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April 17, 2014

Put Me in Coach, Or I Will File a Union Grievance

Filed under: Legal Issues,Unions/NLRB3:52 pm

A regional office of the National Labor Relations Board (NLRB) has ruled that the football players of Northwestern University actually are employees and should be allowed to form a union. The key question was whether the athletes perform services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. The NLRB office based its ruling on the fact that the college players received a substantial economic benefit (scholarships) for playing football – a revenue-generating sport – and are subject to the college’s control (team rules, practice schedules). The NLRB regional office distinguished graduate assistants (earlier ruled to be students, not employees) “because the players’ football-related duties are unrelated to their academic studies unlike the graduate assistants whose teaching and research duties were inextricably related to their graduate degree requirements.” Northwestern has said it will appeal the adverse ruling to the full NLRB and thereafter to the courts as needed. Thus, this case likely will not be finally resolved for several years.

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December 20, 2013

HR Fact Friday: Recent Settlements and Lawsuits

Filed under: Unions/NLRB — Tags: , 6:00 am

The United States Occupational Safety and Health Administration (OSHA) has ordered a North Carolina trucking company to reinstate three former employees and pay them $1 million in damages for alleged retaliation. OSHA has concluded that the truckers were whistleblowers who were fired after reporting safety concerns. A national produce company has agreed to pay $1.2 million to settle claims that workers on the company’s Hawaiian farms were subjected to poor housing, insufficient food, low wages and deportation threats. The settlement resulted from claims of race and national origin discrimination filed with the Equal Employment Opportunity Commission (EEOC). The Federal Fifth Circuit Court of Appeals recently rejected a ruling from the National Labor Relations Board (NLRB) ruling that arbitration agreements barring employees from pursuing class or collective claims violate federal labor law. The NLRB had held that such collective claims were protected by the employees’ federal rights to engage in concerted activity.

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October 24, 2012

When Did It Become Illegal to be Courteous?

Filed under: Compliance,Legal Issues,Unions/NLRB6:00 am

The National Labor Relations Board Administrative Law Judge upheld a decision of an employer to terminate an employee because of his Facebook postings.  First, the BMW salesman made comments on his Facebook page that he didn’t agree with the company’s choice of cuisine to be served at the dealership’s customer event – - hot dogs and chips!  He made some sarcastic comments.  He didn’t think the food was of the caliber of the luxury cars he was charged with selling.  This was a protected activity.

However, his second post was not protected.  He was at the workplace when an accident at the Land Rover dealership across the street (also owned by the same dealer) occurred.  A 13 year old boy, a customer’s son, was allowed by another salesman to sit behind the wheel after a test drive.  The boy pressed on the gas and ended up in a pond after running over his parent’s foot and a wall.  The BMW salesman took pictures and posted them on his Facebook page with some ‘not so nice’ comments about what his co-worker had allowed.  This was not protected activity.  He was terminated by his employer for the second posting.

When the salesman filed a charge with the NLRB complaining that his rights to engage in a protected concerted activity were violated, he lost and the decision was upheld as previously mentioned; he was terminated.  It was found that his posting was not protected because it was done solely by him, and that no discussion with or about other employees’ terms and conditions of employment ensued.  But, while the NLRB was investigating this case, they took a good look at the employer’s policies and took issue with the one on, of all things, Courtesy!

According to the NLRB’s decision dated September 28, 2012, the dealership’s policy read as follows:

“Courtesy: 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 which injures the image or reputation of the Dealership.”

The Board’s decision went on to say, “An employer violates Section 8(a)(1) when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.”  And, that the words, ”disrespectful,” and  “language which injures the image or reputation of the Dealership,” as being part of the protected concerted activity that allows employees to discuss terms and conditions of their employment in accordance with the National Labor Relations Act.  See the complete Board’s decision here.

