Over the past year, the National Labor Relations Board (NLRB) has issued a number of directives with the potential to affect many employers across Ohio and the nation.
A common theme from the NLRB has been that employers need to clearly state that work rules do not restrict the legal rights of employees. Examples of NLRB actions include striking down a large retailer’s social media use policy and a car dealership’s rule about being courteous. In both cases, the NLRB ruled that employees could interpret the broad language of employer policies as prohibiting protected discussions about topics such as wages or working
“The board is emphasizing that an indirect violation can occur if, hypothetically, an employee who wants to exercise concerted rights with fellow employees might read a rule as preventing him or her from doing so. You’d have to be thinking of hypotheticals in order to be looking at that as a problem,” says Stephen P. Bond, partner with Brouse McDowell, LPA.
Smart Business spoke with Bond about the NLRB and what companies should do in response to recent rulings.
Are the recent NLRB actions just a concern for employers with unions in place?
No. Under federal law, the focus is on employees’ rights to engage in concerted activities for the purpose of mutual aid or protection. This may exist whether there is a union or not, and the board has the authority to enforce those rights. In fact, the board issued a directive ordering all employers involved in interstate commerce to post a notice to employees informing them of their rights under federal law. But, at this stage, enforcement of that order has been postponed while the courts decide whether the board has the authority to enforce such a requirement.
Why is this happening now?
It is easy to understand that if an employer enforces a work rule that directly prevents an employee from doing something he or she has a right to do, the government would have a problem with that. But, recently, the board has emphasized an interpretation that if an employer adopts a rule that could reasonably be construed as prohibiting legal labor activities, then that also will be prohibited by the board, even if the employer had a legitimate reason for the rule. And the board holds that the ambiguous employer rules — rules that reasonably could be read to have a coercive meaning — are construed against the employer. So, there have been cases cited by the board under this standard where seemingly innocent rules have come under attack.
Can you provide some examples?
In the case of Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012), the board had problems with a number of Costco’s employee rules. First, there were rules against unauthorized posting of any materials on company property; discussing private matters of employees, including issues about being off work for various reasons; disclosing sensitive information, including payroll, Social Security numbers and personal health information; and sharing confidential employee information such as addresses and email addresses. The board did not like these rules because they went too far and may have prevented employees from using information in connection with other employees for mutual benefit in ways that are protected.
The board further objected to a company rule prohibiting employees from electronically posting statements that damage the company or damage any person’s reputation. And the board did not like a rule that prevented employees from leaving company premises during the workday without permission. In both respects, the board envisioned possible scenarios in which the employee could interpret these rules as preventing them from proceeding with rights they have under federal law in dealing with their employers.
In Karl Knauz Motors, 358 NLRB 164 (Sept. 28, 2012), the employer had this work rule: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language that injures the image or reputation of the dealership.
But the board held that an employee could take this to mean he or she could not criticize his or her employer or object to working conditions, even if talking to co-workers, conduct which is allowed under federal law.
What should employers do about this?
First, employers need to be aware of the potential of an employee making a claim that a work rule may be violating employee rights under federal law, even if there is no union.
Second, they should look at existing policies and handbooks with this issue in mind. Particularly, look to see if there are any obvious ways they are running afoul of any of these rulings.
It’s not necessary to change all of your rules, but look at ways the rules can be interpreted and whether they can be clarified to make sure they’re not in violation. The board talks about putting in language that says the intention is not to prevent employees from engaging in their lawful rights. You can use the company’s existing language and put in a disclaimer that might save you from getting into one of these problems.
Stephen P. Bond is a partner with Brouse McDowell, LPA. Reach him at (440) 934-8080 or firstname.lastname@example.org.
Under new National Labor Relations Board rules, your employees are finding it much easier to unionize. And with micro-units now permitted, even companies with fewer than 50 employees may find themselves dealing with more than half a dozen unions, says John Entenman, a member at Dykema Gossett PLLC.
“This is a tsunami coming at employers, and many are not prepared for the implications of the new rules,” says Entenman. “The next few months could see an explosion of union organizing.”
