It's easier than you think. Indeed, a recent decision from the National Labor Relations Board bears this out.
Details after the jump...
It's easier than you think. Indeed, a recent decision from the National Labor Relations Board bears this out.
Details after the jump...
Last week, the National Labor Relations Board issued this memorandum in which it has instructed regional offices to encourage employees to file complaints with the United States Department of Labor if the the regional NLRB office "believes that an employer may have violated a substantive or anti-retaliation provision of [OSHA] or the FLSA."
Remember that the National Labor Relations Act covers more than just unionized employers and workplace. For example, many of the social media cases involving the NLRB that you may have read about actually involve non-union workplaces. So, if you haven't gotten the message already, this NLRB initiative is another wake-up call to get your house in order.
Otherwise, you may have multiple federal agencies up in your business.
In a unanimous opinion delivered yesterday (here) in NLRB v. Noel Canning, the Supreme Court concluded that President Obama's so-called "recess appointments" of three of the five members of the National Labor Relations Board between the Senate's January 3 and January 6 pro forma sessions were unconstitutional.
Amy Howe from SCOTUSblog.com summarized the decision "in plain english":
"[A]ny recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment."
* * *
"[T]he Senate can prevent the president from making recess appointments even during its longer recesses by holding "pro forma" sessions - that is, sessions at which no work actually gets done - every three days."
So, there you have it. The net effect of this opinion is that any NLRB decision rendered with the three improperly-appointed NLRB members is void of lack of a quorum. (Previously, the Supreme Court held here that the Board is powerless to rule with less than a quorum of three members). Although, with a full quorum now, you'd expect that those case would eventually be affirmed.
For more on the Court's decision on NLRB v. Noel Canning check out:
- Josh Gerstein at Politico with "Barack Obama's recess gamble goes bust"
- Statement of NLRB Chairman Mark Gaston Pearce on the Supreme Court's Noel Canning Decision
- Steven Greenhouse and Adam Liptak at NYTimes.com with "Impact of the Court's Ruling on Recess Appointments"
What with me gabbing on about firefighters afraid of fighting fires, butt grabs, and some Delaware lawyer starving himself over social media, I missed this National Labor Relations Board decision, in which the Board basically held that, as long as you don't go too far and pull a Latrell Sprewell, you can curse out your boss with impunity.
Literally, you can call your boss a "f*%king crook," an "a$$hole," and "stupid" on a Friday, and still have a job to come back to on Monday.
God bless America.
For more on this Board decision, check out these posts:
- NLRB Finds Employee's Profane and Insubordinate Conduct Shielded by Protected Activity from Brennan Bolt at Labor Relations Today.
- Does new NLRB ruling mean you can't fire someone for insubordination? from Tim Gould at HRMorning.com
- Now I Have to Allow Insubordination and Verbal Abuse Too? from Christopher G. Ward at Labor & Employment Law Perspectives
- What the f? NLRB allows employee to curse out the boss from Jon Hyman at Ohio Employer's Law Blog
How many of you have social media policies, which contain a provision that reads something like this...
"If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: 'The postings on this site are my own and don't necessarily represent the positions, strategies or opinions of the Company.'"
Yeah, I write these disclaimers all the time for clients. Apparently, they're unlawful.
Or so says, an administrative law judge in this recent opinion.
In what the ALJ considered to be a matter of first impression, he found that the provision above was overly broad and discouraged the rights of employees to discuss the terms and conditions of employment:
"The requirement that a disclaimer be posted by the employee every time he or she speaks on work related issues and is identifiable as an employee of the employer, is unduly burdensome, well beyond any legitimate interest of the employer, and will have a tendency to chill legitimate Section 7 speech by the burden it brings to it. The Respondent's rule impinges on Section 7 activity beyond any reasonable accommodation with any legitimate concern."
A matter of first impression, huh?
I seem to recall the NLRB's own General Counsel blessing a social media -- heck, it was Wal-Mart's social media policy -- which had the same darn disclaimer language! You can view Wal-Mart's policy here (p. 23, last bullet).
But, the ALJ found this General Counsel guidance to be unpersuasive.
[In your face, Lafe Solomon!]
The ALJ reasoned that requiring this disclaimer for every online communication by an employee which concerns work-related information and as to which the employee is identifiable as an employee for the employer would be burdensome and overreaching.
Oh, I beg to differ. This doesn't seem overly broad or burdensome to me.
On many social media sites (e.g., Instagram, Pinterest, Twitter), an individual is unlikely to identify his/her employer. So, it's a non-issue. And, on other social networking platforms like Facebook or a work-related blog, where the individual may identify himself as an employee, is it so hard to put the required disclaimer somewhere on the site?
Even if this particular disclaimer is overreaching, surely, one could appreciate how a company wants to ensure that individuals reading online employee-speech about the company, don't mistake those words for the position of the company.
We'll see what happens if this case goes to the full Board on appeal.
If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and the workplace, by becoming a member of The Employer Handbook LinkedIn Group. Tell 'em Meyer sent you.
