Tag: Employment Law

Divided NLRB Issues Controversial Expedited Election Rules

Posted in the National Law Review an article by attorneys Thomas E. Obenberger and Scott C. Beightol of Michael Best & Friedrich LLP regaring  the National Labor Relations Board recent vote which reversed decades of precedent and practice:

 

On December 22, 2011, the National Labor Relations Board (the “NLRB” or “Board”) published final rules (76 Fed. Reg. 80138) adopted by the Board on a split 2-1 vote which reversed decades of precedent and practice as to how the Board will process representation proceedings. While the final rules place into effect only about one-half of the amendments proposed in its June 22, 2011, Notice of Proposed Rulemaking (76 Fed. Reg. 36812), leaving the others for “further deliberation,” the amendments adopted by the Board dramatically change the substance, timing and procedures involved in union organizing campaigns and representation proceedings, and substantially alter the rights of the parties involved. The amendments adopt many of the “reforms” sought by organized labor through its previously unsuccessful efforts to secure passage of the Employee Free Choice Act. The following comments highlight some of the major changes made by the Board to representation case processing.

While the rules, scheduled to become effective April 30, 2012, have already been challenged in court, it is important for employers to evaluate where they are in terms of their labor relations and union free policies, how well prepared they are to respond to union organizing activities which conceivably could result in a representation election being conducted between 10 to 20 days after the filing of a petition, and how best to communicate with employees on an ongoing and expedited basis.

Among the more significant changes are those relating to initial stages of processing of a representation petition. Changes impact the all-important determination of the scope and composition of an appropriate bargaining unit; inclusions in or exclusions from the voting unit of various individuals or classifications of employees; and, rights to have decisions of an NLRB Hearing Officer or Regional Director reviewed and determined prior to the conduct of an NLRB election.

Significantly, the rules narrow the scope of initial hearings conducted before a Regional Office Hearing Officer following the filing of a petition. The rules generally prevent litigation and pre-election determination of the nature and scope of the appropriate bargaining unit, and inclusions or exclusions of individuals or classifications of employees from that unit, leaving such issues for a post-election hearing, with questioned voters being permitted to vote subject to challenge.  Eligibility issues would be combined in a single post-election hearing also encompassing post-election challenges and objections. Based on the amendments, the only issues generally resolved at a pre-election hearing are to be whether a question of representation exits, and whether there exists any bar to the conduct of the election.

This presents a significant issue for employers, many of whom currently employ numerous individuals who may or may not be supervisors as defined by the National Labor Relations Act, or who may work in classifications which may or may not share a community of interest with a petitioned for unit.  Inclusion or exclusion of such individuals or groups from the voting unit can present serious ramifications. For example, an employer who employs a number of lead persons or working foremen would be found to have committed an unfair labor practice and interfered with the representation election, resulting in a set aside, if those individuals, subsequently found to be statutory supervisors, would have been permitted to participate in the election as eligible employees. Likewise, an employer who prohibits the participation of such individuals, thinking that they may be statutory supervisors, would be guilty of interfering with the protected rights of those individuals if they were found to be eligible and not supervisory employees.

Other than observing that a Regional Director or Hearing Officer might choose, in their discretion, to consider such issues in a pre-election hearing, the Board offers little comfort to employers faced with this dilemma. In fact, in its published comments accompanying the amended rules (76 Fed. Reg at p. 80165), the Board acknowledges that it has previously held in Barre-National, Inc., (1995), 316 NLRB 887, that a Hearing Officer erred by preventing an employer from presenting evidence at a pre-election hearing regarding the eligibility of 24 group leaders (just under 10% of the total unit) to vote in an election directed in a unit of production, maintenance and warehouse employees. The Board brushed off this issue, stating “The Board will no longer follow Barre-National under the amended rules.” (76 Fed. Reg. at p. 80165).  Employers are apparently left, under the amended rules, with trying to persuade a Hearing Officer or Regional Director to take discretionary evidence as to eligibility or exclusion of employees even if the number of employees involved might significantly change the size or character of the voting unit.

