Immediate Impact – The Janus Effect in the Workplace

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Max RiekerThe Supreme Court’s June 27, 2018 Janus v. AFSCME decision may prove to be the most significant labor law case in half a century. The 5-4 case outlaws mandatory “fair share” fees for public employees who refuse membership in unions.

Early post-Janus analysis indicates that the ruling is having a severe financial impact on public sector labor unions in the 22 states – including Ohio. Prior to this case, the law had permitted the imposition of involuntary agency fee deductions from workers’ payroll.

In July, several state governments stopped collecting tens of millions of dollars in agency fees. For example, the state of New York did not collect between $9 and $10 million in fair share fees on behalf of public unions in that state. This does not even include fees formerly collected by county, local or school governmental entities.

The union membership rate has been falling in the private sector for decades, but has been holding steady at about 35% in the public sector for the past 35 years. Now that the public sector unions are seeing the early effects of dropping revenue and, likely, a drop in membership, they will have to reconsider their priorities and how they do business in order to adapt to these new realities.

The three largest public sector unions are the National Education Association at 3 million members; the American Federation of Teachers at 1.6 million members; and the American Federation of State, County, and Municipal Employees at 1.3 million members. According to the Department of Labor, these three unions collectively spent $119.8 million on “political activities” in 2017. This is a comparatively large sum in light of the $153.9 million these three unions collectively spent on representing their membership and organizing.

As a result of these financial pressures, skirmishes are beginning to crop up among Ohio’s 3,200 public sector bargaining units, and administrators should be prepared to address: (1) questions about how union members are permitted to withdraw membership, (2) whether the union’s withdrawal policy is lawful, and (3) what employers are permitted to say to their employees about withdrawal from the union.

Public employers must familiarize themselves with any withdrawal provisions contained in collective bargaining agreements. Recent cases have held that contractual “window periods” and union membership withdrawal requirements done via certified mail are lawful. More stringent requirements should be carefully analyzed by counsel to determine whether the requirements are arbitrary, discriminatory, misleading, ambiguous, or otherwise impermissibly restrictive. For instance, one recent case held that a withdrawal provision was impermissibly restrictive when it required a resigning union member to appear in person at the union hall with a valid photo ID and declare his intent to withdraw in writing.

Now more than ever, dissatisfied union members are turning to their own employers for help and advice when trying to get out of their union. While Ohio’s State Employment Relations Board has not yet squarely addressed which sorts of communications employers are permitted to have with their employees on the issue of withdrawal, employers should work closely with counsel. Together, they should formulate plans for communication with employees that are permissible within the bounds of the Ohio Public Employee Collective Bargaining Act. Public sector unions are already putting shots across employers’ bow on this topic. Backed into a corner, Ohio unions have already issued blanket written threats of filing unfair labor practice charges against public employers related to communications with employees.

Most importantly, employers should consciously take steps to:

  • Protect their employees from unlawful pressure exerted on them to remain in the union, and
  • Work with labor counsel to form solid proposals that bring collective bargaining agreements in line with current law and address the needs of the employer.

Public employers should work proactively through these considerations before they become potential problems.

Max Rieker is an attorney at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.

NLRB’s New Employee Handbook Guidance

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Rina Russo

  • “Disparaging or offensive language is prohibited.”
  • “Employees may not engage in disrespectful conduct.”

The above rules might seem reasonable to you or perhaps you have seen them in your own company’s employment policies. However, prior to the National Labor Relations Board’s (“NLRB”) ruling in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), these types of work rules would likely have been considered unlawful by the NLRB. That’s because a 2004 NLRB ruling (Lutheran Heritage Village-Livonia) found that employees could “reasonably construe” such policies as restricting their ability to participate in “concerted activity” for “mutual aid and protection” under the National Labor Relations Act (NLRA).

