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While significant inroads have been made in implementing defined contribution plans for new hires in Connecticut municipal negotiations, police and fire unions have continued to resist such changes, citing, among other things, the greater likelihood a cop or firefighter may become disabled on the job than other municipal workers.  Nonetheless, while still in the minority, the list of police contracts that provide a defined contribution plan for new hires continues to steadily grow.

The latest to add a defined contribution plan for new hires is Trumbull.  In a labor contract settlement negotiated by Berchem, Moses & Devlin, P.C.’s Floyd J. Dugas and Jeffrey P. Mogan, in addition to a wage freeze for the first year of the contract and switching to a CompMix health insurance plan, starting in 2014, new hires will no longer be eligible for the Town pension plan, rather will only be eligible for the Town’s new defined contribution plan.  It is expected that in the long term, this will help the Town address the underfunding of its pension plans.

Since 1962, employers with a dues checkoff provision in a collective bargaining agreement have been permitted to cease deducting dues from employee paychecks and remitting them to the union upon contract expiration.  As of last month, however, employers can no longer relieve themselves of the burden of collecting and remitting dues upon contract expiration.  In WKYC-TV, Inc., 359 NLRB No. 30 (2012), the NLRB overruled its long standing precedent, citing “compelling statutory and policy reasons.”  The NLRB justified its decision on a number of theories, including that there is no basis under the National Labor Relations Act to warrant a carve-out of dues checkoff from the general status quo rule and that maintaining the status quo upon contract expiration facilitates bargaining.  Though the NLRB did not overrule any other provisions that have long been deemed to expire along with the contract, this change is significant to employers.

Notably, the new rule will not be applied retroactively.  However, moving forward, employers are no longer permitted to cease dues deductions upon contract expiration.  Failing to abide by a dues checkoff provision will now violate Section 8(a)(5) of the National Labor Relations Act.

By way of background, 50 years ago Bethlehem Steel, 136 NLRB 1500 (1962) held that despite the general requirement to maintain the status quo upon expiration of a collective bargaining agreement, certain contractual provisions expire along with the contract.  Since that time, dues checkoff and arbitration provisions, among other provisions, have not survived contract expiration.  

As a result, employers engaged in contract negotiations that extend beyond the contract expiration date routinely ceased deducting dues, resulting (intentionally) in reduced administrative burdens on their end and increased administrative hassle to the union, which then has to collect its own dues.  At a time when the collective bargaining agreement has expired, and the parties are presumably embroiled in tense negotiations, the last thing that a union wants to deal with is spending time to collect dues.  As a result of this recent NLRB decision, employers can no longer employ that strategy and must be mindful of continued compliance with a dues checkoff provision even after contract expiration.

As discussed in our previous posts, here and here, Connecticut’s new paid sick leave law went into effect on January 1, 2012.  Among its many requirements is an obligation for employers to provide adequate notice of the law to employees.  Most employers likely satisfy this requirement by displaying the notice poster created by the Department of Labor. 

Though broader issues concerning compliance continue to arise, employers should take care to observe the seemingly minor points of the law, including the requirement to display posters in English and Spanish.  The law imposes this requirement on all employers subject to the law, irrespective of the composition of their work force.

The English and Spanish posters are available on the DOL website.

The Department of Labor recently proposed new regulations designed to implement and interpret the National Defense Authorization Act for Fiscal Year 2010, which amended and expanded the Family and Medical Leave Act (“FMLA”).  The amendments expand military caregiver leave and incorporate a special eligibility provision for airline flight crew members.

As set forth in the DOL’s informational notice, the major rule changes include:

• Extension of entitlement to military caregiver leave to family members of veterans for up to 5 years after leaving the military.  Presently, the FMLA only covers family members of service members that are currently serving;
• Expansion of qualifying exigency leave to employees whose family members serve in the regular armed forms, as opposed only to employees whose family members serve in the National Guard or reserves as provided by existing law;
• A more flexible definition of “serious injury or illness” of a veteran; and
• Several provisions specific to airline flight crew members aimed at increasing accessibility to FMLA benefits.

The regulations are not yet final and anyone that would like to submit comments on the proposed regulations may do so prior to April 16, 2012.  Following review of the comments, the DOL will release final regulations.

Employers subject to the FMLA should stay tuned as these regulations have the potential to significantly expand leave entitlement, most notably as it relates to military caregiver leave for veterans.

For more information, please visit our website.

If you are an employer that maintains a mandatory arbitration agreement that waives the rights of employees to participate in class or collective actions, your arbitration agreement may be in violation of the National Labor Relations Act (“NLRA”).

Pursuant to the National Labor Relations Board’s (“NLRB”) recent decision in D.R. Horton, Inc., 357 NLRB. No. 184 (2012), a case of first impression for the NRLB, “mutual arbitration agreements” that preclude the arbitrator from hearing class or collective actions violate Section 8(a)(1) of the NLRA.  The NLRB determined, despite Supreme Court decisions that many believed held otherwise, that such arbitration agreements “clearly and expressly bar employees from exercising substantive rights that have long been held protected by Section 7 of the NLRA.” 

Prior to the case, the position of former NLRB General Counsel Ronald Meisburg was that class action waivers were not unlawful so long as the waiver provided that employees could act together to challenge the waiver itself. 

However, with the NLRB’s decision in D.R. Horton, Inc., the new rule for employers is clear – employers may not compel employees to waive the ability to collectively pursue litigation of employment claims in all forums, arbitral and judicial.  Instead, while arbitration agreements may continue to bar employees from classwide arbitration, they may not also prohibit employees from a judicial forum for class and collective claims.

Employers favor mandatory arbitration provisions in employment agreements because arbitration is generally quicker and less expensive than court litigation.  However, if the mandatory arbitration provision prohibits employees from pursuing class or collective actions in all forums, the employer should revise the policy in light of recent legal developments.

For more information, please contact the law offices of Berchem, Moses & Devlin, P.C.