Just as importantly, the amended rules severely restrict the rights of an employer to appeal adverse Regional Director or Hearing Officer decisions to the full Board for review. In the past, post-election regional determinations as to challenges and election objections were appealable, as a matter of right, to the NLRB. Such determinations, now including pre-election determinations, as to which no separate right of appeal exists, will only be considered by the Board on appeal in its discretion, and then only if they present an issue of first impression or if there exists a conflict in the law.

Among other noteworthy amendments, the Board has now eliminated the previous 25 day waiting period for an election to be scheduled following a direction of election by a Regional Director, and, in a major change, the terms of a “stipulation” agreement for an election can no longer provide for final resolution of post-election challenges and objections by the NLRB, leaving such final determination to a Regional Director – the same as if the parties were to have entered into a “consent” election agreement, rather than the previously more widely favored “stipulation” form of agreement.

The effect of the amendments was well stated in the dissenting comments of Board Member Hayes upon publication of the then proposed rule changes (76 Fed. Reg. at 36831):

What is certain is that the proposed rules will (1) substantially shorten the time between the filing the petition and the election date, and (2) substantially limit the opportunity for full evidentiary hearing or Board review on contested issues involving, among other things, appropriate unit, voter eligibility, and election misconduct. Thus, by administrative fiat in lieu of Congressional action, the Board will impose organized labor’s much sought after “quickie election” option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition. Make no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.

© MICHAEL BEST & FRIEDRICH LLP 

Congress Reconsiders Independent Contractor Classification

Posted in the National Law Review an article by Robert B. Meyer and David L. Woodard of  Poyner Spruill LLP regarding Employee MisClassification Prevention Act (EMPA):

 

 

It appears that Congress has again turned its attention to the issue of employee/independent contractor classification.  On October 13, 2011, Rep. Lynn Woolsey (D-CA) reintroduced legislation titled the “Employee Misclassification Prevention Act” (EMPA).  This bill, if enacted, would amend the Fair Labor Standards Act to impose new obligations on employers which utilize independent contractors, and also penalties for employers which misclassify employees as contractors.  Similar legislation was also introduced in the Senate last April, further suggesting that this issue of contractor classification is gaining traction in Congress.  The EMPA, as it is presently drafted, proposes the following:

  • Require employers to keep records of wages and hours worked by independent contractors.  The failure to do so would result in a presumption that the worker is an employee.
  • Require employers to provide written notice to every worker of his/her classification as either an employee or contractor.  The notice must also direct the worker to a Department of Labor website for information regarding worker rights under the EMPA, and encourage workers to contact the DOL if they have questions about classification.
  • Prohibit employers from discriminating or retaliating against workers who exercise their rights under the EMPA.
  • Amend the FLSA to make misclassification a prohibited act, and impose double liquidated damages for violations of the minimum wage and overtime pay provisions of the FLSA resulting from the misclassification.
  • Impose civil penalties upon employers for violating the EMPA (up to $1,100 for first violation, and up to $5,000 for repeat or willful violations).
  • Authorize the DOL to conduct targeted audits of employers in “certain industries with frequent incidence of misclassifying employees as non-employees….”
  • Permit the DOL to share information with the Internal Revenue Service regarding employers found to have misclassified workers.
  • Amend the Social Security Act to establish “administrative penalties for misclassifying employees, or paying unreported wages to employees without proper recordkeeping, for unemployment compensation purposes.”
  • Require state unemployment benefits agencies to conduct worker classification audits of employers.

The potential impact of this proposed legislation is far-reaching.  It is apparent that the EMPA would create a new federal offense for both intentional and unintentional contractor misclassifications.  In addition, the law would create a federal source of new employee rights, and would empower the DOL to seek expanded monetary damages on behalf of workers.  Therefore, employers should not only remain watchful of this legislation as it works its way through Congress, but also cautious about their use and classification of independent contractors.

© 2011 Poyner Spruill LLP. All rights reserved.

