Hunton Employment & Labor Perspectives

On February 1, 2018, the United States District Court for the Eastern District of Pennsylvania dismissed an overtime class action suit brought on behalf of a group of former democratic campaign workers for their work during the 2016 presidential election.  See Katz v. DNC Services Corp., Civil Action No. 16-5800 (E.D. Pa. Feb. 1, 2018).  In dismissing the overtime suit, the Court relied on an often-overlooked defense to the Fair Labor Standard Act (“FLSA”) – namely, that the FLSA only covers employees engaged in interstate commerce as opposed to employees engaged in purely local activities.

In Danbury Hospital (Case 01-RC-153086), after an initial election victory for the employer, an NLRB Regional Director ordered a second election as a result of the employer’s non-compliance with the new ambush election rules. In doing so, the NLRB again demonstrates why employers should be vigilant and proactive in preparing for an election long before the arrival of a union petition.

Under the new rules, employers must, within two business days after the approval of an election agreement or the issuance of a Direction of Election, submit a voter list of employees’ “available” personal email addresses and personal cell phone numbers. These requirements differ from the old election rules in that previously, the employer was only required to provide a voter list of the employees’ full names and home addresses within seven calendar days after the approval of an election agreement or the issuance of a Direction of Election.

On October 19, 2015, the Judges Division of the NLRB updated its 2010 ALJ Bench Book by issuing a new 2015 edition. The Bench Book serves as a procedural and evidentiary reference for ALJs and litigants during and in preparation for NLRB trials. As such, the Bench Book, and the precedent and authorities within, are often cited to throughout the course of litigation at an NLRB trial.