Smart Business spoke with Entenman about changes to NLRB rules and how employers can react proactively.
What new rules has the NLRB enacted?
Historically, the NLRB has only rarely engaged in rule making. But last fall, it decided two major rules would go into effect on April 30.
The first would have required employers covered by the National Labor Relations Act to post a notice, ostensibly designed to inform employees of their rights. It further said that failure to post would result in a per se unfair labor practice being committed by the employer, and that the six month statute of limitations on the amount of time in which a charge can be brought could not be used as an affirmative defense, resulting in open-ended liability for acts an employer may or may not have committed.
In a South Carolina lawsuit, a federal court said the NLRB did not have the authority to require posting. However, in a separate lawsuit, the federal district court in Washington, D.C., said the Board had the authority to issue the rule but not to declare the failure to post a per se unfair labor practice, nor to toll the statute of limitations.
However, on appeal the Board was enjoined from making employers post the notice until a final ruling is issued.
What other rules did the Board issue?
The second rule did go into effect on April 30 and allows for expedited union elections. It greatly shortens the time from when a union files a petition to the holding of a secret ballot election.
Previously, it was 30 to 40 days before a vote, giving employers time to communicate to employees why it hoped they would not vote for union representation.
Under the new rule, the period between filing a petition and holding a vote has been shortened to 10 to 15 days, meaning that employees will not get a meaningful opportunity to hear from their employer. In addition, matters that were appealable prior to the election are no longer appealable until after the election, so a secret ballot election could occur within 10 days.
We expect to see a significant uptick in the number of union petitions filed. Employers will be receiving documents from the NLRB, and by the time they meet with a lawyer and assess the situation, there’s an election in five days, and they’ve got problems.
How will the new rule impact employers?
This will greatly increase unions’ chances of winning elections from the current 50 percent to a union success rate of 80 to 90 percent. An employer may not even be aware its employees are interested in a union until it gets a petition, and then there’s an election 10 days later. Many employers are going to blindsided.
How will the ability to form micro-units impact unionization?
Micro-units are a new phenomenon. In 2010, a union petitioned to represent a collective bargaining unit of poker dealers. The employer (a casino) said that was not appropriate because the result would be separate unions for each card game it offered. The NLRB decided, only 2-1, that a unit solely consisting of poker dealers was not an appropriate bargaining unit.
A year later, a union petitioned to represent only CNAs at a nursing home and the NLRB approved the petition. The nursing home objected, saying it didn’t have many employees and couldn’t deal with a multiplicity of unions, but the ruling held.
Finally, in a recent case at the Denver International Airport, a union wanted to represent just rental car agents at a car rental company. The NLRB ruled that was fine, that each job category could form its own separate union.
As a result, unions are poised to represent these micro-units. And most employers are not going to fare well if their work forces are composed of multiple unions all whipsawing each other. If one union goes on strike, and the others observe the picket line, the employer could be in real trouble.
What can employers do?
It starts with sitting down with a labor lawyer, who can help assess your situation and define what, if anything, you should be doing. If you haven’t yet prepared for this new legal environment, you need to do so immediately.
Employers should also be educating their employees, explaining what unions may mean to the workplace. Tell them there are reasons to believe they may be approached by a union organizer and that you want them to know the good, the bad and the ugly about what is involved with union representation.
Tell them you are educating them so that if a union asks them to sign an authorization card, they will know something about this and will have heard the employer’s side of things.
Employers may not want to raise the subject with employees, and that may work for some, but you take the chance of employees only hearing one side of the argument, that of the union. It’s better to be proactive, because union organizing is expected to increase significantly the next few months.
John Entenman is a member at Dykema Gossett PLLC. Reach him at (313) 568-6914 or JEntenman@dykema.com.
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Last fall, the National Labor Relations Board (“NLRB”) issued a rule mandating that employers begin to post at the workplace a new form that notifies employees in general of what rights they have under the National Labor Relations Act. It was initially scheduled to take effect on November 14 of last year; but its effective date was postponed to April 30, 2012.
“Contrary to what some employers might assume, this poster is required regardless of whether their own employees belong to a union,” says Stephen P. Bond, partner at Brouse McDowell.
