Tag Archives | NLRB

Worried about the NLRB poster? Fuhgeddaboutit

By on May 8, 2013 in Best Practices, management, NLRB, Our Blog

If you are like most HR professionals, you’ve got a running list in your head of things to worry about.  I’m happy to detract from the list.

You may recall that last year the NLRB tried to institute a rule requiring all employers — whether unionized or not — to put up a large poster detailing employees’ rights to unionize and to engage in protected concerted activity under the NLRA.  After much delay and back and forth between the courts, the D.C. Court of Appeal just issued a ruling nixing the poster requirement.

You’re welcome.

anti-nlrb

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Investigation alert: The NLRB takes aim again at confidentiality

By on January 9, 2013 in Our Blog

Last year I blogged about the Banner Estrella case, where the NLRB held that workplace investigators may not uniformly ask witnesses to maintain confidentiality, arguing such requests could interfere with “protected concerted activity.”  (See here for the post).  It was big bad news to those of us in the world of workplace investigations, as the NLRB challenged a best practice.  We investigators typically ask witnesses for confidentiality as a matter of course in order to protect the integrity of the investigation.  The NLRB’s decision left us scratching our heads and rethinking our strategies.  Well, the NLRB has done it again.

In American Baptist Homes of the West d/b/a Piedmont Gardens, the Board examined a union request following the termination of an employee caught sleeping on the job.  The union wanted to see all witness statements collected during its investigation into the alleged misconduct.  The employer objected to the request, relying on prior Board precedent.  The NLRB overruled its prior bright line rule protecting witness statements and instead adopted a balancing test.  Under this standard, if the information requested is relevant (an easy standard to meet), the party opposing production based on confidentiality must prove “that a legitimate and substantial confidentiality interest exists, and that it outweighs the requesting party’s need for the information.”

Piedmont Gardens is a pro-union decision that impacts workplace investigations in a union setting.  If confronted with a union request for witness statements following an investigation, play it safe and consult with counsel.

 

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Breaking News: NLRB upholds two employment at-will clauses

By on November 1, 2012 in Our Blog

The NLRB’s Office of Public Affairs released a statement yesterday confirming that Acting General Counsel Lafe Solomon found at-will clauses in two employee handbooks to be lawful under the NLRA.  This is big news, as the NLRB has taken an increasingly adversarial stance towards facially neutral employment policies, concluding many of them violate the right (for all employees, unionized or not) to engage in “protected concerted activity,” a linchpin of the Act.

Here are the two clauses, and the Board’s rationale as to why they are lawful.

1.  A California transportation company’s handbook states that employment is at will and may be terminated at any time.  It continues “No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the President of the Company has the authority to make any such agreements and then only in writing.”  According to the Board, this clauses recognizes that at-will employment can be changed, but only in limited circumstances (i.e., by the President in writing).  Thus, employees could not reasonably assume their NLRA rights were being thwarted.

2.  An Arizona restaurant’s handbook defines at-will employment and states “No representative of the Company has the authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship.”  This clause too is lawful, because the policy does not require employees to agree that at-will employment cannot be changed.  It simply highlights that the employer’s representatives are not authorized to change it.

I’m surprised by #2 — I would have guessed, based on the NLRB’s recent activity, that the Board would have struck that one down (I don’t think they should; I just think their recent (il)logic could have taken them to that conclusion).  So this is indeed great news.  Could it be that the NLRB is getting more reasonable when it comes to employment policies and the ability of employers to enact reasonable workplaces rules?  A girl can dream.

 

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Free webinar on NLRB confidentiality issues

By on October 12, 2012 in Our Blog

Have you been concerned about the NLRB’s recent decision in Banner Estrella Medical Center, where the Board held an investigator’s routine and typical admonition that the complainant keep the ongoing investigation confidential violated the NLRA?  If so (and anyone who does workplace investigations should be nodding their head), you’re in luck.  My good friend and colleague Allison West is presenting a free webinar on October 18 from 2-3 EST.

Allison is a tremendous source of knowledge and a fantastic speaker.  To take advantage of her insights, register here.  Did I mention it’s free?

