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Steward Handbook
Erik PetersonLabor Education Service
University of Minnesota228 Cina Hall
Duluth, MN [email protected]
218-726-8683
Introduction
If mobilized members are the muscle of the labor movement, stewards are its bone. Stewards are educators, organizers, advocates and mediators, agitators and peacemakers. There are few rules. Being an effective steward mostly requires knowing a few basic principles, being able to listen well, having a willingness to learn combined with some passion and commonsense. This pamphlet outlines some basics. The rest can generally be improvised.
Index
Duty of Fair Representation 4
Legal Rights of StewardsEquality Principle 5Equal Standards Principle 5
Stewards as organizersKey principles of organizing 6Organizing non-members 6Tips for one-on-one effectiveness 7Internal organizing 8Developing a communication structure 8Working a communication structure 9Solicitation and distribution rules 10
Stewards as educators 17
Stewards as advocates 18
Stewards in investigatory interviewsWeingarten rights 18What is an investigatory interview? 19Steward rights during an investigatory interview 19Privileged versus confidential communication 20Steward roles during an investigatory interview 21
Stewards as grievance advocatesWhat is a grievance? 22Difference between a grievance and a gripe 22Just cause 23Past practice grievances 24Loudermill hearing 24
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Garrity Warning 25Sample Garrity Warning 26Key tips when filing a grievance 27How to write a grievance 27Sample grievance 28Investigating grievances 29Types of information a steward can request 29Making requests in writing and costs 29Tips for grievance meetings 30
Labor Law 101Family and Medical Leave 32Minnesota School Activities Leave 37Americans with Disabilities Act 37Fair Labor Standards Act 40
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Duty of fair representationWhere does this duty come from?
Federal law (NLRA) or state law (PELRA in Minnesota) recognizes your union as the "exclusive representative" of a specific group of employees (check your recognition clause in your contract).
This means that employees cannot individually bargain over terms and conditions of employment;
It also puts a responsibility on the union as exclusive representative (and on you as a steward, as the union's representative) to fairly represent the interests of all employees.
Why is satisfying this duty so important? Failure to satisfy the duty of fair representation (DFR) makes the union
liable for damages suffered by the affected bargaining unit employee and may also make the union liable under the 1964 Civil Rights Act, which also prohibits unions from discriminating.
What does "fair representation" mean? This means:
All employees -- members and non-members, good and bad, nice and hostile -- have a right to due process and union representation to the best of your ability;
As a steward you need to act fairly, impartially, in good faith, consistently, with reasonable care, and not arbitrarily.
It does not mean: You must file a grievance on every complaint even if there is no
contract violation;
You must take every grievance through every step through arbitration;
You do not need to satisfy all members of the bargaining unit.
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Legal rights of stewardsWith the duty of fair representation come certain protections for stewards. These are very important for understanding the protected status one has when working as the union's official representative.
The Equality Principle. Under the NLRB (and PELRA) union stewards have a special legal status when they engage in union business or act in their official capacities. Chiefly, they are considered equals with management.
According to the NLRB (and PELRA) this means:
Conduct that might ordinarily result in discipline must be tolerated; A frank, and not always complimentary, exchange of views must be
expected;
The relationship between steward and employer is not a “master-servant” relationship but one of “equal opposing parties;”
“Robust debate” may occur, but not “intemperate, abusive, or insulting language” (to qualify as inappropriate the conduct must be “outrageous,” “indefensible,” or “of such a serious nature as to render the employee unfit for further service;”
An employer commits an unfair labor practice if the employer disciplines a steward for functioning in an official capacity.
The Equal Standards Principle. The NLRB and PELRA prohibit employers from holding stewards to super or higher standards than other employees, except if there is an illegal strike or work stoppage. Then an employer can discipline a steward or union official who takes part in the illegal action. Except for this very rare occurrence, supervisors cannot discipline a steward to set an example for the rest the employees, or because the steward should, above others, know better, etc.
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Stewards as organizersOne of the principle activities that stewards do is organize. Most people do not think of themselves as organizers -- but most of us are. Organizing is nothing more than taking big tasks, breaking them into little tasks, and getting someone else to do them. Perhaps easier said than done at times, but building the union's strength internally is a key task of stewards. Below are some tips.
Key principles of organizing1. Build on the culture of the group and organize around winnable issues
that people care about.
2. Organizing starts with leaders -- but depends on ensuring members exercise real power and involvement.
3. People get involved one small step at a time.
4. Communicate honestly and often. Face to face communication is most powerful -- and a leaflet is only a "tool" to facilitate communication.
5. Don't bore people. Make meetings, events and actions enjoyable, exciting, and productive.
6. Apathy isn't incurable -- keep trying to find ways to reach people.
Organizing non-membersOne of the key responsibilities of a steward is to contact new employees and help them understand the importance of joining the union. Do not assume that new employees know anything about unions (and what they know may not be favorable). Use tact. Remember your first day of work -- being friendly and helpful (not pushy and demanding) goes a long way. Demonstrate through your actions that the union is supportive, reliable and a good resource.
Asking existing employees who have not joined the union to consider joining is often more difficult, but rarely impossible. The key is to not give up. Below are some tips.
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Tips for one-on-one effectivenessListen. This is the most important thing to learn. Everyone has a tendency to lecture people or to try and deliver a canned pitch, especially if they are nervous. Instead of lecturing, learn to draw people out by asking questions and show you genuinely care what they think. Avoid interrupting the person since it signals you don't really want to hear the person's concerns.
Don't make assumptions. Often the issues you think are important are not the issues your co-worker cares about. Keep an open mind so you can be responsive to the person's concerns.
Don't argue. If somebody makes negative comments, try to find common ground. As much as possible, agree that the person has a valid point. Don't make the other person feel defensive - if you do, they'll never change their mind.
Don't evade the tough questions. If you don't know an answer, don't try to fake it. People respect honesty. If you don't know the answer, admit it and tell them you'll get back to them.
Use literature as an organizing tool. A flyer, the newsletter, a brochure can contain helpful information but should never be used as a replacement for one-on-one. Use it to open a conversation and never place it on a desk or in a mailbox.
Be yourself. Develop an approach that you feel comfortable with and use the kind of language you use everyday. Different people can deliver the same message in different ways.
Be polite. Be sensitive to the fact the person might be busy, or uncomfortable talking with others around. If so, ask when would be a better time/place.
Be confident. This is your union you are talking about and you are proud of it. Know what the "message" is that the local wants to communicate.
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Internal organizingAs a steward you will be expected to help build a stronger union. But building a strong union does not happen overnight. It depends on taking a few first steps to organize members. Key to organizing is communication. Below are a few key internal organizing activities.
Map your workplace and identify who works where (and when) and each employee's commitment to the union.
Build a strong steward system and internal communication network.
Develop a system of identifying when a new worker starts at a work site and who is responsible for contacting that member.
Inform new workers (and existing members) about the union contract, benefits, services, and activities. Let the new employee know who they can go to with questions. Sign up new employees into the union. This can begin with simply asking them.
Develop a plan to recruit existing non-members into the union.
Involve membership in union planning, activities, and planning.
Developing a communication structureDeveloping an effective communication structure is key to building a stronger union. Nothing breeds dissension quicker than lack of information. Building an effective structure also helps build a stronger union simply by involving more people in doing union work. Below is one idea for a communication-organizing structure -- what I call the "mail delivery system of organizing."
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1st Delivery Contact
(Responsible for passing information to site
contacts.)
