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Misclassifying Employees as Independent Contractors Under the NLRA
By: Eric Turner

Merely misclassifying employees as independent contractors, by itself, does not violate the National Labor Relations Act, according to a new ruling by the National Labor Relations Board.

The issue in this case arose after a logistics company fired a driver after she complained about being misclassified as an independent contractor. The Board agreed that the act of firing the driver for complaining violated the NLRA, but disagreed that the initial act of misclassification itself violated federal law for interfering with workers’ rights to organize. The Board determined that the act of telling workers they are independent contractors is not considered a threat of reprisal unless there is more. For example, the Board has found in other cases that an employer violates the NLRA if it expressly prohibits workers from engaging in otherwise protected activities because they are independent contractors.

The Board agreed with employer advocates who argued that if misclassification alone violates the NLRA, then it would significantly curtail the use of independent contractors and penalize employers for honest mistakes. The Board recognized that whether a worker is legally considered an employee or an independent contractor is not always clear cut and depends on a variety of factors.

Labor law violations are one less thing for employers to worry about when classifying workers as independent contractors. However, misclassification still poses many other concerns for employers, such as tax law issues, workers’ compensation issues, employee benefit issues, and numerous wage-and-hour law issues.

Communications Workers of America Open Field Office in Wichita
By: Donald Berner

The Communications Workers of America (CWA) plans to open a field office in Wichita to facilitate organizing efforts at T-Mobile.  The local office will be in downtown Wichita.  While the focus of the organizing effort appears to be T-Mobile, a CWA target nation-wide since 2008, it is possible the CWA will use the office for other organizing activities in the area. 

NLRB "Quickie Election Rule" Faces Congressional Attack
By: Donald Berner

The NLRB election rules set to take effect on April 14th face a court challenge by U.S. Chamber of Commerce and now face a potential legislative challenge as well.  The Senate passed a resolution designed to block the NLRB's implementation of the new rules.  A similar measure is expected to be considered in the House in the next week or two.  There is no guarantee that these legislative efforts will have an impact on the NLRB election rules.  With just a month or so to go until implementation employers should stay tuned to see if any of the challenges are able to derail the rule. 

NLRB Election Rule Challenged
By: Donald Berner

As most of you are aware, the National Labor Relations Board (NLRB) recently issued a rule changing the process for representation election proceedings.  The rule changes essentially accelerate the process and is a favorable change for unions.  This is the second time the NLRB has attempted to implement this new representation election rule.  The last time the NLRB attempted to implement the rule (2011), the U.S. Chamber of Commerce filed a lawsuit that ultimately resulted in the rule being rescinded due to technical issues in how the NLRB adopted the rule.  Now that the NLRB has reintroduced the rule, the U.S. Chamber of Commerce has filed suit again in an attempt to block the implementation of the rule.  This time around the rule will need to be challenged on its merits because the technical issue from the 2011 implementation will not be an issue.  These challenges will resolve around due process, freedom of speech, and the intent of the National Labor Relations Act.  Stay tuned as the litigation proceeds forward.  The rule is set to take effect on April 1. 

NLRB Opens Company Email Up for Employee Use in Organizing Campaigns
By: Donald Berner

In a recent decision, the National Labor Relations Board (NLRB) reversed its longstanding rule regarding employee use of corporate email systems for the purpose of union organizing.  The historical rule allowed employers to prohibit the use of its email systems so long as it did so on a non-discriminatory basis.  This is no longer the case.  The NLRB reversed direction last month changing the rule.  The new rule requires employers to allow employees to use corporate email systems to engage in union organizing activities.  The use must be during non-working hours and cannot interfere with workplace discipline or production.  So long as employees stay within these vague boundaries, employers must allow use of email for these purposes. 

It is likely your Company's electronic communications policies do not permit this type of usage.  It might be time for a revision of the policy.  At a minimum, you need to ensure no discipline is issued to an employee for this type of usage even if your Company's policy prohibits such usage.  

Corporate Media Policy Runs Afoul of the National Labor Relations Act
By: Donald Berner

Does your Company have a policy prohibiting employees from speaking to media representatives about the Company?  If so, your policy might be unlawful under the National Labor Relations Act (NLRA).  As a short review, the NLRA protects the rights of employees to engage in concerted activities for their mutual aid or protection with respect to their terms and conditions of employment.  In simple form, anything an employer does to interfere or prevent employees from joining together to address workplace concerns can run afoul of the NLRA. 

