SOCIETY FOR HUMAN RESOURCES MANAGEMENT-MEMPHIS
LEGISLATIVE REPORT 

James Francis Barna    jimbarna@weintraubstock.com
July 2004 

1. NLRB Limits Weingarten Rights to Union Employees Only- 

                        On June 6, 2004, in IBM Corp., the National Labor Relations Board (NLRB) ruled 3-2  that an employee’s right to have a co-worker present at a meeting that might lead to discipline does not extend to nonunion employees. The right to have a co-worker present at a meeting that might lead to discipline is known in the legal field as the Weingarten right, from the  NLRB case that first recognized the right.  The issue of whether Weingarten rights are limited to workplaces where the employees are union members has been considered by the NLRB for over 23 years, and the NLRB has changed positions four times over those years. In response to a letter received from a former contract employee who alleged harassment from noncontract employees, IBM Corp. began interviewing employees regarding the allegations. An IBM manager denied requests from three employees to have a co-worker present for their second interview. The employees were later fired and filed unfair labor practice charges. An NLRB administrative law judge found that IBM violated the employees’ rights under Section 8 of the National Labor Relations Act (NLRA). IBM appealed to the Board.

                        In 2000, the Board in Epilepsy Foundation of Northeast Ohio ruled that nonunion employees were entitled to have a co-worker present at an investigation likely to lead to disciple.  In the June 6, 2004 IBM Corp. decision, Chairman Battista and Members Meisburg and Schaumber agreed to overrule Epilepsy Foundation.  Members Liebman and Walsh dissented. Battista and Meisburg both recognized that extending Weingarten rights to nonunion employees is permissible, but in light of the current workplace environment where employers are required to conduct various workplace investigations and heed to new security concerns, it was not proper policy.  Member Schaumber’s opinion was more narrowly drafted. He felt that the National Labor Relations Act limits Weingarten rights to employees represented by a union.

2. Update on Progress of Fair Labor Standards Act Changes-  FINAL Congressional Action on FLSA Regulations Prior to August 23, 2004 NOT LIKELY

                        On April 23, 2004, the Department of Labor (DOL) published the proposed final regulations revising the Fair Labor Standards Act tests for the administrative, professional and executive exemptions. The final rule is effective on August 23, 2004.  The final rule differs significantly from the current regulations.

                        Since May, there have been two procedural attempts in the U.S. House of Representatives to limit the final regulations, though both attempts failed.  There has been speculation as to whether or not congressional lawmakers will act prior to August 23 to block or nullify the final regulations.  However, the possibility of Congress acting with any finality   regarding the final regulations prior to the effective date is remote at best.  Congress will be in session for three weeks in July and in recess through Labor Day.  The agenda during this time will be packed with must-pass legislation.  It is anticipated that opponents of the final regulations will attempt to limit implementation funds to the U.S. Department of Labor for fiscal year 2005, and it is possible that a Congressional Review Act resolution of disapproval will be introduced in the coming weeks.  Despite this, the new overtime regulations are expected to take effect as planned on August 23, 2004.

3. Military Deployment FMLA Expansion Amendment Offered to Unrelated Senate Measure, But Later Withdrawn

                        In June 2004, U.S. Senator Russ Feingold (D-WI.) offered, and then withdrew an amendment to the Department of Defense authorization legislation which would have expanded the Family and Medical Leave Act (FMLA) to allow up to 12 weeks of leave for family members of those serving in the military/reserves to address “issues relating to or resulting from” a family member’s service/deployment, including reserve duty. The 12 weeks of leave did not need to be taken continuously, but rather can be taken intermittently for any issues “relating to or resulting from” a family member’s service “in support of a contingency operation.”

                        This proposal, if enacted, would have significantly broadened the provisions of the FMLA, but would have provided an additional benefit to families suffering from the substantial burdens of wartime deployment. The proposal would have created significant additional burdens to workplaces nationwide.  However, Feingold stated that the issue will return in the future.