Part II: What Is A “Micro-Unit” – and Why Does It Matter?

Earlier this week, the standard established by the NLRB in Specialty Healthcare was discussed. As a quick review, the Specialty Healthcare decision made it easier for small collective bargaining groups known as “micro-units” to form in the workplace. These micro-units are easier to unionize, and the employer is left with the burden of showing why excluded employees of the proposed unit should be included. Specialty Healthcare was decided by the NLRB in 2011 and affirmed by the Sixth Circuit in 2013, but it was not until this summer that employers learned how the NLRB would apply this decision to other industries.

In July, the NLRB issued a decision in Macy’s Inc., 361 NLRB No. 4 (July 22, 2014). In its 3-1 Macy’s decision, the NLRB approved the proposed unit of the retail store that only included the cosmetic and fragrance department salespeople – a total of forty-one employees. According to the NLRB, the unit is appropriate because they are a “readily identifiable group” and “share a community of interest.” The NLRB further held that Macy’s had not met its burden of showing an “overwhelming” community of interest between those employees and the other sales employees in the store’s ten other departments.

Just a few days after the Macy’s decision, the NLRB decided Bergdorf Goodman, 361 NLRB No.11 (July 28, 2014). In Bergdorf, the NLRB unanimously found that the store’s shoe sales team did not constitute an appropriate unit, and therefore could not have their own vote on union representation. The NLRB was concerned with the fact that the shoes sales employees were assigned to different selling areas on separate floors and that the contemporary shoe salespeople were part of a different department – Contemporary Sportswear.

Taken together, the Macy’s and Bergdorf decisions make clear that the NLRB will continue to apply the Specialty Healthcare decision to industries besides healthcare. This could lead to tumultuous times for employees, as unions could seek dozens of separate units (i.e., one for each retail department). An employer could face multiple union negotiations, conflicting demands, and contradictory contract obligations if micro-units emerge in their workplace. Employers should be cognizant of smaller employee groups that could band together as a micro-unit. To defeat claims of a “readily identifiable group,” it may be appropriate to cross-train employees, physically separate departments, and divide functions amongst the whole workforce.

If you have any questions about unionization or how these NLRB decisions might affect your workforce, contact a McBrayer employment law attorney today.

Amanda Stubblefield





Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.


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What Is A “Micro-Unit” – and Why Does It Matter?

Employment law attorneys are abuzz with talk of “micro-units.” This term first surfaced in 2011, and has garnered attention once again in the wake of two recent decisions from the National Labor Relations Board (“NLRB”). So, what is a micro-unit, exactly, and why should employers care about this legal catchphrase?

A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent. For decades, the NLRB held that where employees share a “community of interest” (common management, similar wages and skills, working conditions, etc.) that the appropriate bargaining unit was a “wall-to-wall” unit of all the employer’s similarly-situated employees. To establish a smaller sub-unit or micro-unit of employees, a party needed to show that the interests of the employees in the smaller unit were “sufficiently distinct” from those of other employees.

In 2011, the NLRB took a drastic departure from this principle with its decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). Under Specialty Healthcare, a presumptively appropriate bargaining unit is any “readily identifiable” group of employees who share a community of interest. The burden is on the employer to show that excluded employees share an “overwhelming community of interest” with the proposed unit and should be included. In 2013, the Sixth Circuit affirmed the NLRB’s decision in Specialty Healthcare. The change is both important and detrimental to employers because a union requires 50% + 1 of the votes of any group it seeks to represent to automatically become the unit’s certified bargaining representative. From a common sense perspective, any union will have an easier time convincing 4 out of 7 employees to join a bargaining unit, as opposed to convincing 40 out of 70 to do the same thing.

Specialty Healthcare involved healthcare workers, but the NLRB’s recent decisions affect the retail industry, specifically, department store giants Macy’s and Bergdorf Goodman’s. For information about how the NRLB applied its precedent in Specialty Healthcare to the employees of these stores, check back on Wednesday.

Amanda Stubblefield






Amanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

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Job Descriptions & Performance Reviews – a Recap of the McBrayer & Business First Seminar

Just yesterday, Business First and McBrayer sponsored the second part of a two-part seminar entitled “Lessons in Workplace Liability.” Amy D. Cubbage and Cynthia L. Effinger, McBrayer Employment Law attorneys, explained to attendees how job descriptions and performance evaluations can be used as powerful legal tools to limit liability for discrimination-based claims. If you were not able to attend the seminar, but would still like a copy of the materials, contact McBrayer’s Marketing Director, Morgan Hall at or 859-231-8780. We have also summarized some of the information shared by the presenters below.


