NLRB Says that Non-Compete Agreements Should Be Deemed Unlawful

By Kristofor L. Hanson

Continuing a very aggressive employee- and union-friendly agenda, on May 30, 2023, NLRB General Counsel Jennifer Abruzzo sent a memo, GC 23-08, to all Regional Directors, Officers-in-Charge, and Resident Officers, setting forth her view that the offer, maintenance, and enforcement of non-compete provisions in employment contracts and severance agreements violate the National Labor Relations Act (NLRA) except in limited circumstances.

Though overbroad non-compete agreements are generally viewed as unlawful and subject to invalidation, the GC memo explains that within the context of the NLRA, overbroad non-compete agreements are unlawful because they chill employees from exercising their rights under Section 7 of the National Labor Relations Act. Section 7 protects employees’ rights to take collective action and engage in protected activity to improve their working conditions. Specifically, the memo explains that such agreements interfere with employees’ ability to:

  1. concertedly threaten to resign to secure better working conditions;
  2. carry out concerted threats to resign or otherwise concertedly resign to secure improved working conditions;
  3. concertedly seek or accept employment with a local competitor to obtain better working conditions;
  4. solicit their co-workers to go work for a local competitor as part of a broader course of protected concerted activity;
  5. seek employment, at least in part, to specifically engage in protected activity, including union organizing, with other workers at an employer’s workplace.

“Non-compete provisions reasonably tend to chill employees in the exercise of Section 7 rights when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work,” said General Counsel Abruzzo. “This denial of access to employment opportunities interferes with workers engaging in Section 7 activity in a number of ways—for example, workers know that they will have greater difficulty replacing their lost income if they are discharged for exercising their statutory rights to organize and act together to improve working conditions; their bargaining power is undermined in the context of lockouts, strikes and other labor disputes; and their social ties and solidarity leading to improvements in working conditions at workplaces are lost as they scatter to the four winds.”

The memo preserves limited circumstances pursuant to which non-compete agreements could be lawful if the provisions clearly restrict only individuals’ managerial or ownership interests in a competing business, or true independent-contractor relationships. Moreover, there may be circumstances in which a narrowly tailored non-compete agreement’s infringement on employee rights may be justified by special circumstances.

Although General Counsel memos are not binding on employers, they reflect the Board’s prosecutorial intent. Accordingly, all NLRB regional offices are required by the GC to submit cases concerning “arguably unlawful” non-compete agreements, as well as special circumstances defenses, to the NLRB’s Division of Advice. The memo directs NLRB regions to seek make-whole relief for employees subject to unlawful provisions who can show lost employment opportunities as a result of such provisions. Once complaints issue, the GC will seek to convince the members of the NLRB to adopt her theory that such provisions violate the Act.

Employers, whether unionized or not, should consult with experienced labor counsel to thoroughly assess non-compete and non-solicitation agreements and severance agreements in light of Section 7 and the GC’s memo.

BOOTING UP COMPUTER NOT COMPENSABLE UNDER THE FLSA

By Sally A. Piefer

Wage and hour cases in Wisconsin and across the country have been on the rise. A large percentage of wage and hour cases are filed as class action lawsuits. Often, unsuspecting employers are the targets of lawsuits, or a claim is filed as a result of an employee seeking legal advice on another employment-related topic. Wage and hour cases may not be covered by Employment Practices Liability Insurance (EPLI), and while a single employee claim can be a nuisance, a class-action claim can be very costly for employers, since an employer will be liable not only for the unpaid wages, but also an equal amount in liquidated damages, and attorney’s fees for the plaintiff.

In late 2022, the Ninth Circuit Court of Appeals, which has jurisdiction over much of the west coast, reversed a summary judgment decision which dismissed a lawsuit brought on behalf of a group of call center employees who alleged that the pre-shift and post-shift time they spent booting up and shutting down their computers was compensable.

The employees had to boot up their computers before they could clock into the employer’s timekeeping program, and also had to clock out of the timekeeping program before they could shut down their computers at the end of the day. They alleged that logging into the computer was “integral and necessary” and that following the call center’s protocol resulted in not being paid for all time they worked, which in turn resulted in unpaid overtime. The employees further alleged that the lost time was not de minimis.

