As if the Fight for Fifteen wasn’t enough, the retail, food service and cleaning industries face another spectre in the form of the “Schedules That Work Act” introduced by Sen. Elizabeth Warren (D-MA). Under the bill, employees are given the “right” to have more say in:
- The number of hours the employee is required to work or be on call
- The times when the employee is required to work or be on call
- The location where they work
- The amount of notification the employee receives for schedule assignments
- Minimizing fluctuations in the number of hours scheduled on a daily, weekly or monthly basis.
Work schedules or schedule changes must be provided in writing 14 days in advance, and there are financial penalties for failure to do so, and there are mandated premiums to be paid for being on call or working split shifts. Although supposedly only aimed at the targeted industries, the bill leaves it to the discretion of the Secretary of Labor to expand the scope.
The NLRB dealt a blow in another case involving a food service company when the board disallowed a settlement between the employees and the restaurant they worked for. After years of contention, two FSLA claims filed by employees (individual and class action) and a RICO suit filed by the restaurant against the union fronting the dissenting activists, were settled with the restaurant agreeing to pay $1 million to the employee-plaintiffs. However, due to the years of disruptive activity by the union front group, the restaurant demanded non-disparagement and non-disclosure provisions.
Because some employees had filed ULP charges, alleging they had been fired for union organizing activity, the judge demanded that the NLRB agree to the terms of the settlement. No surprise here - the board (thinking “more highly of itself than it ought to think”) ruled that Section 7 rights were of paramount authority, and that the two provisions were an encroachment on protected concerted activity.
In another cautionary tale of being careful with the unintended consequences of agreements, a fired employee was able to sue his employer - 6 years after the fact - even though the unionized company had a grievance and arbitration process in place with a 6-month time limit.
The hospital had fired an employee, and during the grievance process, attempting to sidestep arbitration, agreed to reinstate the employee with a “last chance” agreement. When the employee violated his end of the bargain he was again terminated. The hospital didn’t realize that the last chance agreement nullified terms in the union contract, which opened the door for the employee lawsuit six years after being fired, putting almost a decade of back wages and the costs of a court case on the line for the company.
The U.S. Chamber has produced a nice treatise on the overreach of the NLRB into the arena of employee handbooks, aptly titled “Theater of the Absurd: The NLRB Takes On The Employee Handbook. The 45-page PDF covers the board’s recent impact upon seven areas:
- Confidentiality of workplace investigations
- Employee misconduct
- Communications and non-disparagement
- Protection of intellectual property and confidentiality of company information
- At-will disclaimers
- Dress codes
The Chamber’s conclusion summarizes the experience of many American workplaces…
…the Board’s irrational interpretations of the law have created a serious headache for employers and employees looking for stability and common sense in labor relations.