Illinois Supreme Court Establishes A New Test To Determine Whether Non-Compete Agreements Are Enforceable

Posted in the National Law Review on December 17, 2011 an article by Eric H. Rumbaugh, Brian P. Paul and  Sarah E. Flotte of Michael Best & Friedrich  LLP regarding  Illinois Supreme Court’s clarification whether a non-compete agreement or other restrictive c ovenant is enforceable:

In a case with favorable implications for employers, in Reliable Fire Equip. Co. v. Arredondo, 2011 IL 111871 (Ill. Dec. 1, 2011), the Illinois Supreme Court clarified the “legitimate business interest test” that Illinois courts must use to determine whether a non-compete agreement or other restrictive covenant is enforceable. BeforeArredondo, appellate courts in Illinois were divided on how to apply this test, which resulted in uncertainty and legal expense for businesses and employees. The Arredondo decision provides clarity and a reasonable rule, both of which should help employers reduce risk and uncertainty.

This dispute began in late 2009, when the Fourth District of the Illinois Appellate Court took the position that an enforceable non-compete agreement only had to be reasonable as to time and geography. In doing so, the Fourth District rejected the legitimate business interest test that required that a former employer establish either that confidential information or near-permanent customer relationships were at risk if the non-compete agreement was not enforced. The legitimate business interest test had been used consistently by Illinois Appellate courts since 1975. However, after the Fourth District’s decision, almost every Illinois appellate court district struggled with the Fourth District’s opinion and, as a result, each district developed its own standards. Thus, employers and employees had to evaluate which district their lawsuit would proceed in before either could figure out whether the non-compete agreement was enforceable.

Thus, the Illinois Supreme Court agreed to hear Reliable Fire Equip., a very typical non-compete case where Arnold Arredondo (“Arredondo”) and Rene Garcia (“Garcia”) were employed as salespersons for Reliable Fire Equipment Company (“Reliable”). Reliable sells installs and services portable fire extinguishers and related equipment. Both Arredondo and Garcia signed a non-compete agreement prohibiting them from competing with Reliable in Illinois, Indiana and Wisconsin for one year after their termination. When Arredondo and Garcia went to work for a newly formed competitor, Reliable sued to enforce the non-compete agreements.

The Trial Court ruled that the covenant was unenforceable, finding that Reliable had failed to identify a legitimate business interest that needed to be protected by the non-compete agreements. A divided panel of the Appellate Court upheld the Circuit Court’s order, but questioned whether it was applying the appropriate test for non-compete agreements.

The Illinois Supreme Court reversed and remanded the case for further proceedings. In doing so, the Court held that a valid and enforceable non-compete agreement must meet three basic components of reasonableness:

A restrictive covenant, assuming it is ancillary to a valid employment relationship, is reasonable only if the covenant: (1) is no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor, and (3) is not injurious to the public.

However, the Supreme Court then went one step further. Over the last 36 years, the Appellate Court decisions that applied the legitimate business interest test had held that there were only two legitimate business interests that would justify enforcing a non-compete agreement: (1) protecting confidential information; and (2) protecting near-permanent customer relationships.  The Illinois Supreme Court rejected the rigidity of this standard, holding that the Illinois Appellate Court decisions of the last 36 years are “are only nonconclusive aids in determining the promisee’s legitimate business interest.”

Under Reliable, the new standard for determining whether a legitimate business interest exists is:

[B]ased on the totality of the facts and circumstances of the individual case. Factors to be considered in this analysis include, but are not limited to, the near-permanence of customer relationships, the employee’s acquisition of confidential information through his employment, and time and place restrictions. No factor carries any more weight than any other, but rather its importance will depend on the specific facts and circumstances of the individual case.

Most carefully drafted non-compete agreements for use in Illinois proactively identify confidential information and near-permanent customer relationships as the business interests the employer is trying to protect. Given this ruling, the door is open for employers to enforce restrictive covenants in a broader range of circumstances and even perhaps for the purpose of protecting customer goodwill. Employers should reevaluate their non-compete agreements in light of the decision in Reliable Fire Equip. Co. v. Arredondo to determine whether additional business interests should be identified as protectable business interests and whether additional job positions now warrant non-compete agreements.