 

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And the NLRB saga continues

By on October 5, 2012 in Our Blog

Next week I will be speaking at the Atlanta HR Star conference.  One of my sessions is about what the NLRB has been up to lately.  This could be a several day seminar, as the NLRB has been so activist in its attempts to insert itself into workplaces all over the country, unionized or not.  Lucky for the attendees, I do not have that much time.  But there have been a couple of doozy’s that have come out in the past couple of weeks that every HR professional should know about.

The context: You probably already know the Board has been crazy busy trying to stay relevant for the 93% of American workplaces that are non-unionized.  It added a page to its website on June 18, 2012 dedicated to just that (the “protected concerted activity” page).  And it’s been striking down all kinds of seemingly innocuous policies on the grounds that they interfere with employees’ rights to engage in protected concerted activity.  It’s hard to keep up with the flurry of activity.  (But here’s a great resource if you want to see everything that’s been going on: Ohio Employer’s Law Blog)

Here’s the latest.  In Karl Knauz Motors, Inc. the Board held the employer’s “courtesy policy” was unlawful.  The policy provided:

Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board concluded this policy could be reasonably construed by employees as limiting their right to engage in protected concerted activity.  Seems like quite a stretch, no?  But this is the Board’s position these days.

On a positive note, the Board actually upheld the employer’s termination of an employee based on his social media activity.  Yep, that’s right, it ruled for the employer on this issue.  The employee had criticized a co-worker for letting the 13-year old son of a customer sit behind the wheel of the car (which ended up in a nearby pond) and posted pictures of the errant vehicle on Facebook.  Not protected concerted activity, according to the Board.  (Ah, common sense prevails!)

So what’s an employer to do?  Pay close attention.  Be very careful in reviewing and drafting policies and terminating or disciplining employees based on social media activity.  And most importantly, consult with counsel.  This area is a mess and even the savviest among us does not know which way the wind will blow.  But we can help you make informed decisions.

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“Confidential” workplace investigations

By on August 20, 2012 in Our Blog

Between a family vacation and a number of investigations I took a couple week hiatus from blogging.  But I’m back, and there’s a lot going on in the HR world.  One hot topic I’ve read a lot about recently concerns a relatively standard practice in workplace investigations: telling participants not to discuss the ongoing investigation with others.  I typically ask witnesses to keep our conversation to themselves.  Why?  It protects the integrity of the investigation.  It (ideally) prevents the rumor mill from getting out of hand.  It increases the likelihood that when I speak to witnesses for the first time I am getting unrehearsed, non-orchestrated answers to my questions.

Some employers have policies telling employees that they are not to discuss ongoing workplace investigations, and that doing so could result in disciplinary action.  Others simply request confidentiality of witnesses as a matter of practice.  In the world of workplace investigations, though, confidentiality is considered a “best practice” and a standard one, at that.  But, the NLRB recently took the position that simply requesting witnesses not to discuss the investigation interfered with “protected concerted activity” under the NLRA. (The case is Banner Estrella Medical Center, and you can read a great analysis of it from Jon Hyman of the Ohio Employer’s Law Blog here).  Adding insult to injury, the EEOC recently joined the bandwagon by asserting an employer’s policy telling investigation participants not to discuss the ongoing investigation violates Title VII (allegedly by interfering with “protected opposition”).

Neither of these positions make any sense.  Workplace investigations are one of the key tools employers have to address and redress harassment and discrimination in the workplace.  These agency attempts to allegedly protect employee rights serve no valid purpose.  Rather, they will simply undermine the integrity of workplace investigations.

The story is not over yet.  For now, I think employers should hold on to their hats, stand by their policies and/or practices concerning confidentiality in investigations, and wait to see how this whole debacle shakes out.

