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Friday Links

Here are a couple additional links to some employment law
developments from the holiday season. Still catching up on news from the past
couple of weeks, but check back soon for more posts on some new employment and
labor law items.

On December 15, the NLRB overturned its longstanding precedent
regarding check-off union dues that was stated in Bethlehem Steel 50 years ago
. Formerly, when a collective
bargaining agreement containing a dues check-off provision expired, an employer
was permitted to stop deducting union dues from employee wages immediately. In
its new decision, WKYC-TV, Inc., the
Board determined that the dues check-off provision should be treated the same
as other obligations mandated by the NLRA. As such, employers are required to
maintain the provision as part of the status-quo during the negotiation period
of a new collective bargaining agreement. The NLRB stated the dues check-off
provision was analogous to traditional terms and conditions of employment, all
of which survive contract expiration, rather than contractually established
terms such as arbitration provisions that do not become part of the status quo.
As such, the NLRB overturned a law that had been part of collective bargaining
law for the past 50 years.

The Employer Handbook looks at when an employer can require
an exempt employee to take unpaid leave
. Under the FLSA, a workplace is
composed of exempt and non-exempt employees. Non-exempt employees must be paid
overtime when they work more than 40 hours in a workweek.  Many employers have policies that provide exempt
employees with paid time-off, but mandate that any additional days off must be
taken unpaid in full-day increments.

A recent federal court case upheld policies of
this nature. While the FLSA requires that full-day unpaid leave cannot be
mandated by the employer, policies of this kind are acceptable if employee
driven. The employer provides a certain number of days of paid leave, and
leaves it up to the employee’s discretion to take unpaid leave if necessary.
Additionally, Department of Labor guidelines permit an employer to require that
additional time-off be taken in full-day increments if PTO has been exhausted.
Employers should remember that in addition to these basic rules, there are myriad
wage-and-hour regulations that control employer behavior in terms of docking
pay for missed work. Employers should consult with an attorney to decide how to
best set up their payroll policies to avoid FLSA violations.

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