As I discussed on the blog earlier this year (and noted on my Twitter feed last week), the NLRB has gone ahead with its plan to consolidate Connecticut’s Region 34 Office with its Boston Region 1 office, effective today

Jonathan Kreisberg, who has served as Regional Director for Region 34 will now take over as head of Region 1. 

As of this morning, the Hartford Region still has its own website, but you can already see some changes in the map of coverage.  Officially, the Hartford office is now a subregion of the Boston office.

Kreisberg will speak about this and more at the CBA’s Labor & Employment Committee meeting this Thursday , December 13, at 5:30 p.m. at the Quinnipiack Club in New Haven.  You can sign up at the CBA’s website here.

At yesterday’s labor & employment law seminar, we had both Heidi Lane, a Prinicipal Attorney with the Connecticut Department of Labor, and Jonathan Kreisberg, Regional Director of the NLRB’s Hartford Office, speak to attendees about the latest developments under both Connecticut and federal law.

But for those who couldn’t make it, here are five notable things they discussed:

1) Paid Sick Leave adoption appears to be going smoothly.  According to Lane, there have only been two complaints filed since the start of the year.  Neither case went very far, either because of merit, or settlement.  But for those expecting a big influx in complaints, we haven’t seen it.  Yet.

2) The Connecticut Department of Labor has, quietly to some, been conducting many more investigations of individuals who may be abusing the unemployment compensation system.   As a result of cutting down on fraud, it is hoped that more money can be kept in the system for those who need it the most and to keep employer expenses down.  I provided a link to a report of this last week

3) Social media has, and will continue to, dominate the NLRB’s agenda.  Kriesberg highlighted two new Board cases on the subject that I discussed on this blog earlier this week.  He said another is in the pipeline that could be the first Board case to find an employer’s firing of an employee because of his or her Facebook post was illegal. 

4) What’s still on the NLRB’s horizons? More cases challenging at-will disclaimers and confidentiality policies.    Again, if you’ve been following these issues, this won’t come as a surprise, but for those who think the NLRB is somehow going to back down, Kreisberg’s words indicate the opposite.  He also indicated that the issue of mandatory class action waivers continued to be a focus of the NLRB and that he wouldn’t be surprised to see the issue at the U.S. Supreme Court as well.  

5) Kreisberg had no news to share on whether the proposed consolidation of the Hartford and Boston regional offices was still going forward (though he hinted he would be in charge of such a combined office) but indicated that he believed people in Connecticut wouldn’t notice any issue. 

My sincere thanks to both of them for taking the time to speak to the attendees. 

If you’re interested in commentary like this, we will be conducting a replay of our presentation for the southern Connecticut audience on October 18th in Norwalk.  Be sure to sign up (it’s free) and remember that breakfast AND lunch are included.

Last week the Connecticut Bar Association’s Labor & Employment Law Committee held an informational breakfast with the NLRB to discuss the NLRB’s proposal to make Hartford (Region 34), a subregion of the Boston office (Region 1). 

Nick Zaino, the CBA Committee chair, forwarded these highlights as to why the consolidation is very likely going to become reality:

  • The overall NLRB caseload and the number of NLRB employees is down by about 50% from the 1970s
  • A “normal size” region generally process between 700 and 1000 cases annually
  • There are a number of regions–approximately 10–that are considered small regions, including Hartford. Hartford currently processes around 450-500 cases
  • The NLRB has been evaluating the possibility of making smaller regions subregions as vacancies occur at the Regional Director level
  • The NLRB looked at consolidating the Boston and Hartford regions when the Boston Regional Director, Rosemary Pye, announced that she would retire
  • Under the proposal, Jonathan Kreisberg would become the Regional Director of the combined Boston and Hartford regions with his main office in Boston
  • There are no planned reductions in personnel in the Hartford NLRB office, although the Boston and Hartford offices could look to consolidate positions as vacancies occur through attrition
  • John Cotter will be the officer in charge of the Hartford office, but there will be no change to his job duties
  • There should not be any significant changes to the investigation or case handling process
  • The consolidation of the Boston and Hartford offices would not become effective until notice is published in the Federal Register
  • The anticipated date for the consolidation is October 1, 2012.