Several other cases are before the NLRB involving employment handbook policy wording that is allegedly in violation of the National Labor Relations Act.  While these cases are being heard, it would be a good time to review your policies with a critical eye to determine if you are in need of an update.  It is always wise to seek legal counsel when writing or revising your employee handbook to make sure you have taken every possible implication into consideration.  The NLRB certainly will!

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October 12, 2012

HR Fact Friday: NLRB Strikes Down Employer’s Social Media Rules

The NLRB recently struck down an employer’s rules regarding social media usage. The company’s policy prohibited electronic postings that damage the company or any person’s reputation. The NLRB found that this language could reasonably be understood by employees as limiting protected comments to co-workers about the terms and conditions of employment. The NLRB also noted that the policy did not include language that would tend to limit its application, perhaps an implicit suggestion that the policy might have stood if it had expressly stated it did not apply to conduct protected by Section 7 of the National Labor Relations Act.

Check back early next week to the HRN News & Views Blog where we will post the NLRB’s recommended Social Media Policy in it’s entirety. . . . word for word.

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April 19, 2012

Courts’ Disagreement Means No NLRA Poster… For Now

Could it be that it’s already been over a year since the National Labor Relations Board issued its proposed rule to require employers to add another poster to their walls?  The NLRB first proposed the rule in December 2010, and it’s been a long and winding road since.  Last fall, we were on the verge of the requirement to post.  We distributed a on the subject last September, after the final rule was published on August 30, 2011.  After multiple extensions, the rule is now set to take effect on April 30, 2012.  Thanks to an ongoing court battle, it looks like employers will be left to wonder when (or if) they need to clear a space for a new poster.

Recently, the U.S. and South Carolina Chambers of Commerce filed a lawsuit that sought review of the rule.  U.S. District Court Judge David Norton agreed with the Chambers that the NLRB exceeded its authority and violated the Administrative Procedure Act.

There are three laws that comprise the National Labor Relations Act: the Wagner Act, the Taft-Hartley Act, and the Landrum-Griffin Act.  Unlike other statutes – such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Family and Medical Leave Act – the laws that comprise the NLRA do not contain any statutory authority requiring that employers post notices of rights and remedies under the statutes.

The Court further concluded that:

  • The rule, while useful, is not necessary to carry out the provisions in the NLRA.
  • The NLRB is an agency that reacts to charges filed by others.  The rule “proactively dictates employer conduct prior to the filing of any petition or charge.”
  • There was no “statutory gap” for the NLRB to fill.

The Court’s decision created a split from a previous decision made by the D.C. District Court, which upheld the posting requirement in its decision.  Earlier this week, the U.S. Circuit Court granted an injunction that will delay the posting requirement.  Meanwhile, the D.C. Circuit Court has expedited its review of the D.C. District Court’s ruling, and will hear oral arguments in September.

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March 23, 2012

HR Fact Friday: Court Upholds NLRB Posting Requirement

Filed under: Employment Law,Unions/NLRB6:00 am

A D.C. federal court has sustained the actions of the National Labor Relations Board (NLRB), which last year imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA). This new NLRB poster requirement was supposed to take effect as of November 14, 2011 but that deadline was later delayed until January 31, 2012 and then again delayed until April 30, 2012. The most recent delay resulted from the D.C. court’s request to postpone the effective date pending a legal challenge to the new requirement. The court also concluded that the NLRB could not make an employer’s failure to post alone an unfair labor practice but rather the NLRB would have to show that the failure to post actually interfered with employee NLRA rights.