© MICHAEL BEST & FRIEDRICH LLP

Beware of Online Applications and Background Check Authorizations

Posted in the National Law Review on December 15, 2011 an article by Luis E. Avila, Nancy L. Farnam, Richard D. Fries, Jeffrey T. Gray, Jr., Richard A. Hooker and David E. Khorey of Varnum LLP regarding class actions against employers’ conducting background checks:  

 

Varnum LLP

An increasing number of employers have been recipients of proposed class actions alleging that the way they conduct background checks on prospective employees violates the Fair Credit Reporting Act 15 U.S.C. §1681 (“FCRA”).

A recent example is a claim filed in Virginia, which focuses on the employer’s online job application. The process asks potential employees whether they are willing to allow the company to obtain a consumer report or criminal background check on them. Applicants must then click a button labeled either “Accept” or “Decline.” The claim alleges that for purposes of the FCRA, an electronic disclosure is not one made “in writing” and that an electronic signature (Accept/Decline) does not satisfy the requirements of the act.

As it relates to employers conducting background checks on prospective employees, the FCRA requires that a person may not procure a consumer report for employment purposes with respect to any consumer, unless (1) a clear and conspicuous disclosure has been made in writing to the applicant at any time before the report is procured, in a document that consists solely of the disclosure that a consumer report may be obtained for employment purposes; and (2) the consumer has authorized in writing the procurement of the report by that person.

Electronic disclosures of this sort have traditionally been viewed as falling under the Electronic Signatures in Global and National Commerce Act (“E-Sign”). However, this claim challenges this understanding of E-Sign by alleging that the law does not apply to job applicants, but instead only to consumers, which it defines as an individual who obtains products or services.

Under the FCRA, employers may be liable to each class member for up to $1,000.00 or actual damages, plus punitive damages and attorneys’ fees and costs. So far this year, two companies have agreed to multimillion-dollar settlements in similar cases.

We strongly recommend that employers review their online job application process to ensure that it does not run afoul of the FCRA and obtain competent labor counsel to address any concerns

© 2011 Varnum LLP

10 Tips for Conducting an Internal Investigation

Recently posted in the National Law Review an article by Catherine Salmen Wright of  Dinsmore & Shohl LLP regarding conducting an internal investigation:

The recent news involving Penn State highlights how high the stakes can be when conducting an internal investigation. In fact, Penn State has hired former FBI director Louis Freeh to lead its internal investigation into alleged criminal conduct by a former employee. But while most employers do not face circumstances this challenging, the reality is that employers are presented with circumstances on a regular basis that must be investigated effectively to avoid significant legal liability.

Of course, this begs the question of when an employer needs to investigate. The simplest answer is when the employer has knowledge of misconduct. Misconduct can include a breach of an employer policy, violation of a drug or alcohol policy, theft or other criminal activity, or even misuse of company property. Employers should not, however, too narrowly construe what constitutes “knowledge,” which can include formal and informal complaints, information obtained during exit interviews, anonymous tips and third-party information.

Employers should also keep in mind that an internal investigation may become your defense in any subsequent litigation and therefore may be subject to significant scrutiny by the plaintiff, the plaintiff’s lawyer and possibly a jury. For example, in a sexual harassment lawsuit, the employer’s investigation is what typically shows that the employer exercised reasonable care to prevent and correct any harassing behavior. Another defense used by employers in wrongful termination lawsuits is the “honest belief” rule. Specifically, if the employer can show that it reasonably relied on the particularized facts that were before it at the time the decision was made, it can potentially avoid liability over a challenged decision. The investigation does not need to be perfect, but the employer must make a reasonably informed decision before taking an adverse employment action.

As a result, conducting an effective internal investigation is critically important. Every investigation comes with a unique set of facts and challenges, but the following 10 principles serve as a guide for conducting an effective investigation.

1. Determine the objectives and strategy for the investigation.

At the outset, employers must establish the objectives of the investigation. Questions that should be addressed include:

  • Are you trying to develop a complete record to justify a decision?
  • Are you attempting to avoid litigation?
  • What are your legal obligations?
  • Do you need an attorney involved?

