Employers should be paying close attention to several new developments from the National Labor Relations Board, as these changes impact many more employers than people realize, says Lynn Outwater, managing partner with Jackson Lewis LLP.
“These new developments at the NLRB impact both nonunion and unionized employers,” Outwater says. “But a lot of employers are oblivious to the changes. Whether you are a small, medium or large employer, there are a lot of new developments you need to focus on and be prepared for.”
Smart Business spoke with Outwater about how the changes will affect employers and what steps you can take to ensure compliance.
What are the changes that employers need to be aware of?
There are four main developments. The first, which has gathered some media attention, is a new mandatory posting notifying employees of their right to unionize, which has to go up in the workplace on Jan. 1, 2012. Ignorance of the law is no excuse. It would be considered a violation of the law if there is no posting, with other legal implications.
In terms of what this may mean to employers, it is likely to increase the potential of union activity and/or increase protected concerted activity in the workplace, such as employees talking among themselves about their terms and conditions of employment in ways that may be protected under the National Labor Relations Act. This certainly can provide more exposure to possible unfair labor practice charges for employers.
Why is this posting such a big deal?
This is a significant development because since the statute went into effect in 1935, there has been no requirement for a posting. There is some pending litigation regarding whether the NLRB has the authority to do this, but employers can’t count on that litigation to protect them. They need to get up to speed on what they need to do, where they need to do it and how they need to do it. It’s not just a matter of putting up a poster.
Employers should be considering strategies and proactive compliance programs to deal with this subject. I would suggest that employers look at their whole labor relations plan. They need to decide how, when and where to post and if they are going to explain it to their employees in advance of the posting or in conjunction with the posting. They certainly need to train all their managers and supervisors about the legal meaning and requirements of the posting and make sure they have employment policies in place that ensure best practices prior to the posting.
What other developments should employers be aware of?
The NLRB has focused on the exploding area of social media issues and policies. The NLRB has more than 100 cases pending involving Facebook, Twitter, YouTube, or other forms of social media and electronic communications.
Because of this heightened scrutiny, it is very important for employers to make sure they have updated social media policies that are both lawful and effective in relation to their company culture. Also, they should ensure their policies are lawful based on recent or anticipated NLRB actions. Employers should avoid overly broad provisions that could be reasonably construed to prohibit protected concerted activity as currently interpreted by the labor board.
They should also look at other policies that can be implicated by these board decisions, such as employee access rules, communications with outside media rules, corporate codes of conduct, dress codes, confidentiality of investigations, nondisparagement and gossip policies, computer policies, etc. It’s a wide swath.
The third development is that the NLRB is seriously considering accelerating the timetables for union elections in the event that a petition would be filed at any employer’s work site. They are looking at reducing the amount of time from petition to election to within 10 to 21 days. They are also looking at requiring expedited disclosure to unions of employees’ contact information, including phone numbers and e-mail addresses. The significance of that is to make employers aware that these developments can result in either legal pitfalls or employers caught unaware by these fast-paced NLRB developments and find themselves not realizing how accelerated things are today.
The last thing employers should be aware of is a new case which would allow, in most industries, a union to seek an election in only one job title. For example, in one case, a union was allowed to go forward with an election with just certified nursing assistants, as opposed to an overall service and maintenance unit, or some larger group which otherwise shared a community of interest among various jobs.
What effect will these changes have, and how should employers handle them?
Essentially, this means unions can be more successful, more quickly and more easily. In view of all these new developments, employers need to review their comprehensive labor relations plan. Do you do things differently, or continue to do things the same way? Should you train management and supervisors? These developments are so significant that if your management team is caught unawares, you are more likely to have legal and practical difficulties.
How can employers ensure they aren’t caught unawares?
Part of it is having policies and practices that ensure lawful best practices in today’s environment. That includes reviewing handbooks and social media policies to comply with rapidly changing legal requirements. Also, employers must keep up to date on legal developments, so they can comply proactively instead of finding out later that they have committed an unfair labor practice.
Lynn Outwater is managing partner of Jackson Lewis LLP. Reach her at (412) 232-0232.