Articles Posted in Unions (labor relations)

Bernie Sanders by Gage Skidmore.jpgRemember the Employee Free Choice Act? Back in 2009, the Employee Free Choice Act, also known as “card check,” was introduced in both the Senate and House. The bill had three components:

  1. Requiring that an employer recognize a union if over half of the employees in the proposed bargaining unit signed union authorization cards (as opposed to voting for a union through a secret-ballot process);
  2. Expedited contract negotiations; and
  3. Harsher fines for unfair labor practices

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A breakfastEarlier this year, I shared the most unique late-to-work excuses. “I have a bad habit of eating breakfast in the morning, and I lost track of time” did not make the list. However, according to the Associated Press, a New Jersey teacher used that excuse to explain away the 111 times he was late to work.

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Apple with a bite taken out of it
In a decision issued last week (here), the National Labor Relations Board ruled that “the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7 [of the National Labor Relations Act].” So, for example, if you fire someone for filing a Fair Labor Standards Act lawsuit on behalf of himself and other similarly situated employees, then you’ve violated both the FLSA and the NLRA.

Yes, if an employer actually retaliates in that manner, shame on the company. However, two things pique my interest here:

  1. An administrative law judge concluded that the employee was fired because he filed a FLSA collective action. By this time, in the federal court action, the parties had barely scratched the surface on taking discovery and the federal court had yet to certify a class. (Ultimately, the FLSA action was settled amicably in federal court, without any finding of liability).
  2. This decision could prove incredibly broad. For example, how about an employee who claims that he was fired for participating as a witness in a workplace investigation of discrimination, or because he cooperated with the EEOC? Indeed, a logical extension of lask week’s NLRB decision is that the witness’s involvement implicates the terms and conditions of employment for at least two other employees, the victim and the alleged harasser. That sounds like Section 7 activity.

Obviously, the easy solution is don’t discriminate and don’t retaliate. But, lawsuits are based on a series of allegations. And, what percentage of employment lawsuits actually result in a finding of liability? Thus, even the appearance of wrongdoing may be enough for a second bite at the apple with an unfair labor practice charge decided by an Administrative Law Judge.

Image Credit: Grm wnr at the English language Wikipedia [GFDL or CC-BY-SA-3.0], via Wikimedia Commons

picketAn employee was caught on video saying to black employees, “Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that? I smell fried chicken and watermelon.” The company had a strict anti-harassment policy. So, after learning about the comments, the company fired the employee.

So, what would compel an Administrative Law Judge to require that the company reinstate him? Continue reading

[WARNING: This post has some VERY foul language. Although the National Labor Relations Board may tolerate it, many of you may be offended].


By now, all of us have read the articles, which claim that the law permits your employees to complain about work on social media … and keep their jobs.

Well, that’s not exactly true. The National Labor Relations Act, which applies to most private-sector workplaces — both union and non-union — protects employees who engage in protected concerted activity. Protected concerted activity is where employees discuss working conditions with one another.

But, an employee who gripes alone is not protected. Also, vulgar and obscene comments are not protected.

Until now. Continue reading

A few years ago, I posed the question: Is a workplace “English-only” rule legal? 

Yadda, yadda, yadda, sometimes.

That is, in this Compliance Manual, the EEOC confirms that employers may adopt English-only rules under certain circumstances, insofar as it is adopted for nondiscriminatory reasons (e.g., safety, business necessity) and not to discriminate on the basis of national origin. Continue reading

Before I get to a 1752-word blog post about the National Labor Relations Board going wee-wee all over your workplace Cheerios with this March 18 report from General Counsel Griffin, replete with examples of how your employee handbook is overly broad and violates the National Labor Relations Act, let me do two things:

  1. Shout out to employment lawyer and blogger Robin Shea and her fantastic job with the April Fools Edition of the Employment Law Blog Carnival. Word!
  2. The follow-up podcast I recorded with Casey Sipe and Jessica Miller-Merrell from on the FMLA/ADA/WC questions we couldn’t get to during out hour-long webinar is now available. Email me if you’d like a copy.

So, about that report… Continue reading

I had every intention of watching the President address the Nation last night. I really did.

But, then I got sucked into the Director’s Cut of The Harlem Globetrotters on Gilligan’s Island, the one where the Washington Generals show up first and replace all the confetti with lice. Then poor Lovie Howell takes some shrapnel and, frankly, I didn’t realize that Thurston could order a hit squad so quickly to a remote Island.

By the time I remembered the SOTU, the Harlem Globetrotters were busting out a ladder — sorry, Krusty — and que sera.

Fortunately for me, and, by extension, you, the White House printed a copy of the SOTU, which I could cut and paste expertly analyze for you after the jump…

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It’s on now!

Late yesterday afternoon, the U.S. Chamber of Commerce issued a press release in which it announced that it had filed this complaint in federal court against the National Labor Relations Board to strike the Board’s election rules, passed last month, which would create faster union elections.

More on this lawsuit, after the jump…

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