Evaluating the answers to these questions will allow you to tailor your investigation.

2. Maintain confidentiality.

A guiding principle in any investigation is confidentiality, which employers should maintain to the extent possible. However, don’t promise what you can’t deliver. Absolute confidentiality when employees will be interviewed is virtually impossible. Also, employers need to be vigilant when it comes to thoroughness and promptness. For example, if you had to answer questions one year later in a deposition, can you give a reasonable explanation of why it took the amount of time it did to complete the investigation?

3. Determine if immediate actions need to take place to protect the workforce.

Based on what you know at the time the investigation begins, you may need to take immediate steps to protect the complaining party, alleged victim or the workforce in general. For example, an accused harasser may be put on a paid or unpaid leave, supervisory responsibilities could be changed or an employee could be temporarily transferred pending an investigation, but in no case should an employer penalize the alleged victim.

4. Review company policies.

Take an inventory of employer policies that may impact the investigation process. For example, a collective bargaining agreement may provide an employee the right to have a representative present at any interview.

5. Conduct a preliminary search of available records.

This includes reviewing personnel files and any documents relating to the misconduct. Act quickly to retrieve what electronic information is still available, including emails and text messages.

6. Select the appropriate personnel to conduct the investigation.

Investigators should be unbiased and unprejudiced — and perceived as such. Good investigators are skilled at setting people at ease and drawing out reticent witnesses in order to collect facts. They also need knowledge of company policies and procedures, the ability to maintain confidentiality and a level of authority consistent with the significance of the matter being investigated.

7. Control the interview process.

Obtaining detailed statements from interviews with the complaining party and the accused are a critical part of any investigation. Documentation should include the facts, not legal conclusions, or your interpretations and assumptions. Give witnesses ground rules: No conclusion has been reached, no reprisal will be taken, and no discussions about the interview are allowed with anyone.

8. Communicate throughout the process.

Many employers launch an investigation, only to fail to keep the complainant reasonably informed during the process. Unfortunately, this results in the complaining party believing their complaint was ignored, which may prompt them to involve an attorney.

9. Close the investigation properly.

Having invested the time and cost associated with the investigation, protect your investment by properly closing out the investigation. Make a decision, communicate the decision and document the process.

10. Ensure against retaliation.

Employees who make complaints may be legally protected from experiencing an adverse employment action. This includes complaints involving discrimination, harassment, safety violations, wage and hour violations and more. Do ensure against retaliation by continuing to monitor the situation.

As seen in the December 9th issue of Business Lexington.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

Personnel Season: West Virginia's Open Governmental Proceedings Act

Recently posted in the National Law Review an article by Jason S. Long and Denise M. Spatafore   of  Dinsmore & Shohl LLP regarding the listing of individual employee names on county board of education agendas:

Does your County’s Personnel Agenda Comply?

As we begin prepare for another busy personnel season, a question that seems to come up often concerns the listing of individual employee names on county board of education agendas. Many administrators are, understandably, concerned about revealing the names of employees who are recommended for various personnel actions, such as reductions in force (“RIF”) and transfers, while still complying with the West Virginia Open Governmental Proceedings Act (“Act”). And, many have concerns of prejudgment by the board of education if individual names are placed on the agenda.

As we all know, the RIF and transfer process in particular is a difficult and scary experience for many employees, and publicizing it, even if legally required, may seem to add insult to injury for some. In order to spare their employees the embarrassment associated with some personnel actions, many boards provide employees’ names only to board members, with the public board agenda only stating the actions recommended, minus individual names.

A pertinent provision of the Act, West Virginia Code 6-9A-8(a), provides:

Except as otherwise expressly provided by law, the members of a public agency may not deliberate, vote, or otherwise take official action upon any matter by reference to a letter, number or other designation or other secret device or method, which may render it difficult for persons attending a meeting of the public agency to understand what is being deliberated, voted or acted upon. However, this subsection does not prohibit a public agency from deliberating, voting or otherwise taking action by reference to an agenda, if copies of the agenda, sufficiently worded to enable the public to understand what is being deliberated, voted or acted upon, are available for public inspection at the meeting.