In a recent decision, an Administrative Law Judge (ALJ) found a Company media policy overbroad and prevented employees from engaging in protected activities under the NLRA.  The particular policy simply stated that if contacted by the media that "no information exchange is permitted" unless done so by the specifically appointed Company spokesperson.  While the Company tried to assert the policy did not expressly prohibit employees from engaging in NLRA protected activity, the ALJ noted the terms of the policy were "ill defined" and "the guideline, as written, could also encompass and prohibit communications about wages, labor disputes, and other terms and conditions of employment."  The ALJ followed a prior case from 2008 in which a similar corporate media policy was struck down as unlawful.  What is important to note is that in both cases the employer argued a significant need to limit media communications to the centralized corporate spokesperson for official comments to the media for a range of reasons.  These arguments failed and are likely to continue to fail in the immediate future. 

The policies      Continue Reading...

NLRB Election Process Under Review
By: Donald Berner

The NLRB is currently conducting public meetings concerning proposed changes to the union representation election process.  The proposed changes to the process stem back to the NLRB's attempts in 2011 to change the representation process.  The NLRB's effort in 2011 came to end after the final rule was invalidated by the federal courts.  As you might recall, the changes proposed in 2011 were primarily designed to assist unions and to hinder employer efforts to educate impacted employees.  Stay tuned for further developments.  To read the NLRB press release click here.

Facebook Rants: Protected or Not?
By: Donald Berner

On a number of instances over the course of the last few years, the National Labor Relations Board (NLRB) has tackled the issue of when to protect employee use of social media outlets in the furtherance of an employee's rights under the National Labor Relations Act (NLRA).  The early learning for employers was to beware of taking action if the employee communicated workplace concerns through social media.  As the NLRB has decided social media cases, the parameters have become a bit more defined for employers.  In a recent decision involving a series of negative and disparaging types of employee commments, the NLRB found the actions not protected by the NLRA.  The learning point for employers is that if employees cross over the line with their comments, the NLRB will not protect those employees from the disciplinary consequences.  Employers should be mindful that deciding when the employees have crossed that line can be a difficult and murky task and any decision to take negative action can be risky.  To gain a better understanding of the types of social media behavior that is not protected you can click here and then select the Administrative Law Judge's Decision from November 5, 2013 to read the entire decision.

Happy Labor Day!
By: Donald Berner

A belated happy Labor Day to everyone.  Hope each of you had a relaxing day off yesterday.  To some, the Labor Day holiday is a celebration of the efforts of organized labor.  To others, it is the unofficial end of the summer season.  For a bit of historical perspective on the holiday click here to see the Department of Labor's page on the history and meaning of Labor Day.

NLRB Recess Appointments Under Continued Attack
By: Donald Berner

The issue of recess appointments to the NLRB was the subject of yet another Court of Appeals decision yesterday.  The 4th Circuit issued a ruling following the same general approach set out originally by the D.C. Circuit Court of Appeals and then followed by the 3rd Circuit Court of Appeals.  The technical outcome of these decisions is to find the recess appointments invalid due to the lack of a recess.  The practical outcome is that without these appointments, there are periods in which the NLRB did not have a quorum to be able to conduct business.  This lack of a quorum calls into question various NLRB decisions during the relevant time period.  This is another area in which employers should stay tuned.  It is possible the U.S. Supreme Court will hear this issue in the upcoming session. 

NLRB Poster Rule Struck Down
By: Donald Berner

In a decision yesterday out of the Court of Appeals for the D.C. Circuit, the NLRB's notice posting requirement was struck down as invalid. For those of you that have been following along since the start, the NLRB issued the poster rule in August of 2011 and then repeatedly delayed enforcement of the rule as litigation popped up in several federal district courts as to the validity of the rule. The rule, in its simplest form, required employers to post a notice containing information about the ability of employees to seek union representation. Click here for more information on the rule. 

In its decision, the Court held that the rule violated an employer's right to free speech. The Court also addressed a provision in the rule related to the tolling of the statute of limitations for filing a charge based on a violation of the poster rule. This provision was also struck down as invalid. For those that like reading court decisions, this particular portion is a bit convoluted, but interesting for reasons beyond the NLRB poster. The tolling arguments touched on some Title VII and ADEA posting issues and tolling principles used by the EEOC. The Court did not specifically rule on the tolling issues beyond the NLRB poster; however, it did highlight and call into question the validity of tolling in that context as well. 

For now the poster rule looks to be on its death bed, but one never knows what appeal may arise or what another Court of Appeals might have      Continue Reading...

So What Does Recess Have to Do With the NLRB?
By: Donald Berner

Those of you following the national news scene closely may have noticed a flurry of excitement related to the National Labor Relations Board (NLRB) and some appointments made to the NLRB last year.  The excitement is related to recess time in Washington, and even more specifically, the Senate's recess time.  Presidents sometimes use the tactic of waiting to make appointments, which technically should be confirmed by the Senate, until after the Senate heads out for recess. 