In June 2018, the NLRB’s General Counsel Peter Robb issued a memo titled “Handbook Rules Post-Boeing,” which provides helpful guidance in an area where there was once not much reliable guidance at all. Following Boeing, the Board has indicated that it will approve the use of rules that promote “harmonious interactions and relationships” or “civility” in the workplace. Handbook rules are now split into the following groups: (1) rules that are generally lawful to maintain; (2) rules which will warrant individualized scrutiny and review by the General Counsel’s Office; and (3) rules that are clearly unlawful to maintain. Below are the types of rules that fall into each category:

(1) Rules That Are Generally Lawful

Civility rules, no-photography and no-recording rules, rules against insubordination, disruptive behavior rules, rules against defamation or misrepresentation; rules protecting confidential or proprietary information; rules against using employer logos and/or intellectual property; rules requiring employees to receive authorization to speak for their employer; and rules banning disloyalty.

(2) Rules Which Require Greater Scrutiny

Broad conflict of interest rules; broad confidentiality rules; rules regulating disparagement or criticism of the employer; rules regulating use of the employer’s name; rules restricting speaking to the media; rules banning off-duty conduct that might harm the employer; and rules against making false or inaccurate statements.

(3) Clearly Unlawful Rules

Confidentiality rules that specifically mention wages, benefits or working conditions; and rules against joining outside organizations.

Although the Board’s guidance is certainly helpful, careful crafting of employment policies is still necessary.

 

Employees Can No Longer Choose to Delay FMLA-Protected Leave

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Peter Zawadski

The U.S. Department of Labor (DOL) recently issued an opinion letter stating that an employee who qualifies for leave under the Family and Medical Leave Act (FMLA) cannot decline the leave just to preserve it for future use. The letter also confirms that FMLA leave must be designated as such by the employer within five business days of the employer learning sufficient information that the leave qualifies as FMLA-protected leave. The five-business-day window applies even if the employee prefers to delay the designation or is utilizing additional leave under an employer’s paid leave policy. The leave could still be paid or unpaid depending on an employer’s fringe benefit schedule, policy or collective bargaining agreement, but only the first 12 weeks (or 26 weeks in the case of covered service member leave), will be considered federally-protected FMLA leave.

The DOL’s letter is important reading for those employers who have policies and collective bargaining agreements in place that do not require an employee’s FMLA-qualifying leave to be taken concurrent with available paid leave, such as vacation and paid sick time. These provisions typically allow an employee to first utilize paid time off and then extend the leave period as FMLA-protected unpaid leave. Now the DOL’s guidance states that FMLA designation cannot be delayed, and it will not extend beyond the first 12 or 26 weeks.

As a practical matter, this means more generous unpaid leave benefits that do not run concurrent with FMLA leave extending beyond the first 12 or 26 weeks should be designated as something other than FMLA leave.

The opinion letter is available here.

Peter Zawadski is an attorney at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

Walter | Haverfield Expands Columbus Office, Grows its Education Team

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Megan GreulichL Burleson

As one of the few full-service law firms in Ohio with a dedicated education law practice, Walter | Haverfield is proudly adding two new attorneys to its team in the firm’s Columbus office. Both attorneys will serve an increasing client base of school districts in Central and Southern Ohio.

Lisa Burleson joins Walter | Haverfield as a partner after seven years working in education law. Previously, she led her own education law practice in Columbus, was associated as Of Counsel with two other law firms in Columbus and served as Deputy Director of Labor Relations for the Ohio School Boards Association. Burleson works closely with school districts as general counsel and provides various types of legal services including labor negotiations, labor relations, employment, special education, Title IX, student issues, litigation and Board governance issues.

“This move is a fantastic opportunity for my clients to have access to a broad support base with Walter | Haverfield’s Education Law group, and I’m excited to grow the firm’s Columbus practice,” said Burleson, who lives in Upper Arlington with her husband and two children. “I’m proud to be a part of such a distinguished firm and work with such talented education attorneys.”

Megan Greulich joins Walter | Haverfield as an associate. Previously, she worked at the Ohio School Boards Association in Columbus for nine years, most recently as a senior staff attorney. There, Greulich provided legal information, guidance and policy recommendations to boards of education, attorneys and administrators across the state via the association’s statewide legal hotline, presentations and publications.

“I’m thrilled to join such a reputable education law team,” said Greulich, who lives in Westerville with her husband and three children. “It gives me the chance to utilize my skills in new ways and continue to assist school districts, which is what I love.”

“Lisa and Megan bring a wealth of knowledge to our group,” said Christina Peer, head of Walter | Haverfield’s Education Law team. “Their assistance and counsel will give us an excellent opportunity to better serve school districts throughout the state. We are truly excited to have them on board.”