The West Virginia Ethics Commission has advised by opinion that a county board of education does not have the authority to conceal the identity of persons being recommended by the superintendent for any type of personnel action. The basis for the opinion is simple in that there is no statutory provision which precludes the public from knowing the identity of the person the superintendent is recommending to hire, transfer, grant of a leave of absence, or acceptance of a resignation or application to retire. Therefore, a county board has two options in order to comply with the Act, especially as it relates to the upcoming personnel season.

It may publish an agenda that states the names of individuals and the recommended personnel action; OR it may publish a listing of proposed personnel actions, without individual names, but the names of each person recommended must be announced in open session BEFORE any board vote.

As it relates to cases that disciplinary matter, such as dismissal or suspension for cause, which may be discussed in executive session, the meeting agenda provided to the public may exclude the person’s name, unless the employee requests an open meeting. This issue was addressed in the November 2010 Education Law Alert.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

USCIS Introduces Redesigned Employment Authorization Document: Form I-766

Recently posted in the National Law Review an article by attorneys Eric S. Bord , A. James Vázquez-Azpiri , Lance Director Nagel, Lisa Stephanian Burton of Morgan, Lewis & Bockius LLP regarding a redesigned Form I-766, Employment Authorization Document:

 

U.S. Citizenship and Immigration Services (USCIS) has released a redesigned Form I-766, Employment Authorization Document, commonly referred to as an “EAD card.” Part of USCIS’s larger effort to eliminate document fraud, the redesign enhances the card’s security features to discourage tampering and misuse. The enhanced security measures include optically variable ink along the top of the card and a holographic image on the front of the card.

How does the redesigned EAD card affect employers’ Form I-9 compliance obligations?

The redesigned EAD card serves the same purpose as the prior version and will remain a “List A” document for employment verification purposes. “List A” documents establish a worker’s identity as well as his or her authorization to work in the United States.

An applicant for employment may still present a valid and unexpired prior version of Form I-766/EAD card to satisfy Form I-9 document requirements. The redesigned Form I-766 will be phased in incrementally. Foreign nationals in possession of the prior version will only receive the redesigned EAD card to replace a lost or stolen card or upon a card’s expiration. A foreign national can apply for a new card no more than 120 days prior to expiration date.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Talent Shortage: A Top Risk Facing Businesses

Recently Posted in the National Law Review an article by Emily Holbrook of Risk and Insurance Management Society, Inc. (RIMS) about  the shortage of talent and skills in hiring:

 

 

No, it’s not the credit crisis or the looming threat of cyber crime or business continuity during a natural disaster or the overall state of the national economy that keeps American business owners awake at night. It is, according to most, the shortage of talent and skills.

This may seem strange, seeing as were are still experiencing record unemployment numbers — meaning the pool of seemingly qualified employees should be vast to say the least. But in fact, the 2011 Lloyd’s Risk Index found that talent and skills shortage ranked as the number two risk facing American business leaders — shooting up from the number 22 spot in 2009.

“These findings show that talent is now firmly part of the risk lexicon — high levels of unemployment have boosted the quantity of candidates, but employers are still wrestling with the quality. Our own Global Talent Index echoed these concerns and highlighted two factors underscoring this risk: population demographics and skills gaps,” said Kevin Kelly, CEO of Heidrick & Struggles the leadership advisory firm providing executive search and leadership consulting services worldwide.

Are business leaders prepared to handle not only the number two risk on the list, but all 50 in the index? Apparently they are. Respondents said they are more than adequately prepared for 48 out of the 50 risks listed. That is in comparison to 2009, when leaders said they were not adequately prepared for eight of the 40 listed risks. Leaders cited “boosting talent retention” as one of the most overall effective risk management actions taken over the last three years, showing how eager businesses are to retain the staff they have.

Speaking of risk management, when respondents were asked to identify the most effective risk management action their organization had taken over the last three years, they cited the introduction of formal risk management strategies and systems, stating that “risk management is now one of the most important roles in the business community.”

Finally.