Three of the five members of the NLRB were appointed during an alleged recess last year.  While the Senate was supposedly out in the yard playing dodge ball, the President gave away a few jobs to people the Senate likely would not have approved.  But this time around, some members of the Senate, having watched President Obama use this tactic in prior recess times, decided to linger inside and work on some homework.  As a result, the question was whether the Senate was actually in recess when the appointments were made.  

The federal appeals court for the D.C. Circuit said the Senate was not in recess, so the three appointments were invalid.  The consequence of this decision could very well be that all of the 200 plus decisions handed out by the improperly formed NLRB may be invalid as well.  In addition, there are also other decisions made by the NLRB that could be in question.  Stay tuned over the next few weeks or months as this schoolyard recess drama plays out.  If you were subject to an NLRB decision in the last year, it is probably worth revisiting the issue to see if there      Continue Reading...

DOL Creates 100-Year Anniversary Video
By: Boyd Byers

In honor of America's centennial, France gave us a gift: the Statue of Liberty. In recognition of its own centennial, the United States Department of Labor has given all of you a gift: a YouTube video chronicling its history. The six-minute-long video describes DOL's creation, introduces the labor secretaries, summarizes its legislative history, and promotes the things it does for workers. But be forewarned: the video is a slide slow, not a live-action film, and DOL tells the story to serve its own interests.  Watch the Video

Employee Off-Duty Access: The NLRB's New Twist on the Open Door Policy
By: Donald Berner

As most of you are probably aware, the National Labor Relations Board (NLRB) has been extremely active in applying the National Labor Relations Act (NLRA) in ways that have are having a significant impact on employers without labor unions. The most well-known of these areas is in the context of social-media policies and the application of those policies in disciplinary matters. In a recently issued decision, the NLRB took on the issue of employee access to the employer's facility during off-duty hours.  

From a historical standpoint, the NLRB decisions considered restrictions for off-duty employee access acceptable, so long as the restriction was clearly communicated to the employees, limited to the interior/working areas of the employer, and applied to all employees seeking access and not just those engaging in union-related activity. This standard allowed employers to generally prohibit employee off-duty access and still allow for limited exceptions as they might arise. For example, an employer could have a policy prohibiting off-duty access that allowed for exceptions with manager approval. This would allow a supervisory employee to make a limited exception in those circumstances where off-duty access was really necessary. Under the historical approach, these limited exceptions would allow for enough flexibility to handle emergency situations and still not run afoul of being interpreted in a way that was targeting employees engaging in union activity.    

The historical approach followed by the NLRB dates back over thirty-five years and has worked sufficiently well to balance the needs of employers to secure their facilities while still allowing some flexibility when needed by employees. The current NLRB, however, in      Continue Reading...

An Employer Wins A Battle in the Social Media War as NLRB Upholds Employee Facebook Posting Related Discharge
By: Donald Berner

Earlier this week the National Labor Relations Board (NLRB) upheld a car dealership's discharge of a salesman for posting photos and comments to his Facebook page. The NLRB's decision is a welcome victory for employers after a long series of employer unfriendly pronouncements from the NLRB. Over the last year or two, the NLRB has provided employers with a series of memoranda designed to highlight the acceptable parameters for employer policies and employee discipline for social media postings. With each additional bit of guidance, an employer's ability to deal with problem social media postings appeared to become increasingly more difficult. While the NLRB should (and will) ensure that employees engaging in protected and concerted activity are not discriminated against, there have to be some boundaries to the types of comments an employee can post for the whole world to read that concern the employer.    

In this particular case, the employee salesman posted two different sets of photos and comments to his Facebook page. One set of photos and comments centered around a dealership event related to the roll out of a new luxury vehicle. The photos and comments were mocking and sarcastic in tone and focused upon the employer's decision to serve hot dogs, chips, and water at the event as opposed to something more appropriate for a luxury event like "champagne or wine". The second set of photos and comments were related to an accident that occurred during the test drive of a new vehicle and were also sarcastic and mocking in tone. Following the postings, the salesman's employment with the dealership was terminated.      Continue Reading...

Do You Know? Right-to-Work vs. Employment-at-Will
By: Boyd Byers

My fifteen-year-old daughter is an avid reader. She also has an offbeat sense of humor (which she must get from her mother). So perhaps I should not have been surprised to find a book titled Zombies vs. Unicorns lying around the house. "It's a question as old as time itself: Which is better, the zombie or the unicorn?" the book jacket teases.

Such weighty conflicts and comparisons have existed throughout history, of course. Good vs. Evil. Cats vs. Dogs. Yankees vs. Red Sox. King Kong vs. Godzilla. VHS vs. Betamax. And, most recently, Alien vs. Predator. In this spirit, let's examine two separate and distinct legal concepts that are sometimes misunderstood or confused with one another: Right-to-Work vs. Employment-at-Will.

