Ten Things Every HR Leader Should Know About Labor Law

Illinois SHRM Annual Conference August 6, 2012

Lisa R. Callaway, JD, SPHR Clark Baird Smith, LLP

The Current Status of the Board

 The Board is currently staffed with four Board Members.

• Mark Pearce, Chairman (D) • Brian Hayes (R) • Sharon Block (D) • Richard F. Griffin (D)

The Politics Behind the Full Board

 Democratic Majority  Three Board members are recess appointments  The Senate confirmation process (or lack thereof…)

MY ORGANIZATION DOESN’T HAVE A UNION – WHY DO I CARE ABOUT THIS STUFF?

The Direction of the Board

The current NLRB wants to expand the scope of the Act. In order to do so, the Board has taken an aggressive initiative to educate non union employees of their rights under the Act.

1. Poster Requirements

 Current Status – Poster Requirement Enjoined • South Carolina District Court struck down NLRB posting rule in April, 2012 • Court found significant Board’s admission that posting rule diverged from traditional NLRB functions.

Poster Requirements

 NLRB instructs Regional Offices not to enforce poster rule.

 “We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law.” • Board Chairman Mark Gaston Pearce, April 17, 2012

Poster Requirements

 What’s an employer to do?

• The pros and cons of putting up your own poster

2. Protected Concerted Activity

 • What is it?

“Employees shall have the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection

such activities .” , and shall also have the right to refrain from any or all • NLRA, Section 7

Protected Concerted Activity

 Examples of PCA: • Two or more employees addressing their employer about improving their working conditions and pay.

• An employee speaking to his employer on behalf of himself and one or more co workers about improving workplace conditions.

• Two or more employees discussing pay or other work-related issues with each other.

Protected Concerted Activity

 Employee who voices concern over company policy in presence of co workers

intended

to induce group action.

Wyndham Resorts, March 2011  Threatening and obscene language protected “as not so violent and threatening as to lose its protected status.” Profane language regularly used by others. Plaza Auto, August 2010

Protected Concerted Activity

 NLRB launches new webpage describing the rights of employees to act together – union or no union.

 Launched June 18, 2012.

Protected Concerted Activity

Protected Concerted Activity

 “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers .” • Board Chairman Mark Gaston Pearce, June 18, 2012

3. The Facebook Rule

 “Every social media policy that I have seen is way too broad.” • NLRB Acting General Counsel Lafe Solomon, November, 2011

Guidance in a Nutshell

 Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

 An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

4. Employer Rights During the Campaign Process

 Employers DO have the right to campaign – this is a right that must be exercised.

 Card check is NOT the law in the private sector (not the case for Illinois public sector employers).

Employer Rights During the Campaign Process

 Remember the TIPS rule: • No THREATS • No INTERROGATION • No PROMISES • No SURVEILLANCE

Employer Rights During the Campaign Process

The Best Approach?

Don’t Get to an Election in the First Place!

Avoiding an Election

 Make sure your supervisors are aware of what’s going on and communicate with management.

 Train your supervisors to know what to look for.

 Survey your employees!

 Be prepared to act quickly.

5. EEOC Case? Don’t Be So Sure!

 While employee determines to file an EEOC claim alleging discrimination, do not believe that is the extent of your liability.

 While investigating EEOC charge alleging sex and age discrimination, it was discovered that employee received a counseling report limiting right to discuss employee wages. • EEOC v. Sterling Jewelers Inc., W.D.N.Y. (November 11, 2011)

EEOC Case? Don’t Be So Sure!

 Recent guidance from NLRB, Region 13:  “The Region would like to remind everyone that, if a situation presents the potential for violations of more than one federal or state law, the affected parties must contact each federal or state agency responsible for enforcing the particular laws at issue.”  Region 13 Spring 2013 Newsletter

6. Update your Handbook

 Consider a published statement on unions.

 Review your “at will” statement • Basic Rule: Employment at law disclaimers provide broad employer discretion.

• Beware: Recent cases imply potential Section 7 violations

Update your Handbook

 Implement/update your “no solicitation/no distribution” policy • Draft it the way you intend to enforce it • Basic Rules: • No right to permit posting of union literature on company bulletin boards.

• Caveat – where there is a past practice permitting otherwise.

Update your Handbook

• Basic Rules: • Employers may prohibit solicitation by employees during working time and in working areas.

• Employers may prohibit non-employees from entering employer’s property.

• Caveat – beware of your past practice.

Update your Handbook

 Review Confidentiality Policies • Such policies should not limit employees’ rights to discuss wages and other conditions of employment.

• Section 7 permits employees to effectively “communicate with one another regarding self-organization at the jobsite.”

Update your Handbook

• Broad application, consider the following: • “We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners, new business efforts, customers, accounting and financial matters.”

Update your Handbook

• Company also had a discipline policy, which permitted sanction of employees for unauthorized release of confidential information.

• Violation or no violation of the NLRA?

Update your Handbook

Violation!

Court found that employees could reasonably interpret the word “partners” to apply to employees and thereby believe they were restricted from discussing wages

Update your Handbook

 Guidance for Reviewing your handbook: • Conduct a regular review of all relevant policies to ensure they are not overly broad.

• Know and identify other legal obligations to make sure they are clearly identified and defined in the relevant policies.

• Advise employees that they have the right to discuss wages, hours and other terms and conditions of employment.

7. Dress Codes

 Basic Rule: Employers may set basic neutral rules pertaining to employee dress.

• Beware: Policy must be uniformly enforced.

• Employees generally have the right to wear union buttons and pins.

8. Union Salting is Legal

 Basic Rule: An employer may always hire the most qualified candidate for employment.

• Beware : It is illegal for an employer to fire or refuse to hire otherwise qualified applicants merely because they

are

salts.

• “Salting” is the practice whereby a union inserts an organizer into an employer’s workforce in the hope that the employee will be able to organize the workplace.

9. Mandatory

Arbitration

Agreements

 Basic Rule: An employer has the right to limit its liability through the use of pre-employment agreements.

• Beware: Do such agreements prevent employees from joining together to pursue employment related legal claims?

Mandatory Arbitration Agreements

 NLRB struck down an employer’s arbitration agreement that required employees to waive their right to a judicial forum and to bring claims to an arbitrator on an individual basis only (versus via class action.) • D.R. Horton, 357 N.L.R.B. No. 184, January 6, 2012

Mandatory Arbitration Agreements

 But note: • • At least four district courts have rejected the NLRB’s

D.R. Horton

ruling.

This indicates that most courts are unlikely to deny enforcement of arbitration agreements with class action restrictions or waivers based upon an argument that such restrictions or waivers violate the NLRA.

10.

Employer Participation Committees

 Section 8(a)(2) of the NLRA makes it a ULP for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”

Employer Participation Committees

 1.

Is the team a “labor organization?”  2. Has the employer dominated or interfered with the formation of the team or contributed financial or other support to it?

Employer Participation Committees

 Definition is broad enough to cover non-union employee participation committees.

• i.e. grievance committees, safety committees, quality circles, etc.

Employer Participation Committees

 Legal employee teams must meet the following requirements so as not to run afoul of the Act: • • • Cannot deal with “terms or conditions of employment.” Participation must be voluntary.

Participants should not represent groups of employees.

• • Recommendations should not be frequently overruled.

Recommendations should not be submitted for review and compromise •

Electromation, NLRB, 1992

11. Broadening Union Rights

 Basic Rules: Supervisors are not eligible to organize and individuals must be employees to organize.

• Beware of Recent NLRB rulings and pending cases.

• Charge Nurses • Graduate Assistants • College Faculty Members

Questions?

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