Burleson is very active as a volunteer in her community and her children’s school. She also serves on the Columbus Bar Association Admissions Committee.

Greulich currently serves as Chair of the Ohio State Bar Association’s Education Law Committee, is an Ohio State Bar Foundation Fellow and has volunteered with the Columbus Urban League, her children’s school and the Columbus City School District’s Reading Buddies program.

Both Burleson and Greulich are graduates of Capital University Law School and are members of the Ohio State Bar Association as well as the Columbus Bar Association.

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public organizations and high-net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Today, our team of nearly 80 attorneys is focused primarily in the areas of business services, real estate, intellectual property, labor and employment, education, tax and wealth management, hospitality and liquor control, litigation and public law.

 

 

Department of Labor: Employees Can Use FMLA to Attend IEP Meetings

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Christina PeerOn August 8, 2019, the Department of Labor released an opinion clarifying that attending an Individualized Education Program (IEP) meeting constitutes a reason for intermittent leave under the Family and Medical Leave Act (FMLA).

Under the FMLA, an eligible employee of a covered employer may take up to 12 weeks of job-protected, unpaid leave per year to “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”  A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.” Under the FMLA, an employee may use this leave intermittently when medically necessary because of a family member’s serious health condition.

According to the Department of Labor, attending an IEP meeting would fall under “care for a family member with a serious health condition” as this can include making arrangements for changes in care. The Department of Labor has, under existing policy, stated that an employee is entitled to take FMLA leave to attend “care conferences related to a health condition” because attendance at these meetings would be essential to the employee’s ability to provide the necessary care to their family member with a qualifying condition. Therefore, the Department of Labor concluded attendance at an IEP meeting is essential to the ability of said guardian to provide “appropriate physical or psychological care” to a child with a serious health condition and would be a qualifying reason for intermittent FMLA leave.

An employer may require an employee to provide a copy of a certification supporting his or her request to take such leave. That may include information from the child’s doctor certifying that the child has a serious health condition and notification that an IEP meeting has been scheduled. The Department of Labor, however, has made it clear that the student’s doctor would not need to be present at the IEP meeting for the guardian’s leave to qualify under FMLA.

Employers should provide all FMLA required paperwork to employees who seek to take intermittent leave to attend IEP meetings for a disabled child. Additionally, all of the employers’ FMLA policies would be applicable and should be followed in cases of intermittent leave.  Given the fact-specific nature of FMLA inquiries, employers are encouraged to contact their legal counsel if questions arise regarding a particular situation.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Careful, Texts on Personal Cell Phones About Employees Can Be Public Records

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Peter ZawadskiThe Ohio Court of Claims has confirmed that text messages between public officials using personal devices can be public records.  Although the question has previously been open to interpretation, this decision clarifies the answer and serves as a warning for all public employees.

In Sinclair Media III, Inc. v. Cincinnati, a reporter issued a public records request to the city seeking all text messages for a six-week period that were sent from any city council member, the mayor or the city manager discussing the city manager’s employment.  When the city did not comply, the news outlet filed an action with the Ohio Court of Claims.

The city asserted that the request was ambiguous, overly broad, and that the records were not public records. Despite the city’s objections, the court found that because the request was limited to text messages sent by specific public officials on a specific topic and within a six-week time period, it was not ambiguous or overly broad.  The court also confirmed that the text messages of city officials concerning another official’s employment were public records because they were records created, received by or under the jurisdiction of the city, even though they were maintained on the personal, privately paid devices of city officials.

The court emphasized that the important question is:  Do the text messages about an employee document the functions, policies, procedures, operations, or other activities of the city?   The court found that they did, and it therefore compelled the city to provide the text messages.

So when it comes to responding to public records requests for text messages, maintaining objections will be much more difficult due to this decision.  Therefore, all public employees are urged to use caution when texting.  Even if the text is on a private device, and even if you think the text is insignificant or does not serve to document the functions, policies, procedures, operations, or other activities of your district, it is very likely a public record if it’s work-related.  In sum, whatever work-related texts you send, make sure you’re comfortable with a media outlet publishing those messages.

Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

*An expanded version of this article appears in Crain’s Cleveland Business.