Site contacts(Responsible for passing on
information to co-workers. Try to find at least one contact
person for each work area -- try to keep the ratio to no more
than 1 contact person for every 15-20 workers)
Members(Each employee receives
communications at his/her worksite from the contact
person)
Sample contact structure:
1st Delivery Contact
Site Contact(s) Work Sites Site # Total
Bob Barker(Solid Waste)
Bob Barker Lavell Cannister 2 2
Bill Jones(Solid Waste)
Bill Jones Brookston Transfer 3 3
Rosie Johnson(Solid Waste)
Rosie Johnson Cook Transfer 3 3
Rick Santori(Solid Waste)
Rick Santori Hibbing ROC 2 2
Betty Olson Janet Jones Assessor (2nd fl) 20 74(Courthouse) Ruth Lahti County Attorney (5th fl) 10
Ann and Barb Olm Auditor (2/5th fl) 42Sara Peters Occupational Safety (?) 2
Sara Hanson (Courthouse)
Sara HansonSharon Josephson
Recorders (1st fl) 30 30
Cindy Messer(Courthouse)
Marsha Collins and John Barr
Courts – all subd. 35 45
Cindy Messer Sheriff 10Ron Sederski(Courthouse and motor pool)
Ron SederskiDeb Peterson
Building Maintenance 18 29
Ron S. Civil Defense 3Ron S. Microfilm 2Ron S. Purchasing 3Ron S. Motor Pool 3
Joan Gilbert(Land Department)
Joan Gilbert Cnty Garage – Pike Lk 5 27
Howard Stetson Pike Lk Land Dept 22Shar Gompers(Government Services Bldg)
Barb PetersonJoanne SillmanShar Gompers
Child Support (1st fl)Initial Intervention (1st fl)MIS (1st fl)
2617
34
Char Ditterman(Government Services Bldg)
Char DittermanMarsha DetnerPatricia HolmesKathy Stevenson
Financial Assistance (4th fl)Child Care (4th fl)
7514
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Working a communication structureOftentimes information is generated centrally (say news about contract negotiations or the union's position on a particular rule change or grievance). The information is collated (another great small but important volunteer opportunity) and delivered to the first contact person. That person is responsible for delivering the information to the site contact people, who in turn get the information out to their co-workers.
This is not the most efficient way of communicating, by far, but the idea behind developing a communication structure is to get as many people as possible involved. When recruiting, avoid big, scary titles. They are contact people, and they are being asked to do an easy but very important task -- deliver the mail. The net effect of this simple commitment is that one small thing leads to another. Building and using an internal communication structure empowers workers, generates new leaders, and builds a stronger
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union by ensuring that members are involved with communicating with members.Solicitation and distribution rules at the workplaceBelow is a distillation of rules for distributing literature at the workplace. Although these rules are written for new organizing campaigns, similar rules are applied to other union communications in already organized worksites.
From: Labor Law for Organizers, George Meany Center, October 3-8. 1999
I. RIGHTS OF EMPLOYEE ORGANIZERS
A. Introduction1. During an organizing campaign, employees wish to communicate
with each other about relevant issues and non-employee union organizers wish to communicate with the employees. This communication takes various forms. For example:
a. oral solicitationb. distribution of literaturec. posting notices on bulletin boardsd. wearing union buttons, sweatshirts, other insignia
2. In considering employee communications, law balances employees' right to organize and employer's rights to control private property and maintain production and discipline. NLRB v. Babcock & Wilcox Co. 351 U. S. 105, 113 (1956) ("N)o restrictions may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that such a restriction is necessary to maintain production or discipline.")
3. In striking this balance. Board and courts consider employer's rights:
a. to maintain production, efficiency, order and disciplineb. to exclude union organizers from employer's propertyc. to express opposition and otherwise wage a campaign against
the union
4. Employers generally establish rules governing solicitation and distribution. Four issues may be considered in determining legality of employer's rules:
a. Whether employer has, in fact, promulgated a rule regulating employee communication;
b. Whether the rule is facially valid (properly limited or overbroad);
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c. Whether it was promulgated for an unlawful purpose (i.e., to impede employees' rights to self-organization); and
d. Whether it was discriminatorily applied against employee communication of union-related matters.
B. Solicitation1. Solicitation refers to solicitation of authorization or membership
cards.
2. The general rule is that employees may solicit authorization cards in work or non-work areas during non-working time.
a. "Working time" is when employees are actively performing job duties. Rules referring to "working time" without further clarification are presumptively valid. Our Way. 268 NLRB 394 (1983).
b. Rule prohibiting solicitation during "working hours" is presumptively invalid, since it connotes time from beginning to end of shift, and would include employees' own time. Essex International. 211 NLRB 749 (1974).
c. Mere talking about the union, absent solicitation of cards, cannot be banned. Somerset Shirt and Pajama Co., 232 NLRB 1103 (1977), enforced 578 F.2d 1375 (3rd Cir. 1978).
C. Distribution1. Distribution refers to the distribution of union or other protected
literature, that is, literature dealing with working conditions, employment laws, internal union matters, etc.
2. The general rule is that employees may distribute literature in non-work areas during non-working time.
D. Specific Issues Concerning Solicitation and Distribution1. No equal rights by union to communicate.
a. Employer may enforce no-solicitation/no-distribution even though employer itself is engaging in anti-union solicitation. NLRB v. Steelworkers (Nuttone) 357 U. S. (1958).
2. Lunch and break periodsa. Lunch and break periods, even if paid for by the employer, are
the workers' own time and solicitation cannot be prohibited, Hanna Building Corp.. 223 NLRB 703 (1976).
b. Employer may not restrict employees' use of restrooms to prevent them from discussing union. Roselyn Bakeries, Inc.. 192 NLRB 1165 (1971) enforced 471 F.2d 165 (7th Cir. 1972).
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c. If employees are being paid, but not working because machines are down they cannot be prevented from soliciting. KDI Precision Products. Inc.. 185 NLRB 335 (1970).
d. Employer violated the Act by requiring employees to take their breaks individually, where new rule was instituted because of union activities. Swan Coal Co.. 271 NLRB 862 (1984).
3. No solicitation/no distribution "except as provided by law."a. A rule such as this is probably invalid because it places the
burden of knowing the law on the workers.
4. No solicitation/no distribution "without approval."a. Generally considered invalid restriction absent a showing of
special circumstances.b. Overly-broad rule that prohibits distribution of written
materials on company property unless approved by management is unlawful. Heck's Inc.. 273 NLRB No. 34 (1984).
5. Non-enforcement of rules.a. Most cases hold that non-enforcement of overboard rule is
irrelevant to rule's invalidity. Valley Die Cast Corp., 176 NLRB 498 (1969).
b. A few cases have held that if no evidence of enforcement, rule does not unlawfully interfere with protected rights.
6. Existence of Rule.a. Even if no rule posted or published, if employer tells
employees not to organize on company time or property, an overboard rule has been promulgated. Fostex Mfg. Co.. Inc.. 184 NLRB 22 (1970).
b. In absence of valid rule, employee cannot be disciplined for engaging in union activities.
7. Discriminatory purpose for valid rule.a. An otherwise valid rule will be deemed unlawful if its purpose
is not maintenance of production or unlittered work area, but rather stopping union organizing.
b. Valid no-solicitation/no-distribution rule which is promulgated during union organizing campaign is unlawful, when employer fails to establish that purpose of rule is to maintain production and discipline. Stevens Services. Inc.. 277 NLRB No. 31 (1985).
