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Paul is a member of the firm where he focuses his practice on representing business owners, companies, and educational institutions, primarily in the areas of labor and employment. Paul handles all aspects of employment litigation on behalf of employers and management, as well as general counseling on day-to-day employment matters. He also advises clients in union settings, including collective bargaining and arbitration, and maintaining positive employee relations. Paul spends a significant portion of his time defending clients in all manners of employment litigation, regularly appearing before the EEOC, IDHR, the National Labor Relations Board and the Illinois Educational Labor Relations Board, as well as federal and state courts.
Paul has been admitted to practice and represented clients in several jurisdictions, including the State of Illinois, Seventh Circuit Court of Appeals, and the Central and Northern District Courts of Illinois (where he is a member of the Trial Bar).
Paul is a member of both the National Association of College and University Attorneys and the Illinois State Bar Association. He also is conversant in German and has authored pieces for legal and industry publications, including the following:
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On April 15, 2020, Attorney Paul Burmeister will present “The Workplace Transparency Act and Employment Agreements”. Topics covered will include: Non-solicitation, non-competition, and anti-raiding terms courts will enforce; Trade secret protections for employers and required language and notices; New restrictions on confidentiality, arbitration, and severance agreements.
On September 20, 2019, the National Labor Relations Board announced that it will establish a regulation exempting student graduate assistants, teaching assistants, research assistants, and other similar positions from the definition of an employee under the National Labor Relations Act. The proposed rule was posted in the Federal Register on September 23, 2019. This proposed rule [NM1] [BAM2] will overrule the Obama-era Board decision from 2016, which held that research and teaching assistants were employees under the NLRA and were allowed to unionize and collectively bargain. The NLRB has changed its position three times in the last twenty years on whether research and teaching assistants are classified as employees under the NLRA. However, as a result of the NRLB’s proposed rule, there will no longer be unrest on this subject, as the rule will permanently exclude teaching and research students from the scope of the NLRA.
Compensated students in teaching or research positions at private colleges and universities will not be able to form a union or collectively bargain with their college or university for wages, insurance, and other work-related terms or conditions. Although there has not been a vast amount of student-employee unions formed over the years, the clear elimination of student-employee collective bargaining may ease the minds of officials at private colleges and universities and allow their focus to remain on education, instead of on potentially having to bargain with their student-employees.
On the other hand, public colleges and universities who are subject to their state’s collective bargaining laws for their employees are not affected by this new rule promulgated by the NLRB.
Recent changes at the National Labor Relations Board gave employers hope that some Obama-era regulations and rulings would be loosened. However, despite some favorable rulings, the recent decision in Nicholson Terminal & Dock Co. demonstrates it will take time for the Board’s new rulings to roll down to the Administrative Law Judge level. In reviewing an employee handbook policy, the ALJ in Nicholson seemingly stuck to the previous administration’s standard for review, rather than apply the new Boeing Co. standard established by the current Board in December 2017, which loosened some of the standards applied in reviewing employment rules and policies.
Despite the new relaxed balancing test, the ALJ held the policies at issue were unlawful because the employer failed to provide any evidence or argument that justified the policies. Consequently, the policies were unlawfully overbroad and violated the Act. With respect to the “no-camera” policy at issue, the ALJ acknowledged Boeing Co. specifically held a no-camera policy may be lawful, stating “…the Board has provided guidance that, in general, it expects to find no-camera rules lawful.” Even with that backdrop, the ALJ ultimately found the employer’s alleged justifications of “safety” and “no distractions” unconvincing.
Likewise, the ALJ held the “no moonlighting” rule violated the Act. This policy required that “…employees do not have another job.” The ALJ found the policy could be reasonably interpreted to prevent employees from working for the union. She concluded that though a legitimate employer interest, as written the policy did not outweigh the rights of employees to participate in union activities on non-working time.
The takeaway from Nicholson is that application of the Boeing Co. standard is still in its early stages. Despite the new balancing test, a broadly-written policy — even one regarding matters on which the Board intendeds to grant employers some measure of relief — currently will not withstand scrutiny under the Act. As more employment policy cases move forward, employers will begin to see the new Boeing Co. standard applied with additional leeway given to policies likely to previously have been found unlawful. Stay tuned.
For more information or to discuss employment policies in light of Boeing Co., contact author Paul Burmeister.