Right-to-work has nothing to do with employers' ability to hire or fire. Nor does it refer to employees' right to unionize. Rather, a right-to-work law prohibits unions and employers from entering into contracts that require workers to join the union or pay union dues as a condition of employment.  

Kansas is one of 23 states with a right-to-work law. Kansas adopted a right-to-work amendment to its constitution in 1958. It provides, "No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall [any employer] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization." (Kan. Const. Article 15, Section 12). 

However, even in states without right-to-work laws, union membership cannot lawfully be required. The U.S. Supreme Court ruled in 1985 that union members have the right to resign their union membership at any      Continue Reading...

Labor Day: The Unofficial End of Summer or Something More
By: Donald Berner

Hopefully everyone enjoyed their Labor Day holiday. Over the years, Labor Day has been viewed as the last gasp of the summer "fun" season.  While taking this last summer holiday to enjoy some travel or family time is a great idea, the roots of Labor Day can actually be traced to labor unions. Labor Day was established in the late 1800s and early 1900s as a holiday to celebrate the contributions of the our country's workers and was initially proposed by organized labor unions. Click here for the history of Labor Day.

The Labor Day holiday should serve as a reminder to union-free employers that organized labor is still working hard to represent the employees at their companies. Your management team should spend some quality time on a regular basis communicating with your employees and listening to their concerns. This is a great way to ensure your company remains union-free. If management fails to establish a rapport and good working relationship with their employees, this opens the door for people outside the company to have those conversations. I'm sure most of you would prefer the good working relationship start within the company as opposed to outside the company. 

So now that you have made the most of your holiday weekend courtesy of the labor movement, get back to work building those internal relationships. 

Exercise Caution With Employees of a Contractor Your Company Hires
By: Donald Berner

Imagine you hire a company to perform a service or conduct a function of your business you have chosen to outsource.  As a result, the contractor company sends its employees to your facility to perform those tasks.  Now imagine an employee of the contractor engaging in union organizing activities while on your property.  Can you have the contractor company remove its employee from your property? 

It's a simple question; however, the answer isn't so simple.  The safe assumption to start with is that you cannot ask the company you contracted with to remove one of its employees when the employee engages in protected activity.  In a recent decision, the National Labor Relations Board (NLRB) required a company to reverse its demand to a contractor company to remove an employee engaging in union-organizing activity on its property.  In addition to being required to allow the contractor-company employee on its property, the employer was also required to make payment to the contractor employee for any losses suffered by the requirement  to remove the contractor employee from the employer's property.  

This general theme should cause employers to pause and consider carefully the identity of their contractors and the number of non-employees granted access to their facilities.  While this recent case makes it clear that an instruction to a contractor to remove contractor employee(s) engaging in protected activity is unlawful, there may very well be circumstances that would allow for the removal of the contractor employee(s).  Should a similar situation arise at your workplace, it is advisable to think carefully before requiring a contractor to      Continue Reading...

New Election Rule Placed on Hold
By: Donald Berner

The NLRB's new quick election rule (also dubbed the ambush election rule), which took effect at the end of April, has quickly been shelved.  Yesterday, a federal district court ruled the election rule was improperly put into effect because the NLRB lacked a quorum to take action.  For the NLRB to take action, three members are required.  In this particular instance, only two members took action on the finalization of the rule, according to the court.  This lack of a quorum invalidates the rule.  Shortly after the ruling was issued, the NLRB announced it would suspend application of the rule until further notice.

While the ruling is a victory for employer groups, it may be a short-lived victory.  The court failed to address any of the substantive arguments brought by the employer groups and simply invalidated the rule based upon the lack of a quorum.  This procedural defect can be easily remedied by the NLRB since there is now a full NLRB complement following the recess appointments.  For now, all of the election petitions filed going forward and any of the election petitions filed under the new rule will utilize the old process in effect prior to the rule change.  Stay tuned for the NLRB's next announcement on this issue.

The NLRB's announcement of the rule suspension can be found here.

Senate Fails to Block NLRB Election Rule
By: Donald Berner

The effort in the Senate to prevent the implementation of the NLRB's new set of election rules failed yesterday.  By all appearances, the new election rules will take effect on April 30th.  These rules are designed to fast-track union representation elections.  This change should increase the election victory rate for unions resulting in more employee groups becoming union represented. 

What does all this really mean for employers?  The simple message is that employers that wish to remain union-free should consider educating their workforce on the topic before the employer becomes aware of a union's presence.  The time-line currently in place is already short.  The new rule will slice several weeks off of the existing schedule.  The practical effect of the change is that once a representation petition is filed, it will be almost too late for an employer to effectively respond with educational information to fully inform employees.  As they say, an ounce of prevention is worth a pound of cure.  This will be more true than ever once the fast-track election rules take effect next week. 

