Newsletter March 2023

March 16, 2023

AN EMPLOYER FACED WITH A UNION ORGANIZING DRIVE SHOULD NOT TAKE THE DEPARTMENT OF LABOR’S RECENT ADVICE


On February 24, the DOL published a Blog entitled “Research Snapshot: Why More Employers are Voluntarily Recognizing Unions,” in which we think it is fair to say that the DOL takes the position that employers should voluntarily recognize a union if presented with Union Authorization Cards signed by a majority of employees, rather than exercising the statutory right to a secret ballot election. It is far beyond the scope of this article to fully explain and address the union organizing and election process, but we wanted to provide our view on some of the contents of the DOL publication.


The Blog includes the following excerpts, with our associated underlined response:
“Workers today want to join unions.” – In Q1-Q3 of FY 2022 the number of Union Decertification Petitions was up 42% from the same period in FY 2021. Decertification is the process through which employees can petition for an election to get rid of a union in their workplace. Interesting that the DOL does not take the position that unions should voluntarily go away if the petition is signed by a majority of the employees. At any rate, it is clear that many workers with a union do not want to be in a union.


“Voluntary recognition means that workers not only benefit from a simpler and fairer process for forming a union, but also that businesses can avoid fighting costly anti-union campaigns against workers.” – Voluntary recognition by an employer may be “simpler” for the union, but what can be more fair than allowing workers to participate in a secret ballot election? The fact of the matter is that it can be very easy for a union to obtain Authorization Cards from employees. The union can promise anything, and often do not tell the truth when soliciting these Cards. Further, employees are sometimes coerced into signing a Card. Additionally, the election process allows an employer time to educate employees about unions, including the fact that they are businesses whose principal source of revenue comes from collecting union dues from the wages of hard-working employees. During this education process, unions often lose the support of employees.


The bottom-line is that our advice is that an employer faced with a union claiming that it has the support of a majority of employees should always require that the employees be allowed to exercise their right to an election.

Recent Posts

THE DOL ISSUES OPINION LETTERS IN AN ATTEMPT TO ANSWER SOME COMMON WAGE AND HOUR QUESTIONS

June 11, 2026
On May 28, the US Department of Labor, “DOL,” issued four Opinion Letters in an attempt to answer some “real world” questions Employers have about wage and hour law, governed on the Federal level by the Fair Labor Standards Act, “FLSA.” You can find links to the actual Opinion Letters here: https://www.dol.gov/newsroom/releases/whd/whd20260529-0 . Additional Opinion Letters are also available on that site. Unfortunately, the FLSA is an old law with many complexities and nuances. Set forth below is our attempt to provide the takeaways from two of the Opinion Letters: FLSA 20026-7 – This was a meal period case. The question was whether employees were entitled to pay for time spent walking out of a large facility and going through security to take their meal break. The short answer is no. The employees in this case had the meal period option to leave the worksite or stay onsite. Their choice to leave did not convert their travel time into time worked. The letter notes that the FLSA does not require that employees be given a meal period at all (Please note that state law often does require a meal period). However, if an UNPAID meal period is provided, it must be at least 30 minutes of UNINTERRUPTED time during which the employees are COMPLETELY relieved of all duties. The letter also mentions that employees may be required to stay on the premises during the unpaid meal period, provided they perform no work. FLSA 2026-5 – The question in this letter was whether an employee who is properly exempted from overtime can also be paid for working in an hourly position that is not exempt from overtime. The short answer is yes, provided that the employee’s PRIMARY DUTY is in the overtime exempt position. The case involved nurses who worked 62 – 77% of their weekly hours in a properly overtime-exempt Specialist position; with the other hours being worked in an hourly nonexempt Floor Nurse position. Under the FLSA, an exempt employee can pick up extra hourly shifts in a non-exempt role and be paid hourly for that non-exempt work, so long as their primary duty is exempt work and they are paid the full guaranteed salary for the exempt position on a salary basis.

