Not all 401(K) and other qualified plans allow hardship withdrawals, but if your plan does allow hardship withdrawals, make sure it is compliant with the new rules finalized in September.   All of the changes are optional for a qualified retirement plan’s 2019 Plan year.  Operational compliance must begin January 1, 2020.  Key changes outlined in the regulations include:

  • In the past, participants were required to suspend deferrals to his/her 401(k) if he/she took a hardship withdrawal. Now, the six-month suspension of 401(k) contributions is eliminated. (Required for hardship withdrawals after January 1, 2020).
  • A new type of qualifying expense related to disaster relief is added to the list: expenses and losses incurred on account of a disaster declared by the Federal Emergency Management Agency, provided the employee lives or works in the area designated by FEMA. (Allowed to be effective for distributions made on or after January 1, 2018).
  • “Primary beneficiary under the plan” was added as an individual for whom qualifying medical, educational, and funeral expenses may be incurred. (Required January 1, 2020).
  • The Plan administrator may rely upon the participant’s written representation that he/she has insufficient cash or liquid assets to satisfy the financial need, but only to the extent that the plan administrator does not have actual knowledge to the contrary. (Required January 1, 2020).
  • The requirement that a loan be taken from the plan before a hardship withdrawal is approved can be eliminated. (Optional change).
  • Hardship distributions from earnings on elective deferrals may be permitted. (Optional change).
  • Hardship distributions from QNECs, QMACs, and earnings on these sources may be permitted. (Optional change).

What should you do next?

Plan procedures should be reviewed to ensure compliance with the regulations and to determine when adoption of conforming plan amendments will be necessary.  Plan administrators should also determine whether they intend to implement any optional changes.

Please feel free to contact any member of the McNees Wallace & Nurick Employee Benefits Practice Group if you have any questions regarding this article.

On September 24, the U.S. Department of Labor released its final rule changing the minimum salary requirements for the Fair Labor Standards Act’s “white-collar” overtime exemption regulations. As you may recall, the DOL issued a proposed rule in March 2019 that included increases to the minimum salary requirements and invited public comments.  This process came after the DOL’s ultimately unsuccessful attempt to more than double the same minimum salary requirements near the end of the Obama administration.

The key provisions of the DOL’s 2019 final rule include:

  • Raising the exemptions’ minimum salary requirement from $455 per week ($23,660 annually) to $684 per week ($35,568 annually);
  • Raising the total annual compensation requirement for the FLSA’s highly compensated employee exemption from $100,000 to $107,432; and
  • Allowing employers to use non-discretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10% of the minimum salary requirement.

Like the 2016 final rule, the 2019 final rule contains no changes to the white-collar exemptions’ duties tests or any other overtime exemptions (other than changes to special salary levels for workers in U.S. territories and the motion picture industry).

The DOL’s final rule differs somewhat from its March 2019 proposed rule.  The minimum salary requirement increase in the final rule is $5 per week higher than that contained in the March 2019 proposed rule.  Also, the new total annual compensation requirement for the highly compensated employee exemption of $107,431 is almost $40,000 less than the proposed rule.  Finally, the DOL dropped the proposed provision that provided for review of the minimum salary thresholds every four years.  With the final rule, any changes will need to be initiated by the DOL and follow the standard rulemaking process.

The DOL estimates that the changes in the 2019 final rule will make approximately 1.3 million currently exempt workers now eligible for overtime compensation.  By comparison, the DOL previously estimated that its 2016 final rule would make 4.2 million exempt workers eligible for overtime pay.  The 2019 final rule clearly is a more modest update to the existing requirements for the white-collar exemptions, which have not be revised since 2004.

The new minimum salary requirements take effect January 1, 2020.  Litigation challenging the new final rule is likely, but employers cannot assume that this final rule will be blocked from taking effect like the 2016 final rule was.  Thus, employers have a small window of time to take the necessary steps to ensure compliance before the calendar turns to 2020.  These steps should include:

  • Identifying employees who currently are classified as exempt under the FLSA white-collar exemptions and earn a weekly salary of less than $684 (taking into account the new ability to credit non-discretionary bonuses and incentive compensation for up to 10% of the minimum salary requirement); and
  • For those employees, considering whether to (1) increase their salaries and/or bonuses/incentive compensation by January 1 to meet the new minimum salary requirement or (2) convert them to non-exempt status for FLSA overtime pay and minimum wage purposes.

