Employers 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
Depending 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
A 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
On 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
Recent 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
The NLRB ruled that it was unlawful for Plaza Auto Center to fire car salesman Nick Aguirre after he swore at the company’s owner. Mr. Aguirre had only worked at the car dealership for two months, but in his short tenure, he raised a lot of complaints about his working conditions. Mr. Aguirre constantly asked his supervisors about how his commissions were calculated and when he could take bathroom and meal breaks. He griped about being employed on a 100-percent commission sales basis and said he should at least receive minimum wage.Continue reading this entry
Regular readers of Foley’s Legal News: Employment Law Update will know that the NLRB has proposed a rule that would require most private sector employers in the United States to post a notice that informs their employees about their rights under the National Labor Relations Act. These rights include the right to form, join, or assist a union and the right to bargain collectively with their employers through their chosen representatives. The NLRB issued the final rule on the posting requirement on August 30, 2011. See the NLRB’s proposed poster and the NLRB’s FAQ document about the rule. Should the rule become effective, the poster is essentially the same as the one that federal contractors are already required to post under Executive Order 13496.Continue reading this entry
In the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:
- On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and delays. The rule is due to take effect on April 30, 2012, and is designed to speed up the NLRB election process and reduce the need for administrative hearings. The proposed rules are generally regarded as favoring unions who seek to organize non-union workplaces. Employers who face potential union organizing would be well advised to become familiar with the rule available online. The U.S. Chamber of Commerce immediately filed suit seeking to prevent the rule from taking effect. According to a statement issued by the Chamber, the NLRB’s final “‘ambush election rule’ imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize.”
On November 3, 2011, the NLRB issued an order contingently delegating to the general counsel full authority over court litigation matters that would otherwise require Board authorization and full authority to certify results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act. The delegation over court litigation matters includes full and final authority to initiate and prosecute injunctions under Sections 10(j), 10(e), and 10(f), as well as to initiate and prosecute contempt proceedings pertaining to the enforcement of, or compliance with, any order of the Board.
You might have to live under a rock not to have heard about the Occupy Wall Street protests by now. As such protest activity spreads to additional cities and towns around the country, employers should prepare for issues that may arise if their employees opt to join in or support such activity in person or via social media.
A little known feature of the federal law governing labor relations in the private sector — the National Labor Relations Act (NLRA) — is the right of even non-unionized employees to engage in so-called "protected concerted” activity. Non-union employers can be and often are caught in the trap arising from this right unawares.
The NLRB interprets and enforces the National Labor Relations Act, (https://www.nlrb.gov/national-labor-relations-act) which means, among other things, that the Board decides cases that define: 1) what an employer can and cannot do in union elections, and 2) what constitutes an unfair labor practice.
On June 22, 2011, the NLRB issued a notice of proposed rulemaking to amend its rules when processing a union election petition. (See 76 F.R. 36812). According to the notice, the proposal “would simplify representation case procedures and render them more transparent and uniform cross regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.”
The NLRB has filed a complaint against an employer for terminating five employees for statements they posted on Facebook.
This complaint alleges the postings by employees of Hispanics United of Buffalo were protected because the employees were “concertedly complaining on [the] Facebook page regarding working conditions … .” Complaining about work conditions is considered a protected activity under the National Labor Relations Act (NLRA) Section 7.
The NLRB’s general counsel recently filed a complaint against an employer for terminating an employee who used her personal Facebook page to post disparaging remarks about her supervisor. The company had a written policy that prohibited employees from posting disparaging remarks online about the company or employees’ supervisors, co-workers, or competitors. The NLRB contends that the company’s policy is unlawful on its face because it tends to interfere with an employee’s right to engage in “protected concerted activity.” The concept of protected concerted activity applies both to unionized and unorganized employers. While this case is merely at the complaint stage and neither an administrative law judge nor the NLRB has ruled on the issues raised, it signals that the general counsel (who heads the NLRB’s prosecutorial function) intends to pursue employers who have similar broad Internet non-disparagement policies.