file101235857424For the last six years, you haven’t seen much on this blog about changes to federal employment laws because, well, there just weren’t any.  What we DID see, however, were changes to regulations and enforcement orders.

Nearly six months into the new Trump administration, we’re now starting to see significant shifts in the federal regulatory scheme too.

A lot of national employment law blogs have been starting to recap them so I’m not going to go too in depth here. Among the changes? A death-knell to the persuader rule, and, earlier this month, a pullback of guidance on joint employment and independent contractor rules.   And it looks like the overtime rule changes are still in limbo as well, with the DOL “rethinking” such rules in news articles this week.

You don’t need to have a law degree to understand that these changes will favor companies.

Last night too, the Trump administration named the final member of a new National Labor Relations Board who will, no doubt, start rolling back other labor law decisions that have favored employees and labor unions as well.

But what will the impact be in Connecticut?

It’s still a bit early to tell, but I think the impact may be muted in some ways. After all, we have a CONNECTICUT Department of Labor that still marches to its own drum.  For example, it has taken a pretty aggressive view on who is (or is not) an employee vs. an independent contractor.

Indeed, as I’ve discussed before, the Obama-era rule changes might have, in fact, helped level the playing field for some Connecticut employers who have felt that they have had to comply with stricter Connecticut rules which made them less competitive nationwide.  With the rollback of some of these rules at the federal level, Connecticut’s higher standards may come back into play more often.

That may be overstating it a bit, but Connecticut employers will have to play catchup to figure out the patchwork of federal and state regulations and the interplay between them.

Perhaps it is more fair to say that things are still shaking out this year for Connecticut employers.  The General Assembly session that just ended was more quiet than most.  But at a national level, employers shouldn’t be too quick to make too many changes because there seems to be many more aspects in flux than in years past.

The only thing I’ll predict for the next six months is that we have all the ingredients in place for a wild roller coaster ride with more changes than we’ve seen in some time.

So buckle up.   Things are just getting interesting.

starrMy colleague Gary Starr returns today with a decision from the Second Circuit (which covers Connecticut) that may just surprise you. Then again, if you’ve been following this line of reasoning, perhaps not.

There are outer limits to insulting speech, but a recent decision seems to indicate that it is really really far out there.

The questions up for consideration: When can an employer fire an employee for profanity during a union organizing drive?  When does the employee who stoops to insult not only his supervisor, but his mother, lost the protection of the National Labor Relations Act?

The Second Circuit faced these questions and provided a glimmer of hope for employers.

During the course of a nasty union organizing drive at a catering company, an employee became very upset at what he considered the employer’s continued disrespect for the employees.

In response, Perez used his iPhone during a work break to post the following:  “Bob [his supervisor] is such a NASTY MOTHER F****R don’t know how to talk to people!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!”

Perez had about ten other employees as friends on Facebook, but the post was also available to the public. Management learned of the post, investigated, and then fired Perez, just days before the election.

An administrative law judge found that the firing violated the law as Perez was engaged in protected, concerted activities.  This decision was upheld by the NLRB.  The case was then appealed to the Second Circuit.

At the court, the question was whether the post exceeded the bounds of protection by using profanity and insulting the supervisor’s mother.

While the Court in NLRB v. Pier Sixty was disturbed by the language and by the Labor Board’s failure to adequately take into account the employer’s interests in assessing how to evaluate a social media posts, it nonetheless, found a violation of labor law by the employer.

The Court noted that the employer had not disciplined many others for profanity in the past, even though profanity was a common occurrence in the kitchen,  that the language was not used at a catered event or in front of customers, that the message focused on matters that are protected, concerns about respect, that the message concluded by urging readers to vote for the union, and that the discharge occurred two days before the voting.

While the Second Circuit upheld the Labor Board’s decision, it sent a message that these facts are on the “outer-bounds of protected, union-related comments.”   It cautioned the Labor Board that it needed to be sensitive to employers’ legitimate disciplinary interests and to properly balance the competing interests of employees, unions and employers.

The facts in this case presented the court with hurdles it could not get over.  Profanity was common in the workplace, employees had not been disciplined for using profanity in the past, and the incident was almost on the eve of the union vote.  The employer was unable to show that the posting online had harmed its business.  But in another context, using union organizing as a shield to insult supervisors’ mothers may not work.

trumpphotoThere haven’t been a lot of stories about what Donald Trump would do as President when it comes to employment law issues. In part, that was due to the polls. But it was also due in part to the lack of policy details that his campaign put out on his website.  Back in September, I lamented the fact that we weren’t getting to hear any debate on those issues.

