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...
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.
And not even the Associate General Counsel at the National Labor Relations Board could save this employee.
In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party -- and nine other people (of whom seven were current employees) participated in a private group message on Facebook. During that sesh, the Charging Party started mouthing off about his employer, saying, "They [the Employer] are full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK...FIRE ME....Make my day..."
Other than the Charging Party, no current employees took part in this portion of the conversation. Later that day, one of the silent employees showed the exchange to the employer.
And Harry Callahan promptly got his wish.
Now, if this whole situation seems oddly familiar to you, it should.
Back in January, I blogged about an employee who posted, "I wish I could get fired" on Facebook, and promptly got her wish. In that post, I discussed the concept of protected concerted activity, the right of employees in a union or non-union workplace to discuss work issues with one another, even if it's unflattering to the employer.
But, as I noted back then, while gabbing with others is protected, griping alone is not protected. This Board's Associate General Counsel applied the same maxim to the Charging Party:
In the instant case, the Charging Party's comments merely expressed an individual gripe rather than any shared concerns about working conditions. Specifically, her comments bemoaned the return of a former employee and stated that her current supervisor tried to tell her something and she told her to "back the freak off'; that the Employer was "full of shit"; and that the Employer should "FIRE ME .. Make my day." These comments merely reflected her personal contempt for her returning coworker and for her supervisor, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual "griping," and boasting about how she was not afraid to say what she wished at work.
So, next time one of your employees speaks out alone about wanting to be fired, go ahead and
accommodate that employee make his day.
(h/t Sara Hutchins Jodka @ Employer Law Report)
In a 2-1 decision issued today (copy here), the Third Circuit Court of Appeals ruled that the National Labor Relations Board lacked the authority to act as early as March 2010, when President Obama appointed Craig Becker to the Board. The Third Circuit held that Member Becker's appointment to the Board while the Senate was on an intrasession recess (a break within a session of the Senate) was unconstitutional. Implicit in the court's decision is that the appointments of Members Block, Griffin, Flynn in 2013, while the Senate held pro-forma sessions, were also invalid.
The Third Circuit ruled that recess appointments are only valid if made during intersession breaks (i.e., between sessions of the Senate).
If you do business in Pennsylvania, New Jersey, Delaware, or the US Virgin Islands, the net effect of this decision may be that, until the Supreme Court rules in this pending case, you can basically ignore just about anything* that the Board has done this decade (well, since March 2010).
* From June 22, 2010 through August 27, 2011, the Senate had confirmed enough Board members for quorum. So don't ignore that stuff.
(h/t The Volokh Conspiracy)
On Tuesday, the D.C. Circuit Court of Appeals ruled here that the National Labor Relations Board cannot require private employers -- union and non-union -- to hang this poster in a conspicuous location in the workplace. Billed by the Board as a notice advising employees of their rights under the National Labor Relations Act, many employer groups viewed the "mandatory" poster as more of an encouragement to unionize than as a neutral informational poster.
The appellate court determined that the poster rule would violate employers' free speech under Section 8(c) of the National Labor Relations Act. The appellate court also ruled that the poster rule unlawfully expanded the Board's enforcement powers.
Although this is the first appellate court to rule on this issue, another appellate court (the Fourth Circuit Court of Appeals) is poised to address this issue shortly. For now, however, even the Board has indicated that you may put the posters away.
I'll set it up for you:
You run a non-union company called RH Chili Peppers. However, one of your employees, Disgruntled Donny, has been trying to get his co-workers to help unionize the workplace. Thus far, he has been unsuccessful. So, DD takes to Facebook and posts a message bashing the wages and benefits at RH Chili Peppers on a Facebook page called, "Peter Picked a Peck," a Facebook page that DD "likes." PPaP is frequented by employees, like DD, who work in the chili pepper industry, albeit at other chili pepper companies in the city.
One of your employees shows you printouts of DD's inflammatory comments about RH Chili Peppers. Can you discipline DD?
According to this decision last week from the National Labor Relations Board, the answer is no. The reason is that the National Labor Relations Act protects employees who opt to engage in union-related activities. This speech, even if directed at third parties, is protected if it flows from prior organizational activity, which was known to the employer, and is not libelous. It does not matter whether DD uses a actual bull-horn or a virtual bull-horn. Either way, that speech is protected and discipline may not ensue based on the substance of DD's pro-union speech.
So the answer to today's QATQQ is FICTION.
While some people; namely, hockey players with local ties, use Twitter to congratulate an ex-wife on end of divorce payments, others spew venom about their bosses.
I know. I should have warned you to sit down first. Let me know when the shock subsides.
