The New Jersey Employment Law Firm Blog
Federal and New Jersey employment laws protect workers’ rights to organize and advocate for themselves. The National Labor Relations Act (NLRA) provides procedures for workers to decide whether to join or form a union and to elect representatives who may engage in collective bargaining with their employer. Once the employees have chosen a union to represent them, their employer must notify the union about certain employment decisions and give the union an opportunity to negotiate. Included in these employment decisions are decisions related to employee compensation. The Third Circuit Court of Appeals recently ruled that a New Jersey nursing home violated the NLRA by reducing bonus payments during the COVID-19 pandemic without notifying the employees’ union representatives.
Section 8(a) of the NLRA identifies “unfair labor practices by employer[s].” These include:
· Interfering with the rights guaranteed by § 7 of the statute, such as employees’ right “to bargain collectively through representatives of their own choosing”; and
· Refusing to participate in collective bargaining with the employees’ lawfully elected representatives.
The Third Circuit case involved a nursing home in Guttenberg, New Jersey. Like many healthcare facilities, it “experienc[ed] extreme operational difficulties” when the COVID-19 pandemic began in early 2020. The union representing the facility’s employees also experienced difficulties. The collective bargaining agreement (CBA) required the employer to allow union representatives to visit the facility. The shelter-in-place orders enacted in the early days of the pandemic made that impossible.
According to the court’s opinion, the union sent a letter to the employer reminding it that any changes to “wages, hours, benefits, or any other term or condition of employment” required notice to the union and a chance to negotiate. The following day, the employer notified its employees that it was providing “a special COVID19 hourly rate bonus” of 25% over their regular pay rate for hours worked. It issued additional “bonuses” in April 2020, including a 100% bonus for nursing staff.
The union learned of these pay increases from its members, not the employer. It informed the employer that it agreed with the pay raises, but reminded it of its obligation to give the union advance notice.
The employer notified employees at the end of April 2020 that it would begin scaling the bonuses back. Again, it did not notify the union. Most of the employees were back to their pre-COVID pay rates by the end of summer 2020.
The union’s general counsel filed a complaint against the employer in August 2021 alleging that the employer violated the NLRA by reducing the employees’ pay without notifying it. An Administrative Law Judge ruled for the employer, but the Board reversed this ruling. It found that these bonuses were wages because they were tied to “employment-related factors” like attendance, and that the employer therefore violated the NLRA by failing to notify and negotiate with the union. The Third Circuit affirmed this ruling in December 2024.
If you believe your employer has engaged in unlawful workplace practices and violated your rights in New Jersey or New York, you do not have to fight alone. Contact the knowledgeable employment attorneys at the Resnick Law Group today online or by calling 973-781-1204 or 646-867-7997 to schedule a confidential consultation.