Unfortunately, this is not the only imminent challenge facing Pennsylvania employers in the area of overtime exemption classifications.  As we previously noted, the Pennsylvania Department of Labor and Industry in 2018 proposed big changes to the regulations on the minimum salary and duties requirements of the white-collar overtime exemptions under the Pennsylvania Minimum Wage Act.  These proposed changes were far more significant and impactful than the changes contained in the DOL’s 2019 final rule.  We anticipate that L&I may take action and issue final regulations sometime this fall or winter.

If that happens, Pennsylvania employers will need to work (and work quickly) to ensure compliance with changes to both the FLSA and Pennsylvania Minimum Wage Act’s white-collar overtime exemption requirements.  In the meantime, employers should begin the process of ensuring compliance with the DOL’s final rule before the New Year.

A lot of times, determining whether a worker is an independent contractor or an employee is tough.  Different laws have different standards, and government agencies and the courts often apply different tests in addressing this question.  Under any test, the analysis is highly fact intensive, and the consequences of misclassification can be steep.

Luckily, the National Labor Relations Board recently made clear that the misclassification of a worker as an independent contractor, when the worker is really an employee, is not in and of itself a violation of the National Labor Relations Act.

In Velox Express, Inc., the Board held that Velox, a medical courier service, misclassified its drivers as independent contractors.  The Board held that the drivers were employees under the Act. However, the Board refused to adopt an Administrative Law Judge’s separate finding that the misclassification alone violated the Act.  The Board found that conclusion was simply a “bridge to far.”

Section 8 of the Act prohibits employers from interfering with employee rights under the Act, and from coercing or restraining employees from exercising those rights.  The ALJ had found that misclassification dissuaded employees from exercising their rights under the Act.  The ALJ ruled that misclassification chilled employee exercise of protected activities, and therefore, violated Section 8 of the Act.

But the Board found that a misclassification was not the type of inherently threatening or coercive conduct that has historically been found to violate the Act. Essentially, absent additional conduct on the part of the employer, a misclassification alone is not enough to deter employees from exercising their rights.

Interestingly, the Board agreed with the ALJ that the employer’s decision to discharge a driver who raised concerns about how the drivers were classified was a violation of the Act. As noted above, the Board agreed that the drivers were really employees and not contractors.  The Board further agreed that the employer took action to discharge the driver because she engaged in activities protected by the Act, which is unlawful.

The Board’s decision is certainly a welcome relief for employers who engage independent contractors, especially in the transportation industry.  However, it is also a warning that while misclassification alone may not warrant consequences under the Act, if a worker is misclassified, liability under applicable labor and employment laws may await.  As this case demonstrates, misclassified independent contractors will be protected by the Act.

The Equal Employment Opportunity Commission (EEOC) announced on September 11, 2019 that it will not be seeking renewal for collection of EEO-1 Component 2 pay data, which requires employers with 100 or more employees to submit employee pay data on the new EEO-1 on an annual basis. Moving forward, the EEOC stated it would seek authorization for continued collection of only the EEO-1 Component 1 data, with 2019 data submissions due in March 2020. This welcome reprieve will be in place for filings in 2019, 2020, and 2021. The EEOC will be accepting public comments on its pay data collection rule up through November 12, 2019.

According to the notice released by the EEOC, “At this time, the unproven utility to its enforcement program of the pay data as defined in the 2016 Component 2 is far outweighed by the burden imposed on employers that must comply with the reporting obligation.”  While this is great news for future years, please note that if you’re one of the nearly 90,000 EEO-1 employers subject to filing, the submission of 2017 and 2018 EEO-1 Component 2 data still carries a quickly approaching September 30th deadline.

In addition to the web-based portal for the collection of pay and hours worked data for calendar years 2017 and 2018 which opened on July 15, 2019, a data file upload function and validation process is also open as an alternative data collection method for employers who prefer to utilize data file upload capability. Information regarding the data file upload function is available here. If you have any questions about your compliant and upcoming timely submission of the Component 2 pay data, contact any of the attorneys in the McNees Labor and Employment Group.

As the summer begins to wind down, the first whispers of fall rippling through cool evening breezes are a welcome reminder that school is back in session. That means it’s an opportune time for Pennsylvania’s 500 public school districts and many charter schools to examine their policies governing employee reporting of arrests and convictions and their handling of arrest and conviction reports.

