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Employment Law Alert: Two Interesting Decisions

In the first case, the Sixth Circuit upheld the NLRB’s findings concerning employer violations of the Act -- with respect to employee use of a company bulletin board, employer distribution of pro-company buttons, and unlawful promises made to employees if they voted against the union.

Since 1999 the American Postal Workers Union had been involved in organizing efforts at DynCorp, a government contractor that operates and inspects equipment for the U.S. Post Office. Early on in the campaign, an employee posted a pro-union flyer on a company bulletin board located in the employee cafeteria. A company official immediately took down the flyer and threatened disciplinary action against the employee who posted it, citing a company rule that bulletin boards were to be used for DynCorp business only. Although the company claimed that it had consistently enforced this rule in the past, removing all employee postings as soon as they were noticed by a manager, the evidence indicated that some postings had been allowed to remain on the bulletin board for weeks at a time prior to being removed. Additionally, discipline had never been threatened with respect to other employee postings. Based on this evidence, the Sixth Circuit agreed with the Board that DynCorp’s enforcement of its bulletin board policy violated § 8(a)(1) of the Act.

The other interesting case involves a settlement of a class-action wage and hour lawsuit brought by managers and assistant managers of Rubino’s Restaurants in California. Rubino's has agreed to pay $7.5 million to settle claims that it violated state wage and hour laws by misclassifying these workers as exempt from overtime over a 10-year period. The settlement was reached on March 19, and is subject to court approval, which is expected. The plaintiffs alleged that they spent over half their time performing the same duties as other, non-exempt employees. They also presented evidence that Rubino's discouraged them from approving overtime for their subordinates, causing them to often be left short-handed and having to work the extra hours themselves.

Bottom Line

The Rubino's settlement is another powerful reminder of the serious -- and costly -- consequences of misclassifying employees as exempt from the overtime requirements of state and federal wage and hours laws based on the employees’ job titles rather than their actual job duties. While these workers were "managers" and "assistant managers," they spent the majority of their time performing the same work as their subordinates. The DynCorp decision is not particularly surprising, but also is a good reminder to supervisors and managers to exercise extreme caution in the way that they conduct themselves during a union organizing campaign. Their actions will be closely scrutinized by the Board -- with the benefit of 20/20 hindsight, of course.

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