NLRB Election Rule Under Attack
By: Donald Berner

The NLRB's new election rule (click here to read the 12/05/2011 blog post discussing this rule), which essentially accelerates the election process, is set to take effect on April 30th.  This new rule dramatically favors unions, as it provides very little time for employers to inform employees once a representation petition is filed.  Some have labeled the rule the "ambush election rule" because it significantly shortens the current election process, which is already fairly short.  

The election rule is now under attack in the U.S. Senate by way of a proposed resolution pursuant to the Congressional Review Act.  The resolution of disapproval should be debated in the Senate this week and if approved by Congress would result in the implementation of the NLRB's election rule being blocked.  Stay tuned for further developments on this issue.

To read the press release click here.

Breaking News on NLRB's Poster Requirement!
By: Donald Berner

Late yesterday the Circuit Court of Appeals for the District of Columbia (the federal appellate court over DC) issued an emergency injunction blocking the National Labor Relations Board from implementing its poster requirement, which was scheduled to take effect on April 30, 2012.  These regulations would require private-sector employers to post an official Board-drafted notice informing employees of their rights under the National Labor Relations Act, including the right to join or support a union.  Several business organizations had joined together last fall to file a lawsuit to block the poster requirement on the basis that the Board had exceeded its statutory authority in issuing the underlying regulations.  Last month the federal district judge in the District of Columbia had struck down several aspects of the Board's regulations, but upheld the poster requirement.  Both sides appealed the judge's decision and those appeals led to the DC Circuit's ruling.

While the injunction does not necessarily impact the entire country, the NLRB has decided not to enforce the rule while the issue is resolved.  The NLRB's temporary suspension of the rule's implementation gives employers a temporary reprieve from the posting requirement.

Of note, the DC Circuit did not address the substance of the NLRB's regulations; rather, it simply ordered the injunction to keep the notice from going into effect while the appeal is being addressed.  The timing of when the DC Circuit will further address the substance of the NLRB's regulations is not yet known. 

Finally, A Win for Employers on the NLRB Poster Front
By: Donald Berner

The current administration's pro-labor stance has not given private employers much to smile about over the last couple of years.  Last week, however, a federal judge in South Carolina provided employers with some much needed good news on this front.  In a lawsuit brought by the U.S. and South Carolina Chambers of Commerce against the National Labor Relations Board (NLRB), the judge ruled that the NLRB lacked the statutory authority to issue the regulations that require employers to post a notice informing their employees of their rights under the National Labor Relations Act.  This ruling comes on the  heels of a federal judge in the District of Columbia determining last month in a separate lawsuit that the NLRB had the authority to issue the notice requirement. 

In the South Carolina case, the court, analyzing the language of the National Labor Relations Act, determined that while the statute gives the Board the authority to issue rules to carry out the provisions of the Act, the Board's actions in requiring the posting of a notice went too far.  The court was mindful of the fact that the statute does not contain an express notice requirement, which is contrary to a number of other prominent employment laws, such as the Fair Labor Standards Act and anti-discrimination laws such as Title VII and the ADA.  The lack of any express statutory authority was noteworthy given the law's 75-year history and the fact that Congress has amended the act on a number of occasions.  The court found      Continue Reading...

NLRB Posting Requirement Survives Court Review
By: Donald Berner

The NLRB posting rule has been the subject of much delay and scrutiny.  The rule is currently set to go into effect on April 30, 2012, following a number of delays in its implementation as previously discussed in our blog.  For a summary of the requirement as issued by the NLRB click here.   At the end of last week, a federal court (in one of the pending cases challenging the validity of the rule) issued a decision upholding the core posting element of the rule and invalidating other portions of the rule extending the statute of limitations for filing unfair labor practice charges and establishing the failure to post the notice as an unfair labor practice.  The short version of the judge's decision is that the NLRB's establishment of the posting requirement is within the authority of the NLRB and is permissible.  Stay tuned, however, as there is another federal court challenge pending in another jurisdiction, and that court could reach a different conclusion on the issue.  In the meantime, employers should be prepared to comply with the posting requirement as the April 30th deadline approaches. 



NLRB Postpones Posting Deadline
By: Boyd Byers

On December 23 the National Labor Relations Board agreed to postpone the effective date of its new employee rights notice-posting rule. The extension moves the implementation date from January 31 to April 30, 2012. Under the new rule, most private sector employers will be required to post the 11-by-17-inch notice on the new implementation date. The notice and additional information on posting requirements are available on the NLRB's website, www.nlrb.gov. The NLRB took this action, at the request of the federal court in Washington, D.C., to facilitate resolution of legal challenges to the rule.

