Yesterday, I made a spectacular dive.

Unfortunately, it was not in a pool. It was in the middle of the street.

But it’s what happened AFTER that unfortunate fall, that I find most compelling.

Let me first say, however, that I’m FINE. Really, I’m fine. I’ve said that over and over the last 24 hours but really, well, you get the point.

The incident itself was a classic case of just a plain old accident. I was crossing the street on my way to lunch and didn’t happen to notice the pothole, ditch, depression, or whatever you want to call it in the street.

My ankle turned, I lost my balance, thought I regained it, then realized I hadn’t, and came crashing down mostly (and thankfully) on my hand, shoulder and knee.

End result: A scratched up hand, a bruised shoulder, broken glasses, wrecked suit.  But fortunately no broken bones or anything of the sort. No need for ambulances, hospitals, or taxi-rides home.

It happened to be right outside my work so I got up to get out of the road, took quick stock of myself, and walked (limped?) back inside to find the first aid kit.

In a bit of luck, I also ran into one of our office staff who mobilized our internal first aid health/safety team. Turns out, they are always ready for this.

Within minutes, I had an ice pack, bandages, and a chair.  Someone else offered to return a call for me for an upcoming appointment.  And 30 minutes later, there were still others who stopped by to see how I was doing and encouraged me to recuperate at home. (Advice taken.)

Here’s what I didn’t have: Endless questions about whether this was a “work-related” injury or what the “policy” was on these types of injuries.

Was it on a lunch break? Was it work-related? Those questions don’t really matter in the moment.

Indeed, this wasn’t the first time I’ve seen our health and safety team in action; a year ago, a colleague was choking on some food on my floor. The alerts came fast and furious and they sprung into action — without thinking.

And so, out of a spectacular dive comes your employment law tip of the day:

Your policies are important.

But the way you treat your employees and how your employees treat each other are even more important.  Train those employees to do the “right thing” in the moment and you’ll get glowing returns in spades.  Having a health/safety team for these types of matters is a crucial, and overlooked part of your company.

Policies are helpful in dealing with the unknowns.  But building your company’s culture so that your employees act instinctively, is far more important in the long run.

Your company will have someone like me who just trips and falls, or maybe they’ll be choking, or perhaps something even worse; what you do next will be important to who you are as a company.

And so today, I’m back at work, a little sore, a little bandaged up on my hand.

But thankful, I work at a place that puts its people first.

roadIf you had a million dollars (or more) to investigate your culture, what would you find out? (Music fans may appreciate the classic “If I Had a Million Dollars” song from the Barenaked Ladies. You’re welcome.)

Well, Uber engaged a lawfirm, Covington & Burling, and the former Attorney General Eric Holder to do just that — interviews with over 200 people, reviews of over 3 million documents — and discovered a lot.  It isn’t pretty.

Thankfully, the firm released its recommendations for all the world to see. In doing so, the report actually can serve as a bit of a road map of what to do at your company if you have some similar issues.  All for free.

You can and should review the report here.  There are some specifics that won’t be helpful — like allocating the responsibilities of the CEO.  But there are many others which show what the best practices are at companies in 2017.  Here are a few to get you started:

  • Use Performance Reviews to Hold Senior Leaders Accountable.  This recommendation is straightforward, but suggests that companies should have metrics that are tied to “improving diversity, responsiveness to employee complaints, employee satisfaction, and compliance.”  If you don’t hold senior leaders accountable, things will fall through the cracks.
  • Increase the Profile of [] Head of Diversity and the Efforts of His Organization.   This recommendation suggests something that may come as a surprise to some companies but reflects a growing shift in corporate culture, that is, that an “empowered senior leader who is responsible for diversity and inclusion is key to the integrity of” a company’s efforts.  Note the dual emphasis. As the report later explains, “It is equally important that the role address both diversity and inclusion. Diversity is generally viewed as focusing on the presence of diverse employees based on religion, race, age, sexual orientation, gender, and culture. Inclusion, on the other hand, focuses not just on the presence of diverse employees, but on the inclusion and engagement of such employees in all aspects of an organization’s operations.”
  • Human Resources Record-Keeping.  With the buzz about data, this recommendation reflections the growing wisdom that a company should have “appropriate tools, including complaint tracking software, to keep better track of complaints, personnel records and employee data.”  More than that, a company should “emphasize the importance of record-keeping to all Human Resources staff, and impose consequences for failure to adhere to record-keeping requirements.”  In other words, no longer should HR be viewed as secondary to a company’s mission. It’s front and center.
  • Training, Training, and Training.  I’m cheating a bit on this one because the report actually breaks down training at various levels, but the need for training is emphasized for senior leaders, HR staff, and managers.  And more than that, the company should also “require employees who routinely interview candidates…to undergo training on interviewing skills, conducting inclusive interviews and unconscious bias.”

There’s much more to the report, including additional suggestions specifically on diversity and inclusion efforts.   It’s a helpful roadmap for all companies.

 

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.

Last month, I had the opportunity to speak to the American Law Institute for a CLE program on the latest guidance from the NLRB on various employee handbook policies.

When I first wrote about it in March, I had expected to followup shortly thereafter with another recap. But in the meantime, I found that much of what was contained in the reports was already discussed in other blog posts. As such, it seemed kind of silly to just write a “me too” blog post.

The best of these articles was written by Eric Meyer – who actually is a partner of one of my CLE presenters from last month.  In it, he provides a detailed summary of the policies that the NLRB found objectionable and, just as importantly, those that the NLRB has blessed.

Another longstanding blog, “World of Employment”, also recaps the report as well and notes that it is important for both union and non-union employers alike:

Virtually anyone – individual employees, union organizers or other non-employees – can (and does) file Board complaints, and one of the first things the NLRB’s investigator will ask you for is your policies.  Even if the investigator concludes the charge is without merit, if you are “maintaining” overly broad policies, you may have a fight with the NLRB on your hands – and at the very least you will face a demand to modify the policy and post a notice informing employees of your transgression and your commitment to upholding employee rights to participate in protected, concerted activity.

But as another blog pointed out, even the most innocuous policies can be struck down by the NLRB.  A recent case involving T-Mobile struck down a policy like this:

 This Handbook is a confidential and proprietary Company document, and must not be disclosed to or used by any third party without the prior written consent of the Company.

Why? Because its being deemed as “chilling” free speech.

So, for employers, it’s yet another reminder – maintaining the status quo on employee handbooks may not be good enough anymore.

If you’d like to learn more, feel free to listen to the webinar on ALI’s website.

If you read the headlines this morning, you may have seen that nearly four dozen bills died at the Judiciary Committee yesterday afternoon.  Indeed, no bills made it out at the deadline.

The unusual occurrence seemed related to an e-mail allegedly written by one representative. The Hartford Courant has the details on that.

For employers, the most important development related to the meeting was the failure to take action on Senate Bill 1111. That bill, which I covered in a prior post, would have made significant changes to the CHRO process and procedures.

Of course, this being the General Assembly, it’s only MOSTLY dead. What do I mean?

Let me turn to that great legal “authority”, Miracle Max from The Princess Bride: “Whoo-hoo-hoo, look who knows so much. It just so happens that your friend here is only MOSTLY dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do? Go through his clothes and look for loose change.”

(And yes, this is the second Princess Bride reference I’ve made in a year. It’s a great quotable movie.)

Indeed, while the bill died in committee, it can still be revived as an amendment to another bill.  So, mostly dead in this case is still “slightly alive”.

Is it likely? Probably not. But in any event, employers should still keep an eye out for this one.

I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think is entirely devoid of labor law implications — is indeed in violation of federal labor law. 

And so, if you “value” compliance with labor laws, you’ll want to be sure to read on….