It may have taken the collapse of the U.S. housing market, a worldwide recession and the continuous uncovering of massive fraud to push the idea of risk management to the forefront of global business programs, but at least the discipline is now moving to where it belongs.

And it is apparently now focused on retaining the talent and skills that are greatly needed in a business world full of continuously evolving risks.

Risk Management Magazine and Risk Management Monitor. Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.

Non-Compete Agreements: A Brave New World in Illinois

Posted on December 8th in the National Law Review an article by attorney Anthony C. Valiulis of  Much Shelist Denenberg Ament & Rubenstein P.C. regarding Illinois Supreme Court’s recent changes regarding non-compete & non-solicitation agreements:

 

 

On Thursday, December 1, 2011, the Illinois Supreme Court dramatically changed state law regarding non-compete and non-solicitation agreements. In Reliable Fire Equipment Company v. Arredondo, the court adopted a new test for determining the enforceability of an employee restrictive covenant.

For the last 30 or so years, Illinois courts have generally held that there were essentially only two “legitimate business interests” that could support a restrictive covenant in the employment context: (1) a company’s confidential information or (2) near-permanent relationships with customers. As we have discussed in previous articles, the Fourth District rejected this test in Sunbelt Rentals, Inc. v. Ehlers, holding that a restrictive covenant could be upheld regardless of the existence of a legitimate business interest—provided that the scope of the covenant was reasonable. The Second District rejected Sunbelt in the Reliablecase but held open the possibility that there could be more than the two traditional legitimate business interests. In the Second District Court’s decision, the concurring opinion felt that the test should be based on the totality of the circumstances involved in each particular case. It was this position that the Illinois Supreme Court adopted in its December 1 opinion.

According to the Illinois Supreme Court, for an employee restrictive covenant to be enforceable, its restrictions must be “(1) no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor; and (3) is not injurious to the public.” That has been pretty much the law for the last 30 years. But the important portion of the Reliable decision relates to the test for determining whether a legitimate business interest exists. It is here that the Illinois Supreme Court has created a brave new world.

According to the Reliable court, “[W]hether a legitimate business interest exists is based on the totality of the facts and circumstances of the individual case.” In reviewing that totality, a court is to consider various factors, including but not limited to “the near-permanence of customer relationships, the employee’s acquisition of confidential information through his [or her] employment, and time and place restrictions.” But the Illinois Supreme Court made it clear that these factors are not exclusive. Moreover, “[N]o factor carries any more weight than any other, but rather its importance will depend on the specific facts and circumstances of the individual case.”

So what does all this mean? Well, we now have a clear statement, articulated by the state’s highest court, of the test for enforceability. But what we do not have is certainty. Under this “totality of the circumstances” test, it will be very difficult to determine whether a particular restrictive covenant will be enforceable or not. As these cases are litigated over time, more certainty will undoubtedly arise. As of now, however, we can only speculate about what additional factors will be important. Goodwill is likely to be one. So might an employee’s unique value.

What is a business to do in the wake of the Reliable decision? First and foremost, all existing restrictive covenants should be reviewed to determine, under the particular set of facts applicable to your business, what might be enforceable. Although there is no certainty, there are drafting measures that can and should be taken to help make your agreements fit into this brave new world.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.

NLRB Approves Significant Changes to Representation Election Procedures

Recently published  in The National Law Review an article byJ. Kevin Hennessy, Kenneth F. Sparks, Mark L. Stolzenburg and Lyle S. Zuckerman of Vedder Price P.C. regarding NLRB’s vote at a public meeting on November 30, 2011:  

In June 2011, the National Labor Relations Board issued a Notice of Proposed Rulemaking that sought to significantly change the procedures for representation elections under the National Labor Relations Act. The purpose of the Proposed Rulemaking was to limit the time that an employer has to express its views to employees regarding unionization during a campaign. The NLRB held two days of hearings in July 2011 regarding the proposed rule and received over 65,000 written comments.

At a public meeting on November 30, 2011, by a 2-1 party-line vote, the NLRB voted in favor of a resolution to adopt many provisions of the rule proposed in June. While some of the more controversial provisions were not included, the amendments that the NLRB approved in its November 30 resolution will quicken the election process.