So, the news this morning that Donald Trump has been elected President is coming with a bit of scrambling.  What does it mean for employers in Connecticut? What’s going to happen with employment laws and enforcement?

The truth is that we really don’t know at this point.  The fact that the House, Senate and President will all be led by Republicans is something that is going to throw the whole system for a loop.

So, here are a few things to keep an eye on over the upcoming months when it comes to employment law issues:

  • As I noted last month, the new overtime regulations are set to be implemented on December 1, 2016.  Will a lame-duck Congress try to block those rules from being implemented? And if they are still implemented, will a Trump adminstration seek to roll those back? That would be a challenge.  Suffice to say for employers, this added uncertainty is a real headache. Until you hear otherwise, employers should continue to implement these changes.
  • One thing that seems clearer: The NLRB’s moves over the last few years will come to a screeching halt once the Board’s makeup is changed. The NLRB, for better or worse, always seems to change with each Presidency.  A Trump Presidency will no doubt bring changes back; this may impact everything from graduate assistants being able to unionize, the quickie election rules. Everything is in play.
  • For those wondering, the Board has two seats open now; along with the existing Republican member, that would give the Trump presidency a pretty quick majority.
  • The EEOC’s strategic plans will now be called into question as well. In recent years, it has taken aggressive litigation approaches on sexual orientation and gender identity issues. Will those tactics be abandoned? Where will the enforcement priorities lead to? Again, don’t expect big changes overnight but over time, this is definitely something to watch.
  • And do not underestimate the impact that a Trump Presidency will have on the federal court system.  He will now be appointing far different judges that we’ve seen over the last eight years — both at the U.S. Supreme Court and at lower court levels.  This will have a long-term effect on employment discrimination cases which are often heard in the federal courts in Connecticut.  As a result, we may continue to see more cases being brought in Connecticut state courts.
  • Let’s not forget that Trump also suggested a six-week paid maternity leave program.  Will we see Congress pick this issue up? Stay tuned too.  

For Connecticut employers, lost in the headlines of a Trump presidency is the fact that Republicans seem to have gained an unprecedented 18-18 split in the State Senate. This could potentially put the brakes on legislation the next two years on issues like non-competes or expanded paid leave.  It’s too early to tell but this is something we’ll be looking into as well.

But for all the uncertainty out there, remember this: Many of our federal laws are unlikely to change.  ADA, FMLA, Title VII are all fairly hearty laws that share widespread support.  The changes that may come are all things around the edges — things like enforcement approaches, guidances, etc.

For employers, it’s best to keep a close eye on the developments for employment law. It’s going to be an interesting couple of years.

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the right to unionize.

The Regional Director in that case determined that the players were employees under the National Labor Relations Act (the “NLRA”) and therefore could vote to be represented by a Union in connections with negotiating terms and conditions of employment with the University.

Ultimately, the Board refused to exercise jurisdiction over the players  and therefore left open whether they are employees under the NLRA or not.

At the time we reported on the case,  we discussed some of the impacts of the decision beyond the ability of players to unionize, including that the Board may scrutinize the University’s policies to see if those policies complied with the NLRA.

More specifically, whether the policies were written in a way that would either expressly or implicitly prevent the players from engaging in protected concerted activity.

Apparently, someone did challenge the “Football Handbook” and on September 22, 2016, The Board’s Office for the General Counsel issued an advice memorandum related to that charge advising against the issuance of a complaint.

The memorandum assumed that the football players were employees, and indicated that:

[i]t would not effectuate the policies and purposes of the NLRA to issue complaint in this case because the employer, although still maintaining that athletic scholarship football players are not employees under the NLRA, modified the rules to bring them into compliance with the NLRA and sent the scholarship football players a notice of the corrections, which sets forth the rights of employees under the NLRA.

According to the memorandum, Northwestern modified its handbook pertaining to social media use striking portions of the rules, in most cases replacing with new language.

In particular, Northwestern took out language barring student-athletes from posting things online that “could embarrass you, your family, your team, the Athletics Department or Northwestern University.”

The new text is more specific, telling the athletes not to post things that “contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.”

