National Labor Relations Board Dramatically Increases Rights Of Non-Union Employees

In the summer of 2000, the National Labor Relations Board (NLRB) issued two rulings that could have a substantial impact on non-union employers who had previously avoided the reach of unions and the NLRB. The first case, Epilepsy Foundation of N.E. Ohio,¹ grants to non-union employees the right to representation during disciplinary meetings with supervisors -- a right previously enjoyed only by union employees. The second case, M.B. Sturgis,² expands the definition of "bargaining unit" to include certain employees of staffing firms, thereby making it easier for unions to organize temporary employees.

Since 1975, union employees have enjoyed the right to have a union representative present at an investigatory interview when the employee has had reason to believe that disciplinary action might result from the interview. Indeed, in NLRB v. Weingarten,³ the Supreme Court held that it was a violation of Section 8(a)(1) of the National Labor Relations Act to deny a union employee's request for such representation. The NLRB, however, determined in 1985 that these "Weingarten" rights did not extend to non-union employees.⁴

In July 2000, the NLRB departed from its prior decisions and ruled that non-union employees have the same right to representation afforded unionized employees. In Epilepsy Foundation of N.E. Ohio, the NLRB held that an employer wrongfully terminated a non-union employee following his request to have a co-worker present at an investigatory interview. The Board decided that non-union employees have "Weingarten" rights and are, therefore, entitled to representation during a meeting with a supervisor that could result in disciplinary action.

As a result of the July 2000 decision, all employers, whether unionized or not, must understand the "Weingarten" requirements. Most importantly, employers now must realize that a request for co-worker representation during disciplinary interviews cannot be denied outright. There are, however, limits to "Weingarten" rights. First, employees are not entitled to demand a representative who is not on the premises at the time of the interview. Second, requests for non-employee representatives, including attorneys, can be denied. Third, the employer is not required to offer the option of having a co-worker present, and may end the investigatory interview in the event that the employee requests co-worker representation. Last, "Weingarten" rights do not prohibit employers from disciplining an employee who refuses to answer employer questions, and do not permit co-worker representatives to interfere with an investigatory interview. Failure to comply with this NLRB ruling may expose an employer to an unfair labor practice charge.

In its second major reversal of precedent this year, the NLRB, in August, held that a company's temporary employees can, in some instances, be included in the same bargaining unit as the company's regular employees for purposes of union representation.⁵

Prior to the NLRB's decision in the M.B. Sturgis case, NLRB precedent required the consent of both the temporary agency and the "user" employer before jointly employed temporary employees could be included in the same bargaining unit as the "user" employer's regular employees. Such consent is no longer required. Instead, when temporary employees are "jointly employed" by a temporary staffing firm and a "user" company, and share a "community of interest" with the "user" company's regular employees, then the two sets of employees are in the same bargaining unit.⁶ The majority decision stated that "a unit composed of employees who are jointly employed by a user employer and a supplier employer, and employees who are solely employed by the user employer, is permissible under the [National Labor Relations Act] without the consent of the employers."

The July 2000 decision still requires that the temporary employees and the "user" company employees share a "community of interest," or share mutual goals. Additionally, the decision requires that both a temporary staffing firm and a user employer bargain jointly with the unions that represent the workers in the bargaining unit.

To avoid grouping temporary employees with your regular employees for purposes of collective bargaining, employers should consider ways to escape the joint employer problem. This can be accomplished by relinquishing control of temporary employees and shifting the day-to-day management of temps to the staffing agency. Further, employers should limit the amount of time that any particular temporary employee may perform services for the company. Taking such steps will help prevent temps from organizing with an employer's regular employees.

With the influx of computer workers not only into high-tech companies, but also into the general employment arena, many companies are considering such workers exempt from the minimum wage, maximum hour and overtime requirements of the Fair Labor Standards Act (FLSA or the Act) without thoroughly examining the requirements for exemption under the Act. Inasmuch as incorrectly classifying workers as exempt can have expensive ramifications, the status of computer workers should be considered carefully.

In 1990, Congress initially authorized the Secretary of Labor to adopt regulations permitting the exemption for certain computer professionals. In 1996, Congress incorporated the substance of those regulations directly into the FLSA. The legislation was motivated by the fact that many computer employees possess highly-specialized technical skills, exercise considerable independent judgment and are well paid, but must work long hours and do not necessarily have the academic background generally required for the professional exemption.