8. Discriminatory enforcement of valid rule.
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a. Employer acts unlawfully if valid rule is enforced in arbitrary or discriminatory manner.
b. An employer may not permit solicitation or distribution for some purposes, e.g., football pool, raffles, sale of merchandise, but prohibit it for union activities. Oxygen Therapy Sales Co.. 264 NLRB 61 (1982). Nor may employer deny union use of facilities for meetings while permitting other groups to do so.
9. Discrimination against rival unionsa. Employer may not adopt or disparately enforce a no-
solicitation/no-distribution rule that has the effect of protecting a company-dominated or incumbent union from rival union activity. Bonnell Co.. Inc. v. NLRB 405 f.2d 593 (5th Cir. 1969).
10. Content of literaturea. Content of literature distributed determines whether
protected; literature must be for "mutual aid or protection" of employees.
b. "Mutual aid or protection" is not limited to the employment relationship at the work site; it encompasses concerted activities in support of employees of employers other than those working for the employer in question. Eastex Inc. v. NLRB. 437 U. S. 556 (1978) (distribution of union newsletter urging opposition to state right-to-work law protected.)
c. Not all literature is protected. For example, political campaign literature or literature so inflammatory that it "threatens disorder" is not protected.
E. Other Forms of Union Communication1. Signs, buttons, union cards
a. Buttons are often worn during organizing campaigns to communicate pro- or and-union sentiment. Employees also communicate their views by wearing hats, jewelry, sweatshirts or other items with campaign messages.
b. The Supreme Court many years ago found this activity protected and approved the Board's position that an employer's ban against it is presumptively a violation of the Act.
c. As with solicitation and distribution rules, an employer may rebut the presumption by showing special business considerations outweighing the employee's organizational rights.
d. Factors considered are: degree of animosity in the work place
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size and type of button or insignia message conveyed nature of the work being performed, including whether employees have contact with the public. overall context in which the ban is invoked as
determinative of anti-union animus or discriminatory application.
e. See generally. Pay'n Save Corp. v NLRB, 641 F.2d 697 (9th Cir. 1981).Note also that bans on wearing of buttons or other insignia
upheld: when the work required high degree of concentration
and the insignia was oversized and unusual; when employees were sales persons and the employer
had a longstanding dress code against wearing certain articles of clothing;
when a hospital's ban on wearing any pin other than identification badge or school or occupational pin was limited to patient care areas, NLRB v. St. Vincent's Hospital. 729 F.2d 730 (11th Cir. 1984);
when the ban was reasonable and necessary in maintaining discipline and harmonious employer/employee relationships;
when the insignia imposed a safety threat.
2. No-talk rulesa. Free discussion of union matters during non-work time may
not be banned, nor may management promulgate rules banning criticism of company rules or policies.
b. An employer may ban all talking about non-working subjects during work time, but may not discriminatorily apply the rule against organizing discussions and may not institute such a rule solely for the purpose of preventing such discussions.
3. Use of plant bulletin boardsa. A company that generally allows the posting of non-company
matters cannot preclude the use of its bulletin boards for union information. Honeywell Inc., 114 LRRM 3658 (8th Cir. 1983) (employee bulletin board limited to personal messages must be made available for union notices.)
b. Discriminatory purpose and application rules apply.
F. Restrictions on Access by Off-Duty Employees1. Off-duty employees have been treated like non-employees and
employers were permitted to deny them access to the interior of the plant. GTE Lenkurt Inc.. 204 NLRB 921 (1973).
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2. In Tri-County Medical Center Inc., 222 NLRB 1089 (1976), however, the Board stated that a no-access rule for off-duty employees is lawful only if it is limited to work areas, applicable to all employee purposes, and has been "clearly disseminated to all employees."
3. Tri-County has been refined to prohibit denial of access to off-duty employees for union organizational activities in certain non-working areas inside the plant. Central Solano County Hospital. 255 NLRB 468 (1981) (employee break room); Mavwood Inc., 251 NLRB 979 (1980) (cafeteria).
G. Industry ExceptionsCertain exceptions to the general rules on solicitation and distribution have been carved out for retail stores and hospitals because of the presence of the public in work areas in stores and special needs for a quiet, tranquil work area in hospitals.
1. Retail storesa. A retail store may ban solicitation or distribution on its selling
floors even by employees on their free time, but not in non-selling and non-working areas. Marshall Field and Co. v. NLRB. 200 F.2d 375 (7th Cir. 1952).
b. Similar rules apply to restaurants that, because of the nature of the business, prohibit solicitation even during non-working time in areas where customers normally congregate. Marriott Corp.. 223 NLRB 978 (1976). Note, however, that a restaurant's rule banning solicitation on non-work time in nonpublic areas of the restaurant was overly broad. Maestro Cafe Asso.. 270 NLRB 106 (1984).
2. Health care institutionsa. An employer may prohibit solicitation and distribution at all
times in immediate patient care areas, patients' rooms, operating rooms, and places where patients receive treatment such as X-ray and therapy areas. Any broader ban is presumptively invalid. NLRB v. Baptist Hospital Inc.. 442 U. S. 773 (1979).
b. Banning solicitation in other areas not dedicated to patient care but accessible to patients has produced mixed results. Compare Beth Israel v. NLRB, 437 U. S. 483 (1978) (solicitation ban in hospital cafeteria unlawful because seldom used by patients and well- established gathering place for employees) with Bavlor University Hospital v, NLRB. 662 F.2d 56 (DC Cir. 1981) (evidence insufficient to support NLRB's total invalidation of hospital's solicitation ban in cafeteria and
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vending machine areas because of substantial non-employee use during certain periods of day and availability of alternative areas for employee solicitation.)
II. RIGHTS OF NON-EMPLOYEE (OUTSIDE) ORGANIZERS
A. Although employee organizers must be allowed to solicit or distribute on plant to enter its property for the purpose of solicitation and distribution unless the employees are otherwise inaccessible by reasonable means of communication. If they are, employer's property rights must yield. NLRB v. Babcock & Wilcox, U. S. 105 (1956).
B. The Supreme Court, in the first decision delivered by Clarence Thomas, has reduced the already limited access of union staff organizers to employer property. In Lechmere v. NLRB. 60 U.S.L.W. 4145 (Jan. 27, 1992), the Court ruled that non-employee organizers have a possible right to access to employer's property, such as parking lots or shopping centers, only in situations where access to employees would be "beyond the reach of reasonable union efforts to communicate to [the employees]". In the decision. Justice Thomas makes clear that only in extreme situations where organizers would have virtually no way to communicate to employees if denied access, such as at logging camps, mining camps and mountain resort hotels, would non-employee access to employer property be permitted.
C. Entrances1. Whether non-employee organizers have a right to stand outside
plant entrances depends initially on whether the entrance area is on the employer's property.
2. If it is public property, organizers may solicit or distribute literature but if it is private property, non-employee access will be confined by the Babcock rules discussed above.
D. Department Stores1. Department stores can ban non-employee organizers from all
areas of the store and require their activities be confined to store entrances when employees are entering or leaving.
2. But restaurants operated within retail stores and open to the general public have been found open to non-employee organizers if their solicitation is conducted in a manner consistent with the purpose of the restaurant. Ameron
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Automotive Centers. 265 NLRB 511 (1982); Montgomery Ward & Co. v. NLRB. 728 F.2d 389 (6th Cir. 1984) (owner of snack bar on premises of store and open to public cannot require non-employee solicitation of employees by appointment only.).
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Stewards as educatorsOne key way of building the union is educating members. Often stewards are asked "what are my dues going for." One clear, useful way to answer this is through a purposeful, ongoing education program.
Education can take many forms including but certainly not limited to:
information on employee rights under the law and the contract; information on federal and state laws that impact workers (e.g.