NLRB Continues to Push Faster Union Election Process
By: Donald Berner

The National Labor Relations Board (NLRB) continues to remain active as the year winds down.  Late last week, the NLRB approved a resolution directing the amendment of the regulations governing the representation election process.  The resolution will result in a final rule being established and published in the coming months.  The general theme of the amendments is to change the current procedures with the goal of "reducing unnecessary litigation in election cases."  The NLRB's proposed amendments support this goal by limiting the scope of the issues during a pre-election hearing, limiting the filing of post-hearing briefs in these types of matters, and restructuring the post-hearing appeals process.  For a more detailed explanation of the six proposed amendments click here.

While the amendments are directed at procedural matters, the end outcome will be to shorten the path from an election petition to an election.  A shorter period between the filing of the union's petition and the election itself is a positive outcome for unions, as the shorter the time period, the more likely the union is to win a representation election.  Employers should pay careful attention to efforts by the NLRB to reduce the election process time.  As changes like this become law, employers will need to be more proactive in order to remain union-free.  The use of various preventative measures in advance of a union organizing effort will become more critical than ever for employers in this new streamlined environment. 


Bad Haircut Leads to Unfair Labor Practice
By: Boyd Byers

What’s the difference between a good haircut and a bad haircut?  Two weeks.

That’s funny.  But one employer wasn’t laughing when an employee’s botched haircut started a chain of events that resulted in a finding that it violated the National Labor Relations Act by firing the employee for engaging in protected concerted activity.  
So how did a bad haircut lead to an unfair labor practice charge and a federal lawsuit? 
Nicole Wright-Gore worked for White Oak Manor, a long-term care facility.  Embarrassed by a “terrible haircut” and unable to “do anything” with her heir, Wright-Gore began wearing a hat to work.  After a week, she was told the hat violated the dress code, so she needed to remove the hat or go home.  Wright-Gore protested that other employees were allowed to wear hats, refused to remove her hat, and left for the day.
She returned the next day, which, as fate would have it, was Halloween.  Employees were allowed to wear costumes.  She dressed as a “race-car fan,” and her costume included—you guessed it—a hat.  She was told to remove the hat, which she did, but she was written up for insubordination.
Over the next few days, Wright-Gore observed that other employees were wearing hats and displaying tattoos, in violation of the dress code, without consequence.  So she began talking to      Continue Reading...
Congress versus the NLRB
By: Donald Berner

In the last several months the National Labor Relations Board (NLRB) has been hard at work issuing new decisions, guidance, and rules/regulations for employers to follow.  The simple theme for all of these efforts at the NLRB is to assist unions and make it easier for unions to organize groups of employees.  These changes have not gone unnoticed by employers.  In some instances, employers have resisted the NLRB's efforts.  For example, the NLRB's posting notice requirement was met wtih a lawsuit challenging its implementation (read here) which has delayed the implementation of the rule in the short term (read here).  

These employer efforts have now led to the introduction of legislation in Congress designed to overturn or check the NLRB's advances.  In addition to the notice posting requirement discussed above, the NLRB has proposed a new set of election rules designed to dramatically accelerate the union election process and issued a decision (read here about Specialty Healthcare) restricting the ability of employers to challenge the scope of the employee group being organized by the union.  Each of these changes provides a significant edge to a union attempting to organize a group of employees.  These two events prompted introduction of the Workforce Democracy and Fairness Act (H.R. 3094), which is designed to overturn the proposed election rule and the NLRB's decision in Specialty Healthcare.  In addition to this direct approach to overturning the NLRB's recent activity, some lawmakers have also threatened to slash funding tp the NLRB as part of the recently proposed federal budget.  Stay tuned for further developments as Congress and the NLRB battle over the landscape of the union organizing process.  

NLRB Delays Posting Requirement
By: Donald Berner

The National Labor Relations Board (NLRB) announced today that it is postponing the implementation deadline for posting the new notice from November 14, 2011, to January 31, 2012.  The NLRB stated that the reason for the delay is to allow "for enhanced education and outreach to employers, particularly those that operates small to medium-sized businesses."  The substance of the poster remains unchanged.

Business Groups Sue NLRB Over Union Poster Rule
By: Boyd Byers

As we previously reported, last month the National Labor Relations Board issued new regulations that require employers to post notices informing workers of their rights under the National Labor Relations Act. (See NLRB Issues New Posting Rule.) This week the U.S. Chamber of Commerce sued the NLRB to block the rule. It alleges that the NLRB does not have authority to force employers to post the notifications or impose penalties for failing to do so, and that the notification rule violates employers’ First Amendment rights. Two other business groups, the National Association of Manufacturers and the National Federation of Independent Businesses, previously sued the NLRB over the union poster rule. We’ll let you know how it all shakes out. Until the courts rule on this issue, employers are well-advised to comply with the posting requirements, which become effective on November 14, 2011. 