Suppose your office is more like “The Office” television show — filled with inter-department back-biting and general lack of cooperation.

Besides realizing that hiring Michael Scott to run the place isn’t the best idea, what do you do?

Hills and Dales General Hospital decided it had to change its culture. It set out to develop standards of behavior that all employees would embrace. It solicited the opinions of all employees on customer service, respect, teamwork, attitude, continuous improvement, and fun.

Once its new Values and Standards of Behavior Policy was completed, every employee was given a copy and it was posted in the main lobby.

And it seemed to be working.

The Hospital began to see an improvement in how employees treated each other, how patients were treated and how departments worked with each other.

And they lived happily ever after, right?

Well, not exactly.  Then an unfair labor practice was filed challenging three of the more than 21 provisions of the Values Policy. Those provisions were:

  • Teamwork – 11. “We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.”
  • Teamwork -16. “We will represent the Hospital in the community in a positive and professional manner in every opportunity.”
  • Attitude – 21. “We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.”

The National Labor Relations Board (“Board”) earlier this month found that the prohibitions on “negative comments” in Section 11 and reference to “negativity” in Section 21 were unlawful because these rules could prohibit employees from discussing their terms and conditions of employment or sharing their complaints about their supervisors with their co-workers.

The Board found that Sections 11 and 21 of the Values Policy would have a chilling impact on employees and discourage them from exercising their rights as the implicit threat of discipline for being critical of management violates the law.

The effort to present the Hospital in the community in a positive and professional manner did not fare any better.

Despite its effort to improve its reputation and have employees exhibit high standards of professionalism in their dealings with “customers” at every opportunity, the Board viewed Section 16 as overbroad and ambiguous.  The Board found that this section could proscribe employees from making public statements that might not be seen as positive.

For example the language could be seen as prohibiting public protests over any Hospitalviolation of labor laws or could bar employees from making statements protesting their wages, benefits or working conditions.

As a result, the Hospital was ordered to retract these sections of the Values Policy and must delete them from all sources. The Hospital and other employers seeking to address internal conflicts among employees and departments and public perceptions of their business are left to create new behavior standards with more details or with clear statements that their policies are not intended to violate employee rights under the National Labor Relations Act.

Because Connecticut protects its free speech in both public and private work places, employers must be careful not to infringe those rights as well.

Perhaps it’s time to to revise my grandmother’s admonition that if you don’t have anything nice to say do not say anything at all to include “except as protected by law.”

The NLRB has been making it clear of late that enforcing workplace harmony and requiring employees to present the employer in a positive and professional light infringes employee rights. Thus if you want change your company’s culture, you need to navigate around these pitfalls and make clear that such efforts are not intended to infringe employee rights.

Oh, what would Michael Scott think of this!

A lot of people have been writing about a recent court ruling that upheld significant portions of a new NLRB-promulgated poster that will get put up on a wall in some common area.

I’ve been reluctant to write about it because, as I mentioned back in the fall, things continue to change on this particular poster.  There is still another lawsuit about this poster out there and an appeal that is happening too.

So, where do things stand now?

Right now, the posting requirement is still scheduled to go into effect on April 30, 2012 with some minor modifications.  

What did the court’s latest order say? Labor Relations Today has a good recap:

In the order issued on Friday, March 2 in National Association of Manufacturers v. NLRB, Case No. 11-CV-1629 (D.D.C. Mar. 2, 2012), District Court Judge Amy Berman Jackson held both the NLRB had authority to issue a rule requiring private-sector employers to post notices informing employees of their rights under the Act, and that the NLRB could consider an employer’s “knowing and willful” failure to post the notice as evidence of an unlawful motive. However, she struck down the portions of the NLRB’s rule that would automatically deem an employer’s failure to post the notice an unfair labor practice and that would toll the statute of limitations for unfair labor practice charges filed against employers that failed to post the notice.