Minnesota's School Activities Leave, or FMLA and ADA protections); information on employee rights if they are being investigated by their
employer (e.g. the right to union representation, or Weingarten rights); information on union meetings, union stewards for the different
worksites, and important union decisions; contract negotiation information and updates; candidates endorsed by the union (and why they were endorsed); wins (and yes, even losses) by the union (e.g. important arbitration
decisions, grievances that affect more than one person, etc.) issues that impact employees (e.g. the new generation of global trade
agreements, overtime pay change, new clean indoor air rules, etc.)
One of the easiest ways of approaching someone you do not know very well (for those shyer ones out there) is to give the person new information. Generally speaking, most people want to know more information (or at least they don't want to be left out of the loop). Use this as a way of organizing and demonstrating that the union is a critical presence in the workplace.
Squelching rumors. Most workplaces are swirling with rumors, particularly during contract negotiations and other stressful periods. As a steward, when you hear something that just doesn't seem right, or something you haven't heard before -- check it out. Find out the facts and if the rumor is false, get the correct information out. Gossip and rumors are ways of communicating, but when they are false they can be devastating.
Eyes and ears and voice. As a steward you will likely hear information from members (right or wrong) long before it is learned by your union representative or officers. Pass the information on when it impacts the union. Likewise, when you are at a meeting and hear information that can be distributed and impacts workers pass it on.
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Stewards as advocatesThe most traditional view of a steward is as an advocate for co-workers. Stewards can advocate in a variety of ways. Two of the most important roles are:
as an advocate in investigatory interviews as an advocate during the grievance procedure
Stewards in investigatory interviewsOne of the more common situations stewards become involved with is representing employees who have been called to answer questions by their employer. When these questions are part of an investigation, the affected employee has what are called Weingarten rights -- or the right to representation.
Weingarten rightsAny employee being investigated by her or his employer has the right to representation -- in an organized workplace that means union representation. This principle was established in 1975 by the U.S. Supreme Court in NLRB v. Weingarten, Inc.
Weingarten rights help protect employees under investigation from over-zealous employers and help ensure that employees have access to a union steward to know what their rights and options are.
Weingarten rights must be requested by the employee -- unless specified by contract the employer does not have to offer representation to the employee.
Once requested, the employer is obligated to provide representation before proceeding with the questioning. If the employer refuses the employee can refuse to answer questions (with some accompanying peril) or repeatedly request representation and answer only under protest. (Unfortunately,
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under Reagan, the NLRB ruled that an employer's refusal to abide by Weingarten does not necessarily result in overturn of the discipline since such would represent "an unwarranted 'windfall' for guilty workers." However, and employers refusal to abide by Weingarten is looked at very poorly by most arbitrators.)
Weingarten rights only apply to "investigatory interviews."What is an 'investigatory interview'?Weingarten rights only apply to "investigatory interviews." The key to determining whether a meeting is an investigation is whether a "reasonable person" might believe that the questions asked might possibly result in discipline for the employee or some other employee in the future. The language is important: if an employee believes or is even nervous about questions that might result in potential discipline, s/he should request union representation.
Investigatory interviews often relate to subjects such as:
absenteeism damage to company
property drugs and alcohol use falsification of records tardiness theft violation of safety rules
accidents fighting insubordination sabotage work performance (if it
might result in discipline) vulnerable adult
complaints
Investigatory interviews do not normally include:
casual conversations annual job reviews
(unless they can result in discipline)
handing out of discipline, as opposed to an investigation
staff meetings briefings on new
procedures or work rules
When in doubt, it never hurts to ask for union representation. My rule of thumb is that if an employee desires union representation, then it should be accorded by a responsible employer, whether or not Weingarten technically applies. As a steward, just know how far the law allows you to ultimately push the issue.
Steward rights during an 'investigatory interview'?
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As an official representation of the union the steward has several rights during an investigatory interview. The key thing to remember is that to satisfy your duty of representation, you also have to have the resources, access, and information to satisfactorily represent the employee.
Important: An investigatory interview is the employer's meeting (as opposed to a grievance meeting which is the union's meeting). This means that the employer has the right to ask any question and the employee has an obligation to answer it or risk insubordination.
Employers sometimes take this to mean that the only role for stewards in an investigatory meeting is to observe and take notes -- be the "silent witness." The Supreme Court, however, clearly acknowledges the steward's right to assist and counsel employees during the interview.
Stewards can:
insist prior to the questioning that the employer give some indication of what the investigation is about (e.g. theft, client complaints, tardiness, etc.);
take the employee aside and speak with the employee in private prior to the questioning or at anytime during the meeting;
speak during the meeting, although the steward has no right to bargain over the purpose of the meeting. If a steward becomes too disruptive, s/he can be asked to leave;
ask the interviewer to clarify a question so the employee understands the question;
consult with the employee after a question has been asked to make sure the employee understands.
Stewards cannot :
tell the employee to not answer a question, or lie (employees can be disciplined for refusing to answer questions);
continually interrupt, badger, or disrupt the meeting.
Privileged versus confidential communication
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Stewards have the right to "confidential communication" with an employee. This means that if a supervisor asks a steward what the employee said, the steward has no obligation (in his/her official capacity as a steward) to divulge the information.
However, this is not the same as "privileged communication" (such as that exercised by attorneys or ministers). This means that if a steward is asked under oath (say in a court proceeding) what the employee said, s/he would have to divulge the information or risk perjury.
Caution: It is not a good idea to ask an employee 'Just between you and me -- what really happened?" since it may ultimately not be just between you two. Employees should be told not to tell you anything that could not be revealed in a court of law.
Steward roles during an investigatory interviewThe presence of a steward at an investigatory meeting can be helpful in many ways.
A steward can:
help a fearful or inarticulate employee explain what happened;
help stop an employee from losing his/her temper and making the situation worse;
help prevent supervisors from giving a false account or "spinning" the employee's answers;
serve as a witness and recorder of the meeting;
help keep the supervisor on track and prevent a 'fishing expedition' in asking questions;
raise extenuating circumstances.
An investigatory meeting is the employer's meeting, so be respectful, just as you expect the employer to be respectful at the union's meetings. But remember the "equality principle." Your job is to represent the employee to the best of your ability, as an equal to management.
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Stewards as grievance advocatesPerhaps the most traditional role of a steward is as a grievance advocate. Having a contract does not guarantee that it will be followed by management. Sometimes an employer purposefully tests the union's resolve to enforce the contract; sometimes a supervisor is simply ignorant; sometimes there are sincere disagreements on interpretation. In either case, part of a steward's duty of fair representation is to enforce the contract. The most common way this is done is through the grievance procedure.
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What is a grievance?Virtually every contract defines what a grievance means. Usually this definition is early in the grievance procedure. Become familiar with this language in your own contract.
Not all problems are grievable. Some are gripes which may, or may not, have merit. One of the most important skills of a steward is to begin sorting out what is a grievance, what is a legitimate problem (although not grievable) and what is mere whining.
To determine whether an action is grievable, ask the following questions:
Did management violate the contract? (Which part and how?)
Did management violate work rules? (Most arbitrators assume that management should follow its own rules, even if they are not in the contract. Look at the management rights clause for possible contract language.)
Did management treat a worker unfairly compared to other workers in the same situation? (This gets at disparate treatment issues and can be linked with "just cause" language in most contracts.)
Did management violate a "past practice"? (These are specifically non-contractual practices that have been going on consistently for a long time.)
Did management violate a local, state, or federal law, or health and safety regulation? (Although many arbitrators are reluctant to decide on issues outside the contract, many contracts require employers to follow the law. Check your contract for such language -- oftentimes in or near the savings clause if your contract has one.
