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Guest Post: NLRB Acting General Counsel Addresses At-Will Disclaimers and More at CBA Annual Meeting

Posted in Class Actions, Highlight, Labor Law & NRLB, Social Media

On Monday, the Connecticut Bar Association held its annual meeting. Lots of labor and employment law topics were covered, some of which I missed. I’ve asked one of my bar colleagues, Rita Trivedi — who will be a Teaching Program Fellow at Columbia Law School in the fall — to share her insights on the events.   My thanks to Rita for the contribution.

First up: A recap of NLRB Acting General Counsel Lafe Solomon’s address to the meeting.  

It’s been a busy year at the National Labor Relations Board, and Acting General Counsel (ACG) Lafe Solomon’s address at the Connecticut Bar Association’s Annual Meeting gave practitioners much to think about.  

Among the highlights:

  • The next possible “big thing” for employers to think about are at-will disclaimers.   Solomon observed that a blanket at-will statement might (emphasis on might) violate the NLRA.  Thus, employers should now take particular care when drafting at-will clauses in employee handbooks.   

    In general, many employer handbooks have clauses that provide that the employee is and will remain at-will, unless that status is changed by the company’s top executive (either in writing or otherwise).  Intended to prevent a change based on the casual statements of a manager or co-worker, at-will clauses have become a bastion of employment policy.  

    Yet, according to Solomon, if an employee could reasonably believe that this kind of clause means that even union representation and a collective bargaining agreement cannot alter his or her at-will status, the employee might conclude that organization is futile – in which case the employer’s provision might violate the NLRA.  

    What then should management attorneys and their clients do to address what Solomon recognized as a valid concern? 

    Through a passionate discussion on all sides at the meeting, the takeaway seems murky, and few concrete examples or models came to light.  Savings clauses to the effect that nothing in the policy infringes on rights under the NLRA will likely be insufficient to prevent exposure.  
    At this point, the best course of action may be to exercise great care, make clear that a collective bargaining agreement may still change an employee’s status, and be very specific, tailoring languages to the business purpose and scope of the clause.  Look for more developments on this issue….

  • Social media may be the issue garnering the most attention for employers in the labor world over the past year. The ‘Facebook’ case has settled but others continue apace, and questions of the limits of collective action are likely to be at the core of many determinations.  According to Solomon, mere griping will be insufficient; there must be some evidence of intentional group action either before, during, or after the social media incident.

    What then is ‘griping’? Notably, two-thirds of Facebook-type cases are reportedly found not to have merit.  The line between aid-and-comfort and true collective action remains somewhat blurry, but one insight from the meeting suggests that hitting a ‘like’ button, without more, will be insufficient. 

    Of course, social media policies go hand in hand with these cases.  After the issuance of the AGC’s third operations memo on the subject, practitioners now have more models to consider when drafting policies – including a policy from Wal-Mart that seems to have passed the test. 

    It should be noted, however, that this document is guidance and a hint as to what the Office of General Counsel might find actionable, not what is certain to pass or fail the ultimate test before the Board or an ALJ.  

    Notably, on the same day that the operations memo issued, an ALJ ruled that some portions of a General Motors policy questioned by the Office were lawful.

    How then should practitioners proceed? The Board itself has not yet weighed in on the subject, but word from the Meeting is that a decision in the pending Hispanics United case is coming soon to offer some help.  Again, stay tuned to this space.

  • D.R. Horton, the landmark case announcing that class action waivers requiring an employee to forgo such claims either in arbitration or in court violates the NRLA due to the fundamental denial of collective action, has spawned a series of cases with variations on the basic facts.  

    While we wait for rulings, Solomon highlighted that practitioners should be on the alert for two basic forms: opt-in cases and opt-out cases.  Both have prompted legal action, and each should be considered in the context of its specific facts.Opt-ins include situations where the employer does not require the employee to waive his or her rights, but explains that it will provide a financial bonus to those who do (and in some cases, will lose the bonus if they don’t).  

    Opt-outs, in contrast, start from a default waiver position but give the employee a period of time in which to opt-out and retain his or her rights.

     An interesting argument suggested in discussion is the notion that even employees who do not sign a waiver suffer a loss of their rights under the NLRA since they cannot effectively join in common cause with employees who have signed waivers, in turn weakening any attempt at collective action.  

    Whether this argument ultimately ends up being grounds for renewed challenges to waivers remains to be seen, and many uncertainties in this area remain.  

    Not least among these is the question of remedies: with hundreds of cases working their way though the courts, will the AGC intervene to stop litigation due to a possible NLRA violation, ask the employer to arbitrate…. or something else?

    Once again, more questions than answers, and a need for close examination of the possible consequences of each document used in the hiring/on-boarding process.

  • Litigation over the recess appointments to the Board is continuing in full force, with active cases in the Circuit courts heating up.  Relatedly, questions over the date of expiration of former Member Becker’s term have called the D.H. Hortoncase into question.  Because that case was decided by Member Becker and Chair Pearce (without Member Hayes), the Board would lose its quorum without Member Becker and the case would be void under New Process Steel.  Nevertheless, D.R. Horton remains in force at this time and all cases of that type will be sent to the Division of Advice for assessment.  
  • New election rules: they may have been suspended, but they remain on the minds of many members of the legal community, and the ACG offered some clarification as to the interpretation of the nature and scope of those proposed rules.Specifically, the controversial 10-day speed election is not obligatory, but available if the parties agree and ask for it.  In the absence of consent, the matter would proceed to hearing.  

    The proposed rules, as discussed at the Meeting, would lift the bar and the 25-28 day waiting period caused by the requirement to address certain disputes before the election, even if not critical to the election’s outcome.

With all this labor action, rest assured that administrative practice was not neglected at the Annual Meeting.  In fact, it deserves its own post – in the offing in the coming days.