In the matters in which the NLRB did not find protected activity, the posts involved individual complaints, rather than concerted action, the NLRB stated.

• provide for electronic filing of election petitions and other documents; 
• ensure that employees, employers and unions receive and exchange timely information all parties need to understand and participate in the representation case process;
• standardize timeframes for parties to resolve or litigate issues before and after union elections;
• require parties to identity issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation;
• defer litigation of most voter eligibility issues until after the election;
• require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and e-mail addresses when available;
• consolidate all election-related appeals to the NLRB into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals; and
• make NLRB review of postelection decisions discretionary rather than mandatory.

            The NLRB’s hope is that these new rules, if adopted, will streamline and modernize the filing of petitions and the entire election process.

            The notices explain the right to unionize under federal law, to bargain collectively, to provide employees with union literature, and to work together to improve wages and conditions of employment free of retaliation.  This is the first time the NLRB has required posting of such a notice since the NLRA went into effect in 1935.

            The posting requirement applies to all private sector employers, including unions, who are subject to the NLRA.  Since the NLRA applies to union and non-union workplaces, even workplaces with no union(s) will have to post the notice. 

            The notice of rights may be obtained at no charge from each local NLRB regional offices, or downloaded from the NLRB’s website.  Translated versions will be available, and must be posted at workplaces where at least twenty (20%) percent of the employees are not proficient in English.  Employers must also post the notice on the intranet or on an internet site if personnel rules and policies are customarily posted there.

            Failure to post the notice may be treated as an unfair labor practice under the NLRA. While the NLRB does not have the authority to levy fines against employers for failure to post the notice, knowingly and willfully failing to post the notice may be used as evidence of an unlawful motive in an unfair labor practice involving other alleged violations of the NLRA.  In addition, the NLRB may extend the six (6) month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer if the notice is not posted.

            Previously, employers were required to report to New York State the name, social security number and gross wages paid to each of its employees who either reside or are employed in New York State.  Beginning with the third quarter of 2011, employers must also disclose whether dependent health insurance benefits are available to employees.     

            In addition, employers will now be required to report whether dependent health insurance benefits are available to a newly hired employee and, if so, the date that the employee qualifies for such benefits.  This new information must be reported on Form IT-2104 (Employee’s Whitholding Allowance Certificate) or Form IT-2104-E (Certificate of Exemption from Withholding)

            The United States Department of Labor issued a six-part test that was later adopted by the courts in analyzing pre-employment training cases. 

            If all six of the following criteria apply, the trainees are not employees within the meaning of the FLSA:

1. The training, even though it includes actual operation in the employer’s facilities, is similar to training that would be given in a vocational school (this means the training is “fungible,” or interchangeable, and can be used by the employee in another position with another employer);
2. The training is for the benefit of the trainee;
3. The trainees do not displace regular employees but work under close observation;
4. The employer that provides the training derives no immediate advantage from the trainees’ activities and at least on occasion, its operation may actually be impeded;
5. The trainees are not necessarily entitled to a job at the completion of the training period; and
6. Both the employer and the trainees have an understanding that the trainees are not entitled to wages for the time spent in training.

The most crucial part of this test involves balancing the benefit to the trainee against any advantage to the employer.  When an employer is clearly gaining an economic advantage from the efforts of its “trainees,” they will likely be deemed employees entitled to compensation for their “training time.”  Nevertheless, when all the criteria are met, the number of hours spent in training is not an issue. 

            The United States Department of Labor (USDOL) has created a “safe harbor” list of criteria in determining whether training is considered “hours worked” and thus compensable.   In general, training need not be counted as working time only if all of the following four criteria are met:

1. Attendance is outside of the employee’s regular working hours.
2. Attendance is voluntary.
3. The course is not directly related to the employee’s job.
4. The employee does not perform any productive work during such attendance. 

            If even one of the above criteria is not met, then the employee must likely be paid for the training time.  None of the criteria relate to the location of the training, so an employer cannot use that as a deciding factor in determining whether or not at-home training time should be paid.

            Most disputes about the compensability of training time arise under the second prong of the test – that is, whether a given training program is “voluntary.”  Generally, attendance at or participation in courses or other training will be considered voluntary when the employee’s classification or work conditions are not adversely affected by his/her decision not to participate.  For example, managers can suggest to their employees that they consider taking a training course without turning the training into compensable work time.  However, the managers must not expressly or implicitly that the employee’s present working conditions or continuance of employment will be adversely affected if he/she refuses to participate.

            Tomorrow, I’ll write about when it may be necessary to pay for pre-employment training.

            The case arose from an employment dispute.  In July, 2008, Cambridge Who’s Who Publishing (“Cambridge”), a Uniondale, Long Island -based company offering networking and marketing services for business professionals, hired Harsharan Sethi as its director of management information systems.  At the time of his hire, Mr. Sethi signed a non-disclosure agreement which restricted him from using client names, addresses and credit card numbers in any manner not connected to the company’s business.  