Smart Business spoke to Bond to find out more about what this means for employers and how they can comply with the new rule.
What kinds of employers should be concerned with the new requirement?
As a general rule, this applies to all businesses that have annual gross revenues of $500,000 or more. There are some specially defined categories that vary from this. For example, the regulation would apply to a nursing home with annual revenues of as little as $100,000, or a daycare center with annual revenues of $250,000. Even a smaller business can come under coverage if it buys or sells more than $50,000 worth of goods or services in interstate commerce. There is an exemption for governmental entities.
What does the poster say?
In addition to telling them how to reach the NLRB with complaints, it advises employees they have the rights to, among other things:
* Organize a union
* Bargain collectively
* Discuss wages, benefits and other terms and conditions of employment with other employees
* Take action with one or more co-workers to improve their working conditions by raising work-related complaints with their employer
* Go on strike, depending on the purpose or means of the strike
It also informs them that it is illegal for an employer to, among other things:
* Prohibit them from talking about a union during non-work time
* Question them about union activities
* Discipline them for being involved in union organizing activities
* Threaten to close down if a union is chosen by workers
* Prohibit them from wearing union buttons at work in most cases
* Spy on them for engaging in union organizing activities
How is it to be posted?
The poster is to be placed in a prominent location and, at the least, at any location where personnel rules are usually posted by the employer. If 20 percent of the work force speaks another language, a foreign language version of the poster needs to be posted. If the employer usually uses an intranet or Internet sites to communicate with employees about personnel issues, the poster needs to be available there as well, either as an exact copy or as link to the NLRB’s site. Employers can download the poster from www.nlrb.gov/poster, or they can call the government at (202) 273-0064 to have it mailed to them.
What challenges does this rule pose for employers?
The poster is significant on three levels. First, if an employer fails to comply voluntarily, any employee can file an unfair labor practice charge with the NLRB against the employer; and, theoretically, the NLRB could ultimately order the employer to comply with a court order. That process can be costly, time-consuming and counterproductive to staff morale. Beyond that, if an employer fails to post, and an employee later files an unfair labor practice charge on some other issue, the NLRB may excuse any delay by the employee because the person hasn’t been forewarned of his or her rights through a poster. The NLRB may also interpret the refusal to post as evidence that the employer has an anti-union motive relative to the unfair labor practice charge.
Second, while the warnings in the poster are merely reciting rights that have long existed in the law, some employers are concerned that this listing, without explanation or context, will create confusion among employees and lead to disputes that would not otherwise have arisen.
Third, the poster does highlight a couple of issues, which, regardless of the new requirement, employers should be aware of. Even if an employer does not have a union in place or a collective bargaining agreement, employees generally do have certain rights under federal law, essentially, the right to act in concert to assert their rights as employees. One example that is surprising to many employers is that employees have a right to talk about their rates of pay and work benefits — and a rule that prohibits that would be deemed illegal by the NLRB. In turn, they also have the right to talk among themselves concerning work issues, and to approach management for solutions, even though no union represents them. If employees are e-mailing or using social media to share their concerns about their work experience, the NLRB may say that this too is engaging in concerted action about work and prevent employers from interfering with it.
What is the status of the rule?
Once this rule was announced last fall, lawsuits were immediately filed in federal courts. The National Association of Manufacturers, for one, alleged in its complaint that the rule is itself illegal because the National Labor Relations Act, which created the NLRB, did not authorize it to issue a substantive requirement of this nature. This litigation is part of the reason that the NLRB has twice postponed the final effective date for the rule. In a decision issued in March, the Federal District Court for Washington, D.C., held that it was satisfied that the scope of authority that Congress intended to give to the NLRB, back in 1935, was broad enough to include this type of a posting requirement. An appeal was immediately filed and is now pending.
Stephen P. Bond is a partner at Brouse McDowell. Reach him at (440) 934-8080 or email@example.com.
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If employees treat social media as a sort of online water cooler where comments are posted about colleagues, managers and customers, what rights do employers have to control the conversation?