Pennsylvania has long required that school district employees self-report arrests or convictions for many common offenses (e.g. kidnapping, endangering the welfare of children, sexual abuse of children, etc.). The law prohibits schools from hiring applicants with certain offenses, and requires immediate discharge of teachers/educators who are convicted of or who plead guilty to those same offenses.  In addition to the obvious violent crimes and crimes against children, PA law also requires self-reporting for all felony, first-degree misdemeanor, first-degree misdemeanor or felony DUI, and controlled substance-related offenses. The reporting requirement applies to all current and prospective employees of public and private schools, intermediate units, and vocational-technical schools, including independent contractors and their employees who have direct contact with children.

Obviously, in light of the potential consequences, employees were not really motivated to report arrests for these offenses.  For those employees who may have hoped to remain undetected following a reportable arrest or conviction, life just got a little harder. Thanks to a recently-implemented notification system, the Pennsylvania Department of Education (“PDE”) is now automatically notified by the Pennsylvania Justice Network (“JNET”) when an educator is arrested. Once notified, the PDE sends a notification to the Teachers Information Management System (“TIMS”) and the chief school administrator for the school in which the educator is employed. Once notified, the TIMS officer and administrator receive frequent reminders until the administrator acknowledges the arrest.

The chief administrative officer is then required to review the pending criminal charge. Importantly, the chief school administrator will be given access to a broader range of information than they would have if they were relying solely on the employee to self-report. The notifications sent from JNET to TIMS and the chief administrative officer include arrests, indictments, and charges that do not require self-reporting. For example, a second-degree misdemeanor may not otherwise be reported, but would come through JNET to the school district just the same as an arrest for a more serious offense.  As a result, school districts are becoming aware of potentially unflattering information about their employees they may otherwise never have received. Of course, an arrest is public information, and where school districts would formerly rely on the local newspaper’s “police roundup” section, they are now given convenient, broad access to such information on employees.

It is important for school districts to be mindful of their use of this information when making an employment decision. The school district must balance its obligations as an employer and duty to protect the integrity and safety of the educational institutions with the procedural and substantive due process rights of its public employees. The school district may also have obligations pursuant to a union contract or other contract.  As a result, any potential employment action in response to a report should be accompanied by thorough documentation and consultation with counsel.

Although school districts should already have a procedure in place for how to deal with teacher arrests, now would be a good time to review that procedure and determine if any updates are necessary.  Also, a procedure regarding how to process and handle the TIMS reports should be considered.

For questions or updates on this issue, contact any of the attorneys in the McNees Labor and Employment Group.

On July 29, 2019, the Department of Labor issued final rules clarifying when an employer group or association, or professional employer organization (“PEO”) may sponsor a defined contribution multiple employer retirement plan (“MEPs”).   Although MEPs already exist, the Department issued the regulation to alleviate the uncertainty surrounding the ability of PEOs and associations to sponsor MEPs, including a clarification that having a principal place of business in the same region meets the commonality of interest requirement of a MEP.   The Department posits that by participating in a MEP, small businesses will benefit from reduced costs achieved through the economies of scale for administrative costs and investment choices.

In order for a bona fide group or association of employers to establish a MEP (a.k.a Association Retirement Plan) under the Final Rules, the group or association must have at least one substantial business purpose unrelated to offering employee benefits.  The group or association must have a formal organizational structure, and its activities must be controlled by the employer members.  Each member of the group or association must have one employee who is a participant in the MEP, and participation through the association must not be available other than to employees and former employees of the employer members.  The employer members must also have a commonality of interest.   In order to meet the commonality of interest criteria, the employer members must be in the same trade, industry, line of business or profession or have a principal place of business in the same region that does not exceed the boundaries of a single state or metropolitan area (even if the metropolitan area includes more than one state).  The group or association cannot be owned or controlled by a bank or trust company, insurance issuer, broker-dealer, or similar financial services firm.

Similarly, the Final Rules allow bona fide PEOs to establish a MEP.  A PEO is a human-resource company that contractually assumes certain employer responsibilities of its client employers.  In order for a PEO to establish a MEP, it must (1) perform substantial employment functions on behalf of its client employers, (2) have substantial control over the functions and activities of the MEP, (3) ensure that each client employer that adopts the MEP is an employer of at least one employee who is a participant in the MEP, and (4) ensure that the MEP is only available to employees and former employees of the PEO and its client employers.

