The Employer Handbook Blog

The U.S. Chamber of Commerce is hot! 

How hot is the Chamber? Hotter than Paris Hilton humming an 80's Buster Poindexter tune. (Actually, she abandoned her trademark exclamation "That's Hot!" for "That's Huge!").

Maybe not quite Josh Hamilton hot. But, way hotter than the mature offspring of an encounter involving Zac Efron traveling back in time to impregnate an early-90s Cindy Crawford. I would not want to stand next to the Chamber's fire right now. Sammmmmokin'!

I teased it two weeks ago, the day after the NLRB's election rules took effect, when I posted that the new rules may get derailed. Well, sho-nuf, that's what happened yesterday as a DC federal court ruled (here) that the National Labor Relations Board lacked authority to implement its new "quickie" election rules. (This on the heels of the Chamber winning an injunction against the NLRB's union-rights poster requirement).

And why did the NLRB lack authority to implement these rules? The DC court explains by citing Woody Allen:

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. Indeed, it is the only thing that matters - even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.

Put simply, it takes three Board members for the Board to do business. So says the U.S. Supreme Court in New Process Steel, L.P. v. NLRB. As to the new election rules, the DC court recognized that the Board only had two members participating in approving a final version of the rule. So, those rules don't count.

Expect this decision to be appealed. In the meantime, the new quickie election rules get tabled.

Section 7 of the National Labor Relations Act protects the rights of employees to discuss wages and other benefits with each other and nonemployees. By maintaining a rule that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

How does this play out in the real world? Find out after the jump...

Continue reading "NLRB: Barring employees from discussing salary is a bad idea" »

Two quick updates for you today; one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB "quickie" election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday's post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. We know now that employers that violate the law will be subject to civil fines of up to $10K. The Secretary of Labor may also seek injunctive relief. However, the federal law does not mention a private cause of action for individuals.

Unlike the legislation passed in MD, there is no safe-harbor that would allow an employer to require or request that an employee provide the employer with access to a social media account to investigate, for example, an allegation that the employee downloaded the employer's proprietary data without authorization.

Additionally, the federal legislation would also prohibit grade schools and universities from getting social-media login information from students.

"Blueprint"? Word. But, do you know how tough it is to find a blog-appropriate Jay-Z hit? Hmmm...let's try this one.

On Tuesday, the National Labor Relations Board's "quickie" election rules survived a Senate challenge. Next week, April 30 to be exact, they go into effect. Hey! Isn't that when the poster rules go into effect, too? Psyche!

photo © 2011 Mortimer62 | more info (via: Wylio)In anticipation of April 30, employers will want to familiarize themselves with this memo from NLRB Acting General Counsel Lafe Solomon -- we are presenting at the same event today -- discussing the new representation case procedures. The guidance covers the entire representation case process from beginning to end, incorporating to the extent necessary the new rules and the procedures that remain unchanged.

And if you don't feel like plowing through a 24-page memo, the General Counsel's office also issued a set of Frequently Asked Questions explaining the Board's revised rules and the procedures.

Although the new "quickie" election rules do not set new, specific timeframes for conducting hearings or elections, it appears likely that the time from petition to election will decrease. So, now is the time to do something about possible unionization of your workforce so that, if a  Representation petition is filed, your business is prepared to respond.

Last week was not so good for the National Labor Relations Board. The DC Circuit iced a Board rule that would have required most private-sector employers to post a notice in the workplace informing employees of their right to form a union.

Yesterday, however, the pendulum swung the other way and employers may soon be feeling the heat as we are now that much closer to expedited union elections.

Feel the heat? Iced a Board rule? Am I firing up a cool tune from Foreigner or Katy Perry after the jump? Guilty as charged. Plus, click through for details on how faster union elections may soon be coming to your workplace, and possibly another unwelcome surprise (hint: four letters, sounds like EFCA)...

Continue reading "NLRB "quickie" election rule survives a Senate challenge" »

Remember my post from Monday? The one where I told you that two federal courts were at loggerheads over whether the NLRB could force private employers to post this notice in the workplace.

Well, about that. Eyes on me.

Two other men in black (and one woman in black) have officially changed the game. Dramatically. Click through for the details...

Continue reading "The NLRB officially delays the mandatory union-poster rule" »

I've beaten it to death on this blog.

The National Labor Relations Board created a rule that will require most private-sector employers to post this notice, in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

Here's the latest...

In March, a DC federal court upheld the rule. On Friday, a federal court in South Carolina shot the rule down. Randy Johnson at Free Enterprise has more on that decision.

Post it? Or don't post it?

If you live is DC, you need to post the notice. And if you live in SC, you can trash it. But what about the rest of us?

Good question. IMH(non-legal-advice-giving-non-attorney-client-relationship-creating)O, I say that, until a court in your state gives the yay or nay, post it. (Although, I would not be surprised to see the NLRB delay the April 30, 2012 posting deadline again).

