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June 13, 2011


Consistent with the Obama Administration's agenda, the National Labor Relations Board and the U.S. Department of Labor have recently taken action that further illustrates the pro-employee stance of the Federal government.


On May 26, 2011, the NLRB held that Sheet Metal Workers Local 15 did not violate the National Labor Relations Act's prohibition against secondary boycotts when it displayed a large inflatable rat balloon in front of the hospital worksite of "secondary" employer Brandon Regional Medical Center.  The Union had erected the rat balloon and one of its members held a leaflet proclaiming "[t]here's a rat at Brandon Regional Hospital" across his chest like a placard in an effort to persuade the hospital to cease doing business with the sheet metal contractor and the labor supply company that provided labor for a construction project at the hospital.  The Union had a primary labor dispute with both the sheet metal contractor and the labor supply company over their use of non-union personnel.


Although the NLRB's General Counsel alleged the rat display and a Union member's use of a leaflet as a placard constituted unlawful picketing, the NLRB majority concluded that such action was not picketing and did not amount to the Union's coercion of the hospital as a neutral employer.  On this basis, the NLRB dismissed the complaint against the Union.  In doing so, the NLRB explained that neither the rat display nor the leaflet display was confrontational because they were stationary and located at sufficient distances from vehicle and building entrances to the hospital.  The NLRB further noted that the Union's use of a rat balloon constituted "symbolic speech" and "expressive activity" protected by the First Amendment. 


Although this decision may not have an immediate impact on most employers, it further reflects the aggressive posture the NLRB has taken to expand union rights.


In addition to the above NLRB decision, the Department of Labor recently announced the launch of a free new timesheet application for smartphones that will allow employees to independently track their hours of work and the wages they are allegedly owed.   The application allows employees to record their regular work hours, break times, and any overtime hours for one or more employees.  Although it is currently only compatible with the iPhone and iPod Touch, the DOL is exploring updates that will enable similar applications for other smartphone platforms, such as Blackberry and Android.  For those workers without smartphones, the DOL's Wage and Hour Division has a printable work hours calendar in both English and Spanish that can be used to track employees' rates of pay, start and stop times, and arrival and departure times.


According to the DOL's press release, this new application is significant in that it will allow workers to keep their own records, rather than relying on those of their employers, and will be utilized during a Wage and Hour Division investigation where an employer fails to maintain accurate employment records.  The key takeaway from the DOL's new application is that workers who believe they have been misclassified - either as exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act or as independent contractors - can now keep their own records to support a claim for unpaid wages.  Similarly, non-exempt, hourly employees will be able to use the application to track hours worked offsite and during off hours, including any time spent working from home, remotely logging in to their work email or the employer's computer system, or using their smartphones to make phone calls, listen to voice mail, or send or read email, to show that they are entitled to payment for such work.


In light of this new timesheet application, employers should make sure that (1) their employment record-keeping policies are in line with state and federal law, (2) such records are accurately maintained, (3) employees are required to report all hours worked, and (4) all hours worked by employees are included in the calculation of hours worked for each workweek.  Employers are also well-advised to consider adopting a policy both prohibiting non-exempt employees from working beyond their scheduled hours of work without prior approval and from remotely accessing email or logging into their employer's computer systems.

Please feel free to contact us about this or other labor and employment matters. 


Labor, Employment and Employee Benefits Group

Mirick O'Connell

100 Front Street

Worcester, MA  01608

t 508.791.8500

f 508.791.8502


1800 West Park Drive, Suite 400

Westborough, MA  01581

t 508.898.1501

f 508.898.1502 

This client alert is intended to inform you of developments in the law and to provide information of general interest.   It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.