 

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The NLRB takes aim at at-will employment

By on August 2, 2012 in Our Blog

I spoke at the HR Star conference in Cleveland last week and one of my topics was the NLRB: what the agency has been up to and how it has been doing its darndest to stay relevant in a world that is less and less unionized.  It’s done a fine job, finding creative ways to insert itself in workplaces across America, unionized or not.  It recently created an entire web page devoted to “protected concerted activity,” explaining to employees that they have rights in this arena regardless of whether they are represented by a union.  The page (click here to see for yourself)  contains a map of the U.S. with illustrative cases mapped out from coast to coast, showing how the NLRB “protected” employees from employer attempts to restrain or punish “protected concerted activity.”  One of the most widely talked about ways the NLRB has done this is in the arena of social media.  There have been a whole bunch of cases where the NLRB has stepped in to smack down an employer who punished an employee for, for example, Facebook postings critical of the employer.  Acting General Counsel Lafe E. Solomon has already issued three reports dedicated to this topic alone (click here for more info).  The upshot of all this activity is that employers are finding themselves increasingly restrained in dealing with all kinds of employee (mis)conduct.  Think you can discipline an employee who goes online to gripe about a supervisor or other employment issues?  Think again.

Just when I thought the tide has got to turn, the NLRB is now taking aim at at-will employment.  You know, the doctrine that provides an employer is free to terminate the employment relationship at any time for any reason (other than an illegal one, like discrimination), and the employee has this same right.  If you have a handbook (which you should), I’d bet my bottom dollar it’s got at-will language sprinkled throughout.  The NLRB has recently taken the position that an at-will disclaimer that essentially says “nothing can change the at-will nature of the employment relationship” violates the NLRA in that it implies employees cannot engage in protected concerted activity to change the at-will nature of the relationship.  (See American Red Cross Arizona Blood Services Division).  Even scarier, the NLRB filed a complaint against Hyatt Hotels, whose at-will disclaimer was narrower than the Red Cross policy.  Hyatt’s clause stated “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.”  The import?  Employees can try to change their at-will statement, via concerted activity or otherwise.  What would the Administrative Law Judge have ruled?  We won’t ever know, because Hyatt settled.  I sincerely hope this clause would have been upheld.

The NLRB is headed down a path that is dangerous for employers.  Employment practices we have taken for granted for decades are now being challenged.  The NLRB’s newest encroachment pertains to workplace investigations.  As a workplace investigator, I’m concerned.  I’ll get to that one soon.

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Think you only have to worry about the NLRB if you have unions? Think again

By on June 20, 2012 in Our Blog

The NLRB has been incredibly activist in expanding its reach to the non-unionized workplace.  Its recent stance on social media policies is a prime example.  This week, the Board launched a webpage describing Protected Concerted Activity (along with state by state links to NLRB cases).  Protected concerted activity refers to any effort by a group of employees (generally defined as more than one employee — though sometimes one is enough, per the Board) to improve their working conditions.  This includes griping about pay, supervisors, schedules, you name it.  The Board is going after non-union employers across the country, looking for potential violations.  One recent example, highlighted on the NLRB’s webpage, is as follows:

A licensed practical nurse was fired after she complained to her boss at a pharmaceutical research firm that other employees were receiving special treatment. The Board found the employer violated the National Labor Relations Act by firing the employee to prevent her from talking about her complaints of favoritism with co-workers.

The employer settled by agreeing to pay $250,000 to the nurse.

What does this mean for you?  Pay attention to the NLRB.  Make sure your policies do not run afoul of their recent guidelines.  Train your managers on protected concerted activity: what it is, what not to do when faced with it.

 

 

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NLRB’s quickie election rule struck down

By on May 15, 2012 in Our Blog

Recently, the NLRB’s employee rights posting rule was struck down.  But the “quickie election” rule, which drastically sped up the union campaign and election process, remained.  Until now.  The D.C. District Court struck down the rule last week because there was no quorum present for the final vote.  In Chamber of Commerce v. NLRB, the court quipped:  ”According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”

So the quickie election rule is dormant for now.  Stay tuned to find out if it is resurrected.

 

 

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NLRB Posting Requirement Postponed Yet Again

By on April 17, 2012 in Our Blog

Breaking news: don’t hang those NLRB Employee Rights posters just yet. A federal court in D.C. just barred the NLRB from implementing the poster rule on April 30 pending a current appeal. Stay tuned as the dance between the NLRB and employer groups continues. It’s not yet clear who will take the lead.