McBrayer: What’s the big deal with a job description? Why is it so important?

Cubbage: Job descriptions have always been an important HR component.  A good job description helps an employer through the entire hiring process – from recruitment to setting compensation levels to assessing training development needs. A great job description also comes in handy later – when it is time to assess the employer’s performance and make decisions based on that performance.

McBrayer: How can a job description aid an employer in the wake of a discrimination claim?

Effinger: Let’s imagine an ex-employee is making a claim that his previous employer violated the Americans with Disabilities Act (“ADA”) by terminating him after he became disabled. The ADA states that a qualified individual with a disability is “one who can perform the essential functions of the job with or without a reasonable accommodation.” If he could not perform the essential functions of the job without an accommodation, then terminating his employment was not in violation of the ADA. What are the “essential functions” of the job? These should be outlined in your job description, which can then be used as evidence to show a lawful termination.

McBrayer: What is one of the biggest no-no’s you see with employers’ job descriptions?

Effinger: Too often, an employer will describe the kind of employee they are looking for instead of describing the qualifications. For instance, stating that you are looking for a “young and energetic” employee can be unlawfully discriminatory toward older candidates. What are you really looking for? Stating that you want someone who is “willing to learn” or “available for training” can accomplish the same objective.

McBrayer: Any practical tips for someone writing a job description?

Cubbage: A job description is always subject to change. It should be a living document – revised when necessary. Be sure to include a disclaimer that states (1) the description is subject to change; (2) management retains the right to assign or reassign duties at any time; and, (3) the description does not limit tasks that can be assigned. Date the document and review it for accuracy each time the job description is posted for an opening.

McBrayer: Performance reviews are often considered a necessary evil – they are not something typically met with enthusiasm. Why are they important?

Cubbage: I think performance reviews are an underutilized tool and can be a very positive thing, for both employees and management. Importantly, performance reviews can serve as an objective reason for making personnel decisions. In the event a discrimination claim arises, having a documented reason for any adverse action is extremely important. In addition to that, performance reviews, if done properly, can be a motivator and good for morale.

McBrayer: What should employers remember when it is time for employee evaluations?

Effinger: Avoid saying anything that sounds like you are singling someone out based on protected characteristics (i.e., race, religion, age, gender, disability, marital status, pregnancy or sexual preference). Some examples might include, “You let your pregnancy really interfere with your work hours,” or “You just are not old enough to understand how things work around here.” Comments like these, even if made with no ill intent, may be viewed as discriminatory if litigation results.

Cubbage: In addition to that, it is important to note that employee evaluations are meaningless if they are not truthful. Keep it professional, but candid. If a review is sugar-coated, it prevents the employee and the organization from improving. A false review could actually hurt an employer if an employee uses it in an employment action to show that they were a “good employee.”

Thanks to Business First for co-hosting the event and to our presenters! If you have questions or would like to know more about how a McBrayer attorney can speak to your business or group, give us a call today. Don’t forget about our next employment law seminar in October! More details on it can be found here.

Cindy Effinger





Cynthia L. Effinger is an Associate of  McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger can be reached at or at (502) 327-5400, ext. 316.


Amy Cubbage





Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or

This article is intended as a summary of state and federal law and does not constitute legal advice.

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Please join McBrayer’s Employment Litigation Group for a free seminar, offered in two locations for your convenience:


Tuesday, October 28th, 8am-12pm

Cardinal Hill Rehabilitation Hospital

Learning Center

2050 Versailles Road Lexington, KY 40504



Thursday, October 30th, 8am-12pm

Central Bank

Community Room, 2nd Floor

9300 Shelbyville Road, Louisville, KY 40222

(Includes guest speakers from benefit insurance marketing and blackstone media.)

Benefits Folders

We strongly believe that educating our clients is part and parcel of the services that we provide and helps to avoid those problems that we are called upon to address for you from time to time. We will address these latest legal updates that affect employee-related documents, including:

  • non-compete agreements
  • employee handbooks
  • social media policies
  • wellness plans
  • job descriptions and performance reviews

Please rsvp by October 21st to Morgan Hall at (859) 231-8780, ext. 196 or This presentation is free of charge and we will provide a continental breakfast.

This presentation has been approved for 3.25 HRCI credits and 4 KBA CLE hours.

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Don’t Miss Our Labor & Employment Seminar Next Week!

