By: Dan Cohen – 10/8/15
It’s been about six weeks since we last posted to the Emplawyers Blawg, not because there has been nothing to write about, but because we have been so darn busy. By no means is this “sour grapes” as we welcome business with open arms, enjoy each and every challenge at work and wouldn’t have it any other way. To complicate matters in my life, I decided to spend the last few weekends of the summer painting my house. By most accounts, everyone thinks I am crazy for taking on such a project. And, while I told everyone who asked, that I enjoy painting and that it was not so bad, the truth of the matter is, I don’t know what I was thinking when I made that decision. It was bad, took longer than I thought it would, and is something I won’t quickly volunteer for again.
So, what has been going on for the last several weeks in the world of labor and employment law? The biggest and probably worst news came from the NLRB in its Browning-Ferris Industries of California, Inc., where the NLRB re-wrote its “joint employer” rule. Anybody following this case as well as the McDonald’s case, which involved the question whether McDonald’s was a “joint employer” with its franchisees, would probably have bet the farm the decision would be anti-business. Sure enough: It was. According to the Browning-Ferris decision, the NLRB may find two or more statutory employers to be joint employers of the same employees if they share control over the terms and conditions of employment. It does not matter if the two employers actually exercise that control According to the NLRB, indirect and even potential control is enough.
There is little doubt that the newly adopted NLRB standard for finding joint employment relationships is a “game changer” and deals a significant blow to the business community, particularly companies outsourcing functions, but retaining control over workers or operating within the franchisor/franchisee model as well as the staffing industry. Franchisors may become financially responsible for unfair labor practices committed by their franchisees and unions will be more motivated than ever before to organize franchisees in hopes of bringing the franchisor (and its much deeper pockets) to the bargaining table. The decision is also likely to result in an expansion of union membership in the private sector as organizing contingent and temporary workers will become far easier.
While I was up on a ladder, the Michigan Employment Relations Commission upheld an earlier ruling by an administrative law judge that the Michigan Education Association’s (“MEA”) “August Window” was illegal. Under its longstanding August Window rule, union members could only resign the membership from the union in August. The obvious intent and effect of the rule was to make it more difficult for teachers and support staff to resign their membership. This has become a hot button item now that Michigan is a right to work state and membership in the union can no longer be a condition of continued employment. I have witnessed first-hand how the MEA has treated some local groups of teachers and support staff who have attempted to resign their memberships and even decertify the MEA as their exclusive bargaining representative. In each case, the story has been the same: the employees have wondered what it is they are actually receiving from the MEA for the amount of union dues they have paid. Having some say in how their hard earned dollars are spent is an extremely important right that these teachers have not experienced with the MEA.
Finally, right about the time I was treating for my aching back, in an unpublished opinion of the Michigan Court of Appeals, the appellate court determined that a reduced limitations period set forth in an employee handbook was to be enforced. See e.g. Hier v. Douglas J. Management L.L.C, Case Number 321792 (September 15, 2015). In that case, the policy handbook required that an employee must commence “any claim, complaint, action or suit relating to their employment with the Company” within 182 days of the event “giving rise to the claim, complaint, action or suit.” Because the employee missed the 182 day deadline, the case was dismissed and upheld on appeal. We have won cases where similar 182 day limitations periods have been contained in the employment application, but this appears to be the first case where the language was set forth in the employee handbook. While we welcome this decision, the decision refers to the handbook provision as contractual, which is inconsistent with our advice that the handbook is not to be construed as a contract. Certainly, the better place for the reduced limitations period is the employment application or a stand-alone agreement. The handbook would be my third choice, but in a pinch might save the day.
By the way, my house looks great now.