The “just cause” standard has long been a cornerstone of traditional labor law (under many collective bargaining agreements, employees generally cannot be discharged except with “just cause”). However, the standard also has important implications outside of unionized environments that might warrant consideration even with disciplinary decisions affecting at-will employees.Continue reading this entry
Category Archives: Labor Relations
D.C. Circuit Tells NLRB “No Workplace Poster for You!”
Posted in Labor RelationsMany would contend that inherent in the freedom of speech is the freedom to decide when not to speak such that the government, as the argument goes, cannot compel one to say or otherwise disseminate certain information. The United States District Court for the District of Columbia Circuit appears to have agreed with this premise by recently striking down the National Labor Relations Board’s (NLRB) “poster rule” that would have required millions of employers to post notices listing employees’ rights to form, join, or assist a union, bargain collectively, and various other rights they have under the National Labor Relations Act (NLRA). The rule provided that an employer’s failure to post the notice would be deemed an unfair labor practice under Section 8(a)(1) of the NLRA, as well as suspend the six-month limitations period for filing any unfair labor practice charge under Section 10(b) of the NLRA, and could further be considered evidence of unlawful motive in a case where motive is relevant.Continue reading this entry
NLRB Continues to Get in Your Face-book
Posted in Human Resources/ Employer Matters; Labor RelationsAs employers increasingly utilize electronic technologies such as email, messaging, and social media in all aspects of their business, they have had to develop policies governing the use of these technologies. These policies have come under increasing scrutiny by the NLRB when they either prohibit protected union activity or are ambiguous enough to chill employees’ participation in such protected activities. As we previously mentioned, the NLRB has struck down certain provisions of employer social media policies. Further responding to these concerns, and in order to assist employers in drafting appropriate polices, the NLRB has issued guidance regarding social media policies.Continue reading this entry
The Union Is Knocking at My Door: What Can I Say?
Posted in Labor RelationsAny employer who has been through an initial union organizing drive is probably familiar with the mnemonic “TIPS.” During a union organizing drive an employer’s managers should avoid:
- Threats
- Interrogating employees about their pro- or anti-union leanings
- Promising benefits if employees will vote against a union
- Soliciting grievances from employees in an attempt to fix problems the union may be using in its campaign propagandaContinue reading this entry
NLRB Issues New Guidance Advice on Confidentiality Prohibiting Discussions of Workplace Investigations
Posted in Labor RelationsThe National Labor Relations Board (Board or NLRB) ruled in its controversial Banner Health decision that employment policies that generally prohibit non-supervisory and non-management employees from discussing ongoing workplace misconduct investigations violate Section 8(a) (1) of the National Labor Relations Act (NLR) (http://www.nlrb.gov/national-labor-relations-act). The decision was premised on the NLRB’s interpretation of Section 7 of the NLRA. It opined that Section 7 grants both unionized and non-unionized employees the right to discuss discipline and disciplinary investigations involving their fellow employees and that a blanket rule prohibiting such discussions can be reasonably construed to interfere with employees in the exercise of these rights. A recent Advice Memorandum from the Board now gives additional guidance on when such rights may be limited.Continue reading this entry
OFCCP to Put Contractors’ Compensation Systems Under a New Microscope
Posted in Affirmative Action Compliance; Human Resources/ Employer Matters; Labor RelationsIn recent months, various agencies tasked with enforcing federal labor and employment laws have been a hotbed of activity — publishing guidance memoranda, enforcement directives, and the like. The Office of Federal Contract Compliance Programs (OFCCP) is no exception.Continue reading this entry
Are Unpaid Interns Handy Helpers or a Source of Liability?
Posted in Labor RelationsSummer is fast approaching and along with the dog days of pool time, family vacations, and outdoor activities, comes summer break for students. For many companies, this means an influx of potential interns anxious to learn the ins-and-outs of an industry and willing to do so without pay. As we have mentioned in past updates (see here and here), the Department of Labor has been stepping up enforcement efforts and closely scrutinizing the use of non-employee workers, such as independent contractors. However, many employers are not aware that this uptick in audits of employee misclassification extends to unpaid interns. In fact, the DOL has issued a fact sheet specifically addressing the use of unpaid interns.Continue reading this entry
Can’t Say You’re Coming in if You’re Going to Strike
Posted in Labor RelationsAs a general principle, an employer cannot discipline employees who do not report to work to participate in or support a strike against their employer, provided the strike satisfies legal requirements, such as the 10-day notice requirement that is unique to employers in the health care industry. However, a recent appellate court decision suggests that when employees are dishonest with employers about their intent to report to work in connection with strike activity, disciplinary action may be proper if the employee dishonesty implicates risks to people or property.Continue reading this entry
What’s Next for the National Labor Relations Board and Employers?