The third week of April ushers in several holidays: Passover, Good Friday, Easter.
But no matter what your religion or god -- even a sacrilicious ceiling waffle -- we can all agree that the Employment Law Blog Carnival, which you can find this month at Tim Eavenson's blog: Current Employment, is the workplace glory.
This month, Tim has more posts about HR-compliance than you can count on your ten fingers. So raise your hands up to the sky and shout Hosanna! The power of the #ELBC compels you!
Or, just forget my blasphemy and enjoy the carnival.
P.S. - If you're on LinkedIn, consider joining the discussion of news, trends and insights in employment law, HR, and workplace, by becoming a member of The Employer Handbook LinkedIn Group. Almost as fun as a carnival. I'm still working on getting a Tilt-A-Whirl*
(*By Tilt-A-Whirl, I mean life.)
Sorry, gang. Last night was my fantasy baseball auction. And I got home hella-late. So, no post today.
Ahhhhhh, I can't totally leave you hangin'. So, you can read about how the University of Northwestern football team can now organize and form a union (here), or you can grade my fantasy baseball team (right) in the comments below.
Oh, no. Meyer's slacking. Let the unsubscribes begin!
(Well, maybe, I can salvage this with some Adele Dazeem).
Have a nice weekend.
We've certainly seen it with respect to social media policies; especially, where these policies purport to limit the rights of employees to discuss their employment with one another. This is because Section 7 of the National Labor Relations Act allows employees to discuss their terms and conditions of employment together.
And you don't need to have a union either. The act applies in most every private-sector workplace.
So, whether it's employees gabbing about how their workplace sucks, or how they are being underpaid, you can't forbid that.
This holds true even if you have a workplace policy which categorizes wages as "confidential." The National Labor Relations Board won't have any of that.
And, most recently, the Fifth Circuit Court of Appeals reaffirmed it in this case, by underscoring that "a workplace rule that forbids the discussion of confidential wage information between employees patently violates section 8(a)(1) [of the Act]."
Indeed, even a workplace rule that doesn't expressly lump wages into the definition of "confidential information" can still be overbroad and, therefore, unlawful.
The company's "confidentiality" policy highlighted in the Fifth Circuit opinion didn't mention wages explicitly. Instead, it precluded discussion of company "financial information, including costs." Both the NLRB and the Fifth Circuit concluded that an employee could reasonably construe this language to preclude discussion of wages.
Therefore, when drafting your confidentiality policy language, consider carving out wages and benefits specifically, or more narrowly defining your confidential information so that a reasonable person wouldn't read the policy to preclude discussion of their paycheck.
Image Credit: Minneapolis Institute of Arts on Flickr
Yesterday, I read with interest Jon Hyman's post at the Ohio Employer's Law Blog about how Target has employed a 14-minute training video to help keep its workplace union free. Gawker has posted a copy of the video here. Like a bear crapping in the woods, Gawker pokes fun of the Target video. Cheesiness aside, I find it to be pretty effective.
Subaru of Wichita - 1
Local Carpenters Union - 0
And before I tell you to have a nice weekend, I'm going to ask you to save April 24 for me. On that date, along with Mary M. Tiernan of the U.S. Equal Employment Opportunity Commission, I'll be headlining a breakfast briefing at Dilworth Paxson in Philadelphia. After a few of my colleagues offer a legal roadmap for managing your aging workforce, Mary and I will address what's hot right now at the EEOC, and offer up some best practices to stay out of the crosshairs of employment litigation.
For more information about the event, click here.
Now, go on and have a nice weekend!
Back in 2011, the National Labor Relations Board tried to pass certain rules that would have changed the union-election process in eight ways:
- Allow for electronic filing of election petitions and other documents.
- Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
- Standardize timeframes for parties to resolve or litigate issues before and after elections.
- Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
- Defer litigation of most voter eligibility issues until after the election.
- Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters' telephone numbers and email addresses when available.
- Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
- Make Board review of post-election decisions discretionary rather than mandatory.
However, courts later determined that the Board didn't have the authority to pass any election-rule changes, because it didn't have enough Board members to have a quorum.
(Gawd, this post got real boring, real fast...)
So, the Board will officially publish the rules today for public comment. Here is what SHRM said about the same rules back in 2011. And here is what others are saying about the resurfacing rules in 2014:
The public will have until April 7, 2014 to submit comments.
As my buddy Rubo used to say: "It's like school on Saturday; no class."
Read all about it -- yesterday's BIG federal appellate court decision; not my buddy -- after the jump...
Before I get into the this new bill, let's clear up a popular misconception:
David Hasselhoff lives in my basement rent-free right-to-work means that an employee can be fired at any time for any non-discriminatory reason. No, dudes. That's called at-will employment.
Right-to-work laws give individual employees in a unionized workplace the right not to join or financially support the union. 24 states, plus Guam, have passed right-to-work laws. Absent a right-to-work law, all employees in a collective bargaining unit must join the union and pay union dues.
