By Marc J. Blochandnbsp;and Elise C. Keating

The current National Labor Relations Board (NLRB) has been waiting for an appropriate case through which it can reverse the Bush-era decision inandnbsp;Register-Guard,andnbsp;which restricted the use of employer email systems for union activities. It appears that the NLRB may have found such a case inandnbsp;Roundy’s Inc. Therefore, sometime before the November presidential election, the NLRB is expected to issue a decision in that matter. While the case arose out of non-employee union members distributing handbills on Roundy’s property to its grocery store customers, we believe that the ruling has the potential to go beyond the distribution of paper bills to the use of employer email systems.

Labor lawyers are looking for the NLRB’s decision inandnbsp;Roundy’sandnbsp;to pick up where the earlier Clinton-era NLRB decision in theandnbsp;Sandusky Mall Co.andnbsp;action left off. Theandnbsp;Sandusky Mallandnbsp;decision held that an employer violated The National Labor Relations Act (Act) when it barred union access to its property while allowing access to non-union groups. This situation is similar to theandnbsp;Roundy’sandnbsp;matter because Roundy’s allowed groups like the Girl Scouts and the Red Cross to conduct activities at its grocery stores, but it ejected the union when the latter handed out pamphlets urging a boycott of Roundy’s store due to use of non-union labor and failure to pay the prevailing wage standard.

Though neitherandnbsp;Roundy’sandnbsp;norandnbsp;Sandusky Mallandnbsp;deal with employer email systems, it appears that the NLRB will use the upcoming decision inandnbsp;Roundy’sandnbsp;to expand the scope of “property” from the physical to the virtual. If the ruling comes down as anticipated, employers who, for example, allow the sale of Girl Scout cookies or publicize Red Cross blood drives through their email systems, must permit that same level of access to unions.

Theandnbsp;Register-Guardandnbsp;decision made a distinction between union and non-union groups, stating that unlawful discrimination meant “unequal treatment of equals” when it came to access of the employer’s email system. So, while employers could not permit one union access but not another, or allow access to only anti-union groups, they could freely permit access to non-union groups (like the aforementioned Red Cross and Girl Scouts) while denying that same access to unions.

Because there are no similar cases in the pipeline, we anticipate that the current NLRB will useandnbsp;Roundy’sandnbsp;as the vehicle to reverseandnbsp;Register-Guard,andnbsp;despite the fact that the case does not deal with email communication. The effect of this decision would be an opening of access to employer intra-office e-mail systems for union activities.

Consequently, if your company’s current policy is based on theandnbsp;Register-Guarddecision, restricting access to the employer’s email system, it would be prudent to take a look at company email policy to determine if revisions will need to be made. An updated client alert will be issued when theandnbsp;Roundy’sandnbsp;decision is published, along with advice on how employers should proceed in light of the decision. If you have any questions regarding the upcoming decision, please contact a member of Walter | Haverfield’s Labor and Employment Law Group.

Byandnbsp;R. Todd Hunt,andnbsp;William R. Hannaandnbsp;and Matthew J. Federico, Legal Extern,andnbsp;Thomas M. Cooley Law School

Last week, President Obama signed House Bill 3630 into law. This law extends payroll tax deductions and unemployment benefits, but there is also a provision that essentially mandates local government approval of applications for modifications of “an existing wireless tower or base station.” This section may put local governments in a difficult position with respect to wireless tower companies which have properties in their jurisdiction.

The law pushes aside a portion of Section 332(c)(7) of the federal Telecommunications Act, which granted local governments authority to control where cellular and wireless towers, antennas, and other related facilities can be located.

The new law states: “Notwithstanding [section 332(c)(7)] or any other provision of law, a state or local government may not deny, and shall approve, any eligible facility’s request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

The IRS has recently issued guidance regarding what constitutes an “involuntary termination” under the American Recovery and Reinvestment Act (ARRA). To quickly recap, the ARRA provides for a 65 percent reduction in the premium otherwise payable by certain involuntarily terminated individuals (involuntarily terminated from September 1, 2008, through December 31, 2009) and their families who elect Consolidated Omnibus Budget Reconciliation Act (“COBRA”) continuation health coverage.

