E-Blasts

Last week, Purple Communications (“Purple”), a video provider for deaf and hard-of-hearing individuals, appealed a 2014 NLRB ruling that allows employees to send union messages over work email to the U.S. Court of Appeals for the Ninth Circuit. The NLRB’s 2014 ruling held that employees who already have access to their employer’s email system are permitted to use the email system for protected union-related activities because email is the premier platform for “worker speech” in the modern workplace. That decision was limited to only workers who have already been granted access to the employer’s email system. The NLRB also ruled that employers may institute a complete ban on non-work email use only if the employer can justify the ban by identifying “special circumstances” that make the prohibition necessary. This ruling overturned a 2007 NLRB judgment that held employees had no right to use employer email for union activity.

Proposed legislation that would guarantee immigrant workers’ rights in the workplace has been passed by the California Legislature and is now on the Governor’s desk. As we reported here earlier, the Immigrant Worker Protection Act (“AB 450”) would specifically require employers to ask for a warrant before granting the U.S. Immigration and Customs Enforcement (“ICE”) access to nonpublic areas of a worksite and prevents employers from providing ICE confidential employee information, such as social security numbers and, most importantly, I-9s, without a “notice for inspection.” Penalties for non-compliance range from $2,000 to $5,000 for an initial violation to between $5,000 and $10,000 for subsequent violations.

On Tuesday, four Massachusetts Teamsters union members were acquitted of charges that they tried to extort jobs from a “Top Chef” non-union production company using strong-arm tactics.  Prosecutors alleged that the Teamsters violated the Hobbs Act by using threats of economic harm and physical violence to get money for additional truck-driving services that “Top Chef” wasn’t in a position, and didn’t want, to fill. Prosecutors put on evidence of the union members using racial and sexists slurs, brandishing weapons, and slashing “Top Chef” crews’ tires. The Teamsters also allegedly swarmed “Top Chef” star Padma Lakshmi’s van when it arrived on set and one of the Teamsters threatened to “smash” her “pretty little face.”  Incredibly, despite all this, after deliberating for almost 19 hours, the jury returned a verdict of not guilty.

On Wednesday August 9, 2017, employees at Premiere Raspberries, LLC (“Premiere Raspberries”) in Watsonville, California voted in favor of the United Farm Workers during a union representation election. The margin of victory for the UFW was 269 to 236. Assuming the election is certified by the Agricultural Labor Relations Board, the UFW will look to begin negotiations on a collective bargaining agreement for the approximately 500 employees at Premiere Raspberries.

Marvin Kaplan Sworn in as NLRB Member

On August 10, 2017, Marvin Kaplan (“Kaplan”), one of President Trump’s nominees to the National Labor Relations Board (“NLRB”), was sworn in as a member. Kaplan’s term will run until August 27, 2020. As we previously reported here, business groups expressed their approval of the nomination, and it is expected that Trump’s NLRB (once his final nominee is confirmed and sworn in) will reverse many Obama-era rulings.

Judge Lydia Villareal Hears Motion for Summary Judgment Regarding AB 1513 “Safe Harbor”

On August 9, 2017, SLG Senior Labor Counsel Jennifer Schermerhorn attended oral argument on a summary judgment motion in the Murcia v. Tanimura & Antle matter pending in the Monterey Superior Court before Judge Lydia Villarreal. In that case, Plaintiff, on behalf of herself and a class of employees, is claiming she was not properly compensated for rest breaks from 2011 through 2015. The defendant employer asserted an AB 1513 “safe harbor” affirmative defense.  Under AB 1513, if an employer properly made AB 1513 safe harbor payments, it will have an affirmative defense to claims or causes of action based on the employer’s failure to timely pay compensation due for rest and recovery periods and other non-productive time “for time periods prior to and including December 31, 2015 . . . ”

Last week, a federal appellate Court upheld a National Labor Relations Board (“NLRB”) ruling that a Burger King franchisee violated the National Labor Relations Act (“NLRA”) when it refused to hire an employee because the employee had previously engaged in union activity. The franchisee purchased a Burger King franchise in 2015 where employee Terrance Wise (“Wise”) had worked since 2012. During his employment at Burger King, Wise had taken a leadership position with the Worker’ Organizing Committee, which advocated for fast food workers to earn $15 per hour. Wise was also involved in unfair labor charges brought against the franchise at which he worked. After the sale was completed, Burger King rehired the general manager and several other employees but did not rehire Wise. Wise then filed charges with the NLRB.

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