If you want more information on the posting requirement, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster. A copy of the new poster is available both here: https://www.nlrb.gov/poster and by clicking here

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January 6, 2012

HR Fact Friday: NLRB Poster Deadline Postponed Again

Filed under: Compliance,Legal Issues,Unions/NLRB2:27 pm

The National Labor Relations Board (NLRB) recently imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  The new NLRB requirement was supposed to take effect as of November 14, 2011 but that deadline was later delayed until January 31, 2012.  The NLRB has delayed the deadline again, and it now is set at April 30, 2012.  The most recent delay is a related to a court request to postpone the effective date pending a legal challenge to the new requirement.  If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster

A copy of the new poster is available here: https://www.nlrb.gov/poster and here: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

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October 21, 2011

HR Fact Friday: NLRB Posting Deadline Delayed

Filed under: Employment Law,Unions/NLRB — Tags: , 10:46 am

The National Labor Relations Board (NLRB) recently imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  The new NLRB requirement was supposed to take effect as of November 14, 2011.  However, the NLRB now has delayed this deadline until January 31, 2012.  The NLRB has said that more time is needed to educate employers about the requirement.  Here is the NLRB’s press release: https://www.nlrb.gov/news/posting-employee-rights-notice-now-required-jan-31-board-postpones-deadline-allow-further-educa 

If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster  A copy of the new poster is available here: https://www.nlrb.gov/poster and here: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

 

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September 14, 2011

Weekly Wednesday Acronym – NLRB…(The Poster is now available for download!!)

As a follow-up to yesterday’s blog, I’m continuing to focus on the National Labor Relations Board (NLRB).  Let’s first start with who the NLRB is.  Direct from their website is the following definition:

The National Labor Relations Board is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.

As Olivia reported yesterday, much has been in the news recently regarding the protection of employee’s rights, specifically concerted activity.

On August 30, the NLRB issued a final rule that requires any private-sector employer covered under the NLRA to post a notice to its employees of their rights under the act.  If there are 20% or more employees who are primarily non-English speaking, the notice must also be posted in the preferred language.  If employers post other employee notices, such as those required by the DOL, on the company’s intranet or other site, the NLRB notice must be posted there as well.  The notice must be posted regardless of current unionization status.

Although there is not a fine for non-compliance, your company could become ripe for an “unfair labor practice” charge if the notice is not posted.  The failure to comply could be used as evidence in the event a case is brought against your company.

The poster is now available for download.  You can find it by clicking on the following link:

https://www.nlrb.gov/poster

For more information about the NLRB, please go to https://www.nlrb.gov.

 

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September 13, 2011

Why You Should Care About the NLRB (Now, More Than Ever!)

Filed under: Compliance,General HR Buzz,Unions/NLRB — Tags: 9:25 am

Considering the number of articles floating around lately, it seems natural to conclude that the NLRB is the only thing making headlines in the world of HR.  It may be a stretch to make that statement, but if you didn’t care about what the NLRB was doing before now, it’s a critical time to start.  By mid-November, virtually every employer will be required to add another poster to their wall of notices.

The NLRB has been paying a lot of attention to non-union employers as of late.  By now, the news of Facebook firings has become a hot topic around water coolers everywhere.  On August 30, the NLRB issued a final rule that requires any private-sector employer covered under the NLRA to post a notice to its employees of their rights under the act.  If there are 20% or more employees who are primarily non-English speaking, the notice must also be posted in the preferred language.  If employers post other employee notices, such as those required by the DOL, on the company’s intranet or other site, the NLRB notice must be posted there as well.  The notice must be posted regardless of current unionization status.

Although there is not a fine for non-compliance, your company could become ripe for an “unfair labor practice” charge if the notice is not posted.  The failure to comply could be used as evidence in the event a case is brought against your company.

The National Association of Manufacturers (NAM) has already filed a lawsuit against the NLRB in an attempt to stop the posting requirement.

  “This rule is just another example of the Board’s aggressive overreach to insert itself into the day-to-day decisions of businesses – exerting powers it doesn’t have,” said NAM President and CEO Jay Timmons. “The growing list of burdensome actions from the NLRB is causing great uncertainty among manufacturers at a time when our economy is struggling to recover. We are committed to fighting this rule in order to rein in the NLRB. We also are encouraging Congress to act soon to stop this rogue agency.”

HR News & Views Blog: Why You Should Care About the NLRB

Notification of Employee Rights Under the NLRA

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