What else can an employer do? Russell Cawyer of the Texas Employment Law Update suggests that employers put up the NLRB poster but also put up a poster of their own that details the employer’s view on things. 

For more on the subject, check out these posts here, here, and here

From my perspective, the amount of focus on posting requirement is a bit overblown. In this age of technology, employees don’t need to rely on posters in the back of a lunch room for information on their rights anymore. (And really, how many times have you REALLY seen employees even look at these.)  They can use their smart phones to check out the NLRB website from anywhere

Yes, it is possible that the NLRB is overstepping its authority, but employers in Connecticut have long since had to deal with numerous posting requirements.  Employers should keep up to date on whether the notices are going to go into effect but ultimately, it’s just another one brick notice on the wall. 

This poster is not to be confused with other changes to the election procedures that are also going into effect on April 30, 2012. You can read more about those changes here.

Earlier this week, I wrote about the perception among some that the CHRO has been retaining more cases for investigation by letting more cases through the Merit Assessment Review.  These cases that used to be dismissed — mainly “frivolous” ones as  I’ve collectively termed them — mean more headaches for employers who have to spend time and money defending against them.

(To simplify the blog post for readers, I labelled all these cases that had been dismissed at MAR together as “frivolous” even though there are technically different reasons why the CHRO may dismiss a case on Merit Assessment Review, including that there is “no reasonable possibility” that an investigation will lead to a reasonable cause finding of discrimination. )

In response to my blog post, CHRO Principal Attorney Charles Krich crafted a reply. While it is attached to the original blog post, I thought it notable enough that it warranted its own blog post.   While he indicated that there were no statistics yet available, he “would not be surprised if fewer cases are being dismissed for no reasonable possibility” under the Merit Assessment Review.

Here’s his reply in full (my further comments are below): Continue Reading CHRO Attorney Agrees Emphasis at Agency “Has Shifted From MAR to Mediation”

Earlier this month, I posted about new labor law posters that employers need to use, perhaps as early as late January 2012.

Now on Wednesday comes news that the NLRB has adopted a final rule amending its election case procedures.  Labor Relations Today reports that this will “shorten the time between the filing of a petition and the conduct of an election”. The rule is due to take effect April 30, 2012.

According to the NLRB:

The rule is primarily focused on procedures followed by the NLRB in the minority of cases in which parties can’t agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election.

Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

There are already legal challenges to these proposed rules so stay tuned for additional details in the months ahead.

Continuing my series of posts on the public program produced by the CHRO on new Public Act 11-237 (for prior posts go here and here), the remainder of the program focused on the changes to the CHRO procedures including a new early mediation option.

Various legal staff members provided the details on the new act through a Powerpoint presentation (which you can view below).  Throughout the presentation, however, feedback was sought from various panel members made up of attorneys representing employers and employees throughout the state.  I was invited to represent the “employer” perspective.

The goals of the new law are certainly laudable:

  • Expedite case processing
  • Focus on early mediation of cases
  • Make the best use of limited CHRO resources
  • Clear CHRO backlog
  • Increase uniformity among the regional offices
  • Involve legal department with case processing
  • Increase use of technology

How does the CHRO believe that the new law will accomplish this? Through several key changes.

  • If cases are dismissed on a Merit Assessment Review, the legal department will review those cases to provide more consistency
  • After a case is retained for investigation, an early mediation will now get scheduled quickly
  • Moreover, a specific investigator will also be assigned to the case early on to prevent the case from “sitting in file drawers”
  • Another major change is that the parties can seek an expedited legal review which could, in some circumstances, send the case directly to a Public Hearing.
  • Finally, the CHRO will also now be using e-mail as the primary means of communicating.

Overall, I expressed optimism on the proposed changes. But I think we’ll only be able to tell whether these changes are truly working in another year or so.  In the meantime, attorneys and the companies they represent should be prepared to address these new procedures and figure out how these procedures will change the strategy that employers have used at the agency.

Public Training 11-237 Power Point