Feds Find Fault with Firm's Facebook Firings
By: Boyd Byers

A non-profit organization violated the National Labor Relations Act by firing five employees who trash-talked a co-worker on Facebook, a National Labor Relations Board administrative law judge found. The employer argued that it fired the employees--who posted angry and defensive comments about the co-worker on one of their Facebook pages--for bullying and harassing the co-worker in violation of its zero-tolerance policy against harassment. But these Facebook rants constituted "concerted activity" protected by the NLRA, the ALJ ruled, so the organization must reinstate them with full back pay.

Employers have legitimate business reasons to protect their good will and to foster a harmoneous workplace. They also have a legal obligation to protect employees from harassment. So the NLRB's stance on social media policies and practices obviously puts employers in a difficult position.

The case is Hispanics United of Buffalo Inc., NLRB No. 3-CA-27872 (Sept. 2. 2011, released Sept. 6, 2011). You can read the full opinion here.

For more on this subject, click on the links below to our prior blog posts:

In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies (08/23/2011)

Social Media and the NLRB: Where Are the Boundaries of Protected Activity? (05/20/2011)

Social Media and the National Labor Relations Act (02/08/2011)

NLRB Joins Fray on Facebook Posts (11/09/1010)

NLRB Issues New Posting Rule
By: Boyd Byers

Last Friday the NLRB published its Final Rule requiring all employers covered by the National Labor Relations Act to post a notice detailing employees’ rights under the Act.  The Rule goes into effect on November 14, 2011.  All employers covered by the Act must have their notice posted by that date, regardless of whether their employees are currently represented by a union.  Click here to read about the required posting and the pentalites for non-compliance.

NLRB Continues to Clear a Path for Unionization
By: Donald Berner

There have been a number of actions taken by the NLRB in 2011 that have been blog worthy.  For those that have followed along closely, the overwhelming theme of the NRLB's decisions and actions has been extremely pro-union.  Each of the decisions along the way makes it harder for employers to manage their workforce and to avoid unionization should a labor union become interested in representing their employees.  In a decision a few days ago, Specialty Healthcare and Rehabilitation Center of Mobile, the NLRB altered the rules with respect to which employees can be included in a bargaining unit.  The NLRB held that once a union petitions for a specific bargaining unit, for an employer to add other employees to the requested unit it must be demonstrated that they share an "overwhelming community of interest" with the requested unit.  What is new with this decision is the addition of the qualifier "overwhleming."  The requirement to show an "overwhelming" community of interest, in a practical sense, means that employers may struggle mightily to alter the unit of employees the union targets with a petition.  While this may sound like a non-issue for those who have not dealt with union organizing efforts, it may prove to be one of the most significant pro-union decisions issued by the NLRB.  The practical application of this concept is that unions may now choose small subsets of employees within an employer as a target for unionization, and the employer may be powerless to add other similar employees into the election process.  This ability to      Continue Reading...

In Your Facebook--NLRB Scrutinizes Employers' Social Media Policies
By: Donald Berner

Over the past year, the National Labor Relations Board (NLRB) has reviewed a number of cases involving employer social media policies and/or employment terminations related to employee misconduct via a social media outlet.  While the NLRB has decided a few of those cases in favor of the employer, the overall trend has not been positive for employers.  Based on the NLRB's decisions to date, here are a few observations that can help employers stay out of the NLRB's cross-hairs.  

  • Employee termination decisions should be carefully considered to ensure the employee is not engaged in some sort of activity that is protected by the National Labor Relations Act (NLRA).  The NLRA protects the rights of employees to engage in concerted activity that relates to the terms and conditions of employment.  Given the NLRB's current expansive reading of these rights, if your employee is complaining on Facebook about something that happened at work, and the discussion involves co-workers, you may want to tread lightly.  Considering the fine lines at play in this area, employers would be wise to consult with legal counsel before moving forward with an employment termination related to a social media post.
  • If you have a social media policy, pull it out and think about it some more.  Odds are that the current NLRB will find something wrong with it.  Look carefully to make sure the policy is not overly broad.  If the policy heavily restricts employee usage of social media and discourages employees from engaging in concerted activity, it probably is      Continue Reading...
School's Out -- Employ Carefully
By: Boyd Byers

Today my kids are at home enjoying their first day of summer vacation.  When I was a teenager, one first-day-of-summer-vacation ritual was repeatedly blasting the song "School's Out" by Alice Cooper for the enjoyment of everyone in town (from a boombox resting on the handlebars of a BMX bike in seventh grade, moving on to the woofers in the trunk of my friend's candy apple red '78 Chevy Nova by the time we were sophomores).  Another, more-constructive rite of summer for many teenagers is working a part-time job.  If your company employs workers under 18, make sure it complies with the sometimes-tricky child labor laws.

