Employment Law This Week®: NLRB’s “Quickie Election” Rules, Layoff Doesn’t Violate FMLA, Plans Exempt from ERISA, Amended “Persuader Rule”

Episode 76: Week of June 19, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) NLRB Clarifies That Employers Must Share All Employee Phone Numbers

Our top story: The National Labor Relations Board (NLRB) says, “Hand over the telephone numbers!” The NLRB’s 2015 “quickie election” rules require employers to give a union “available” home and cell phone numbers and personal email addresses for all employees eligible to vote. In this case, an employer did not provide the union with employee phone numbers because the employer did not maintain them in any formal database or system. The union filed objections after the vote, noting that some supervisors at the company did have phone numbers of certain employees stored in their cell phones. The NLRB ruled that the company had failed to comply with the new election rules. This interpretation shows that employers must provide any and all phone numbers, even if they are not actually maintained in the company’s records. Kat Paterno, from Epstein Becker Green, has more:

“This case puts the requirement on the employer to search much more broadly than just their centralized database and actually go out and ask individual supervisors whether or not they have personal information related to each employee who is going to be on the voter list and then to include that information on the voter list. ... One best practice would be for employers to start requiring personal information at the hiring stage. … However, employers that find themselves served with a petition, the two-business-day requirement, it kicks in rather quickly. But the moment that an employer has the petition in hand or knows the petition is going to be served upon them, the employer should begin gathering this information immediately.”

(2) Fourth Circuit: Layoff Following Medical Leave Doesn’t Violate FMLA

A layoff occurring six weeks after medical leave was not a violation of the Family and Medical Leave Act (FMLA), the U.S. Court of Appeals for the Fourth Circuit has found. After returning from medical leave, an employee was assigned to manage a new project in a different division with the same salary and work location. Less than six weeks later, the employee and others in his department were laid off. The employee argued that he should have been restored to the exact position that he held before going on leave, and that the termination was retaliatory. The Fourth Circuit held that the FMLA does not require restoring an employee to his or her original position over an equivalent one and that the employee likely would have been laid off even if he had returned to his original position due to the employer’s financial circumstances.

Read our recent blog post: https://www.ebglaw.com/eltw76-heal-ng

(3) Plans Maintained by Church-Affiliated Entities Are Exempt from ERISA

The Supreme Court of the United States has ruled that pension plans established and maintained by some church-affiliated entities remain exempt from the Employee Retirement Income Security Act (ERISA). ERISA establishes certain requirements for employee benefit plans. So-called “church plans” are exempt from these requirements. At issue in this case was whether the exemption applies to church-affiliated entities that fund or manage a benefit plan for the employees of churches or church affiliates. The Supreme Court reversed the lower court, finding that church-affiliated entities are indeed eligible for the exemption.

Read our recent blog post: https://www.ebglaw.com/eltw76-heal-cl

(4) DOL Takes Next Step to Rescind Amended “Persuader Rule”

The U.S. Department of Labor (DOL) is asking for public feedback on the proposal to rescind its so-called “Persuader Rule.” The revised rule would have required employers and consultants, including lawyers, to report activity taken in response to union organizing campaigns, such as “indirect” persuader activity. A federal judge in Texas issued a permanent injunction halting the Persuader Rule’s implementation last year. The DOL is seeking to rescind the amended rule in order to further analyze whether it will have a chilling effect on employers’ rights to seek representation by an attorney.

(5) Tip of the Week

David Prince, General Counsel and Chief Compliance Officer at Stephens Investment Management Group, shares some advice for in-house counsel on staying ahead of regulations:

“I think the thing with in-house counsel is always be looking ahead at what the proposed regulations are. Get to know your regulators. They’re the ones that are going to come and examine you. Always look at enforcement cases that are coming down, and finding out what you’re doing at your firm and trying to stay ahead of the regulations.”

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