And the latest 15-minutes-of-fame, there's-an-app-for-that, spotlight shines on FireMe!, which uses keywords and such to show Twitter users who tweet vitriol about their employers. The site, which is chock full of expletives -- you've been warned -- contains four categories: (1) Haters; (2) Horrible Bosses; (3) Sexual Intercourse; and (4) Potential killers. FireMe! also has a "leaderboard," and can, if you are a Twitter user, can "calculate" the chances that you will be fired if your boss learns about your Twitter account. My chances are five percent.
The creators of FireMe! claim it was designed "to raise awareness about the danger of public online data." Indeed, the app will send out tweets to offenders to warn them to delete offensive content. According to one report, FireMe! sent out more than 4300 tweets to offenders in a three-week period, prompting users to delete 249 of those tweets within two hours.
How does this really impact the workplace?
Well, I can't imagine that any employer out there has the time to monitor this site on the off-chance of finding an employee who bad mouths the company. But even if you did, taking action based on a tweet could burn you. Remember that the National Labor Relations Act protects the rights of employees to discuss with one another -- even critically -- terms and conditions of employment. So, while firing a single griper may be ok, terminating an employee who engages in "protected concerted activity" is not.
Plus, when you have a number of employees who use social media to vent about work, rather than blame them, maybe it's time to take a critical look in the mirror to see what you can do to improve the workplace.
Back in late January, a federal appellate court ruled that President Obama lacked the power to make three recess appointments last year to the National Labor Relations Board. More on that here.
In this press release issued yesterday, the NLRB announced that would seek Supreme Court review. Quoted below is the press release:
The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid. The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.
Are you still here?
In just over half the States in America, if a majority of your co-workers elect to have a union represent them at work, then you must become a member of the union too -- whether you like it or not. Nonmembers who object to that requirement must still may union dues. However, in nearly half of the USA (24 states, to be precise) employees in a unionized workplace may decide for themselves whether to join the union. This is known as "right-to-work." Employees who exercise this right are not required to pay union dues.
Late last year, Michigan became the newest Right-to-Work State. And, last week, Senator Rand Paul (KY-R) reintroduced the "National Right-to-Work Act," described as a bill to preserve and protect the free choice of individual employees to form, join, or assist labor organizations, or to refrain from such activities. This bill would amend both the National Labor Relations Act and the Railway Labor Act to make "right-to-work" the law in all 50 states.
You can view a copy of the bill here.
Meanwhile, word hit yesterday that the Supreme Court has already been asked to weigh in on the constitutionality of President Obama's recess appointments to the National Labor Relations Board. Last month, a federal appellate court ruled that the appointments were unconstitutional. Lauren Smith at Roll Call has more on this developing story here.
You can read a copy of the opinion here.
According to the U.S. Supreme Court, a two-member Board is powerless to exercise any authority. At the time of the three recess appointments, the Board only had two members.Therefore, by ruling that Obama's three recess appointments are unconstitutional, today's appellate-court ruling effectively moots every decision from the Board subsequent to the recess appointments, most of which went against employers.
Expect this to be appealed to the Supreme Court.
UPDATE: The U.S. Chamber of Commerce has much more on today's ruling here.
2ND UPDATE: Here is a statement from NLRB Chairman Pearce on today's ruling.
Whatcha get the blog for its birthday? Was it an iTunes subscription to Season One of Amish Mafia?
Don't judge the blog. The blog doesn't like to be judged.
After the jump, the selfless blog got you a recap of seven recent National Labor Relations Board decisions affecting your workplace...
[Editor's Note: The original theme for this post was the "Employment Law Blog Carnival: Sex, Drugs, and Rock & Roll Edition." I had this bright idea to begin by cutting and pasting the lyrics to Guns N' Roses' "My Michelle," and, let's just say I bailed after the first line.]
So that leaves us with Plan B, where, after the jump, I have aggregated some of the best, recent posts from around the employment-law blogosphere and fit them together into a single theme: an open casting call.
Because just the other day, this theme came to me after waking from a Codeine/Claritin-D/Mucinex DM-induced slumber, in which I dreamt about casting a recent post of mine -- the one where an employee lost out on an FMLA retaliation claim when her employer fired her after finding Facebook photos of her drinking at a local festival -- while on FMLA. My movie will star Kim Kardashian, in her silver screen debut, as the employee. And Alan Thicke, who played Dr. Jason Seaver on "Growing Pains," could play the company decision-maker. We'll call it "FML Aye Yai Yai!"
[Editor's Note: I'm throwing Thicke a bone here. Don't you think? According to IMDB.com, he just finished production on "Fugget About It", in which ex New York mobster Jimmy Falcone joins the Witness Protection Program and is relocated, with his family, to Regina, Saskatchewan, Canada. Fugget about it, indeed.]
So that's the idea. More great posts and imaginative casting decisions, after the jump...
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