Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

 

The National Labor Relations Act (NLRA) Fact Sheet

What does it do?

 

Regulates the relationship between labor and management and provides employees with the following rights:

• To form and join unions
• Assist unions
• Engage in collective bargaining

Who’s covered?

• The majority of private employers (even those without unions)

What does it prohibit an employer from doing?

• Interfering with an employee’s exercise of NLRA rights, including making threats of adverse action or bribing with benefits
• Discriminating against an employee because s/he exercised rights

What rights does it provide an employer?

• Can prohibit solicitation during working time
• Can prohibit leafleting at the workplace
• Can prohibit non-employees from coming onto workplace property during the workday

Note: Any such policies must be uniformly enforced without regard to whether or not they are union-related.

 

What is a “collective bargaining agreement” (CBA)?

• An agreement between an employer and a union regarding the terms and conditions of the employees’ work and employment benefits

What are some of the mandatory subjects of a CBA?

• Hours
• Rate of pay
• Health insurance and retirement benefits
• Seniority
• Assignments
• Time off
• Rules of promotion
• Discipline

How is a CBA enforced?

• Through a grievance and arbitration process in which the union and employer first try to resolve any complaint in collective negotiations. If those negotiations fail, the complaint will go in front of a neutral arbitrator.

What are the potential penalties?

• Reinstatement
• Back wages
• Monetary fines
• Injunctive relief
• Attorneys’ fees

Top NLRA tips

• Must bargain in good faith
• Once a CBA is executed, the employer cannot unilaterally change terms and conditions of employment
• If dealing with unionized employees, employer can bargain only with the union
• Employment of employees pursuant to a CBA limits the employment-at-will doctrine; in general, employers can terminate unionized employees only for just cause

NLRA and Social Media

• The NLRA is increasing its role in nonunion settings by taking positions on what an employer may or may not control regarding any employee’s activities in the Social Media sphere.

 

Starbucks Owes Baristas over $14+ Million in Tips

After improperly pooling the tips of baristas with their immediate supervisors for years, Starbucks must pay over $14 million to a class of the baristas who successfully sued the coffee chain in Massachusetts. The 1st Circuit U.S. Court of Appeals ruled that Starbucks violated the state’s Tips Act by pooling tips for baristas and shift supervisors.

 

Tips are distributed at stores weekly to individual baristas and shift supervisors in proportion to the number of hours they work. Starbucks tried to argue that it was unfair to “cut shift supervisors out of the tips pools when they spend the majority of their time serving customers alongside baristas,” according to the opinion.

 

The 1st Circuit slapped that argument aside, noting it was “disingenuous,” since “Starbucks is the architect of these tips pools, which flout the law and lump together eligible and ineligible employees. If there is an inequity, the fault lies with Starbucks – not with the Tips Act.” The law’s the law, said the appeals court, and the Tips Act clearly says employees with managerial responsibilities – i.e., the shift supervisors – are not “wait staff,” the only employees entitled to tips under the law.

 

And despite Starbucks’ argument that the decision is “a windfall for baristas,” the court said the coffee chain has only itself to blame. The appeals court affirmed the trial court’s finding that the shift supervisors had improperly received $7.5 million in tips during the six years at issue from 2005 to 2011. With treble damages and interest to date, the plaintiffs’ lawyers calculate the total award to come to more than $20 million.

 

 “Under this ruling, anyone who has worked as a barista for Starbucks in Massachusetts at any time since March 2005 is entitled to a refund from Starbucks of the amount of tips that they lost due to their sharing of tips with shift supervisors,” according to the firm.

 

The baristas’ lawyer said that the ruling affects about 11,000 baristas who worked at Starbucks between 2005 and 2011.

 

Sixth Circuit Affirms Denial of Class Certification in Overtime Claim

In White v. Baptist Memorial Health Care Corporation, the U.S. Court of Appeals for the Sixth Circuit held that, if an employer establishes a reasonable process for an employee to report work performed during unpaid breaks, it is not liable for non-payment if an employee fails to report the work performed through the established process. This is a welcome decision for employers, who increasingly are targeted with claims that they “should have known” about unreported off-the-clock work allegedly performed by employees. 

 

Baptist Memorial Health Care Corporation provides employees at its various hospitals with an unpaid 30-minute meal break each workday. As is common in many industries, the hospital automatically deducts the unpaid meal break from employees’ hours worked. In the event employees perform any work during their meal breaks, they are instructed to report such work through exception procedures made available by the hospital. These exception procedures vary from department to department and may consist of writing down meal-break work in a formal log, submitting a written note to a supervisor, or verbally informing a supervisor of the work performed. 

 

Note from Human Resources 4U: automatic deduction of meal period time while not illegal is a bad practice and will likely cause you trouble as noted in this article.

 

In White, the plaintiff reported work performed during meal breaks on several occasions, both when her entire nurse unit performed meal-break work and when she did so individually. The plaintiff was compensated for the work reported on such occasions. However, she unilaterally stopped reporting her meal-break work and therefore was not compensated for such work because the hospital did not know of it. There was no evidence that the hospital instructed the plaintiff to stop reporting her meal-break work or that she was otherwise discouraged from doing so.  

 

The plaintiff filed a collective action under the FLSA, arguing the hospital’s automatic deduction policy results in employees not being paid for meal-break work. She maintained that the automatic deduction policy unlawfully “shifts the burden” of ensuring employees are paid for all time worked from an employer to its employees. She further argued that the hospital knew or should have known about work performed during meal breaks that went unreported. 

 

The district court granted summary judgment to the hospital on the plaintiff’s claim, finding that the hospital had no reason to know of her unpaid meal-break work because she failed to report it. It also decertified the collective action on two grounds – first, because the plaintiff was not similarly situated to the opt-in plaintiffs in light of the dismissal of her claim and, second, because the opt-in plaintiffs’ claims were based on disparate factual and employment settings and were not tied together by a common FLSA violation. 

 

White represents a significant victory for employers. Plaintiffs who disregard procedures to report off-the-clock work often try to rescue their claims by arguing that their employer “should have known” about the alleged off-the-clock work. The Sixth Circuit has made clear that this tactic will not succeed if an employer makes the necessary arrangements for employees to report off-the-clock work. Accordingly, employers are encouraged to maintain a formal process for reporting off-the-clock work, educate employees on the process, encourage employees to use the reporting process, and ensure that employees are compensated for work reported.

 

Factoids

Perks

• 26% of employees say providing special perks is an effective way to improve employee retention.

Some Top Perks:

• Half-day Fridays         40%
• Ability to wear jeans   18%
• Massages                   16%

 

Top five technology jobs that didn’t exist 5 years ago:

• Social Media manager
• App developer
• Online ad manager
• Telework manager
• Blogger

US ranks 25 out of 30 countries in amount of annual paid time off with 20 days off, the overall average is 28 days off, Italy, Sweden have 36, Mexico is the lowest with 13 days off.

 

Quotes

"Smoking is one of the leading causes of statistics."

– Fletcher Knebel