- Written by Michael C. Saqui
The NLRB has ended a 50-year-old rule which allowed employers to hold “captive audience” meetings up to the 24-hour period before an election is to be held with regard to elections via mail-in ballots. Normally, in a conventional election, employers are barred from holding captive audience meetings 24 hours before the employees are scheduled to mark the ballot. With mail-in ballots, there was some confusion in the case law about when the ban was supposed to start. Some cases held that the ban was measured from when employees were able to mark the ballot, others held that the ban was measured from when the ballots were scheduled to be mailed out.
In Guardsmark LLC, the NLRB clarified the confusion and established a bright-line rule that no captive audience meetings are permitted within the 24 hours before ballots are scheduled to be mailed out. Based on the mailing time, this effectively extends the ban significantly, severely restraining an employer’s ability to communicate its opinion about the union. The dissent criticized the rule as making the situation more confusing by having one set of rules for mail-in elections and yet another set of rules for conventional elections.
- Written by Kevin Cleveland
Last October, Senate Bill 358, also known as the California Fair Pay Act, was passed into law, amending California Labor Code section 1197.5. This code was originally enacted in 1949 to prohibit gender based discrimination in pay. The California Fair Pay Act was intended to strengthen the law’s protections by making it easier for an employee who has raised a claim of unequal pay to establish that they are not being paid the same amount as members of the opposite sex for work which requires substantially the same skill, effort, and responsibility under similar working conditions.
If an employee makes such a showing, an employer must now show that the difference in pay is based on any or all of the following: 1) a seniority system; 2) a merit system; 3) a system which measures earnings by quality or quantity of production, or 4) a “bona fide” factor other than sex, such as education, training, or experience. An employer must also show that the pay difference is tied to an absolute business necessity and that its reliance upon one, or several, of the four factors was reasonable and accounts entirely for the wage differential. In other words, an employer can no longer point to one of the factors as a partial explanation for the wage differential. This is a significant change that substantially increases the burden of proof faced by employers dealing with unequal pay claims.