            In February, 2010,Cambridgefired Mr. Sethi, and a few months later sued him for breach of contract and libel, seeking $15 million in damages.  In its lawsuit, the company accused Mr. Sethi of engaging in verbal and written attacks upon the company since his termination.  It also alleged that Mr. Sethi intentionally and falsely accused Cambridge and various employees of criminal conduct, as well as violating civil laws.  

            In particular, the lawsuit accused Mr. Sethi of setting up a number of websites which claim that customers might be legally entitled to a refund, and accusing the company of various scams.  In addition, according to the company’s lawsuit, Mr. Sethi e-mailed the consumer frauds bureau of the New York Attorney General’s Office in October, 2010, and raised concerns about the potential loss of personal data from 400,000 of Cambridge’s customers.  The company denies that it lost any customer data. 

            As part of its lawsuit,Cambridgerequested that the court issue an injunction, enjoining Mr. Sethi from soliciting customers or disclosing customers’ personal information.  In addition, the company asked the court to order him to refrain from stating that the company had lost customers’ personal data.  

            While the court granted the company’s request for an injunction directing Mr. Sethi to cease soliciting its customers or disclosing their personal information, it denied Cambridge’s request to enjoin him from making his accusations against the company.  In refusing to do so, the court held that his communications are protected by the First Amendment. 

            The lawsuit, which includes a $20 million countersuit by Mr. Sethi, is still pending.

            The NLRB asserts that the company violated the employee’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that implied that management was not being honest with employees.  The employee, an environmental reporter for the company, was responding to a supervisor’s invitation to employees to send postings to a company Twitter address about how to make Reuters a better place to work.  

            After the employee sent the message, a member of management called her at home, and informed her that Thomson Reuters had a policy prohibiting employees from saying anything that would damage the reputation of the company.  

            The essence of the proposed NLRB complaint is that the telephone call to the employee, which she felt was intimidating and threatening, had violated the employee’s federally protected right to engage in concerted, protected activity with co-workers to improve working conditions.  Typically, the NLRB warns an employer about its intention to file a complaint, to encourage the parties to resolve the matter.  If no resolution occurs, the complaint is filed, and the case is heard by an administrative law judge. 

            This matter follows one in November, 2010, in which the NLRB accused an ambulance service of unlawfully terminating an employee after she criticized her supervisor on her Facebook page.  That matter was resolved in February, 2011, in part by the company agreeing to change its blogging and Internet policy(ies), which had prohibited employees from making disparaging remarks against the company or its supervisors.

           According to the government, the company kept two sets of business accounting records to hide its activities.   According to the indictment, the owners of the company hired undocumented aliens to work in their restaurants’ kitchens and paid them “off-the-books” with no taxes state or federal taxes withheld or reported to the IRS or state taxing authorities.

          The government asserts that the company officials failed to pay over $400,000.00 in payroll taxes over a two year period.

           The two owners (who are father and son) are franchisees and own approximately twenty (20) restaurants in the Chuy’s Mesquite Broiler restaurant chain.  They were arrested following a lengthy investigation conducted by the U.S. Immigration and Customs Enforcement officers, the U.S. Department of Labor, Homeland Security Investigations agents and the Internal Revenue Service.  The government investigation began after a tip was received more than a year ago that the company was employing illegal workers.            

            If convicted, the owners potentially face 80+ years in prison and fines totaling over $10 million. The accountant for the restaurant chain faces a maximum prison sentence of 40 years and a $2 million fine.

            The case arose after an employee made complaints to his former employer about where it kept the time clocks that recorded the hours that employees worked in a manufacturing plant.  The time clocks were located away from where employees had to put on and take off protective gear, and thus employees where not given credit for, and were not paid for, the time spent doing so.  Later, in a related case, a federal court ruled that that practice was in violation of the FLSA.  

            Shortly after making his verbal complaints, the company fired the employee, allegedly for reasons unrelated to his complaints.  The employee then filed a lawsuit alleging that his termination was in retaliation for his complaint.  

            Lower federal courts dismissed the employee’s lawsuit, finding that in order to be protected against retaliation, a complaint regarding underpayment of wages had to be in writing. 

            The main issue in the case was whether the phrase “filed any complaint” found in the FLSA applied only to written complaints, and not to verbal ones.  There had been a split in lower federal courts, with some holding that verbal complaints to an employer were sufficient, while others concluding that a complaint had to be in writing.  Indeed, some lower courts had decided that the law only applied to written complaints made to the government, such as the United States Department of Labor, and not even to written complaints to employers.

            In deciding that the law applied to verbal complaints, the Supreme Court considered the plain meaning of the word “filed”, which it concluded could encompass such complaints.  It also considered the intent of Congress in enacting the FLSA, which was to address poor working conditions. 

            However, the Supreme Court stopped short of holding that all verbal complaints would satisfy the statutory definition of “filed any complaint”.  Rather, the Court held, a complaint must be sufficiently clear and detailed for a reasonable employer to understand that it is “an assertion of rights protected by the statute and a call for their protection”. 

            In light of this decision, I would urge all employers to enact procedures to handle complaints of unlawful wage practices, akin to those that all employers should already have in place for complaints of discrimination and harassment.