The memorandum also pointed to changes with the University’s rules on disclosing injury information, which had told players to “[n]ever discuss any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone” saying the “team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

The new rule says football players should not reveal injuries because of “the need to ensure that teams with whom we compete do not obtain medical information about our student-athletes” but says the rule does not “prohibit student athletes from discussing general medical issues and concerns with third parties provided that such discussions do not identify the physical or medical condition or injury of specific or named student athletes.”

According to the memorandum, “[t]hat modification struck the proper balance of maintaining players’ confidentiality and protecting football team information while at the same time allowing players to speak out on a no-names basis about vital health and safety issues impacting themselves, their teammates, and fellow collegiate football players.”

The memorandum further noted that the school eliminated a dispute resolution policy for student-athletes to bring a “complaint or grievance concerning personal rights and relationships to the athletic program,” which required the players to first bring such issues to the director of football operations.

So if the memorandum advised against an issuance of a complaint, why should you care about it?

Well, as was recently reported, in the Columbia University case, the Board held that student teaching assistants were employees covered by the NLRA.  These employees not only have the right to unionize, but also have the right to engage in protected concerted activity even if they do not unionize.  Any handbook or policies, therefore, governing the terms and conditions of the relationship between the teaching assistants and the college or university will likely come under the NLRB’s scrutiny.

So, employers beware (again): You should review, or have your attorney review, your current policies and handbooks to ensure compliance with the NLRA.

Lucan_J_WebYesterday, the NLRB released an ground-breaking decision allowing  students to organize. My colleague, Jarad Lucan, recaps the importance of this decision not only for schools like Yale University in Connecticut, but beyond.

In its 2004 Brown University decision, the National Labor Relations Board held that graduate student teaching assistants were not employees because they were “primarily students” and their relationship with the University was educational rather than economic in nature.

On August 23, 2016, the NLRB reversed course in its Columbia University decision and held that  the unequivocal policy of the National Labor Relations Act is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”

Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board determined that it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so.

The Board was not persuaded by the Brown University Board’s self-described “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.”ColumbiaSeal

According to the Board in the Columbia University case, “[t]his ‘fundamental belief’ is unsupported by legal authority, by empirical evidence, or by the Board’s actual experience.  Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act.”

Although the Board did state that there may be “strong reasons” not to extend the protection of the Act to students working for universities, it did not specify what those reasons might be.

The Board did, however, reject Columbia’s arguments against recognizing their student workers as employees under the Act as detrimental to the pursuit of the school’s educational goals.  The Board did not find compelling Columbia’s claims that collective bargaining leads to strikes, grievances over classroom assignments and eligibility criteria for assistantships.

According to the Board,  “labor disputes are a fact of economic life—and the Act is intended to address them.”

Importantly, in the Columbia University  decision, the Board determined that a bargaining unit consisting of graduate and undergraduate teaching assistants is an appropriate unit for unionization.  In other words, the Board determined that undergraduate teaching assistants fell within the broad definition of “employee” under the Act and in this case had a common-law employment relationship with the University.

This determination greatly expands the potential “employees” at any private university that may now have the protection of the Act whether they unionize or not.

Perhaps referring back to its recent decision to decline jurisdiction over the grant-in-aid scholarship football players at Northwestern University, the  Board did state, “[w]e do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may  and should find here that student assistants are statutory employees.”

By now, it’s really not a big surprise when the NLRB reverse course on a prior decision. This week, the NLRB did it again.  My colleague, Jarad Lucan, provides this quick update on temporary/contract employees being allowed to join unions.  Read on.

Lucan_J_WebIn 2004 the National Labor Relations Board in its Oakwood Care Center case said that temporary and permanent workers must bargain separately unless the employer gives consent.

Yesterday, however, the NLRB overturned that precedent stating, “[b]y requiring employer consent, Oakwood has . . . allowed employers to shape their ideal bargaining unit, which is precisely the opposite of what Congress intended.”

Now, after a ruling in Miller & Anderson, temporary workers provided by staffing agencies do not need an employer’s permission to join unions that include its full-time employees as long as they share a “community of interest” with full-time workers.

In dissent, board member Philip Miscimarra said that along with the NLRB’s 2015 joint employer decision in Browning-Ferris Industries Inc, the NLRB’s latest ruling would create issues for  companies that use contract labor and force many staffing firms to bargain with unions that represent the full-time workers of other companies.