That said, the Board still must draft a final rule and vote on it. However, with the recess appointment of Board Member Craig Becker expiring on December 31, 2011, the Board will lose its three-member quorum and therefore will be unable to adopt rules or otherwise conduct business in any significant manner after that date. Senate Republicans have announced that they will remain in session between now and the 2012 elections, depriving President Obama of the ability to make any additional recess appointments to the NLRB. As a result, employers should expect that the Board will move quickly to prepare and vote on a final rule within the next few weeks.

The resolution that the Board adopted on November 30 contains six procedural amendments to be included in the final rule regarding changes to the election process:

1.  The final rule would amend the existing rule regarding the purpose of pre-election hearings, making them for the sole purpose of determining “whether a question concerning representation exists that should be resolved by an election.” The primary effect of this rule is to preclude litigation about most voter-eligibility issues, such as supervisory status, during pre-election hearings. It is unclear whether this would preclude parties from litigating the overall appropriateness of the petitioned-for bargaining unit. The resolution appears to be more restrictive than the rule proposed by the Board in June 2011, which would have allowed the parties to litigate eligibility issues in a pre-election hearing if those issues involved at least 20 percent of the proposed voting unit.

2.  Under current rules, parties may file post-hearing briefs as a matter of right. The amended rule leaves to the discretion of the hearing officer whether post-hearing briefs will be permitted. In most cases, the parties will be allowed to make closing arguments at the end of the hearing, and briefs will be permitted only where unique or complicated issues are involved.

3.  Current rules require parties to file separate appeals to seek Board review regarding pre-election and post-election issues. The amended rules eliminate all pre-election review by the Board, and will consolidate all issues for review, including election objections, in a single, post-election appeal. According to Chairman Pearce, this will avoid appeals of issues “that become moot as a result of the election.”

4. The fourth amendment eliminates the 25- to 30-day waiting period between issuance of a Regional Director’s Decision and Direction of Election and the scheduling of an election. The purpose of this waiting period is to allow parties to request review of the Regional Director’s decision by the Board, a process that is eliminated by the third amendment.

5. The fifth amendment would limit to “extraordinary circumstances” occasions when requests for special permission to appeal to the Board would be granted. Under this standard, the Board would entertain pre-election appeals only when the issue would “otherwise evade review.”

6. Currently the Board must consider any post-election requests for review. The sixth amendment would make Board review of post-election appeals discretionary, permitting the Board to summarily dispose of appeals “that do not present a serious issue for review.” This is the same standard that currently exists for pre-election reviews.

Several components of the rule proposed in June were not included in the Board’s resolution adopted on November 30. Those are (i) inclusion of employee e-mail address and telephone number on voter-eligibility lists provided to the union before the election, (ii) reducing the time that an employer has to provide the voter eligibility list to the union from seven to two days, (iii) requiring parties to state their positions regarding pre-election issues prior to the hearing and (iv) requiring an employer to provide a “preliminary voter list” before the pre-election hearing. However, on November 30, the Board reserved its right to continue considering these elements of the June rulemaking session.

As NLRB Member Brian Hayes noted at the November 30 public meeting during which the Board voted to adopt the resolution, the median time between the filing of a petition and an election in 2010 was 38 days, and about 95 percent of all elections occur within 56 days. The time target in most cases is for an election to occur within 42 days of the filing of a petition. The amendments approved in the Board’s resolution may have little effect on elections in which the parties agree about the composition of the voting unit and other details without a hearing. However, where there is a dispute over the eligibility of certain voters, elections will occur much more quickly than in the past. In addition, the amendments may increase uncertainty for employers during campaigns. Issues of supervisory status will not be resolved until after an election is over. As a result, employers may be placed at increased risk of unfair labor practice allegations for the conduct of individuals who were not deemed supervisors until long after a campaign concluded.

As a result of these rules that the NLRB is soon to adopt, employers should review their contingency plans for organizing drives and give serious thought to the content of condensed campaigns. Shorter election campaigns may soon be a reality.

© 2011 Vedder Price P.C.