Posted in Labor RelationsAs we reported last week , the D.C. Circuit Court of Appeals recently invalidated President Obama’s purported recess appointments to the National Labor Relations Board made in January 2012, rendering the Board without a quorum and potentially unable to conduct much of its normal business. As the implications of the decision continue to develop, we look at what employers might do to take advantage of the decision.Continue reading this entry
Right-to-Know Regulations May Move Back to the Forefront; Time to Check If You Have Misclassified Your Workers!
Posted in Human Resources/ Employer Matters; Labor RelationsRecent activity by the U.S. Department of Labor (DOL) suggests that it may make moves to push forward changes to the recordkeeping requirements under the Fair Labor Standards Act (FLSA) regulations that were first proposed in fall 2010. These changes would bring to the forefront issues related to misclassification of workers as independent contractors when they are actually employees, potentially spurring an increase in costly wage and hour litigation. Continue reading this entry
Breaking News: Recess Appointments to NLRB Are Unconstitutional, Invalidating Board Decisions
Posted in Labor RelationsIn a high-profile and much anticipated decision, the Court of Appeals for the D.C. Circuit has ruled today that President Obama’s purported NLRB “recess appointments” in January 2012 are constitutionally invalid. The immediate effect of this ruling is to deprive the Board of a quorum currently, and for the past year, as well as to throw into substantial doubt the validity of all decisions issued by the Board during that time. This includes those decisions we have recently written about regarding employee witness statements and “dues check-off” following expiration of a collective bargaining agreement, and all other decisions that reflect recent shifts in Board practice and long-standing precedent.Continue reading this entry
The NLRB Hits Just Keep Coming. This Time, Possible Front-Pay
Posted in Labor RelationsThere seems to be no slowing to the NLRB’s unusually high recent activity. As we have written in recent weeks, the Board has recently changed direction with respect to employers handing over witness statements, has asserted that employers are now responsible for extra taxes on back-pay awards, and must now continue dues check following expiration of a collective bargaining agreement. Continue reading this entry
When Does an Employer Have to Hand Over Witness Statements to a Union?
Posted in EEOC Developments; Labor RelationsLast week we reported that the NLRB reversed 50 years of precedent in a manner favoring unions. As it marched toward the end of 2012, the Board continued this paradigm shift with another recent decision that moves away from long-standing rules governing labor relations and provides more leverage to unions. Continue reading this entry
NLRB: Employers Responsible for Extra Taxes on Employees’ Back-Pay Awards
Posted in Labor RelationsEmployers should take note of the NLRB’s most recent decision that imposes additional burdens on employers where back wages are ordered in unfair labor practice cases. On December 20, 2012, the NLRB released its decision in Latino Express, Inc., which ordered the employer to compensate employees for any additional federal and state income taxes incurred as a result of receiving a lump-sum back-pay award covering periods longer than one year. In its ruling, the NLRB explained that the new tax compensation remedy was necessary because an employee receiving back wages covering more than a single calendar year may incur a greater tax liability if the employee is pushed into a higher tax bracket as a result of a lump-sum payment since the “IRS considers a backpay award to be income earned in the year the award is paid, regardless of when the income should have been received.” The NLRB found that compensating employees for any adverse tax consequences was in line with its remedial objective to “make whole” employees who would not have incurred any additional taxes but for the unfair labor practice. Continue reading this entry
NLRB Continues Its Transformation
Posted in Labor RelationsDepending on one’s perspective, in recent years the NLRB has either blazed a radical path in favor of unions and individual concerted activity or it is returning to its original role under the National Labor Relations Act (NLRA). Whichever way you look at the Board’s recent decisions, it certainly has been busy in changing the ground rules that govern the conduct of employers, unions, and employees in the private workplace sector. Continue reading this entry
Finley Hospital — Beware the “Dynamic” Status Quo
Posted in Labor RelationsOne of the bedrock and usually easily understood principles underlying the National Labor Relations Act is that once a union gets involved with your employees, your right to make and implement unilateral decisions about wages, benefits, and other terms and conditions of employment can be severely constrained. When you change the “status quo” in the context of a union organizing campaign, you invariably get an unfair labor practice charge alleging one of two things: either you granted a benefit to dissuade employees from voting for a union or you withdrew a benefit to retaliate against employees for engaging in union organizing. If your employees have voted to have a union represent them and you make unilateral changes without bargaining, you again commit an unfair labor practice by refusing to bargain in good faith, and any change implemented (typically only a “negative” one) is subject to reversal if the union decides to challenge it. Continue reading this entry
NLRB Offers Advice on At-Will Employment Handbook Language