As we have discussed previously, in Browning-Ferris, the NLRB said companies may be deemed joint employers of contract workers if they have the potential to control working conditions.  Previously, the board required proof of actual, direct control.

With its latest decision, it could now be easier for workers found to be joint employees under the Browning-Ferris standard to unionize.   Of course, the actual impact of both decisions still remains to be seen.

My former colleagues who write the Management Memo blog also shared this tip for employers as a result of the decision:

At a minimum, a detailed risk assessment of an employer’s workforce and its reliance upon its own employees and temporaries, leased and contract labor employed and controlled, in whole or in part, by so-called supplier employers is in order. “User” employers should determine the goals and risks associated with a relationship and determine whether it is possible and/or desirable to attempt avoid a joint employer relationship or embrace it but attempt to control liability. Both “supplier” and “user” employers should look for contractual provisions regarding defining the relationship, including who controls and does not control certain aspects, indemnification provisions, provisions related to responses and responsibilities related to union organizing and collective bargaining and similar concerns. Experienced labor counsel should be consulted to assist in these issues.

pokemonRecently, I had the opportunity to revisit a social media policy I had reviewed several years ago.  (Check back to this post from 2008 to see how far we’ve really come.) In doing so, I was reminded — once again — how quickly the tech world is changing and how policies need to continually adapt.  It seemed so quaint — with references to MySpace, Foursquare, and even LiveJournal.  No mention of Snapchat, Instagram, or Vine.

And then I thought of the technology news from the last week demonstrating the dramatic rise and use of Facebook Live and Pokemon Go.

Facebook Live is a capability to broadcast — live — from anywhere (at least with a cell phone connection) at any time.  It was used in dramatic effect in the shootings in both Minnesota and Dallas.

Pokemon Go is something different.  It is a brand-new mobile game app with social media capabilities (you can join a “team”) where users search the real world for virtual monsters that appear on your cell phone in an augmented reality way.  In just a week, it has nearly as many users as Twitter.

Both are going to cause employers big headaches in the months ahead — for differing reasons of course.

There’s no doubt that the rise of livesteaming apps is something new and revolutionary.  And your social media policy should definitely be updated to reflect that. Imagine your workforce broadcasting live from your office — all under the guise of engaging in “protected concerted activity”.  How should the employer react when such events are occurring in real-time?

A policy can help to provide some answers but it’s the exercise of thinking about what your response will be that can be just as helpful.

And then there’s apps like “Pokemon Go” — which are nearly unparalleled in their adoption.  We’ve already had our first firing related to Pokemon Go and that’s no doubt the beginning.  Forbes reports that employers are “nonplussed” with it.

But the response to this app is a bit easier.  If it interferes with an employee’s workplace productivity or is a drain on your resources, it’s appropriate to limit it.

If your policy hasn’t been updated in a few years, use the rise of new apps as an excuse to bring it up to speed.  You can’t keep up with everything but that doesn’t mean you should ignore them either.

And now, if you’ll excuse me, I need to go look for Drowzee.

(Photo credit: Imgur.)

Are you an early bird? (Raises hand.) Do you still listen to AM Radio? (Hand still raised.)

Well, then you may have caught my repeat appearance a short while back on the CBIA Business Minute — a production every weekday morning heard locally at 5:59 a.m. on WTIC-AM (1080 on your radio “dial”).

Long time readers may recall may last appearance way back in 2009 where I talked about the effects the recession was having on employers.

But this time around, it’s all about the National Labor Relations Board.

Fortunately, the CBIA also put the business minute program up on its website. Each is, well, just a minute to listen to and is perfect for employers who want to know a bit about the agency.

My thanks to the CBIA for the invitation to appear.

Next week, I will be speaking at the CBIA Annual HR Conference along with my colleague Jarad Lucan about why you should care about the NLRB.

Unfortunately, if you don’t already have tickets, it’s sold out. It’s being held at the Radisson in Cromwell, Connecticut and features some great topics for consideration. 

But the basic gist of our presentation will be a continuation of some of the themes I’ve talked about before on the blog (here, here and here, for example) — namely that the NLRB is continuing to expand its sphere of influence.

Naturally, our presentation is entitled: “The NLRB in 2016: Why it May Be Your Biggest Headache — Particularly If You Don’t Have a Union.”

For employers that are used to dealing with unions in their workplace, many of these issues won’t be a surprise.

But as I’ve talked about before, the NLRB has been critical of even those employers without unions.  The Triple Play case regarding discipline of employees for comments on Facebook is a perfect example.

