Event Archive

The NLRA And You: What You Don’t Know Can Hurt You


Contact Info

Cruickshank & Alaniz

Brett Holubeck


20333 State Hwy 249, Ste. 272
Houston, TX 77070
(218) 833-2200


Kyle Glave, Account Manager


9680 Haven Ave. #200
Rancho Cucamonga, CA 91765
(909) 895-8100 x-7181

Questions & Answers:


Are independent contractors excluded because they have the ability to reject or leave work that they perceive to be unfair?


Contractors are excluded because they are not employees of a company. However, some employees are mis-classified. Groups of independent contractors in the same field are starting to form pseudo-unions, so we may see this become more prevalent in the future.


An office where non-manager/supervisors are contracted through a staffing company, but the on-site salaried management directly instructs them and the contractors adhere to their policies, that is a joint employer correct?


Yes. If a staffing company is trained on what to do, but may not receive direct instruction from the on-site managers, then it becomes a bit grey. However, under either the control or potential to control standard, this situation looks like a joint employer.


I would assume along with personal use of company email, it would be illegal for a company to review those emails, even if disciplinary action was not taken?


If you are reviewing a Unionization campaign, you have to be very careful about how you monitor your emails. Monitoring emails can be seen as spying. It will depend on how stringent your initial email monitoring policy is, prior to unionization. If your policy changes once your employees begin to unionize, this can definitely result in an unfair labor practice charge.


Have you ever experienced a case where it was unclear if TIPS was violated? That is, where the violation was borderline or not clearly enough defined to call it a violation?


The NLRB, below the board level, tends to be very pro-employee. Borderline cases will go in favor of the employee most of the time.

  • Example given in presentation: If you are instituting a new company vacation policy and there has been union organization within the last month, an increase to vacation days could be seen as a “promise” used to dissuade from unionization. However, this policy change may have been decided a long time ago, prior to union organization. Since policy changes like this generally take a long time to institute, this is an example of a defensible borderline situation.

If a Union comes to a location where a supervisor is already, is the supervisor expected to leave? For example, they go to a restaurant unbeknownst to the supervisor, where the supervisor already is.


No, but it is not worth the risk so you should just leave. The union is not required to announce such a meeting. You could end up in a situation where proximity alone leads to a spying charge.


Is there a statute of limitations to report a violation to the NLRB? How long do employees have to say something?


Generally 6 months. Some violations may be ongoing which would allow you to go back a bit further, but in general, 6 months.


Has there ever been a push by either side to create a more neutral NLRB rather than one controlled by a party majority? Or is this by design?


This is more by design because it has such an impact on the workforce and is such a political issue. Unions tend to support Democrats in much higher numbers than Republicans. There has actually been a push to make it even more partisan, to make union organizing even easier. The pushes are to give the board more or less power, based on who is in charge.


Does the NOVAtime system also include compliance with specific state leave regulations like the CFRA (California) and OFLA (Oregon)?


Yes. NOVAtime is a rules driven system that can be configured to account for ANYTHING. NOVAtime stays on top of new or pending hiring and employment laws, and updates their software accordingly. Our implementation and support teams can always work to customize your system to ensure compliance with any and all state regulations.


Are salaried, exempt, non-supervisors still included in the NLRA?


Yes. They absolutely are. Only managers, supervisors and independent contractors are not protected.


Do state laws supersede federal NLRA?


Right now, that is an open question. It is being litigated right now.


Gender pay gap - would this fall under NLRA? How is it handled?


The NLRA enables this discussion to happen in the workplace, because discussing wages is protected. If it is found to be an unfair gap, then charges can be filed. California is providing the leading example for this with new legislation requiring employers to explain why a pay gap exists between two employees in the same position.