If the answer is "yes" to any of the above, it is likely that you have a grievance and you will need to investigate further.
Difference between a grievance and a gripeNot all gripes are created equal. Some issues that are not grievances still demand attention and may require other creative strategies for resolution. Some complaints are simply whining. One of the hardest things for a steward to do is tell a member that s/he has no grievance. It may also be one of the most important things to say. Remember that your word is not
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the final word. If the member disputes your interpretation, s/he can always appeal to a higher authority in the union.
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Just causeMost contracts have some reference similar to "Disciplinary action may be imposed upon an employee only for just cause."
Put simply "just cause" means "with good reason," but this does not mean what is just is left up to the employer. Just cause is the heart of most grievance procedures. The basic elements of just cause have been reduced to seven tests by Arbitrator Carroll Daughtery. His tests, formed as questions, represent the prevalent understanding of just cause among arbitrators.
The seven tests or key questions include:
1. Notice. "Did the Employer give the employee forewarning or foreknowledge of the possible or probable consequences of the employee's disciplinary conduct?"
2. Reasonable Rule or Order. "Was the Employer's rules reasonably related to (a) the orderly, efficient and safe operation of the Employer's business, and (b) the performance that the Employer might properly expect of the employee?"
3. Investigation. "Did the Employer, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey the rule or order of management?"
4. Fair Investigation. "Was the Employer's investigation conducted fairly and objectively?"
5. Proof. "At the investigation, did the 'judge' obtain substantial evidence or proof that the employee was guilty as charged?"
6. Equal Treatment. "Has the Employer applied its rules, orders and penalties evenhandedly and without discrimination to all employees?"
7. Penalty. "Was the degree of discipline administered by the Employer in a particular case reasonably related to (a) the seriousness of the employee's proven offense, and (b) the record of the employee in his service with the Employer?"
A "no" answer to any of these tests means that just cause was not satisfied or was weakened. The degree is often more subjective in front of an arbitrator. The more these just cause tests were violated the stronger the case.
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Violation of just cause is the violation stated for virtually all disciplines -- e.g. "the grievant was disciplined without just cause."
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Past practice grievancesOne of the most commonly heard (and most misunderstood) phrases is "past practice" -- as in "You can't do that because it’s a 'past practice'."
A "past practice" is a non-contractual practice that over time becomes the 'way things are done' and achieves the same status as contractual language. This means that a past practice can not be changed unilaterally by the employer, but must be negotiated. Violation of a past practice can be grieved. It is generally difficult to sustain a past practice claim, and to be a genuine past practice it must satisfy all of the following four criteria:
1. A clear course of conduct. A past practice cannot be based on vague activity or occasional lapses of normal order by either employee or employer;
2. A consistent activity or practice over a reasonable duration. What is considered a "reasonable duration" is indefinite and imprecise and must be left to an arbitrator to decide. Certainly one or two occurrences over a period of a year or two will not be considered consistent over a reasonable period of time, yet twice a week for two years might be; over ten years would almost certainly be.
3. Full knowledge and agreement concerning the activities or practice by both parties. There are no such things as "secret past practices." Both parties must know that the activity exists. This does not have to be in writing (and often isn't) but it does have to be verifiable that both parties were aware of the practice and gave it tacit approval.
4. Silence or ambiguity in the contract concerning the activity or practice. Where the contract is silent, past practice may be considered to be an implied term of the contract if the first three conditions are satisfied. If the contract is vague or ambiguous, past practice has its strongest impact, since in this instance there is no doubt that the activity or practice was meant to be a contract item.
Loudermill hearingUnder a 1983 court ruling, every employee has a right to a hearing prior to termination. Named after a case filed by James Loudermill, a Cleveland school district security guard who was not allowed to respond to or challenge his dismissal for dishonesty filling out his job application. The court ruled that "An essential principle of due process is that a deprivation of life, liberty, or property [job] ' be preceded by notice and an opportunity for hearing
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appropriate to the nature of the case." Employees now have a guarantee to respond to the employer's charges prior to termination.
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Garrity WarningA Garrity warning is only applicable to public employees and only when potential criminal charges are involved. In 1967, the United States Supreme Court ruled that public employees could not be forced to choose between losing their job or giving up their 5th Amendment rights -- the "right to remain silent."
Ordinarily, if questioned about committing a crime, a citizen is given a Miranda warning: the person has the right to remain silent, but anything that is said can be used against that person in a court of law. The right to remain silent when questioned by a government authority and not self-incriminate is guaranteed under the 5th Amendment of the U.S. Constitution. For public employees there is a dilemma. On the one hand they have the right to remain silent under the Constitution; on the other hand, the employer is the government and refusal to answer an employer question is insubordination and grounds for termination.
The Supreme Court resolved this dilemma by defined what has become known as the Garrity warning. This warning informs the employee s/he will be questioned as part of an official investigation. It guarantees the employee that anything s/he says cannot be used later in a court of law to prosecute the employee. Once a Garrity warning is issued, the employee must answer the employer questions or face discipline for insubordination. Answers can be used in disciplinary proceedings, but not in criminal proceedings.
Asking the employer to sign a Garrity warning is appropriate if a public employee is being asked about potential criminal matters (assault, theft, abuse, etc.). These matters are often rather complicated and a new or less experienced steward is wise to stop the investigation and seek assistance from a more experienced steward or union staff.
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Sample Garrity Warning
I wish to advise you that you are being questioned as part of an official
investigation of your employer. You will be asked questions specifically,
directly, and narrowly related to performance of your official duties or fitness
for office. You are entitled to all the rights and privileges guaranteed by the
law and the Constitution of the United States, including your right not to be
compelled to incriminate yourself. I further wish to advise you that if you
refuse to testify or to answer questions relating to your official duties or
fitness for duty, you could be subject to discharge. If you do answer, neither
your statement nor any information or evidence which is gained by reason of
such statement can be used against you in any subsequent criminal
proceedings. However, the statements may be used against you in relation
to subsequent discipline.
BY___________________________________ FOR EMPLOYER
DATED:___________________ ____________________________________ EMPLOYEE
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Key tips to remember when filing a grievance Check your grievance procedure in your contract. Learn the
timelines for the various steps. Learn what constitutes a grievance in your contract.
Pay attention to timelines. Make sure you understand whether the timeline is in "calendar days" or "working days."
Find out who the grievance needs to be filed with according to the contract. Some contracts say the direct supervisor, some the Department Head, some a human resource employee.
What does the union require when filing a grievance? Check to see if they need to assign an official grievance number or other means for tracking the grievance.
How to write a grievanceAll unions have slight differences in their grievance procedures and grievance forms, but certain key components remain the same. Grievances should be clear, direct, and short. They are not the opportunity to go into the blow-by-blow account -- that comes during the hearings -- but "just the facts please."
Every grievance should include the six W's:
WHO: is involved in the grievance?
WHEN: did the grievance occur (give the date)?
WHERE: did the grievance occur (department, division, etc.)?
WHY: is it a grievance? What has been violated or misinterpreted?
WHAT: occurred (briefly -- e.g. suspended, denied vacation, etc.)?
WHAT: are your demands? What remedy do you seek to resolve the grievance?
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Sample grievance
Note: There are two phrases that should be included in every grievance. (1) "and all other relevant articles" in the violation section. This protects you from accidentally overlooking a key contract provision. (2) "…and in all other ways made whole" in the remedy section. This means: make it like it never happened and avoids having to list every way this needs to occur.