Date: September 16, 2014
Time: 7:30 a.m. – 8:00 a.m. -breakfast
            8:00 a.m – 9:30 a.m. -seminar
Where: University of Louisville Shelby Campus, The Founders Union Ballroom, 9001 Shelbyville Rd., Louisville, Ky. 40222

As part of Business First’s Labor and Employment Seminar Series, McBrayer attorneys explain how job descriptions and performance reviews can be a great tool to protect against employer liability risks. Get real-world advice from speakers Amy Cubbage and Cynthia Effinger on how to effectively write these documents in a non-discriminatory manner and rely on them when faced with a discrimination claim.

To register for this free event, click here.

Amy D. Cubbage

Amy Cubbage










Cynthia L. Effinger

Cindy Effinger

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Another NLRB Ruling That Employers Won’t “Like”

The National Labor Relation Board (“NLRB”) recently issued its latest decision on social media issues and employer policies.  In Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), the NLRB ruled that a Facebook discussion regarding an employer’s tax withholding calculations and an employee’s “like” of the discussion were protected by the National Labor Relations Act (“NLRA”). While the NLRB has long been concerned with protecting employees’ rights on social media, this marks the first time that the NLRB has held that merely clicking a “like” button can be protected, concerted activity.

Woman Clicking Like Button. She Likes It!

The incident arose when a former Triple Play employee posted the following status update on Facebook, “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!” Several Facebook friends posted comments in response, including two of Triple Play’s then-current employees.  One employee commented, “I owe too.  Such an asshole.”  A second employee liked the former employee’s status update, but posted no comment.  When Triple Play discovered that two of its employees had participated in the Facebook discussion, it terminated them both. The employees sued for wrongful discharge. The administrative law judge (“ALJ”) found that the Facebook discussion was concerted activity because it involved current employees engaged in an ongoing sequence of discussions about employment conditions, specifically, the employer’s calculation of tax withholdings.

On appeal, the NLRB upheld the judge’s opinion. The NLRB then underwent a detailed analysis of the “like” action, “We interpret [the] ‘Like’ solely as an expression of approval of the initial status update. Had [he] wished to express approval of any of the additional comments emanating from the initial status update, he could have ‘Liked’ them individually. Determining what the “like” was in reference to was important because the employer alleged that the follow-up comment was defamatory and not protected pursuant to Section 7. Triple Play suggests that the NLRB will analyze individual “likes” to determine the specific post for which it demonstrates support.

The NLRB also went a step further by finding that Triple Play’s “Internet/blogging” policy was unlawful because it was aimed at preventing employees from saying negative statements online, and therefore was an effort to chill protected, concerted activity.

It cannot be emphasized enough that employers should consult with counsel before firing an employee for allegedly defamatory or inappropriate speech that takes place on social network sites. In addition, it is critical that employers work with counsel to draft an appropriate social media policy that can pass muster under the NLRB’s highly subjective and challenging standard.

Amy Cubbage

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or

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Employer Wellness Plan Under Attack by the EEOC

The U.S. Equal Employment Opportunity Commission (“EEOC”) has filed its first lawsuit directly challenging a wellness program under the Americans with Disability Act (“ADA”). The case, EEOC v. Orion Energy Systems, was filed in the U.S. District Court for the Eastern District of Wisconsin.

The EEOC is alleging that Orion penalized an employee in 2009 after she declined to participate in the company’s wellness program by requiring her to pay her entire health care insurance premium, in addition to a $50-a-month nonparticipation penalty. Shortly thereafter, the employee was fired – a move that the EEOC believes was retaliatory. Further, the agency contends, Orion required medical examinations and made disability-related inquiries that were not job-related or consistent with business necessity.

The ADA limits the circumstances under which an employer may require physical examinations or answers to medical inquiries. Examinations and inquiries are permissible, but only if participation in an employee wellness program plan is voluntary. Orion’s program, according to the EEOC, was not voluntary because it penalized the employee when she declined to participate.

Employers who want to implement an employee wellness plan must ensure that the plan is compliant not only with ADA requirements, but also with the Affordable Care Act (“ACA”). See more on the ACA’s requirements, which are relatively new, here and here

The EEOC’s press release announcing the suit states that 94% of employers with over 200 workers offer some sort of wellness plan, as do 63% of smaller employers. That means that there is a lot of potential for liability when it comes to wellness plans. If you have questions about yours or would like to consult with legal counsel before implementing a program, contact McBrayer’s Employment Law attorneys today.

 Preston Worley

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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