The Final Rules do not permit the creation of defined contribution retirement arrangements that cover employees of employers with no relationship other than their joint participation in the MEP, commonly known as “open MEPs” or “pooled employer plans”.  The Department is seeking further comment regarding whether open MEPs should be permitted and, if permitted, under what terms.

The new DOL regulations are likely to garner interest among small employers that are interested in offering an employee retirement plan but have found the associated administrative costs to be prohibitive.  Please contact any member of our Employee Benefits Group to learn more about the benefits and requirements of establishing a MEP.

On August 9, 2019, the National Labor Relations Board announced a Notice of Proposed Rulemaking.  The Notice, which was issued on August 12, 2019, covers three proposed rules.  A majority of the Board is proposing to change the Blocking Charge Policy, the Voluntary Recognition Bar and rules governing union recognition in the construction industry.

The proposed change to the Blocking Charge Policy would modify the Board’s long-standing rule that requires a union representation election (or decertification election) be placed on hold if an unfair labor practice (ULP) charge has been filed regarding conduct leading up to the election.  Often times, ULP charges are filed to simply delay the election as a tactical move.  The revised Blocking Charge rule would create a vote and impound process.  In other words, the election would not be blocked by the filing an ULP charge, but would be conducted.  However, the votes would not actually be counted until after the ULP charge is resolved.

The Voluntary Recognition Bar currently provides that the representational status of a union voluntarily recognized by the employer cannot be challenged for a “reasonable period of time” after the voluntarily recognition.  Since 2011, the reasonable period of time has been defined as six months to a year.  The proposed rule would reinstate a pre-2011 rule, which provides that employees or a rival union could challenge the union’s status during the 45-day period following the voluntarily recognition.

The revision to the rules governing recognition in the construction industry would require unions to actually have evidence to demonstrate that a majority of employees favored union recognition.  In the past, a written agreement that such majority support existed was enough.  Moving forward, in order to protect employee free choice, actual evidence, other than the contract, must be provided.

The Notice of Proposed Rulemaking continues a recent trend for the Board.  While it does have detailed rules and regulations, often the Board makes and changes its rules by decision-making.  Recently, the Board has been committed to making more changes through the formal rulemaking process. Formal rulemaking provides for the opportunity to review and comment on the rules prior to implementation.  In addition, the rulemaking process also allows for more clarity, as rules are not connected to specific fact patterns, but are, hopefully, more readily understood and implemented.

Greater transparency and predictability will likely be welcomed for many employers trying to keep up with the Board’s ever-changing policies and rules.

Prior to July 2nd, New Jersey’s Medical Cannabis Act lacked protections for employees’ off-duty medical marijuana use.  Indeed, last year the U.S. District Court for the District of New Jersey held that nothing in the Medical Cannabis Act “requires an employer to waive a drug test as a condition of employment for federally-prohibited substance.”  Cotto v. Ardagh Glass Packing, Inc., 2018 U.S. Dist. LEXIS 135194 (Dist. N.J. 2018).  The Act previously provided that it should not be construed to require an “employer to accommodate the medical use of marijuana in any workplace.”  Further, unlike the Delaware and Pennsylvania Acts, the NJ Act did not contain an anti-discrimination clause.

That all changed at the beginning of this month.

On July 2nd, New Jersey Governor Phil Murphy signed a bill amending the NJ Act and adding several provisions affecting the workplace:

  • The NJ Act now contains an express anti-discrimination clause. Employers are prohibited from taking any adverse action against a registered qualifying patient based solely on the individual’s status as a registered qualifying patient.  This means that employers cannot discharge, discipline, refuse to hire or otherwise affect the terms and conditions of employment simply because an individual is registered to use medical marijuana.
  • The language regarding no duty to accommodate has been removed. However, the Act now expressly provides that employers may prohibit the use of medical marijuana during work hours and anywhere on the employer’s premises, regardless of whether the employee is on or off duty.
  • The amendments also provide a safety net for employers who wish to avoid violating federal law or losing federal funding. The Act now states that employers are not required to commit any act that would violate federal law – i.e. allowing a DOT regulated truck driver to drive while using medical marijuana.  Additionally, employers are not required to commit any act that would result in the loss of a license provided by federal law or that would result in the loss of a federal contract or of federal funding.
  • Most notably, under the amendments, NJ employers must provide notice to applicants or employees who test positive for cannabis, that they have the right to provide a “legitimate medical explanation” for the positive result. The applicant or employee has three working days to provide this information.  Within the three-day window, the applicant or employee may also request a confirmatory test of the original sample, provided the employee foots the cost.