Save your arguments for the grievance meetings. The grievance form is simply to document the grievance and start the process.
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Investigating grievancesStewards often are involved in gathering information related to grievances and investigating grievances. Sometimes this is done prior to filing the grievance, at least to the extent necessary to determine whether the incident is a grievance; the bulk of investigation is usually done after filing a grievance.
Right to information.As a steward you have a right to get the information necessary to represent the grievant (or investigate to see if a grievance occurred). This legal right to relevant information is implicit in the obligation to represent all employees in the bargaining unit. How can you fairly represent an employee if you do not have the information necessary to do so?
Documents and factual information relevant to a legitimate investigation by the union must be provided, unless it is proprietary or confidential in a narrow sense of confidentiality. Management has an obligation to explain its actions and justify them, and stewards can legitimately expect and insist on such explanations.
Carefully drawn up information requests can be good tactics for a union. Sometimes a well-thought out information request is enough to prompt the employer to seek a settlement, rather than disclose the requested information. Yet, unions have an obligation to explain to the employer why information is relevant -- at least broadly so. The right to information is not a right to go on a fishing expedition into the employers records.
There are differences between public and private sector unions when it comes to the right to information.
Public sector: Public sector unions have extraordinary rights to information. Minnesota's data practices law provides that all data is public data unless specifically exempted by law. This definition is very, very broad and includes budget and financial information generally unavailable to the private sector. The defined exemptions are quite narrow and include items such as certain personnel records, personal contact information, medical records, etc. A public sector steward confronted with a reluctant employer should ask the employer representative to state specifically which part of the data practices law exempts the requested material. If the employer is unable to provide such documentation as required by law, the information should be public.
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Private sector: Private sector unions still have a right to information, although it is somewhat more curtailed than public sector unions. For example, private sector unions will generally not have access to detailed financial and budget information, or other "proprietary information."
Types of information a steward can request.The following list is meant to be illustrative. It is not inclusive, and certain items may be legitimately withheld by an employer under certain circumstances.
accident reports attendance records bargaining notes company memos contracts correspondence disciplinary records equipment specifications evaluations inspection records insurance policies interview notes job assignment records job descriptions
material records some "notes to file" payroll records time sheets performance reviews personnel files photographs productivity reports or studies salary and bonus records seniority lists sick leave and vacation usage time study records training manuals videotapes
Note: Employers have an obligation to provide information to the union, but not necessarily in the form requested.
Make all requests in writing.It is important that you think specifically what type of information you request, a reasonable amount of time to grant it (usually a week or two depending on the type and amount of material) and ask for it in writing. If the employer does not respond, send another letter. Employers will sometimes play the game of giving you exactly what you request, and if the request is vague or too broad (or too specific) you may not get what you want.
Written requests are critical for establishing a record. If an employer fails to provide the information, it is an unfair labor practice, but to sustain this charge you will need documentation of the request and the employers' refusal to satisfy your request.
Costs.
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Employers may charge a "reasonable cost" associated with providing materials, but costs cannot be extraordinary or designed to limit legitimate access to information. If costs are too high, the union has a right to negotiate alternative means for receiving or viewing the information.
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Tips for grievance meetings
1. Remember it is about power. Grievance meetings do not have to be contentious or confrontational; they can be (and should be) good faith efforts to find a resolution to a disagreement. However, they are still power struggles.
2. Remember the "equality principle." In meetings with your employer as a union representative you are an "equal" to your employer.
3. It is your meeting -- run it like it is your meeting. Your employer is accustomed to calling meetings and running them. A grievance meeting is the union's meeting and should be conducted as such.
4. Limit the employer's ability to ask questions. Do not let the employer go on a fishing expedition asking questions. And when the employer asks questions, answer only the question asked.
5. Your employer is an advocate, not an arbitrator. In a grievance meeting, both the employer and union are advocates. Do not let the employer assume the power of becoming an arbitrator during the meeting.
6. Make your employer make its case. The employer needs to justify its actions, especially when discipline is involved. Make sure your employer defends its actions with specifics. One of your key tasks in a grievance meeting is to secure information from the employer.
7. Do not deliver your entire case immediately. Grievance meetings, like negotiations, are all about timing. You are not obligated to (nor should you) lay all of your arguments on the table at first. Wait until the employer starts to make a case.
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Diplomacy is the art of making someone convince you to have it your own way.
Labor Law 101Family and Medical Leave (FMLA)
Purpose: To allow employees to take reasonable leave due to a serious health condition, for the birth or adoption of a child, or to care for a spouse, parent, son or daughter with a serious health condition.
Leave Benefit: Up to 12 weeks unpaid leave during a 12 month period with the employer providing health insurance at the same level as when the leave was initiated.
Covered employees:
Employer has 50 or more employees who work within 75 miles of the requesting employee’s worksite for 20 or more weeks during the current or previous calendar year;
Employee must have been employed for employer at least 12 months (not necessarily consecutive) and 1250 hours of service during the 12 months prior to taking the leave (hours of service do not include vacation or paid sick leave)
Reasons for taking leave: Unpaid leave must be granted for the following reasons:
to care for the employee’s child after birth, or placement for adoption or foster care;
to care for the employee’s spouse, son, daughter, or parent who has a serious health condition; or
for a serious health condition that makes the employee unable to perform the employee’s job.
At the employee’s or the employer’s option, certain kinds of paid leave may be substituted for unpaid leave, unless specified by the contract.
Advance notice and medical certification: The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met.
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The employee ordinarily must provide 30 days advance notice when leave is “foreseeable”;
An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer’s expense) and a fitness for duty report to return to work.
Job benefits and protection:
The employer must maintain the employee’s health insurance coverage;
Upon return from FMLA leave, an employees must be restored to their original or equivalent positions with equivalent pay, benefits and other employment terms, provided the employee is fit for duty and can perform the jobs essential functions;
The use of FMLA leave cannot result in the loss of any employment benefit that secured prior to the start of an employee’s leave.
Unlawful acts by employers: FMLA makes it unlawful to interfere with, restrain, or deny the exercise of any right provided under FMLA; discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
Enforcement: The U.S. Department of Labor is authorized to investigate and resolve complaints of violations and an eligible employee may bring a civil action against an employer for violations.
FMLA - Serious health conditionFMLA provides for 12 weeks off for a "serious health" condition. This is certified by the employee's physician. Any of the following should qualify for FMLA:
inpatient care including any period of incapacity or subsequent treatment in connection with such a stay (e.g. committed to a hospital for observation after heart attack symptoms or after a serious accident);
illness or injury resulting in incapacity lasting more than three days with two or more treatments with at least one visit to a health care provider, which results in a regimen of supervised treatment (e.g. treatment of severe back troubles, a severe skin condition, pneumonia, etc.);
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any incapacity due to pregnancy or prenatal care even if less than 3 consecutive days and even if it does not involve visiting a health care provider (such as severe morning sickness or pre-natal care);
any period of incapacity or treatment for an incapacity due to a chronic serious health condition even if it is less than 3 consecutive days and even if it does not involve treatment during the absence(e.g. a chronic asthma sufferer who must stay home when air-quality levels are at a certain level);
continuing medical supervision of an incapacitating condition for which treatment may not be effective (e.g. the final stages of a terminal disease or Alzheimer’s, etc.);
any period of absence to receive multiple treatments from a health care provider for a condition which left untreated would cause absence of more than three consecutive days (e.g. kidney dialysis, restorative surgery after an accident, chemotherapy, etc.)