 

The Hartford Office of the National Labor Relations Board has a message for employers: There are new posting requirements coming and nearly all employers — not just those who are unionized — need to be aware of them.

Why? Because they are effective in just six weeks: January 31, 2012.

Here are some highlights for employers in Connecticut.

Who’s Covered? If you’re subject to the jurisdiction of the NLRB in general, you’re covered.  The NLRB describes it as follows: “As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.”  If you’re not sure, be sure to check out the specific rules.

What’s Required? Two things.

First, a notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted.

Second, employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there.  You can download the notice directly from the NLRB website.  (As an added bonus, the NLRB has also published the poster in 27 other languages as well, which may be required if 20 percent of your workforce speaks a language other than English.)

What Happens If You Don’t Put Up the Notice? The NLRB tries to suggest that employers should post the notice but concedes that it probably won’t know about many of those instances.  Nevertheless, there may be real world consequences for failure to post the notice:

The NLRB does not audit workplaces or initiate enforcement actions on its own, nor does it have the ability to assess fines or penalties.

A failure to post the Notice would need to be brought to the Board’s attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

With all the other requirements for employers, it’s quite possible that this one is getting overlooked. Consider yourself warned.  And if you want answers to more frequently asked questions, you can access them here.

And for the latest newsletter from the Hartford Region, you can download the newsletter here.

 

Last year, I published a series of posts about the Connecticut Bar Association’s breakfast with NLRB Region 34 Director Jonathan Kreisberg.

Kreisberg repeated that breakfast earlier this week. Although I was unable to personally attend, breakfast organizer Nicole Bernabo was kind enough to recap the event and agreed to share her recollections for the blog.

Breakfast with NLRB

Kreisberg indicated that with the possibility of federal budget cuts and reorganization, it was certainly possible that the Hartford regional office will be considered for elimination.

Kreisberg was quick to emphasize that this is not likely in the near future. But one possible outcome would be that the state would be split between two regions — Boston and New York — as was the case before NLRB Region 34 was established.

As for the proposed election rule that is now under consideration, Kreisberg indicated that he was not sure whether they would be published before year end. Given the political climate and the fact that there are only three board members presently, it is unclear, however, whether these changes would take place. While Kreisberg indicated that the proposed changes were significant, he thought that the impact on Region 34’s ability to administer these shortened election periods was unlikely to be significant.

Kreisberg also spoke at length regarding the recent General Counsel memorandum on social media cases. As he has noted before, companies should tailor their policies to narrowly meet its needs.

As he noted last year as well, he emphasized his belief that– given the right circumstances — the NLRB’s case in Register Guard will be overturned. These types of cases have to be sent to Washington, DC for additional guidance and advice.

Overall, the breakfast was a successful and well-attended event.  Kudos to the CBA for putting programs like this on.

 

 

 

 

 

 

The news came late Monday: The NLRB’s case against an employer for allegedly firing an employee due to a Facebook post had settled.  The background of that case can be found in one of my November 2010 posts.  The case name is: American Medical Response of Connecticut, Inc., 34-CA-12576.

The terms of the settlement were not fully disclosed and indeed, John Cotter, a deputy regional director said the terms were confidential.  But the NLRB did release a press release that provided some details:

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company. 

So where does this leave us? Not much further along in trying to figure out where the bright lines in the area.

But don’t fear. There is another case that was just filed that may provide answers still. According to attorney Seth Borden’s blog:

On February 4, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company at the Regional Office for Region 34. Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No. 34-CA-12906 contains no specific allegations that the company improperly disciplined any particular employee. Rather, this charge alleges that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" policies in its employee handbook.

Where will this next case take us? Stay tuned.  

 

UPDATED 2/7/11 – The case settled today. See this update.  