Computer personnel may qualify for exemption in either of two ways: (1) they may satisfy the traditional standards for exemption as executive, administrative or professional employees in terms of primary duties and payment on a salary basis; or (2) they may satisfy primary duty and wage standards that apply specifically to computer-related jobs.

Under the second approach, the employee first must be a computer systems analyst, a computer programmer, a software engineer or an individual with similar skills. The employee also must have as his primary duty one of the following:

• Application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system functional specifications;
• Design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
• Design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or
• A combination of the above duties, the performance of which requires the same level of skills.

Additionally, the FLSA provides that computer professionals who are paid on an hourly basis must be compensated at a rate of $27.63 an hour to qualify for the exemption.⁸

Unless the individual in question satisfies the above requirements, that individual should not be classified as exempt under the "computer professional" exemption.

Non-high-tech companies typically need computer workers to a lesser extent than dot-coms, and, therefore, hire such workers as "independent contractors." Independent contractors are not specifically "exempt" by the FLSA. Instead, they simply are not "employees" as that term is defined under the Act, and accordingly, are not subject to the Act's provisions. Misclassifying a worker as an independent contractor, rather than as a regular employee, can result in severe monetary penalties to the employer.

Generally, in determining whether a worker is an employee or an independent contractor for purposes of the FLSA, courts apply the "economic realities" test. This test requires consideration of five factors related to the worker's position:

• Skill required to perform the job in question;
• Permanency of the relationship between the worker and the employer;
• Worker's investment in the facilities;
• Degree to which the opportunity for profit or loss is determined by the employer; and
• Employer's degree of control over the worker.

The degree of employer control is the dominant concern under the "economic realities" test. The higher the degree of employer control, the less likely the worker is an independent contractor, and the more likely the worker is an employee entitled to the protections of the FLSA.

The status of your computer workers should be reviewed in accordance with the above principles to ensure that they have not been misclassified as independent contractors or as exempt computer professionals.

Federal and state laws require that employers post various notices in and around their workplace in order to keep employees apprised of their rights. Employers should be aware that the following notices may be required to be displayed in the workplace.

The poster "Equal Employment Opportunity is the Law" must be displayed by all employers with 15 or more employees. It cautions against discrimination based on age and sex. For employees in programs or activities receiving federally financed assistance, it cautions against discrimination based on handicap, race, color, sex and national origin. Contractors and sub-contractors who enter into any agreement with the federal government in excess of $2,500, for the principal purpose of furnishing services, must display this poster as a caution against discriminating on the basis of race, color, religion, sex, national origin, handicap, Vietnam era veterans and special disabled veterans.

Poster entitled "Notice to Employees. Federal Minimum Wage" is required of all employers covered under the Fair Labor Standards Act.

This poster is mandated for all employees covered by the FMLA. The Notice apprises employees of their rights under the FMLA, and how to go about effectuating those rights.

The poster "Notice to Employees working on Federal or Federally Finance Construction Projects" must be posted at the job site if the company is engaged in work covered by the Davis-Bacon Act or one of the federal laws applicable to federal or federally assisted construction.

The poster "Notice to Employees Working on Government Contracts" must be posted by contractors and subcontractors with contracts that exceed $10,000 under the Walsh-Healy Public Contract Act or contracts in excess of $2,500 under the Service Contract Act.

The OSHA poster "Job Safety and Health Protection" is required of all employers covered by the federal OSHA law.

The poster "Notice - Employer Polygraph Protection Act" explains the prohibitions, exemptions, examination rights, enforcement and more for this law.

In addition to the notices required under Federal law, most states have a number of laws that require further postings. For example, many state wage payment laws require postings, as do state workers' compensation and unemployment compensation laws.⁹

1331 NLRB No. 92 (2000).

2331 NLRB No. 173 (2000).

3420 U.S. 251 (1975).

4Sears, Robuck & Co., 274 NLRB 230 (1985).

5  M.B. Sturgis, Inc., 331 NLRB No. 173 (2000).

6A "joint employer" situation exists when separate entities share some control over the "essential terms and conditions of employment" of an employee. See West Texas Util. Co., 108 N.L.R.B. 407 (1954).

7This article is one in a series of articles that covers various topics implicated by the accessibility and use of technology in the workplace.

829 U.S.C. § 213(a)(17).

9Illinois law also requires certain postings regarding toxic substances and choke saving.