Starting last January 1 the Equal Employment Opportunity Commission has changed how it handles information included in position statements filed by employers who are responding to civil rights charges.
EEOC now will share a copy of your position statement and non-confidential exhibits with plaintiffs and their legal counsel upon request.
Previously, this decision was left to the discretion of EEOC field offices. From now on EEOC will provide uniform access to position statements at all locations.
In addition, with EEOC’s new Digital Charge System, employers may upload position statements and attachments into a digital charge file rather than faxing or mailing the documents.
EEOC has declared it will not pass on confidential employer information. However, it also has stated that it will review attachments designated as confidential and warns that it will not accept blanket or unsupported assertions of confidentiality.
Attorney David Katz of the law firm of Mintz Levin Cohn Ferris Glovsky and Popeo says a separate attachment specifically labeled “Confidential” could include sensitive medical information (other than a complainant’s medical information); Social Security numbers; confidential commercial and financial information; and other trade secrets.
You also can exclude reference to other charges that may have been filed against your company by other complainants. Keep in mind that while plaintiffs are afforded an opportunity to respond to an employer’s position statement within 20 days, their responses will not be shared with employers.
“Since there is no longer an expectation of confidentiality, employers ought to be more circumspect in what they elect to include in position statements and attachments so as not to overshare,” Katz recommends.
NLRB’s Micro Unit Rule Impacts FedEx
A federal appeals court has upheld a National Labor Relations Board determination allowing the Teamsters union to organize Federal Express employees under the board’s micro unit rule.
The case involves two Teamsters union organizing elections that were held among proposed units of city and road drivers working at FedEx terminals in North Carolina and Pennsylvania.
The city drivers pick up and deliver freight to customers, while the road drivers haul freight between FedEx facilities.
Under its 2011 decision, the board will evaluate whether employees in a union-proposed unit are “readily identifiable” as a group and “share a community of interest.”
FedEx had argued that the units should also include more than 200 dockworkers who were employed at those terminals as well as the drivers. After the unions prevailed in both elections, FedEx challenged the NLRB determination in court.
FedEx argued that the broader unit should be applied, noting that dockworkers can be part of a “dock to drive” program under which they can obtain commercial driver license and become eligible for city and road drivers’ positions. In addition, FedEx argued that at both locations some of the drivers also performed dock work.
The Eighth Circuit U.S. Court of Appeals upheld the NLRB’s original micro unit decision, stating that it fell within the board’s authority, was not a material departure from legal precedent, and is consistent with federal labor law.
It then proceeded to dismiss FedEx’s challenge to the NLRB’s unit determination decisions, ruling that FedEx failed to show that dockworkers had an “overwhelming community of interest” with city and road drivers
NLRB Unfair, Broke & Still Causing Pain
The National Labor Relations Board is running out of money, has been ruled unfair to its own union members, but is still continuing to give a big boost to union organizing.
The NLRB ambush election rules in April 2015 considerably shortened the average time between the date of a petition being filed by a union and the date of election. It was predicted that unions were poised to take full advantage of the new rules.
At the end of February, the board reported that during the first 10 months the rules were in effect, the average time between a union petition filing and an election is now 24 days, a reduction of 14 days – or 37% — experienced under the old rules.
It may be a quirk in the statistics, but that board also reported that the union election win rate was down slightly overall to 64% — a decline of 1%.
Also, this February a federal administrative law judge found that the NLRB had failed to bargain with its union as it was required to under law.
The board and the union agreed to two days of bargaining about the relocation of NLRB headquarters. When the union asked to continue the negotiations past the two days, the NLRB refused.
The ALJ expressed surprise that the board did not seek mediation or, because it was evident that progress had been made in the talks, chosen to continue negotiations beyond an arbitrary deadline.
Also, it was revealed recently that NLRB’s general counsel told regional offices to implement cost-saving measures due to a significant budget deficit.
Measures include redoubling efforts to obtain settlements in unfair labor practice cases; pushing election agreements in representation cases; and reducing litigation costs by applying efficiencies.
Among the efficiencies: allowing one NLRB attorney for large, out-of-town cases; avoiding use of court reporters and interpreters; encouraging stipulations to exhibits and evidence; and limiting off-site investigations by encouraging charging parties to travel to NLRB offices to give evidence.
Big-Box Warehouse Market Still Strong
The construction boom in big-box warehouses and distribution centers will continue through 2016, says Colliers International Group.
The global commercial real estate services company says 2015 was one of the strongest years to date for the industrial real estate sector in North America, and the big-box market led in construction and transaction activity.
For example, in 2011, nine million square feet of big-box space was built, while in 2015, 61 million square feet was delivered, Colliers notes.
“The shift from bricks and mortar to ecommerce is affecting businesses everywhere,” says Dwight Hotchkiss, national director, industrial, USA.
“Businesses are now thinking more specifically about supply chains and are pivoting focus to delivery times. This is leading to an incredible surge in the big box sector, which we define as a 300,000 square foot or larger building primarily used for distribution.”
Colliers believes activity in 2016 indicates another strong year for occupier demands due to growing pressure from ecommerce for swift logistics.
The company says the Top 10 occupier leases show impressive market investment, totaling 10,620,000 square feet in the fourth quarter alone. The Top 10 sales showed $470 million dollars invested.
In 2011, speculative development totaled 623,000 square feet; while in 2015, it totaled 34.8 million square feet.
Average effective net rent showed a 28% gain, from $3.55 per square foot in 2011 versus $4.54 net per square foot in 2015.
Vacancy rates hit lowest levels in 2015 — 7.02% in the second quarter. Colliers says 2015 ended with a slight vacancy increase at 7.32% because of speculative construction completed during the year.
Considerable construction still to come, the company points out. In 2015, the market saw construction completion of 60 million square feet, with an additional 74 million square feet of construction underway for delivery in 2016.
Key market highlights reported by Colliers are:
Atlanta. Big-box construction activity continues to grow, with 10.7 million square feet of new big-box construction currently underway.
Chicago. Big-box construction is also driving this market, with 9.2 million square feet of new construction underway.
Dallas. Despite a slight downturn in leasing activity in the fourth quarter, big-box construction activity continues to expand, with 9.8 million square feet of new construction underway.
Houston. With just 1.8 million square feet of new big-box development completed in 2015, the current 6.2 million square feet underway demonstrates substantial growth.
Greater Los Angeles. Leasing activity increased 4.8% in fourth quarter from the third, and construction activity continues to grow, as well.
Pennsylvania and New Jersey. Despite a 38.9% decrease in leasing in the fourth quarter from the prior quarter, construction activity is still growing, from 12.1 million square feet completed in 2015 to 13.3 million square feet currently underway.
Northern/Central New Jersey. Leasing activity in the fourth quarter increased an impressive 36.3% over the third quarter, with construction activity following suit; currently 3.8 million square feet of new big-box space is underway.
Toronto. Leasing in fourth quarter jumped a notable 296% over the third, Colliers observed, bringing total big-box leasing volume to 5.74 million square feet in 2015 in the Canadian city.