And Pennsylvania could be next.
Here is a copy of the Freedom of Employment Act. This bill, if passed, would prohibit the following conditions of employment:
- Membership.--No person shall be required to become or remain a member of a labor organization as a condition of employment or continuation of employment.
- Abstention from membership.--No person shall be required to abstain or refrain from membership in a labor organization as a condition of employment or continuation of employment.
- Dues, fees and charges.--No person shall be required to pay or refrain from paying any dues, fees or charges of any kind to a labor organization or to a charity or other third party in lieu of the payments to a labor organization as a condition of employment or continuation of employment.
Any violation of the law would be considered a misdemeanor of the third degree, punishable by a fine of not more than $1,000 or up to six months in the hoosegaw, or both. Each day of a continued violation is a separate offense.
Governor Corbett has said that he would sign right-to-work legislation if it crossed his desk.
Earlier this year, six Republican state representatives each introduced right-to-work variants, none of which gained any traction.
Ladies and gentlemen, the National Labor Relations Board is back in business.
(Well, somebody tell that to the Board, where it's been business as usual lately. More on that in a moment.)
Yesterday, the Senate voted mainly along party lines to confirm five members -- a full slate -- to the Board.
[Incidentally, Democrats and Republicans agree that this blog kicks butt. If you agree, consider nominating it for the ABA Journal's Blawg 100 Amici, its annual list of the 100 best legal blogs, which you can do here. Bipartisanship at it's best! God Bless America.]
Three Democrats and two Republicans were confirmed. Mark Gaston Pearce (D), originally appointed to the Board in 2010, was re-appointed to the Board and will serve as Chairman. The new Board members are Kent Hirozawa (D), Chief Counsel to Mr. Pearce, Nancy Schiffer (D), an attorney at the AFL-CIO, Philip Miscimarra (R), a partner in the labor and employment group of Morgan Lewis & Bockius LLP, and Harry Johnson III (R), a partner with Arent Fox LLP, who follows me on Twitter, which makes me the Board's Kevin Bacon.
Until yesterday, the Board had been operating with three members, two of whom, Sharon Block and Richard F. Griffin, Jr., were recess appointments of President Obama. Various courts of appeals had split on whether the intrasession appointments of Block and Griffin were constitutional.
Last month, the Supreme Court, which had already ruled that the Board is powerless to rule with less than a quorum of three members, agreed in National Labor Relations Board v. Noel Canning to decide the constitutional issue. But since we now have a full Board, it doesn't much matter. Indeed, any Board ruling in doubt -- quickie elections? -- is sure to be ratified with the full complement of members.
So much labor-and-employment-law news this week, I'll do what I can to cram it into a single post. Here goes...
From Seth Borden at Labor Relations Today comes this news about the Senate agreeing to -- gasp -- seat a full five-member National Labor Relations Board. How could this happen? Something about a nuclear option
and compromising photos..
Staying with the labor theme, Joel Barras at Employment Law Watch reports here about a recent advice memorandum from the NLRB's General Counsel in which the GC concludes that employers must bargain with their unions before implementing new social media policies. No shock there.
Now the bridge from labor to employment, as ESPN reports here that Major League Baseball and its union have agreed to bolster its policies against harassment and discrimination based on sexual orientation. Well done!
And finally, what would a Thursday be without an employment law blog carnival. Or a summer road trip. Or both. Robin Shea at the Employment and Labor Insider brought you both right here!
There's not a whole lot that we have in common. I'm more erudite (you know, the blog thing), better looking, and more
Given our differences, what I'm about to say may come as a surprise: when I was a associate attorney, I discussed salaries with other associates.
(I'll pause as the shock dissipates).
In my law-firm experience, discussing salaries ranks right up there with death and taxes. Over at EFCAblog.com -- you may want to update that URL, dudes -- Daniel Schudroff writes here about a small-firm associate who claimed that she was fired in violation of the National Labor Relations Act for discussing wages with co-worker.
The Act prohibits covered employers -- union and non-union -- from taking any action that would chill employee discussion of wages and benefits. However, supervisors are not protected. And in The Martin Law Group, 10-CA-078395 (Div. Judges May 6, 2013), an administrative law judge determined that the associate was actually a statutory supervisor. Therefore, she had no protection under the Act, and even if her employer had fired her for discussing wages, she had no recourse under the Act.
Mr. Schudroff summarized the ALJ's rationale:
The administrative law judge found that the associate was a supervisor for a number of reasons. First, the judge noted the firm's managing partner, without further investigation, ratified the associate's recommendation to terminate an employee. The administrative law judge also explained the associate responsibly directed a case manager to assist the associate in handling the associate's cases. The ALJ noted, however, that a small law firm -- where all attorneys were lead counsel on their own cases -- would differ from, for example, "a legal services agency employing a large number of staff attorneys who work under multiple layers of supervision."
I'm gonna go out on a limb here and say that this case will not spell the end of salary discussions at law firms -- small or large.