The trial court dismissed this aspect of their claims, finding that booting up and shutting down computers was not a principal activity of the jobs of the call center employees. Rather, the employees were hired to answer customer phone calls and assist the customers. The trial court also determined that booting up and shutting down computers was also not integral and indispensable to the employee’s duties because they did not have to log in (or out) of the computer to take a customer’s call. The court likened the activity to an employee who was standing in line to clock in or out, which is normally not compensable.

On appeal, the Ninth Circuit concluded that the trial court erred in considering whether loading the timekeeping program to clock in was integral to the employee’s duties. The Ninth Circuit stated that the correct inquiry was whether “engaging the computer, which contains the phone program, scripts, customer information, and email programs, is integral to the employee’s duties.” Stated alternatively, the Ninth Circuit stated that the court should evaluate “the importance of booting up the computer to the employees’ primary duties of answering calls and scheduling rather than to their need to clock in using the electronic timekeeping system.” The Ninth Circuit reversed the dismissal of this claim and remanded the case back to the trial court to evaluate this question.

On remand, the trial court addressed whether the time the employees spent booting up and shutting down was de minimis. Activities under the Fair Labor Standards Act (FLSA) are considered de minimis when “the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours.” This doctrine is generally concerned with the administrative practicality of recording small amounts of time.

The trial court again dismissed the plaintiffs’ claims, primarily because most of the employees testified it took mere seconds or a few minutes to turn the computer on and off. Therefore, the court determined the time was de minimis. If employees experienced some sort of delay in booting up or shutting down, the record contained evidence that employees sought to have their timecards adjusted.

The plaintiffs have again appealed the dismissal of their claims. Stay tuned for further developments on this issue, but employers should make sure they implement policies prohibiting off the clock work, and evaluating whether their time-keeping procedures comply with the FLSA and applicable state law.

REMINDER: EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES

By Samantha J. Wood

On June 27, 2023, the Pregnant Workers Fairness Act (“PWFA”) will go into effect.  This law, which was previously discussed here, extends the protections for pregnant workers by requiring employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions. The Act makes it unlawful for employers to take any of the following adverse actions:

  • Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
  • Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
  • Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
  • Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

The EEOC has issued FAQs and a workplace poster, which are available here. The EEOC will begin accepting charges under the PWFA on Tuesday, June 27, 2023.

Also, the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act, which was signed into law at the same time as the PWFA, went into effect on December 29, 2022. This law expanded workplace protections for employees who need to express breast milk following the birth of a child by requiring employers to provide to both exempt and non-exempt employees reasonable time to express breast milk in a private location other than a bathroom. The PUMP Act applies to all employers covered by the Fair Labor Standards Act, regardless of the size of their businesses. Employers with fewer than 50 employees are only exempt from the requirements of the PUMP Act if they can demonstrate that compliance with the provision would impose an undue hardship. The U.S. Department of Labor (DOL) recently released guidance on the PUMP Act, which is available here.

Covered employers must post a notice explaining employee’s rights under the PUMP Act.  The Wage and Hour Division has published an updated FLSA poster that reflects current pump at work requirements.

Employers should update their policies, procedures, and postings and advise management of these changes to ensure immediate compliance with these laws.

Kids’ Chance of Wisconsin Educational Conference

Kids’ Chance of Wisconsin is holding its annual education conference on Thursday, May 11, 2023, at the Renaissance Milwaukee, Hotel – Wauwatosa. Kids’ Chance is a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin.

Chelsie Springstead is a Kids’ Chance of Wisconsin Board Member and Doug Feldman is a Past President and current Ambassador.

Whether you are an Attorney, Employer, Safety/HR Manager, Claim Representative, or Nurse Case Manager, this is a must attend event! Please join us for a dynamic half-day seminar and networking opportunity.

If you are interested in attending or sponsoring this event, click here for more information 2023_Kids_Chance_of_WI_Seminar_Registration_Materials.pdf.

