I’m running a bit behind in my blogging, so I will cover more ground and be a bit more abbreviated than usual. The Supreme Court held that unions can be held liable for intentionally damaging employer’s property during a strike under state law because such claims are not pre-empted by the NLRA. The NLRB’s General Counsel has officially declared war on most non-compete agreements, although employees can be prohibited from accepting an ownership or management interest in a competitor. The DOL also explained how to calculate FMLA leave during a holiday week and when the employee’s doctor says that they cannot work more than 8 hours/day.
The Supreme Court ruled that an employer’s intentional tort
claims against a union were not preempted by the National Labor Relations Act
when the union started a strike after the employer had filled its cement
trucks, which caused the employer to lose all of the cement and risk losing
many of the trucks if they were not immediately unloaded in a safe location
before the cement hardened in them. Glacier Northwest,
Inc. v. Int’l Bhd of Teamsters, Local 174,
No. 21-1449 (U.S. 6/1/23). The state supreme court had held that the
damage was incidental to the lawful strike and, therefore that the tort claim
was preempted. However, the Court’s 8-1
majority found that the NRLB had long required employees to take “reasonable
precautions” to protect an employer’s property from foreseeable, aggravated and
imminent danger. Because the union had
failed to take “reasonable precautions,” and actually sought the obtained
result, its strike activity was not even arguably protected and could not pre-empt
state tort laws. By reporting for duty
and prompting the employer create a perishable product, they created an
imminent risk of harm to the trucks and destroyed the concrete by then walking
off the job after it was poured.
. . . the Union’s decision to initiate the strike during the workday and failure to give [the employer] specific notice do not themselves render its conduct unprotected. Still, they are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. In this instance, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into [the employer’s] delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to [the employer’s] property.
. . .
[The employer] alleges that the drivers’ conduct created an emergency in which it had to devise a way to offload concrete “in a timely manner to avoid costly damage to [its] mixer trucks.” App. 72. The Union’s actions not only resulted in the destruction of all the concrete [the employer] had prepared that day; they also posed a risk of foreseeable, aggravated, and imminent harm to [its] trucks. Because the Union took affirmative steps to endanger [the employer’s] property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect its conduct.
A day earlier, the DOL issued a rare opinion letter FMLA2023-2-A
about the FMLA. In it, it explained that
when holidays fall during a week in which the employee takes FMLA leave,
whether the holiday counts towards the FMLA 12 week entitlement depends on
whether the employee took off the full week (meaning the holiday counts) or
whether the employee took off less than a full week (meaning the holiday would
not count towards the 12 weeks). The reason
being that if the employee typically works 5 days a week and only took one day
off for FMLA during a holiday week, the employer may only count 20% of the week
against the 12-week entitlement and not 25% (as though it were a four-day work week).
When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. 29 C.F.R. § 825.200(h). Thus, for example, an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week. However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. Id. The Department has taken a consistent approach to the treatment of holidays since the first publication of its FMLA regulations in 1995. See 60 Fed. Reg. at 2200; see also Final Rule: The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67934, 67972-73 (Nov. 17, 2008).
Also on May 30, the NLRB’s General Counsel issued an enforcement
Memorandum
indicating that she intends to litigate the enforceability of most non-management non-compete agreements
on the grounds that they prevent employees from quitting their jobs and finding
new ones and on the belief that most are overly broad. In other words, she finds most non-compete
agreements issued to non-management employees to violated the National Labor
Relations Act whether issued during, before or after (in a severance agreement)
employment and regardless of the motivation (i.e., confidential information or
training investments). She had conceded
that it would not violate the NLRA to prevent employees from engaging in an
ownership, management or independent contractor relationship with a competitor
following employment.
Earlier this year, the DOL also issued an FMLA opinion
letter No.
FMLA2023-1-A reminding employers that employees can essentially take
unlimited FMLA leave. In the employer’s
request, the employee’s physician instructed him to not work more than 8
hours/day, even though the employer frequently needs employees to work more
than 8 hours/day and operates a 24-hour-day business. The DOL indicated that the employee remains
entitled to 12-weeks of FMLA leave, not just an ADA reasonable
accommodation. If the employee typically
works 50 hours/week, then employee would be entitled to 600 hours of leave, not
just 480 like a typical 40-hour/week employee.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