In an unprecedented case, the NLRB is pushing all in over the battle on social media. And its press release today leaves little doubt where it is placing its chips — strongly in the employee’s favor.

I had heard about this case a few weeks ago through the grapevine here in the area, but today’s  press release makes it official.  It is an important case to follow. 

According the release, the NLRB’s Hartford regional office issued a complaint on October 27 alleging that "an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also alleges that the
company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy."

It is further alleged that:

"when asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation fromher union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later
terminated for her Facebook postings and because such postings violated the company’s internet policies."

So what’s the really big deal about this? Well, it’s the next part of the NLRB’s press release that should have employers and their counsel on edge: The investigation found that:

"the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."

Employers are increasingly looking at and monitoring social media usage. The NLRB’s complaint makes it clear that it intends to challenge employers who over-reach.  A hearing on the case is scheduled for January 25, 2011.

Those that have been following the NLRB and the Hartford office should not be surprised by this development. Indeed, it was among the things that I indicated employers should be alert to after a breakfast discussion with the new Hartford office head in January 2010,  Indeed, there was an advice memorandum issued in late 2009 about this issue as well. 

But if employers needed any more reason to check their social media policy — this new case should be it. 

A few blogs have already started to post about it today including the BLT Blog (which sought comment from the employer), Employer Law Report, and the Ohio Employer’s Law Blog

In posts earlier this week, I’ve discussed what the NLRB’s Connecticut Office is doing and what to expect for 2010. 

But as I continue to recap the breakfast I attended earlier in the week with NLRB (Region 34) Regional Director Jonathan Kreisberg, of particular importance to employers was the discussion about what issues the NLRB may see reoccur from time to time.  The NLRB recapped some of these in its January 2010 newsletter and its worth a read through (page 4).

Here are some highlights from our discussion:

  • Kreisberg indicated that employer rules that have broad confidentiality provisions prohibiting employees from discussing wages, benefits and working conditions with co-workers are likely to be struck down. While protecting "trade secrets" is a legitimate concern, he indicated that many employer rules — in his view — go too far. 
  • He also said that rules that prohibit employees from discussing non-confidential matters with the media are likely overbroad, though rules that restrict an employee from talking with the media as the company’s "spokesman" may be more palatable. For more information, he pointed to a relatively new NLRB case which discusses this in more detail: Trump Marina Assocs., 354 NLRB 123 (2009).
  • Kreisberg also noted that anti-solicitation rules may be properly drafted so long as the rule does not prohibit employees from distributing written materials during non-working time in non-working areas.  Kreisberg said however that employers often run into difficulties in the selective application of the rule. (And in this time of Girl Scout cookies, it’s a good reminder.)
  • He did note that employers can prohibit the use of employer’s e-mail system for union solicitation but he again cautioned that selective enforcement of the rules could lead to issues with the NLRB down the road.  
  • We also discussed "anti-harassment" policies. For the most part, if such policies are in the context of discrimination/hostile work environment discussions, he did not see much of an issue with it.  But he indicated that the NLRB will look to see if the application of the rule is showing an anti-union bias.  He also reminded everyone that during elections, the NLRB seems to allow behavior (particularly from union personnel) that might not otherwise be tolerated if in the context of daily working activities.
  • Lastly,  Kreisberg indicated that the NLRB had produced a video designed to inform the public about the role of the Agency in conducting elections. It is also available on DVD upon request to employers and others.  (And he noted that if an employer uses this video during an election, it would pass muster as an neutral educational video.)

So what’s the bottom line for employers? 

  • Review your confidentiality, anti-solicitation and anti-harassment policies to ensure that they will pass muster under scrutiny.
  • Perhaps more importantly, educate staff about the appropriate application of the policy to union activities.
  • And finally, even if you do NOT yet have a union at the workplace, these rules (such as blanket prohibitions on employees’ discussions of wages) may still apply, so if you’re concerned, be sure to seek appropriate legal counsel.