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The clock is ticking: NLRB changes quickly approaching

By on April 11, 2012 in Our Blog

As I’ve mentioned before, on April 30, 2012 the NLRB rule requiring employers to post a new Employee Rights poster goes into effect.  You can get the poster here.  The posting requirement applies to virtually every employer, regardless of whether they are unionized.  Also happening on April 30 is the implementation of a new Board rule concerning quicker union elections.  The rule is a remnant of the proposed but never implemented EFCA (Employee Free Choice Act) that got loads of media attention a couple of years ago.  The impact of this new rule could be huge.  It will shorten the amount of time between a union petition and the vote.  Currently, there are an average of 38 days in between a petition and the actual vote.  This gives employers several weeks to prepare and implement a strategy to deal with the possibility of becoming unionized.  This is about to change to a likely 10-21 day window between a petition and a vote.  That’s not a lot of time considering it takes most employers 1 to 2 weeks to even fully digest the fact that they are facing the real possibility of unionization.

If you’ve not started thinking about these changes, now is a good time.  Get ready to post and do some management-level training on how to deal with the possible uptick in union activity.

 

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So what can you say to employees about unions?

By on March 28, 2012 in Our Blog

With the NLRB poster deadline quickly approaching, it’s a great time to reacquaint yourself with the rules about what employers and managers can say to employees when it comes to the possibility of a union.  An employer may lawfully urge employees to vote against a union and can express its opinions and beliefs as to why unionization would be bad for employees.  An employer may not, however, threaten, interrogate, make promises, conduct surveillance of or otherwise coerce employees with respect to unionization.  How do you distinguish between what is permissible and what could constitute an unfair labor practice?  Check with counsel.  Or have an expert train your managers on the do’s and don’ts.  They can be tricky.

An example of a permissible communication:  “I understand some of you are considering supporting a union and I think it’s a big mistake.  My father spent his whole life in a union and he never got anything good out of it.  Instead, he spent his career paying union dues.”

An example of an impermissible communication: “I understand some of you are considering supporting a union.  It’s your choice, but if a union comes in I don’t know if we’ll even be able to stay in business.  We might have to move our production to Mexico.”

What’s the difference?  The first statement reflects on opinion based on personal experience.  The second contains an implied threat of a shutdown.

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NLRB back in action

By on January 5, 2012 in Our Blog

Yesterday President Obama made three recess appointments to the NLRB: Sharon Block (Democrat), Terence Flynn (Republican) and Richard Griffin (Democrat).  Prior Board member Craig Becker’s appointment ended at the end of last month, leaving the Board without the necessary five person quorum to continue operating.  Labor supporters lauded the move, which empowers the NLRB to continue its efforts to advance workers’ rights.  Republicans decried it, claiming it’s just another example of an out-of-control bureaucracy.

What does this mean for employers?  The appointments may well be the subject of extensive legal battles.  For now, though, Obama’s move enables the NLRB to keep on keepin’ on.  So employers should proceed as they have been in terms of all things labor.  As one example, expect to hear more from the Board on when and under what circumstances employers can take action against employees for their use of social media outlets to criticize their jobs.

 

 

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I blogged about the NLRB poster too early! (Read on)

By on December 23, 2011 in Our Blog

I actually wrote this morning’s blog about the NLRB poster requirement yesterday.  I just this second learned (thanks to Jon Hyman’s awesome blog) that the employee rights posting requirement has been delayed until April 30, 2012.  Turns out the Board heeded the D.C. judge’s advice (see today’s earlier post).  So kick back and wait to see how this one plays out.

Happy Holidays!

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When Facebook Gets You Fired

By on December 5, 2011 in Our Blog

If you’ve been following employment law trends at all, you know a rising issue is the NLRB’s stance that some employee rants via social media outlets are “protected concerted activity” under the NLRA.  Thus, an employer who fires an employee for complaining about work in general or his or her supervisor in particular runs the risk of incurring the NLRB’s wrath.  The contours of what constitutes protected activity and what doesn’t are murky, and the NLRB is defining them on a case-by-case basis.  So a paramedic who was fired after calling her supervisor a “scumbag” on Facebook engaged in protected activity, according to the NLRB, while a Frito-Lay warehouse employee who was fired after posting on Facebook that he was a “hair away from setting it off” did not.  The agency focuses on a couple of primary factors in making this determination, including whether the comment was part of a group discussion (concerted activity) and whether it concerned terms and conditions of employment.