 

 

ILLINOIS GOVERNOR TO SIGN LEGISLATION PROVIDING MANDATORY PAID LEAVE FOR ALL WORKERS

February 27, 2023

By: Sally Piefer and Alexandra (Sasha) Chepov

On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.

Covered Employees:

The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.

Covered Employers:

Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.

Paid Leave:

The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.

The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.

Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.

An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:

  • When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.
  • When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.

The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law.  Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.

Unlawful Retaliation:

Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:

  • Exercises rights or attempts to exercise rights under the Act,
  • Opposes practices which the employee believes to be in violation of the Act, or
  • Supports the exercise of rights of another under the Act.

Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.

Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.

Takeaway:

Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.

The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.

If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at spiefer@lindner-marsack.com or Alexandra (Sasha) Chepov by email at achepov@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

EMPLOYERS MUST EXERCISE CARE IN DRAFTING SEVERANCE AGREEMENTS IN LIGHT OF RECENT LABOR BOARD DECISION

February 23, 2023

By: Alexandra (Sasha) Chepov and Oyvind Wistrom

The National Labor Relations Board (NLRB) issued a landmark decision on Tuesday affecting the validity of various provisions typically found in employee severance agreements.  The NLRB in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023) ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if a severance agreement contains a non-disparagement or confidentiality clause that restricts an employee’s ability to exercise their rights under the NLRA.  The NLRB’s decision in McLaren Macomb not only restricts that which an employer can include or offer an employee in future severance agreements, but calls into question the validity of past agreements.

Prior to the NLRB’s decision in McLaren Macomb, severance agreements containing non-disparagement and/or confidentiality provisions were generally deemed lawful under the NLRA so long as the employer did not commit a separate Unfair Labor Practice (ULP) by discriminating against their employees by implementing such an agreement against the backdrop of union organizing or other protected activity.  However, in McLaren Macomb, the NLRB abandoned this practice and revived an old standard by which severance agreements will be assessed going forward.

After an employer offered its permanently furloughed employees severance agreements that contained a non-disparagement and confidentiality clauses, eleven bargaining unit employees filed ULP charges on the basis that these clauses violated the NLRA.  Notably, the non-disparagement clause at issue prohibited these employees from making statements that could disparage or harm the image of the company, its parent, affiliated entities and their officers, directors, agents, and representatives.  Further, the severance agreement prohibited these employees from disclosing the terms of the agreement to any third person.

In deciding the issue, the NLRB held that the standard non-disparagement and confidentiality clauses in the severance agreements were unlawful due to the broad scope of the provisions and the effect that the provisions had on the employees’ ability to exercise their rights under the NLRA.  Specifically, the NLRB held that such clauses tend to chill the exercise of an employee’s Section 7 rights to collectively band together in an effort to improve the workplace, and therefore such clauses violated Section 8(a)(1) of the NLRA.

The NLRB’s decision in McLaren Macomb, marks a stark departure from the standard employed by the Trump-Era NLRB, and the decision applies to both the enforcement of fully-executed severance agreements that contain such clauses, and agreements that are merely offered to employees.

Although not explicitly addressed by the NLRB, a well-crafted disclaimer may protect such agreements from running afoul of the NLRB’s decision.  However, such disclaimers must unequivocally allow employees to participate in Section 7 activities, file or assist others in filing ULP charges, and to otherwise cooperate with the NLRB’s investigative process.  It is possible that this ruling will be followed by a General Counsel Advisory Memo in the coming months offering more concrete examples of lawful severance covenants.

As the NLRB’s holding in McLaren Macomb applies to virtually all private-sector employers, regardless of whether their workplace is unionized, employers should review and revise their severance agreements to ensure they are in compliance with the new standard established by the Board.

If you have questions about this material, please contact Alexandra (Sasha) Chepov by email at achepov@lindner-marsack.com or Oyvind Wistrom at owistrom@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

 

EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES

January 9, 2023

By: Samantha J. Wood

On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The Pregnant Workers Fairness Act

 The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA).  Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions.  The Act makes it unlawful to take any of the following adverse actions:

  • Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
  • Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
  • Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
  • Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees.  Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law.  The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions.  Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.

Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act.  In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act

 The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child.  Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.

The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees.  The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.

The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance.  The employer then has up to ten (10) days to come into compliance with the required accommodations.

Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

FTC PROPOSING EXPANSIVE BAN ON NON-COMPETE AGREEMENTS

By:       Sally A. Piefer

January 5, 2023

Non-compete and non-solicitation agreements have become relatively commonplace. However, these agreements have been under increasing attack by state legislatures across the country. President Biden also expressed that one of the items on his regulatory agenda is to eliminate all non-compete agreements except for those necessary to protect trade secrets.

Back in 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy, which encouraged the Federal Trade Commission (FTC) to ban or limit non-compete agreements. Later that year, the FTC and Department of Justice (DOJ) held a virtual workshop on competition. The FTC believes that non-compete agreements constitute an unfair method of limiting competition and violate Section 5 of the Federal Trade Commission Act.

Earlier this week, the FTC announced that it took legal action against three companies, suing the companies to prevent them from using what the FTC described as unlawful non-compete restrictions. See https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers.

Today, the FTC released a proposed rule that would prohibit all non-compete agreements – except for those entered into between buyers and sellers of a business. The proposed rule, available from https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking, spans some 200+ pages, and proposes to:

  1. Find that all non-compete clauses are an unfair method of competition and would ban employers from entering into such agreements with employees and independent contractors; and
  2. Require employers to rescind existing non-compete clauses and affirmatively notify employees the contracts are no longer valid.

While the proposed rule states that customer non-solicitation agreements or confidentiality or non-disclosure agreements would not be impacted, the proposed rule also clarifies that these covenants “would be considered non-compete clauses where they are so unusually broad in scope that they function as such.”

If approved, the proposed rule would supersede any state law, regulation or order which is inconsistent with the FTC’s regulation. Public comment on the proposed rule is available for the next 60 days. Employers and other interested individuals can submit comments online at https://www.regulations.gov.

If you have questions about the proposed rule, or any questions about non-compete, non-solicitation and/or confidentiality agreements, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.

LINDNER & MARSACK, S.C., ANNOUNCES 2022 SUPER LAWYERS AND 2023 BEST LAWYERS DESIGNATIONS

Lindner & Marsack, S.C., today announced team members acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana, Andrew Quartaro and Oyvind Wistrom, along with Melissa Stone and Samantha Wood who were named by the organization as “Rising Stars.”

U.S. News & World Report and Best Lawyers also announced their designations for 2023, which includes Feldman and Wistrom as well as Daniel Finerty and Jonathan Swain.

“Our primary goal is to help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, Firm President. “First and foremost, we’re dedicated to advancing the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

 

Continuation of Dues Checkoff Now Considered Status Quo by Divided NLRB

By: Kristofor L. Hanson

In a 3-2 ruling by the five-member National Labor Relations Board, employers must now continue to deduct union dues – otherwise known as dues checkoff – from workers’ paychecks even after collective bargaining agreements containing such provisions expire. Valley Hospital Medical Center, Inc., N.L.R.B., Case 28-CA-213783 (Sept. 30, 2022). This ruling represents a return to the standard of the Board under President Obama after just three years during which dues checkoff could be discontinued in the event of contract expiration.

The Board relied on precedent that states that employers and unions must maintain the “status quo” when a CBA expires, and found that there has been no cogent explanation by the Board or courts as to why that did not apply to dues checkoff.  The Board stated that its decision “definitively resolves this issue by confirming that it is a violation of the Act to unilaterally stop dues checkoff when a contract expires.”

The decision is clearly favorable to unions as they have become increasingly concerned with their ability to continue dues collection once a contract expires, a vital conduit for union revenue. This decision likewise ends the availability of this economic weapon for employers in the face of labor strife.

Employers must now maintain dues checkoff along with wages, benefits, and other terms and conditions of workers’ employment upon the expiration of a collective bargaining agreement. This was an objective of Board General Counsel Jennifer Abruzzo once her nomination was approved by Congress.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the recent ruling by the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.