FMLA - Examples of serious health conditionsBelow is a list of some of the types of health conditions covered (and not covered) by FMLA. This list is illustrative, not inclusive.
heart attacks, heart by-pass or valve operations most cancers back conditions requiring extensive therapy or surgery spinal injuries strokes severe respiratory conditions; emphysema appendicitis pneumonia severe arthritis severe nervous disorders injuries caused by serious accidents on or off the job need for prenatal care; pregnancy; severe morning sickness childbirth and recovery from childbirth mental illness resulting from stress or allergies (if other conditions
are met) treatment of substance abuse (if other conditions are met) migraine headaches restorative dental or plastic surgery after an injury or disease
Some examples of health conditions that may not be covered by FMLA: cosmetic treatments (e.g. orthodontia, or acne, or skin peels, etc.)
unless inpatient hospital care is required
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routine physicals, eye or dental exams common cold or flu, ear aches, upset stomachs, minor ulcers,
headaches (except for migraines) -- unless complications arise absence because of substance abuse (e.g. massive hang-over)
(Information taken from Roberta Till-Retz, Your Rights to Family and Medical Leave)
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Minnesota School Activities LeaveMinnesota law requires that all employers must provide up to 16 hours unpaid leave in any 12-month period to an employee to attend school conferences or school-related activities related to the employee's child, provided that the conference or activity cannot be scheduled during non-work time. The employee must provide "reasonable prior notice of the leave" and must make a "reasonable effort to schedule the leave so as not to disrupt unduly the operations of the employer. An employee may substitute accrued paid leave (e.g. vacation or PTO) for school activities leave.
Americans with Disabilities Act (ADA)The federal ADA prohibits discrimination in most areas of employment because of a disability.
ADA protections: Defines a disabled person as a person with a physical or mental
handicap that "substantially limits one or more life activities." Major life activities include caring for oneself, walking, hearing, seeing, speaking and working (except as limited by recent Supreme Court decisions).
Requires that an employer not discriminate in hiring, promotion, or other work related activities on account of a person's disability.
Requires that an employer make "reasonable accommodations" for a qualified disabled worker to be able to perform the "essential functions" of the job.
The caveat on all ADA claims is that accommodating the disability cannot place an "undue hardship" on the employer or threaten health and safety.
Essential functions of the job.To qualify for FMLA a health care provider must find the person “unable to perform any one of the essential functions of the position” which the employee held at the time the need for the leave arose. The “essential functions” of a job are defined under the Americans with Disability Act (ADA):
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1. In general. The term ‘essential functions’ means the fundamental job duties of the employment position the individual with the disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.
2. A job function may be considered essential for any of several reasons, including but not limited to the following:(i) The function may be essential because the reason the
position exists is to perform that function;(ii) The function may be essential because of the limited number
of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
3. Evidence of whether a particular function is essential includes, but is not limited to:(i) The employer’s judgment as to which functions are essential;(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;(iii) The amount of time spent on the job performing the function;(iv) The consequences of not requiring the incumbent to perform
the function;(v) The terms of the collective bargaining agreement;(vi) The work experience of past incumbents in the job; and/or(vii) The current work experience of incumbents in similar jobs.
Information taken from the ADA statutes
Reasonable accommodation.There are three categories of “reasonable accommodation”:
1. modifications or adjustments to the job application process;
2. modifications or adjustments to the work environment or to the manner and/or circumstances under which the job is usually performed;
3. modifications or adjustments that enable a qualified employee to enjoy equal benefits and privileges of employment.
An employer is not required under “reasonable accommodation” to:
1. eliminate or reassign an essential functions of the job;
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2. lower production standards -- either qualitative or quantitative;
3. provide “personal use items” such as a wheelchair, eyeglasses, hearing aids, and prosthetic limbs if it is required outside the workplace;
4. violate the rights of other employees under a collective bargaining agreement.
An adjustment or modification meets the “reasonable accommodation” obligation if it is effective -- it does not have to be the best or the preferred accommodation.
Undue hardship.An adjustment or modification meets the “reasonable accommodation” obligation if it does not impose an undue hardship on the employer.
An accommodation presents an undue hardship if:
1. it imposes an undue financial burden on the employer;
2. it is unduly extensive, substantial and disruptive;
3. it poses a direct threat to health and safety;
4. it unduly disrupts the nature and operation of the business.
The size and financial capability of the employer is taken into account when determining whether an accommodation is reasonable or not.
FMLA and ADA.Many of the same medical conditions are covered under both ADA and FMLA. If this is the case, the employee can choose which law best serves the employee's needs. For example, under ADA, the employer can require the employee to perform "light duty" work as long as it is within the employee's restrictions. Under FMLA, the employer has no right to require light duty.
Caution. Be careful and make sure you explore the consequences of whatever option you choose. Sometimes choosing one option (e.g. refusing light duty work and claiming FMLA) may foreclose other benefits (e.g. such a choice may jeopardize a workers compensation claim).
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Fair Labor Standards Act (FLSA)(Taken from the Department of Labor Interpretative manual on FLSA.)
The FSLA is a federal law passed in 1938 which requires that employees pay a minimum wage (in 1998 it became $5.30) as well as overtime pay at time and one-half the employee’s regular rate of pay for all hours worked over 40 per week. There are, however, some alternative schedules for hours worked beyond 40 hours per week for law enforcement, corrections, and fire protection personnel.
HOW TO RECOGNIZE AN FLSA VIOLATIONThe most typical FLSA violation involves the improper exclusion of
employees from FLSA coverage. For example, the misapplication of any of the
exclusions set forth above would constitute an FLSA violation.
Additionally, under the FLSA, most employees must receive overtime pay for
time worked in excess of 40 hours at a rate not less than time and one-half of their
regular rate of pay. However, there are alternative schedules for law enforcement
personnel (including security personnel in correctional institutions) and fire
protection personnel, for example, a law enforcement employer may elect a schedule
for overtime purposes of up to 171 hours over 28 days. In the case of such employees
who have a work period of at least 7 but less than 28 consecutive days, overtime
compensation is required when the ratio of the number of hours worked to the
number of days in the work period exceeds the ratio of 171 hours to 28 days.
Other common violations of the FLSA include failure by the employer to
compensate employees for time that is considered compensable work time (for
example, breaks under 20 minutes) or to include certain types of pay (for example,
shift differential pay) into the employee’s base pay for the purpose of calculating
overtime compensation.
A. What Counts as Work Time Under the FLSA?The items listed below are considered to be compensable working time
under the FLSA. Anytime these time periods are not included in determining if an
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employee has worked over forty hours per week, an FLSA violation may exist.
1. All the Time an Employee Works must be Counted as Compensable Work Time. Included in the FLSA definition of the term “employ” is the term “to suffer
or permit to work.” Therefore, work which an employer permits, even though it is not
requested, is considered work time. For example, if the supervisor knows that a nurse's aide
works 30 minutes extra every day to complete assigned medication records work, even if the
overtime has not been approved by the supervisor, it is compensable work time. This basic
rule applies to work performed away from the employer’s premises, the job site or even at
home.
2. Preparatory and Post-Shift Work. The time an employee uses to prepare for
work or to finish work, even if occurring before or after the “official” shift, is
compensable work time. Preparatory work that is required by the employer or is part
of the job counts as work time. Examples of such work include reading daily reports
or patient charts, attending roll-call, caring for equipment or changing into a uniform.
Finish-up work that is required by the employer or is part of the job counts as work
time. Washing up, cleaning up equipment, filing papers and putting away materials
are examples of such work time.
3. Rest Periods and Breaks. Rest periods and breaks, including coffee breaks or
snack breaks, from five to twenty minutes, are generally compensable work time.