The Wall Street Journal reported last week that the NLRB has received 113 complaints about violations related to social media since May 2011.  Compared to just a handful of complaints received in the few months prior, this number reflects a growing trend.  So what is an employer to do?  First, have a social media policy.  Second, check with counsel to make sure the policy does not infringe on workers’ rights under the NLRA.  Third, as with all policies, enforce it consistently.

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Hold off on posting the new NLRB poster

By on October 7, 2011 in Our Blog

A couple of days ago the National Labor Relations Board issued a press release announcing its decision to postpone the start date for posting the new NLRA rights notice.  The notice, which explicitly spells out employees’ rights to organize and engage in other “protected activity” under the NLRA, was originally required to be posted in all places of employment on November 14, 2011.  The new implementation date is January 31, 2012.  But, stay tuned.  The NLRB explained its decision as a way to continue and explained education and outreach efforts.  However, the intense anti-posting lobbying the NLRB has faced has almost certainly contributed to the postponement, and query what the final result will be.

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Firing over Facebook post gets NLRB riled up

By on November 4, 2010 in Our Blog

The intersection of social media and employment law has been the topic of much commentary (including by us).  The general wisdom is that employers should adopt a social media policy and strictly enforce it to protect itself from, among other things, employees bad-mouthing the employer via social media, such as Facebook.  A recent lawsuit filed by the Hartford, CT office of the NLRB throws a complicating angle into the mix.

The NLRB has sued American Medical Response of Connecticut, Inc., based on the ambulance services’ termination of an employee following her posting on Facebook.  The employee complained about her supervisor and co-workers commented on her post.  She then continued to criticize the supervisor.  She was fired three weeks later.

While significant proof issues remain over the reason for the termination, the NLRB has taken the position that firing an employee based on a Facebook post violates the National Labor Relations Act by interfering with “protected concerted activity,” the Act’s linchpin.  According to the NLRB, the employer’s policies barring employees from making disparaging remarks when discussing the company or its supervisors are unlawful.  ”Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”  A hearing before an administrative law judge is set for January 25, 2011.

This case is one worth following.  If the judge rules in favor of the NLRB, the employer will find itself stuck between the proverbial rock and hard place, needing to navigate between protecting itself from risks inherent in employee use of social media and not impinging on employees’ right to consult with one another on issues pertaining to the workplace.  It will be a tricky balancing act, to be sure.


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National newsflash

By on March 29, 2010 in Our Blog

A couple of major employment/labor law developments happened in the last week, and I would like to thank my fellow blogger, Jon Hyman of the Ohio Employer’s Law Blog, for his timely recaps, which I summarize here (disclaimer: this is not my most original post, but it does contain some relevant and timely information for all you employment and labor law geeks out there, like myself).

Jon came out with a special, Sunday-edition post yesterday, wherein he chronicled President Obama’s recess appointment of attorney Craig Becker to the National Labor Relations Board.  Becker’s appointment is expected to have far-reaching consequences for the NLRB, as his admittedly pro-union stance (Becker is the associate counsel of the Service Employees International Union, one of the most powerful unions in the country) is well-established.  Expect lots of commentary in the coming weeks and months as this story develops.

In other news, the Supreme Court agreed to hear a case that will decide whether verbal complaints of violations under the Federal Labor Standards Act (“FLSA”) are covered by the statute’s anti-retaliation provisions.  There is currently a circuit split, which the Court will resolve.  A ruling that oral, unwritten complaints are protected would have significant consequences for employers, who would need to train all managers to appropriately respond to any such complaints.

Lastly, the Supreme Court heard oral arguments in another labor-related case, where the legality of decisions issued by a two-member NLRB over the past couple of years is at stake.  Stay tuned for the Court’s outcomes.

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