The definition of “involuntary termination” for premium reduction purposes, however, had not previously been defined. The IRS guidance, reproduced in relevant part, states the following regarding “involuntary termination”:

• In general, what circumstances constitute an involuntary termination for purposes of the definition of an assistance eligible individual?

  • In general, an involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services. In addition, an employee-initiated termination from employment constitutes an involuntary termination from employment for purposes of the premium reduction if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee. Involuntary termination is the involuntary termination of employment, not the involuntary termination of health coverage. Thus, qualifying events other than an involuntary termination, such as divorce or a dependent child ceasing to be a dependent child under the generally applicable requirements of the plan (such as loss of dependent status due to aging out of eligibility), are not involuntary terminations qualifying an individual for the premium reduction. The determination of whether a termination is involuntary is based on all the facts and circumstances.

• Does an involuntary termination include a situation in which an employment contract expires and is not renewed?

  • An involuntary termination may include the employer’s failure to renew a contract at the time the contract expires, if the employee was willing and able to execute a new contract providing terms and conditions similar to those in the expiring contract and to continue providing the services.

• Does an involuntary termination include the death of an employee or absence from work based upon illness or disability?

  • Involuntary termination does not include the death of an employee or absence from work due to illness or disability.

• Does a “forced resignation” constitute an involuntary termination?

  • If a termination is designated as voluntary or as a resignation, but the facts and circumstances indicate that, absent such voluntary termination, the employer would have terminated the employee’s services, and that the employee had knowledge that the employee would be terminated, the termination is involuntary.

• Does an involuntary termination include a lay-off period with a right of recall or a temporary furlough period?

  • Yes. An involuntary reduction to zero hours, such as a lay-off, furlough, or other suspension of employment, resulting in a loss of health coverage is an involuntary termination for purposes of the premium reduction.

• Does an involuntary termination include a reduction in hours?

  • Generally no. If the reduction in hours is not a reduction to zero, the mere reduction in hours is not an involuntary termination. However, an employee’s voluntary termination in response to an employer-imposed reduction in hours may be an involuntary termination if the reduction in hours is a material negative change in the employment relationship for the employee.

• Does an involuntary termination include the death of an employee or absence from work based upon illness or disability?

  • Involuntary termination does not include the death of an employee or absence from work due to illness or disability.

• Does involuntary termination include an employer’s action to end an individual’s employment while the individual is absent from work due to illness or disability?

  • Yes. Involuntary termination occurs when the employer takes action to end the individual’s employment status (but mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment status is not an involuntary termination).

• Does an involuntary termination include retirement?

  • If the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s services, and the employee had knowledge that the employee would be terminated, the retirement is an involuntary termination.

• Does involuntary termination include involuntary termination for cause?

  • Yes. However, for purposes of Federal COBRA, if the termination of employment is due to gross misconduct of the employee, the termination is not a qualifying event and the employee and other family members losing health coverage by reason of the employee’s termination of employment are not eligible for COBRA continuation coverage.

• Does an involuntary termination include a resignation as the result of a material change in the geographic location of employment for the employee?

  • Yes

• Does an involuntary termination include a work stoppage as the result of a strike initiated by employees or their representatives?

  • No. However, a lockout initiated by the employer is an involuntary termination.

• Does an involuntary termination include a termination elected by the employee in return for a severance package (a “buy-out”) where the employer indicates that after the offer period for the severance package, a certain number of remaining employees in the employee’s group will be terminated?

• Yes.

If you have questions regarding this recent guidance or the COBRA provisions of the American Recovery and Reinvestment Act of 2009 in general, please feel free to contact one of theandnbsp;Labor and Employment Lawandnbsp;attorneys at Walter | Haverfield, LLP.

1996 – Co-author of “CERCLA Lender Liability Rule Codified”, Lender Counsel Group ALTA Annual Conventionandnbsp;

1990 – Author of “The Pro Bono Debate and Suggestions for a Workable Program” for the Cleveland State Law Review