Fourteen is the minimum age for most non-agricultural work.  However, youth under 14 may deliver newspapers; perform babysitting or perform minor chores around a private home; perform in radio, television, movie, or theatrical productions; and work in businesses owned by their parents (except in manufacturing, mining, or hazardous jobs). 

Youth 14- and 15-years-old may work outside school hours in certain jobs approved by the Department of Labor, subject to time and hour restrictions.  For example, they cannot work more than 3 hours on a school day or 18 hours in a school week, or more than 8 hours on a non-school day or 40 hours in a non-school week.  And they may not work before 7 a.m. or after 7 p.m., except they may work until 9 p.m. from June 1 through Labor Day.  New regulations that went into effect last summer allow 14- and 15-year-olds to hold jobs not only in the retail, foodservice, and gasoline service industries (as before), but also perform office and clerical work, including in the advertising, banking, and      Continue Reading...

Social Media and the NLRB: Where Are the Boundaries of Protected Activity?
By: Donald Berner

Social media (Facebook, Twitter, MySpace, etc.) issues have made for interesting news so far this year.  The National Labor Relations Board (NLRB), which has weighed in on social media handbook policy related issues, recently issued a complaint against a non-profit agency after five employees were discharged from their employment. 

The trouble started when an employee posted a message on her personal Facebook page related to the agency's shortcomings in serving its clients and naming a co-worker.  In response to the posting, several of the employee's co-workers engaged in a discussion about staffing levels and workloads at the agency via comments to the initial Facebook posting.  When the employer discovered the discussion, all five employees involved were discharged for the comments.  The employer says the postings harassed the named employee.  

As you might guess, the NLRB took issue with the discharges since the group discussion related to working conditions.  The NLRB's position is the five employees were engaged in concerted activity related to the terms and conditions of their employment, and such activity is protected from interference (read discharge) by the employer. 

This complaint is yet another attempt by the NLRB to weigh in on social media issues.  The NLRB is aggressively policing employer social media policies to ensure they are not overly broad and restrictive.  This complaint furthers that effort by attempting to prohibit employee discipline/discharge for employees discussing workplace concerns via social media.  As we all saw throughout the Middle East, social media sites can provide an easy means for individuals to spread messages to a widespread and mainly anonymous audience.  The NLRB's efforts in early      Continue Reading...

Social Media and the National Labor Relations Act
By: Donald Berner

The National Labor Relations Act (NLRA) is the federal law most employers relate to unionization or to union-represented employees.  On occasion, the NLRA and its application bleed over into workplaces without union representation present.  For example, an employer policy prohibiting employees from discussing pay rates violates the NLRA regardless of whether employees in the workplace are union-represented.  In a recent skirmish, the National Labor Relations Board (NLRB), the government agency responsible for enforcing the NLRA, issued a complaint against an employer following the termination of an employee for violation of an internet/social media policy.  The employee had made complaints about her supervisor and responded to co-worker questions/comments on Facebook.  The NLRB's complaint was set for hearing before an administrative law judge, but yesterday the NLRB and employer reached a settlement. 

This settlement leaves unanswered the question of how the NLRA will be interpreted and enforced in the future.  The NLRB's filing of the complaint clearly signals a move by the federal government to extend protections to employees who complain via Facebook (or other social media outlets) about workplace issues and concerns.  Employers should be mindful of this development and stay tuned for further action on the part of the NLRB with respect to employee discipline for these types of violations.  For more information click here to read the NLRB press release.

NLRB Joins Fray on Facebook Posts
By: Donald Berner

Once again the social media beast rears its head in the employment arena.  Just when we thought controlling employee use of Facebook, Twitter, MySpace, and other blogs during working time was the worst concern, the National Labor Relations Board (NLRB) has entered the fray.  In a recent filing, the NLRB took issue with the firing of an employee due to a series of Facebook postings related to the employee's supervisor. 

It all started with a customer complaint about the employee.  The employee's supervisor asked the employee to prepare an incident report regarding the complaint.  The employee requested a union representative be present for the meeting, and the supervisor allegedly responded by threatening the employee with discipline.  The employee then went home that afternoon and posted a series of negative comments about the supervisor on Facebook, triggering a series of co-worker comments, and then even more negative comments from the employee.  Not surprisingly, the employee was discharged a few weeks later. 

The employee turned to the NLRB and filed an unfair labor practice charge.  The NLRB's investigation found the Facebook postings to be protected activity under the National Labor Relations Act (NLRA).  The NLRB also focused its inquiry on the company policies prohibiting employees from making negative comments about the company or its management in internet postings.  The NLRB found that this policy unlawfully violated employees' rights under the NLRA. 

This complaint is set for hearing in early 2011.  All employers should stay tuned to this matter.  Keep in mind that all employers are covered by the NLRA regardless of whether a unionized workforce exists at      Continue Reading...


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