EMPLOYERS WITH EMPLOYEES WHO HAVE MILITARY OBLIGATIONS NEED TO UNDERSTAND USERRA

May 21, 2026
With military deployments of National Guard, and other military personnel, being at a 20 year high, employers are likely to have employees who request to be absent from work due to military service. Set forth below is a summary of the protections provided to such individuals by USERRA. This is only a summary. This law contains more provisions, and some complexities, as do most federal laws. Additionally, state laws may also be applicable. Employers should consult an expert for specific guidance. USERRA SUMMARY USERRA applies to all employers: There is no threshold based on the number of workers. An employer with just one employee must provide USERRA protections. Prohibition against discrimination and retaliation : Employers cannot deny initial employment, reemployment, retention, promotion, or any benefit on the basis a person’s membership, application for service, or obligation for service in the armed forces. Retaliation is similarly prohibited. Continuation of benefits while on leave : Employers must provide eligible employees with up to five years of unpaid leave during the life of their employment. Throughout this period, employers must maintain the employee’s seniority, health care, and pension benefits. Right to reemployment : Returning service members have a nearly unfettered right to reemployment by their pre-service employers upon timely application for return to work – and need to be returned to a position and pay level they would have risen to had they remained at work during their military leave. Exception to at-will employment: Employees returning from protected leave are no longer pure “at will” employees for a period of time following reemployment. If the deployment was for more than 30, but less than 180 days, they can only be terminated “for cause” for 180 days following reemployment, or for one year if the length of deployment exceeded 180 days.

IMPORTANT CHANGES TO ENFORCEMENT OF I-9 VIOLATIONS

April 17, 2026
On March 16, 2026, ICE updated its Form I-9 Inspection fact sheet, effectively superseding prior guidance that had governed I-9 enforcement for nearly three decades. Specifically, more than 10 error categories previously treated as correctable technical violations—eligible for the statutory 10-day cure period—are now reclassified as substantive violations subject to immediate fines of $288 to $2,861 per violation. What Has Changed

BONUS PAYMENTS AND OVERTIME

January 15, 2026
A recent Opinion Letter from the Department of Labor, “DOL,” serves as a good reminder that incentive bonus payment usually must be included in an employee’s regular rate used to calculate overtime. The Opinion Letter dealt with an employer in the waste industry that paid drivers a bonus every pay period if certain safety and performance criteria (punctuality, attendance, and consistency in completing daily safety tasks) were met. Not surprisingly, the DOL found that the bonus amounts should be included in the regular rate of pay for overtime calculation purposes, because the payments were incentives and Discretionary Bonuses. Discretionary bonuses may be excluded from the regular rate of pay if: (1) the fact and amount of the payment are determined at the SOLE Discretion of the employer; (2) with the determination being made at or near the time of the period when the work was performed; and the payment must not be made pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly. The payments in this case were made pursuant to a predetermined plan to incentivize work performance. A true Discretionary bonus which can be excluded from overtime is quite unusual. Accordingly, most bonus payments must be included in overtime calculations.

NON-COMPETES REVISITED BY THE FTC

October 28, 2025
As employers will recall, a federal court struck down the Fair Trade Commission’s (FTC) proposed ban on employee non-compete agreements over a year ago. The FTC has since abandoned its effort to enforce a rule completely banning such agreements. However, in September, the FTC surprised some by announcing that it intends to regulate the use of employee non-competes on a case-by-case basis. It seems that the FTC will consider whether the restrictions are “reasonable” by determining whether they are no greater than is necessary to protect the employer’s legitimate interests, balancing those interests against the hardship to the employee and public. Some factors that are likely to be considered are: The size of the company, both in terms of employees and business; Whether the employer requires non-competes of all employees, or only those with job duties that might justify their use to protect the employer’s interests; The scope of the geographic and time limitations contained in the non-competes. This “reasonableness” determination is very similar to the analysis that many state courts use in determining whether to enforce a non-compete. The FTC has announced its intention to put particular focus on employers in the healthcare space. However, all employers utilizing non-compete agreements should review the restrictions contained therein in an effort to determine that they appear reasonable under the above criteria.