Employers in New Jersey should take notice of the amendments, which became effective immediately, and revise their drug testing policies and procedures to ensure compliance.  Moreover, it is important to remember that individuals using medical marijuana in accordance with state law, in New Jersey and in the other states where medical marijuana is legal, likely are protected by state disability discrimination laws.  Accordingly, employers should be mindful of their obligations to engage in the interactive process with employees who disclose medical marijuana use.  The days of zero tolerance policies regarding marijuana are now nothing more than a pipe dream!

If you have any questions regarding your drug testing policy or the drug testing laws in your state, please contact Denise Elliott at or any other member of the McNees Labor and Employment Group.

What’s new in the world of medical marijuana, as it impacts your workplace?  Quite a bit, actually.  Here is the rundown.

PA Medical Marijuana Act – Anxiety and Tourette’s Syndrome Added to List of Serious Medical Conditions

Effective July 20, 2019, the Pennsylvania Department of Health added anxiety disorders and Tourette’s syndrome to the list of serious medical conditions for which a patient can obtain medical marijuana.  Dr. Rachel Levine, Secretary of Health for the Commonwealth of Pennsylvania, announced the additions last week.  The addition of anxiety disorders and Tourette’s syndrome expands the list of approved qualifying conditions to twenty-three.

Pennsylvania Litigation – Does the PA Medical Marijuana Act Include a Private Right of Action for Discrimination?

As you may recall from prior blog posts, the PA Medical Marijuana Act contains an explicit anti-discrimination provision.  Section 2103(b)(1) of the Act provides that “no employer may discharge, threaten, refuse to hire or otherwise discriminate or retaliate against any employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  However, the Act does not contain an explicit cause of action for the enforcement of Section 2103(b)(1). Accordingly, for an employee to assert a claim for discrimination under the Act, the courts must find that the language of the Act creates an implied right of action.  A plaintiff in Lackawanna County is currently asking that the Lackawanna County Court of Common Pleas to do just that.  Palmiter v. Commonwealth Health Systems, et al., Lackawanna County C.C.P. Docket No. 19-CV-1315.

Ms. Palmiter’s Complaint alleges that (1) she disclosed to her employer that she was certified to use medical marijuana under PA law, (2) she applied for a new position and was told she must submit to a drug test; (3) she told the drug testing facility that she used medical marijuana and provided a copy of her certification card to her employer; and (4) the employer told her she was not allowed to return to work.  Ms. Palmiter alleges that the foregoing actions were discriminatory and constitute a violation of Section 2103(b)(1).  Commonwealth Health filed preliminary objections seeking dismissal of the Section 2103(b)(1) claim.  Commonwealth Health is arguing that no private right of action exists and that there is nothing in the text or the legislative history of the Act to warrant the creation of an implied cause of action.

No other court in Pennsylvania has addressed this issue.  Accordingly, we expect that the Lackawanna County Court will look to decisions of other states for guidance.  If the Court reviews a recent decision of the Superior Court of Delaware, it may be inclined to agree with Ms. Palmiter (See February 26, 2019 Blog Post). Unless the case settles, we may soon have a decision from a Pennsylvania Court on the impact of the Act on Pennsylvania employers!

Stay tuned!

Michigan – No Private Right of Action Created by the Michigan Medical Marijuana Act

The Court of Appeals of Michigan recently addressed the implied right of action question under the Michigan Medical Marijuana Act (“MMMA”).  In Eplee v. City of Lansing, the Michigan Court found that the MMMA did not create a private right of action for discrimination/retaliation.  The Plaintiff in Eplee claimed that the Defendant violated the MMMA when it rescinded a conditional offer of employment based on her THC-positive drug screening.  Ms. Eplee argued the MMMA prohibited the prospective employer from denying her any right or privilege, including civil penalty or disciplinary action, based on her medical use of marijuana.  According to Ms. Eplee, the Defendant rescinded her conditional offer solely because of her status as a registered qualifying patient and thus denied her the right of employment in violation of the MMMA.  The Defendant argued that the MMMA did not create a private cause of action and argued for dismissal of plaintiff’s lawsuit.  The Court of Appeal of Michigan agreed with the Defendant, finding that the cited section of the MMMA operates merely as “an immunity provision; it does not create affirmative rights.”