4. Meal Periods. Meal periods that are subject to more than very occasional
interruption, are shorter than thirty minutes or during which an employee is not free
to leave his or her work station, may be considered compensable work time. Meal
periods in which employees are generally free from duties and which are at least 30
minutes long will not count as work time. If an employee performs work duties
during a meal break, even though the meal break is generally free from work duties,
this time is compensable work time.
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5. Sleeping Time. If an employee’s tour of duty is under 24 hours, sleeping
periods permitted by the employer are compensable work time. If an employee’s tour
of duty is 24 hours or longer, up to eight hours of sleeping time can be excluded from
compensable work time. Correctional officers and other public safety personnel must
work more than 24 hours before this exclusion is possible.
You must agree (explicitly or implicitly) to this exclusion. The eight hour exclusion
is only applicable if the employer supplies adequate sleeping facilities and at least
five hours of sleep is possible during the scheduled sleeping period. Other conditions
may also apply.
6. Waiting Periods. All time spent by an employee waiting for work while on duty,
whether or not away from the workplace, counts as work time. For example, a secretary who
is idle while waiting for typing or a clerk who talks with his co-workers when there is no
customers to service, are all considered to be on work time. Employees who are required to
stay at their duty stations during temporary work shut-downs must be paid for this time.
7. On Call Time. On call is considered time worked if the employee cannot use
the time effectively for his or her own purposes. If an employee must remain on the
employer’s premises or so near that they cannot us the time freely, the time may be
compensable. However, if an employee is merely required to carry a beeper, the
stand-by time will probably not count as work time.
8. Time Spent in Training. Training time which is required by the employer or
which will enable the employee to perform the job better is compensable work time.
All of the following criteria must be met in order for training time not to be
compensable work time:
a. Training is outside or regular work hours;
b. attendance is voluntary;
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c. the employee performs no productive work while attending; and,
d. the training is not directly related to the employee’s job.
9. Travel Time.
a. Home to work. Travel from home to work is not work time.
b. Job site to job site: Time spent by employees in travel during the course of
their work day after the initial trip from home to work is considered work time.
For example, the time a building inspector spends traveling from work site to
work site, constitutes work time.
c. One day assignments in another city: When an employee is required by his or
her employer to travel out of town and the trip can be completed in a single
day, the travel time is considered work time.
d. Overnight travel: Travel time that keeps an employee away from home
overnight is work time when it cuts across the employee’s normal workday.
Time devoted to required traveling on non-working days is also considered
work time if it falls during the employee’s normal working hours. However,
travel away from home which does not correspond to the employee’s regular
working hours, is not work time.
e. Working while traveling: Any work which an employee is required or
permitted to perform while traveling must be counted as work time. For
example, the time an employee spends finishing a work report while traveling
on an airplane for a business trip, is work time.
10. Leave Time for Processing Grievances and Labor/Management Meetings. Unless the collective bargaining agreement provides otherwise, leave
time used for processing grievances is considered work time. Labor-management
committee meetings which deal with daily operations or the interpretation of the
collective bargaining agreement are considered work time, unless the collective
bargaining agreement provides otherwise.
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11. Medical Attention. The time an employee spends getting medical attention
during working hours, which is required by the employer, is compensable work time.
12. Time Spent on Sick Leave, Vacation, Holidays and Jury Duty. Hours
generally on sick days, holidays, vacation days, jury duty are not counted as work
time. However, such time may be counted as work time if the leave is required by
state or city law.
B. What Types of Pay Must be Included in the Regular Rate Pay Under the FLSA?The regular rate of pay is the base rate from which the overtime rate is
calculated. Under the FLSA, employees must be paid for overtime work at one and one-
half times the regular rate. Failure to include the following types of pay into the regular
rate when determining overtime pay, constitutes a violation of the FLSA.
The following types of pay MUST be included in the regular rate of pay:
1. On-call pay, show-up pay and call-back pay.
2. Non-discretionary bonuses promised for accuracy of work,
good attendance, continuation of the employment
relationship, incentive, production and quality of work.
3. Shift differential pay.
4. Premium pay for hazardous, difficult or dirty work.
5. Premium pay for Saturdays, Sundays or other special workdays if
the premium rate is less than time and one-half.
6. Salary increases.
7. Bonus payments or incentive pay for obtaining college
degrees or completing military service.
The following types of pay are NOT included in the regular rate of pay:
1. Discretionary bonuses.
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2. Severance benefits.
3. Reasonable uniform allowances.
4. Death benefits.
5. Vacation, holiday or sick pay.
6. Premium pay for hours in excess of daily or weekly standard.
COMPENSATORY TIME POLICYSection 207 (o) of the FLSA is a special provision applicable only to public
employees that permits compensatory time in lieu of cash overtime pay under certain
conditions.
A. Compensatory Time Policy Rules:1. Under Section 207 (o), public employers may provide
compensatory time (rather than overtime pay) for overtime work only pursuant to an
agreement between the employer and the representative of the employees; or in non-
bargaining states, with the individual employees. The agreement can be in the form of a
collective bargaining agreement, memorandum of understanding or any other agreement.
Notice of the compensatory time policy must be provided to the employee or employee’s
representative prior to the performance of work.
2. All compensatory time off provided under Section 207 (o) must be
at a rate not less than one and one-half hours for each overtime hour worked.
B. Limitations to be Considered When Negotiating Compensatory Time Provision:
1. Compensatory time agreements cannot allow for the accumulation
of more than 240 hours of compensatory time (480 hours for employees in public safety,
emergency response, or seasonal activities), but it is permissible to provide a lower
maximum accumulation. Once the maximum accumulation has been reached, the
employee must be paid overtime compensation for the overtime hours worked.
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2. The use of the accrued compensatory time by the employee cannot
be restricted by the employer except that there can be a reasonable period of time
between the request for compensatory time and the use of compensatory time. In
addition, a request for compensatory time off may be granted by the employer if such use
does not “unduly disrupt operations” of the employer.
A CHECKLIST OF THE MOST COMMON VIOLATIONS OF THE ELSA
Improper Exclusion of Employees. Improper exclusion of employees
and groups of employees from coverage of the Act.
Examples:
The employer excludes all employees who are over grade 11 from
FL.SA coverage despite the fact that some of these employees are
not professional, administrative or executive employees.
The employer excludes all public assistance case workers from
FLSA coverage despite the fact that they perform routine work that
does not require the consistent exercise of discretion and judgment.
Failure to Count Time as Work Time. The employer fails to recognize
all work time for ‘~the purposes of determining the number of work hours
of calculation of overtime compensation.
Examples:
The employer fails to consider a half hour meal break during which
the employee is required to perform work as work time.
The employer requires employees to be at work ten minutes before
starting time in order to ensure that equipment is in working order.
The employer does not include this time in determining overtime
hours.
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The employer requires employees to complete certain paperwork at
home and does not include this home work in determining overtime
hours.
Failure to include Certain Types of Pay in the Overtime Pay Calculation. The employer fails to include certain types of pay when
calculating the overtime pay amount owed to employees.
Examples:
In calculating the street maintenance workers’ overtime pay, the
payroll office does not include the extra pay workers receive for the
“dirty work.”
The employer fails to include the 30-cents per hour premium pay
employees at State University get for working midnight shift.
The Improper Application of Compensatory Time.
Examples:
The employer has neglected to reach an agreement with either the
individual employee to receive compensatory time in lieu of cash
overtime pay.
The employer has implemented a compensatory time policy which
permits employees to use compensatory time only when the office is
“not busy.” The employees work in an income maintenance office
that is always backlogged.
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