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LEGAL UPDATE . Jen (Vogt-Lowell) Dibble, Esq. Allen Matkins Leck Gamble Mallory & Natsis LLP. Employee Free Choice Act.

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Legal update


Jen (Vogt-Lowell) Dibble, Esq.

Allen Matkins Leck Gamble

Mallory & Natsis LLP

Employee free choice act
Employee Free Choice Act

  • “to amend the National Labor Relations Act to establish an efficient system to enable employees to form, join or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes”

Employee free choice act1
Employee Free Choice Act

  • Amend the National Labor Relations Act

    • Prohibit secret ballot elections as the method of determining employee support for union representation

    • Mandate binding arbitration if the parties cannot agree to a contract

    • Enhance penalties on employers who resist the unionization of their employees unlawfully

Reductions in workforce
Reductions in Workforce

  • Concerns

    • Violation of federal and state discrimination laws

    • Breaching contractual obligations

  • Legitimate RIF

    • Based on elimination of positions not particular employees

    • Not subterfuge for termination of “problem” employees

Preliminary considerations
Preliminary Considerations

  • Consider Alternatives to Layoff/Termination

    • Offer incentives for voluntary termination in exchange for a release of all claims

    • Other Cost-Cutting Measures

    • Transfers and Recall Rights

      (2) Establish Selection Criteria for Termination

    • Neutral Criteria (ex. Ratings formulas based on EE qualifications, abilities, productivity, lengths of service)

    • Typical Criteria for Retaining/Laying Off Employees

    • Prohibited Criteria

Typical criteria for retaining or laying off employees
Typical Criteria for Retaining or Laying Off Employees

  • Merit

    • Performance – recent evaluations?

  • Versatility

    • Ability to perform multiple tasks

  • Seniority

    • Typically in CBAs governing union employees

    • Preference for “meritocracy”?

  • Salary

    • Careful with older workers

Prohibited criteria
Prohibited Criteria

  • Age

  • Sex, race, color, religion or national origin

  • Pregnancy

  • Gender and gender identity

  • Marital status

  • Sexual orientation

  • Ancestry

  • Military service

  • A pension about to vest

  • Disability or Medical condition

  • Filing of a Workers’ Comp claim

  • Employee’s exercise of a protected right

Preliminary considerations1
Preliminary Considerations

(3) Notice

-COBRA, WARN and Cal-Warn, CBA, employment contract, personnel policy

(4) Checklist: RIF Guidelines for Minimizing Litigation Risk

1) Articulate business need for RIF and business goal to be accomplished

2) Can RIF be avoided?

3) RIF limited to certain depts or applied across-the-board?

Rif checklist continued
RIF Checklist Continued

4) Identify positions to be eliminated

5) Set the criteria for selection

6) Rank employees

7) Check layoff list for adverse impact by protected category

8) Any complainers? (WC, whistleblowers?)

9) Should additional compensation be provided in exchange for a release of claims?

10) Does RIF trigger WARN or Cal-Warn notice requirements?

11) Provide COBRA notice

12) Consider transition assistance – ex. Outplacement services

13) Train managers on communicating information to workforce and how to manage reduced workforce after RIF

Cobra subsidy
COBRA Subsidy

  • American Recovery and Reinvestment Act of 2009 (ARRA) – Obama signed into law 2/17/09

  • Provides for premium reductions and additional election opportunities for health benefits under COBRA for “assistance eligible individuals”

  • Eligible individuals pay only 35% of their COBRA premiums

  • The premium reduction (65% of the full premium) is reimbursable to the employer as a credit against certain employment taxes

Flexible work schedules
Flexible Work Schedules

  • Alternative to traditional 9 to 5, 40-hour work week

  • Allows employees to vary their arrival and/or departure times

  • Under some policies, employees must work a prescribed number of hours a pay period and be present during a daily "core time"

  • Agreement between employer and employee