For employers then, it’s important to understand the concept of “protected concerted activities” and the fact that any employee — whether a union member or not — may be protected by federal law for his or her actions.

If you’re attending the CBIA’s HR Conference next week, feel free to say “hi”.  Should be a great event.

Lucan_J_WebstarrMy colleagues Gary Starr and Jarad Lucan return today with a post that we have sent out as client alert, but which may be of interest to readers of the blog as well.  It tackles the subject of protected concerted activity.  (Hint: It may be broader than you think.)

Is a non-union employee who speaks out about employment matters protected by the National Labor Relations Act?  If so, under what circumstances?

That question is critically important because if the employee is protected and is fired, the employer may have to reinstate him, pay back pay, and post a notice that the employer violated employee rights.

The answers are not so simple.

Was the employee griping to management about work?  Did he take any action to mobilize employees to support him?  Was he seeking to induce group or collective action?

A recent Third Circuit decision (MCPC Inc. v. NLRB) addressed this situation.  A computer engineer went to lunch with his boss and three co-workers to build team spirit, as the company was aware that it was understaffed and wanted to bolster morale.  During lunch the computer engineer complained that there were too few engineers to do all the work and that the company should have hired more engineers rather than a $400,000 per year executive, whom he named.  Two employees at the lunch agreed.

The manager reported the conversation to the company CEO, who was particularly disturbed by the disclosure of the new executive’s salary, which was confidential.  There was an investigation into how the computer engineer knew the executive’s salary.  It was found that a project he was working on allowed him to view confidential information.  The CEO then met with the computer engineer and asked how he obtained the confidential information.  The computer engineer did not give a straight answer.  He first said he found it on the Internet and denied that he had gone into the HR data base.  He next said the executive’s salary was water cooler scuttlebutt, and then claimed he had heard it from two employees.

Shocked at hearing this explanation, the CEO spoke with one of these long-time employees, who denied providing any confidential information.  The CEO concluded that the computer engineer had breached the company’s confidentiality policy, had lied to him, and was not trustworthy.  As the business required maintaining confidentiality of customer data, the CEO fired the computer engineer for lying and disclosing confidential information.

The fired employee fought his discharge at the National Labor Relations Board (NLRB).  After a hearing, an administrative law judge (ALJ), concluded that the computer engineer’s lunch comments were protected, that the Company’s confidentiality policy was overly broad and unlawful, and that the firing was unlawful. The NLRB upheld that decision ordering reinstatement and back pay.  An appeal followed.

The Court noted that the computer engineer had not discussed the work situation with others before the lunch nor did he seek support from others afterwards.  The Court held, however that prior action, being selected as a spokesperson, or having plans to pursue the issue with others afterwards is not required for protected activity.  What does matter is whether the conduct was taken with the intent to induce or effect group action in furtherance of group interests.  As the computer engineer’s complaints related to work, they were protected as two co-workers had agreed with his views.

While the NLRB ended its analysis there, the Court determined that the Company had the right to explain the reason for the termination.  There needed to be a review whether the Company would have fired the computer engineer for a reason that did not involve protected activity, such as his evasiveness, dishonesty, and lack of trustworthiness.

The computer engineer’s shifting explanations raised issues of honesty and trust and could be independent reasons for the firing.  As neither the ALJ nor the NLRB had considered the alternative basis for the discharge and had not explored whether the reasons were a pretext for an unlawful firing, the Court sent the case back for a further examination of the employer’s rationale.  The Court told the NLRB to examine whether the company had established the importance of integrity and honesty in its business and whether employees had been disciplined in the past for similar activities.

We recommend before firing any employee to closely review the facts when an employee is raising concerns about work.

Is he simply griping on his own account or serving as a spokesperson for others?  Have others agreed with him?  If so, he probably is engaged in “protected concerted activity.”  This can occur even if there is no union and no union organizing taking place.  If the comments warrant discipline, conduct a review of what expectations have been violated; are those expectations in writing and narrowly drawn to be enforceable; and have others been disciplined in the past for similar activities.  Undertaking this review in advance could save 5 years of litigation and legal fees.  Further, a review of the policy relied on to support discipline is required as the NLRB has been scrutinizing policies to favor employee rights.

This case is another reminder that terminations should occur only after analysis and reflection and policies need to be carefully drafted to satisfy the NLRB.