Posted in Labor RelationsIt is a good, standard practice for employers to include a provision in their employee handbooks, where applicable, to clarify that the terms of employment in the handbook do not alter the at-will status of the employer’s relationship with its employees. Such at-will employment provisions are useful as a defense to potential legal actions by employees asserting that employee handbooks create enforceable employment contracts. Some concern over this practice, however, was created by an NLRB Administrative Law Judge’s February 1, 2012 decision in American Red Cross Arizona Blood Services Region (Case 28-CA-23443). As we reported previously, in American Red Cross, the judge ruled that having an employee sign an acknowledgement form stating, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way” acted to restrict an employee’s exercise of her rights under the National Labor Relations Act to organize a union and bargain collectively. The parties settled their dispute prior to the NLRB’s review of the judge’s decision, however, leaving the NLRB’s view on this ruling unknown. Continue reading this entry
Car in the Pond Sinks Sales Rep
Posted in Labor RelationsA recent decision by the NLRB provides insight and guidance to employers who are struggling to deal with the ever-expanding issues arising from employees’ use of social media. The Karl Knauz Motors case involved a BMW dealer that held an event called the BMW Ultimate Driving Experience, in an attempt to stimulate car sales. One of the dealership’s sales representatives was unhappy that his bosses were only serving hot dogs and chips at the event. Apparently, this sales representative believed that the target audience of potential BMW customers deserved better. In protest, the sales representative posted critical comments about the event on his Facebook page. Continue reading this entry
NLRB Strikes Down Part of Costco’s Social Media Policy
Posted in Labor RelationsOn September 7, 2012, in a decision that is likely to have wide-ranging implications for companies’ social media policies, the NLRB issued a decision finding that Costco’s policy prohibiting defamatory statements about the company violates Section 8(a)(1) of the National Labor Relations Act (the Act) (Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371).
Continue reading this entry
NLRB Tries to Lift Cone of Silence
Posted in Labor RelationsRecent editions of Foley’s Legal News: Employment Law Update have explained that all employers — even those without a unionized workforce — must take care to avoid unwittingly being subject to unfair labor practice charges when implementing and enforcing company-wide employee policies. For example, the NLRB recently intimated that at-will employment policies, which state they only may be changed by a written document signed by the employer’s chief executive, may violate the National Labor Relations Act (NLRA). (See July 23, 2012 Employment Law Update). Similarly, the Board has signaled its intent to “police” social media policies to determine whether they fall afoul of employees’ protected rights. (See May 21, 2012 Employment Law Update). Continue reading this entry
Testing the Limits
Posted in Labor RelationsIf you use pre-employment testing of employees, please read this article. Even if you are not a federal government contractor, these issues will arise.
A recent settlement between the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) and a California food manufacturer highlights the complexity and risks for any employer who uses what have historically been referred to as “paper and pencil” tests. Readers will recall that OFCCP is the branch of the Department of Labor (DOL) that enforces the Affirmative Action requirements imposed on federal government contractors by Executive Order 11246, The Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act. According to a recent DOL press release, during a routine compliance review, the OFCCP investigator determined that the employers’ use of a standardized pre-employment test had an adverse impact on minority job applicants for “on-call” laborer positions.Continue reading this entry
The NLRB Continues to Push the Envelope
Posted in Labor RelationsVarious decisions of the Obama-era NLRB have come under scrutiny as many have questioned whether a pro-labor bias has motivated the NLRB in recent times. Whether those decisions are correct or necessary, it hard to argue against the perception that the NLRB in recent years has made deliberate efforts to assist organized labor and limit the prerogatives of management in the arena of union activities. Continue reading this entry
Protected Concerted Activity: NLRB Enlightens Non-Union Employees of Their Section 7 Rights
Posted in Labor RelationsWhat does a Wisconsin manufacturing plant have in common with a national homebuilder in Deerfield Beech, Florida? Both are featured on the NLRB’s new Web page that describes employees’ rights under Section 7 of the National Labor Relations Act to act together for their mutual aid and protection. The NLRB’s new Web page shows an interactive map with links to descriptions about various cases involving protected concerted activity, in some cases including non-union activity, that the NLRB claims accounts for more than five percent of its recent caseload.Continue reading this entry
Is Your Company’s Social Media Policy NLRA-Compliant?
Posted in Labor RelationsRecently, the National Labor Relations Board (NLRB) has renewed its scrutiny of retaliatory activity by employers based upon employees’ usage of social media. On January 24, 2012, the Associate General Counsel of the NLRB issued a second report on social media cases, which discusses common features of companies’ social media policies that, in the NLRB’s view, are overbroad under the National Labor Relations Act (NLRA). According to the NLRB, improper social media policies include, among others, prohibitions on employees making “disparaging comments about the company” using social media or otherwise casting an employer or fellow employees in a “defamatory” light, prohibiting “inappropriate conversation” by employees on social media, and requiring that employees first bring any “work-related concerns” to their employer before raising those concerns in a social media platform.Continue reading this entry