 

As I indicated in my post yesterday, the bar-related breakfast with NLRB Region 34 office was a big success. 

In the presentation and discussion, Regional Director Jonathan Kreisberg made a few predictions and observations about what 2010 would bring.

  1. Kreisberg noted that the NLRB was going to be using press releases to a far greater extent than ever before. (He could not recall more than 10 instances in the last 30 years when press releases were issued by the Connecticut office).  He said that the NLRB’s hiring of two new media personnel in late 2009 would make it much easier to do so. As a result, he expected more publicity for notable complaints, settlements and findings. 
  2. Related to that, he indicated that the NLRB already had up an active Twitter feed @NLRB)  which would only be used even more frequently in 2010.
  3. Kreisberg noted that he hoped that the 3 vacancies at the Board level would be filled soon.  While two of the nominees were uncontroversial, the re-appointment of Craig Becker has stalled things. Because there is a desire to approve all 3 nominees at the same time, the Board is still only operating with 2 out of 5 possible members.  
  4. In discussing the Employee Free Choice Act, there remains a great deal of uncertainty whether it will be brought to the floor of Congress for a vote in 2010.  If it does come up, among the provisions to keep an eye out for are a provision that would expand the injunctive authority of the NLRB and would speed up elections to seven days.  As a result, of the latter provision, Kreisberg indicated that post-election challenges to ballots would become much more prevalent.  (Although he didn’t comment on it directly, it appears likely that card-check provision of EFCA is going nowhere.)
  5. Kreisberg also indicated that there would likely be a new Field Attorney hired in 2010. This might allow for even more enforcement actions and speedier proceedings.

What does this mean for employers?

It means that if you’re employer with a labor issue, you’re likely to get more press and publicity than you may be used to.  In addition, even if only a few provisions of EFCA get passed, it’s likely to impact how cases are processed at the NLRB-level.  

Whether or not you have a union at your workplace, now’s the time to refresh yourself and your workers about your legal obligations.  And if you do become entangled in an issue, have a labor counsel ready to go; you may not have a lot of time to respond when you get a notice.

The Connecticut Bar Association’s Labor & Employment Section sponsored an informal breakfast with NLRB (Region 34) Regional Director Jonathan Kreisberg earlier today to talk about various issues in the labor arena. (Also in attendance were John Cotter, Deputy Regional Director and Terri Craig, Supervisory Attorney). 

It was a terrific session with lots of substantive and useful information.  In fact, there was so much substance out of it, that I’m going to break my recap up into various posts for the rest of the week.

Today, I’ll focus on a few happenings around the Connecticut office and some region-specific information.

First, the Connecticut region released its "NLRB News", a newsletter chock full of notable items.  You can download a copy here. It includes a very helpful professional staff roster with phone numbers and e-mail addresses.

Second, Kreisberg indicated electronic filing would be used more frequently in the region as the year progressed and that mandatory e-filing would occur later this year. For employers, that means both preservation of data, but also making sure that the information is readily accessible via computer.

Third, Kreisberg indicated that the office will be moving to the federal office building at 450 Main Street in Hartford in approximately May 2010.  This move has been in the works for some time but it will give the office a needed upgrade. 

Fourth, Kreisberg indicated that his office will also be hiring another field attorney in 2010 to be able to handle more cases and litigate them. Already in 2009, the budget situation for the office has improved, so much so that they did their first hire since 2001 — a new field examiner named Andrew Starr. 

Lastly, the Region has — for some time — referred up to 5 cases a month out to the Buffalo NLRB region for investigation because of a lack of resources in this region to handle the caseload. Kreisberg indicated that may come to an end with the hirings last year and this year.

Much of the information discussed at the issue was contained in the newsletter referenced above but in upcoming posts, I’ll talk about some of the changes being discussed at a national level, as well as some of the trends that the NLRB has been seeing lately with regard to employer rules.

My thanks to the NLRB for its willingness to engage the bar association in this area and for providing useful information that will ultimately help both practitioners but their clients as well.