2023, a year earlier than planned, and the highest income tax band of 45% for income over £150,000 is being abolished, again from April 2023. As with the NIC changes, this is intended to enable workers to retain more of their earnings.It is also hoped that the abolition of the top income tax band will attract more high earning talent to the UK.
  • Banker bonuses: A cap on banker’s bonuses was introduced by the EU following the 2008 financial crisis as it was believed that unlimited bonuses encouraged high-risk taking behaviour, and that a cap would limit the behaviour, which resulted in the crash. However, the cap came in for criticism for pushing up base salaries and bank’s fixed costs without allowing for adjustment for financial performance. Following Brexit, and the UK’s freedom to depart from the EU rules, that cap (of up to 2 times fixed salary) is now being removed. The thinking is that without the cap, the UK can be more competitive globally, being able to align pay practices with other markets, promoting UK economic growth, and to allow the UK to attract and retain talent in the UK.
Continue Reading UK Employment Law: key messages from the UK Government’s Growth Plan

In early December 2021, then-Mayor Bill de Blasio announced that all private sector employers in New York City would need to adopt a mandatory COVID-19 vaccination policy for their workers. This meant that all private sector employees in New York City needed to be vaccinated against COVID-19 in order to perform in-person services within the Big Apple (subject to reasonable accommodations for medical, religious and other legally-protected reasons).

Just recently, however, current Mayor Eric Adams announced an end to this requirement. Indeed, starting November 1, 2022, private sector employees will no longer need to be fully vaccinated to work on-site within the City. As part of this, unvaccinated employees who currently receive reasonable accommodations in the form of an exemption to the vaccine mandate, will be able to perform in-person work without needing to wear a mask or test weekly for COVID-19. Notably, however, healthcare workers performing services in New York City will still be subject to the State’s vaccine mandate for such workers.

If you have any questions about how this impacts your business, Reed Smith’s Labor & Employment attorneys are ready to speak with you.

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons, and if passed could give rise to the most significant shake up of employment rights since Brexit. 

In summary, the Bill acts to automatically repeal all retained EU law, and remove the principle of the supremacy of EU law, on 31 December 2023 (with the power to extend the revocation date to 23 June 2026) unless specific legislation is introduced to retain it.

What this means for UK employment law is unclear at the moment, but as employment rights relating to the transfer of undertakings (TUPE), annual leave and working time, discrimination and equal pay, and agency, part time and fixed term workers are derived from the EU, the potential for changes in these areas looms large.

We can only speculate at this stage, but there does not seem to be any current indication or suggestion of a radical overhaul of UK employment laws that have their origin in the EU. The UK has a strong track record of high employment standards, on occasion ‘gold-plating’ the minimum criteria required of it by the EU, and although the promised strengthening of rights through the Employment Bill are yet to materialise, the current political landscape is not conducive to a government looking to significantly reduce rights. In addition, trade unions and worker organisations would certainly be likely to vehemently challenge any proposed changes that are to the detriment of workers.

Continue Reading What next for EU derived employment rights in the UK?

One of the priorities of the current administration is to police the alleged abuse of “gig workers,” particularly through the Department of Labor and the National Labor Relations Board. The Federal Trade Commission (FTC) is now joining those agencies in the employee-protection business. The FTC recently announced it has initiated enforcement efforts to protect gig workers from alleged deception about pay, work hours, unfair contract terms, and anti-competitive practices.

According to the 17-page Policy Statement published by the FTC on September 15, 2022 (Statement), 16% of Americans report earning income through an online gig platform. Gig work has become commonplace in food delivery and transportation. As the FTC notes, gig work is expanding into healthcare, retail, and other sectors of the economy.

Three primary concerns for gig workers

The FTC’s Statement outlines three key concerns the FTC plans to address via the full weight of its legal and regulatory authority.

1. “Control without responsibility” – Most gig companies categorize gig workers as independent contractors instead of employees. “Yet in practice,” the FTC explains, “gig companies may tightly prescribe and control their workers’ tasks in ways that run counter to the promise of independence and an alternative to traditional jobs.” The FTC states that improperly classifying workers as independent contractors (instead of employees):

  • Deprives workers of essential rights, like overtime pay, health and safety protections, and the right to organize;
  • Burdens workers with undue risks such as unclear and unstable pay and requires they use their personal equipment (car, cell phone, etc.); and
  • Forces workers to cover business expenses commonly paid for by employers (insurance, gas, maintenance, etc.).

2. “Diminished bargaining power” – Gig workers are not given information about when work will be available, where they will have to perform it, or how they will be evaluated. Because of their lack of bargaining power and decentralized work environment, the FTC believes workers have little leverage to demand transparency from gig companies. Due to what the FTC characterizes as a “power imbalance”:

  • “[A]lgorithms may dictate core aspects of workers’ relationship with a” company’s platform, “leaving them with an invisible inscrutable boss.”
  • Workers are often forced to sign take-it-or-leave-it agreements with liquidated damages clauses, arbitration clauses, and class-action waivers.

3. “Concentrated markets” – Markets populated by gig companies are often concentrated among just a handful of businesses, resulting in reduced choice for workers, customers, and businesses. The FTC believes the resulting loss in competition may incentivize gig companies to suppress wages below competitive rates, reduce job quality, and impose onerous terms and conditions on gig workers.

Continue Reading FTC set to begin policing companies for alleged gig worker abuse

Speedread

From 1 October 2022, the requirement for employers to physically check their new hires’ right to work (RTW) documents will return unless they opt to use one of the new government ‘Identification Document Validation Providers’ (IDSP) to validate RTW evidence online.

Background

Prior to the pandemic, all RTW checks had to be carried out face-to-face.

As a temporary measure brought in during the pandemic, the Home Office allowed employers to carry out RTW checks over video call and to accept scanned documentation (as opposed to having face-to-face checks and then copying and retaining original documents, as was the pre-pandemic requirement). This temporary measure will end on 30 September 2022. 

Reminder of requirements

All UK employers must carry out certain RTW checks for new recruits (regardless of nationality) and also use reasonable steps to ensure their current employees have and maintain a RTW in the UK. While there is no standalone liability for employers who fail to correctly carry out RTW checks, failing to do so exposes employers to fines of up to £20,000 per breach in the event that they employ someone illegally (plus criminal liability, disqualification of directors, reputational damage, among other risks). Compliant RTW checks secure a statutory excuse to civil liability for the hiring of illegal workers.

Continue Reading UK employers, are you ready for October? Change in Right to Work Check Requirements