While this is good news for employers in Michigan, we doubt the Eplee decision will factor into the Court’s decision in Palmiter. Critically, the MMMA does not mention employers, but the PA Act does.  As noted above, the PA Act expressly forbids employers from discriminating or retaliating against employees based “on the basis of such employee’s status as an individual who is certified to use medical marijuana.”  There is no such language in the MMMA.  Thus, the Palmiter Court is not likely to find the Eplee decision relevant or persuasive.

Prohibitions on Pre-Employment Drug Testing for Marijuana

New York City and the State of Nevada recently passed laws restricting the use of pre-employment drug testing for marijuana.

In April, the New York City Council passed a bill banning employers from testing prospective employees for marijuana.  Testing for the presence of marijuana as a condition of employment is now an unlawful discriminatory practice under the New York City Human Rights Law.  Notably, the bill does not outlaw pre-employment testing for drugs other than marijuana.  The bill also carved out several exceptions where it will not apply, including for police officers, commercial drivers, and those positions dealing with the building code.  This law will take effect in New York City on April 9, 2020.

The Nevada Assembly passed a similar bill, which will take effect on January 1, 2020, “prohibiting the denial of employment because of the presence of marijuana in a screening test.”  Nevada Assembly Bill No. 132 alters Chapter 613 of the Nevada Revised Statutes—dealing with unlawful employment practices—and makes it unlawful for an employer to refuse to hire a prospective employee because the prospective employee tested positive for marijuana.  Certain exceptions apply, similar to the New York City law, such as for firefighters, emergency medical technicians, or where the employer determines that marijuana use “could adversely affect the safety of others.”  AB132 also allows employees to submit to an additional screening test—at his or her own expense—to “rebut the results of the initial screening test.”

While these laws do not take effect until 2020, Employers with employees in New York City and Nevada are encouraged to start the process of complying with the new testing prohibitions.  The process should include revising drug testing policies, speaking with your drug testing facilities to ensure compliance and confirming whether any exceptions or carve outs will apply.

For questions about these updates or any other issue related to medical marijuana in the workplace, please do not hesitate to reach out to Denise Elliott ( or any other member of the McNees Labor and Employment Group.

McNees summer associate, Sal Sciacca, contributed to this post.

In a case that started back in February of 2013 – when Security called 9-1-1 and had police escort non-employee union organizers out of the employer’s cafeteria – the Board “modified” decades of its own precedent.  Sort of.

Some background. The National Labor Relations Act requires that employers refrain from interference, discrimination, restraint or coercion with respect to employees’ exercise of their right to engage in union activity.  In 1956, the United States Supreme Court explained in NLRB v. Babcock & Wilcox Co. that an employer may prohibit nonemployee distribution of union literature on company property if (1) there are other available channels of communication that will enable the union to reach employees with its message and (2) the employer also prohibits other forms of distribution by non-employees.  In other words, an employer cannot discriminate against unions by restraining their right to distribute union literature or solicit members on company property, while allowing other nonemployees to engage in that sort of behavior.  That would be an unfair labor practice.  Babcock & Wilcox is the real, Law of the Land sort of precedent.

However, in 1982, the National Labor Relations Board held that the Babcock & Wilcox criteria do not matter if the nonemployee union activity is on any portion of the employer’s private property that is open to the public, such as a cafeteria.  Since then, the Board has held that union organizers cannot be denied access public areas (such as cafeterias), so long as they use it in the way it was intended (to order and eat food) and are not disruptive.  Several appellate courts agreed – and several didn’t.  However, since then, the Board has consistently found that it is an unfair labor practice for an employer to prohibit nonemployee union organizers from engaging in solicitation and other promotional activities in public areas of an employer’s premises, so long as they are not being “disruptive.”

Until two weeks ago.  In UPMC Presbyterian Shadyside and SEIU Healthcare Pennsylvania, the NLRB eliminated the “public space” exception that it created in 1982 and returned to a more pure interpretation of Babcock & Wilcox.  Retroactively.  That’s good news for employers who have public spaces on their private property.

The NLRB held that an employer has no legal obligation to allow use of its facilities by nonemployees for promotional or organizational activity. “The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.”  What does this mean for employers?  IF there are other channels for the union to reach employees and the employer prohibits all promotional and solicitation activities on its property, the employer may prohibit union activity in public spaces as well (even if it is not disruptive).

Contact a member of the McNees Labor & Employment Law Practice Group to review your Solicitation and Distribution Policy for compliance with the law.