Social media networks like Facebook and Twitter open up a floodgate of human resources issues that companies must address with a formal policy and open communication with employees — before a litigious situation arises. Can a business owner fire an employee for bad-mouthing the company? Is it permissible for a worker to complain about company decisions and managers on Facebook? How “private” are these social media postings, really?
“Recent court cases shed light on the responsibility employers have to create a solid social media policy and to talk with employees about how social media is used in and out of the workplace,” says Christopher Carney, chair of the Labor and Employment Practice Group at Brouse McDowell in Cleveland.
Smart Business spoke with Carney about social media regulation and what employers can do to be proactive in this fast-changing area of business and the law.
What are some common mistakes businesses make when using social media?
It is no secret employers use social media to screen applicants. However, they can get into trouble when they use social media to screen out applicants. It is illegal to discriminate against someone in the hiring process on the basis of race, gender, religion, disability or sexual orientation. It is also illegal to use an applicant’s Facebook page or Twitter account to eliminate candidates. The bottom line is that if you possess this information and it goes into your decision-making process, that is against the law.
The best way to avoid problems in this area is to have a third party do the screening. That way, the ultimate decision-maker does not see any legally protected information discovered using social media. If you cannot use a third party, then your company’s HR department should do the screening and not provide you with any legally protected information.
Another common mistake employers make is to ‘friend’ employees with a fake profile or seek information about an employee through a third party that is ‘friends’ with the employee. Even with the Internet, there is an expectation of privacy with Facebook because the profiler invariably limits access to his or her Facebook page.
How has the government attempted to regulate the use of social media by employers?
Here is some background: Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection.’ The NLRA’s protections are not limited to union organizing activities or employee conduct in a unionized environment. ‘Mutual aid or protection’ includes any group of unrepresented employees talking about wages, hours and working conditions. In 2010, the National Labor Relations Board (NLRB) made national headlines by issuing a complaint accusing an employer of unlawfully discharging an employee for posting critical remarks on her Facebook page questioning her supervisor’s mental health. Since then, the NLRB has continued its focus on social media, aggressively prosecuting cases where employees are discharged or disciplined for social media use. Two recent NLRB administrative law judge decisions illustrate how the NLRB is shaping the law in this area.
In September 2011 the NLRB found that an auto dealer did not violate the NLRA when it fired a car salesman who had posted on Facebook photographs of and made sarcastic comments about an accident that occurred at one of the employer’s dealerships. The judge concluded that the posting was not protected because it was posted ‘without any discussion with any other employee . . . and had no connection to any of the employees’ terms and conditions of employment.’ In another decision that came out at the same time, a judge held that a nonprofit, social service organization did violate the act by firing five employees who posted on Facebook negative comments about their workloads and staffing issues. The judge determined that the terminated employees’ discussions were protected, concerted activity because it involved conversations among co-workers about the terms and conditions of their employment, including job performance and staffing levels.
Notably, both cases dealt with non-union employers.
What should business owners take away from these cases?
The natural inclination for a business owner is to take action against an employee for making critical statements about the business or its owners, particularly in such a public forum as the Internet. However, employers should proceed with caution. General griping is one thing, but if the criticism is tied to a term or condition of employment and is between or among co-workers, then it is likely protected. Any adverse employment action could potentially violate the law.
Should employers have a social media policy?
Yes. And any such policy should be narrowly tailored to avoid ambiguity. It should inform employees that the policy does not prohibit employees from discussing or disclosing the terms and conditions of their employment. Also, any social media policy should clearly state that employees are prohibited from disclosing confidential or proprietary information on social media. It also should prohibit employees from making disparaging comments about the company, its employees or its customers. Finally, the policy should place employees on notice that the employer may monitor employee postings in order to minimize any expectation of privacy the employees may think they have.
It’s a good idea to consult with a legal professional when crafting a social media policy to be sure that the house rules you set comply with the law and cover any worst-case scenarios that could occur.
Christopher Carney is chair of the Labor and Employment Practice Group at Brouse McDowell in Cleveland. Contact him at (216) 830-6830 or CCarney@brouse.com.
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.