Put the poster up right next to the other laminated posters that your employees pass by every day and, likely, may have never read. And if you are really concerned about the message it sends, consider a second posting advising employees that while they have the right to unionize, there are many good reasons to remain union-free. Also, train your supervisors and managers about how to address employee questions about unionization, which is something you should be doing anyway.

Ultimately, if you don't give employees a reason to unionize, a 11" x 17" NLRB poster won't mean squat.

Last week, Jon Hyman at the Ohio Employer Law Blog was on point with this good post discussing a recent National Labor Relations Board Administrative Law Judge decision. The case involved what the NLRB General Counsel believed was an overly-broad social media policy in two regards:

• It banned employees from using social media to comment on work-related legal matters; and


• It required company-permission be given before employees post images/video online.

Continue reading "Do your confidentiality agreements pass muster with the NLRB?" »

On Employment Legislation:
Just when you thought you had the employment law landscape figured out, along comes pending legislation that could change everything. From age discrimination claims to workplace flexibility to unionization and labor organizing, new bills in the House and Senate may change the way you run your business. Here I am discussing all that jazz with Stephanie Thomas at the Proactive Employer.

On Social Media:
Last week, Jennifer King got my take on employers using social networks to check up on potential job candidates. Jennifer is an HR Analyst who writes about human resources systems for Software Advice, a company that compares and reviews HR software. She writes about trends, best practices, and technology in the HR market. Read the full article, "The Internet Persona: What Recruiters Want to Know About You", on her HR blog.

On Slides:
Last, but not least, it's Brooks Meyer starring in "That 70s Slide Show", featuring Ivy Meyer on the mat and yours truly in his directorial debut. Now, I'm only one SAG card and a few dozen credits behind my cousin.

Yawn...

The Acting General Counsel of the National Labor Relations Board recently released a 10-page summary of operations for FY 2011. But, you can find a short summary here.

Here are some stats that caught my attention (relatively speaking, of course):

• In FY 2011, the Regional Offices issued 1,342 complaints as compared to 1,243 in FY 2010.


• The Regional Offices recovered $60,514,922 on behalf of employees as backpay or reimbursement of fees, dues, and fines in FY 2011, compared to $86,557,684 in FY 2010.


• In FY 2011, the median time to proceed to an election from the filing of a petition was 38 days, the same rate achieved in FY 2010, "and well below our target median of 42 days." (NLRB's words, not mine. And they want to "streamline" the election process because...)

Below are summaries of four pieces of legislation of which employers should take note:

Protecting Older Workers Against Discrimination Act. Senator Tom Harkin (IA-D) introduced this bill last week. It would overturn the U.S. Supreme Court's decision in Gross v. FBL Financial Services, Inc. and lower the burden of proof for employees to prove age discrimination claims.




National Right to Work Act. Senator Jim DeMint (SC-R) has introduced this bill to "preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities."




Working Families Flexibility Act. Late last month, Rep. Carolyn Maloney (NY-D) and Senator Robert Casey (PA-D) introduced this bill in both the House and Senate. In effect, it would create a statutory right for employees to request flexible work terms and conditions. Employers who receive such requests must then engage in an interactive dialogue with the employee.




Keep Employees' Emails and Phones Secure Act. This bill from Rep. Sandy Adams (R-FL) would "prohibit the National Labor Relations Board from requiring that employers provide to the Board or to a labor organization the telephone number or email address of any employee."

Gun to my head, none of these bills pass. But, all are worth watching. And speaking of watching, in the spirit of this post, below is the "I'm Just a BIll" Schoolhouse Rock video. You can also find the Simpsons parody here.

Huge h/t to the Washington DC Employment Law Update for some of these goodies (not the video, just the bills).

I'll tell you why, after the jump...

Continue reading "Baseball has a new social media policy. And it may be unlawful." »

Back on August 26, in this post, I gave the heads up that the National Labor Relations Board would require most private-sector employers to post this notice (a super-sized version of the one on the right), in a conspicuous location, informing employees of their rights under the National Labor Relations Act, which includes the right to form a union.

And then some employer groups went to court because they don't like NLRB posters. In response, the NLRB slowed its roll not once, but twice, delaying the postponing the posting deadline until April 30, 2012.

Now a federal court has weighed in on the posting requirement. What did it say? And will your business have to post something by April 30, 2012. Find out after the jump...

Continue reading "Up with NLRB employee-rights posters, or suffer ze consequences" »

Yesterday, the National Labor Relations Board announced in this press release that it had issued a second social-media report to help provide further guidance to practitioners and human resource professionals.

What does that report say? And how can you bulletproof your social-media policy?

Find out after the jump...

Continue reading "3 ways for HR to avoid unlawful, overbroad social-media policies" »

No inflatable rats here, folks. Just some organizing shenanigans.

Last week, the National Labor Relations Board was tasked with determining whether a union may use the photograph of an employee, without his authorization, on union-organizing materials. Click through to find out how the NLRB decided this one...

Continue reading "Say cheese! Thank you for supporting organized labor." »