My colleague, Jarad Lucan, returns today with a very special post on a ground-breaking week at the NLRB.  For Connecticut employers, the decisions change a lot of what has been going on at the NLRB for the last several years.  

Back in January of 2013, I wrote an article for the Connecticut Law Tribune entitled “For the NLRB, a December to Remember,” which you can read here if you are interested . In that article, I discussed a slew of Obama Administration Labor Board decisions that were handed down in December of 2012 and that construed labor law in a way favorable to employees and unions.

Based on decisions last week from the new Trump Administration Labor Board (issued just before Chairman Philip Miscimarra’s term expired), this December has proven to be another memorable one;  this time, however, employers that are the beneficiaries.

In a decision involving The Boeing Company and its no-camera rule that prohibited employees from using camera enabled devices to capture images and video in the workplace without prior approval, the Labor Board took aim at its 2004 Lutheran Heritage Village-Livonia decision and the standard from that decision applicable to workplace rules and policies.

Under the Lutheran Heritage standard, an employer’s facially neutral workplace rule was determined to be unlawful if it would be “reasonably construed” by an employee to prohibit or restrict the employee’s rights afforded by the National Labor Relations Act.

For years, that standard had been used to find unlawful countless employer policies related to confidentiality, privacy, social media use, and courtesy.

In place of the Lutheran Heritage standard, the Labor Board, in The Boeing Company case, established what amounts to a balancing test.

Under the a new test, the Labor Board first looks at whether the rule or policy, when reasonably interpreted, would potentially interfere with employee rights under the Act.

If it does, the Labor Board then looks at two things:  (1) the nature and extent of the potential impact on employee rights protected by the Act; and (2) the legitimate justifications associated with the rule.  If the justifications outweigh the impact, the rule will be lawful.

The decision also lays out three categories into which the Labor Board will classify rules.

The first category covers rules that are legal in all cases because they cannot be reasonably interpreted to interfere with employees’ rights or because any interference is outweighed by business interests; the second covers rules that are legal in some cases depending on their application; and the third covers rules that are always illegal because they interfere with employees’ rights in a way not outweighed by business interests.

Applying the new test to The Boeing Company no-camera rule, the Labor Board determined that the rule was lawful.

The Labor Board reasoned that the rule potentially affected employees’ rights protected by the Act, but that the impact was comparatively slight and outweighed by important business justifications, including, in that case, national security interests.

In light of this decision, employers should take a fresh look at their workplace rules and policies.  However, unlike such reviews following previous Labor Board rulings when employers would rush to revise or eliminate rules held to be invalid, employers should consider each rule and the justification behind the rule.

In another big move, but in a decision likely to impact less employers, the Trump Administration Labor Board majority voted to overturn the Obama Administration Labor Board’s controversial 2015 Browning-Ferris Industries ruling, which I wrote about here.

In Browning-Ferris Industries, the Labor Board held that two partners in a business relationship are joint employers when one has even “indirect control” over the other’s employees.

The Labor Board’s decision restored the Board’s prior “direct control” standard for weighing joint employer status.  As the Labor Board majority stated, “[w]e return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world.”

Additionally, the Trump Administration Labor Board majority voted to overturn the 2011 Specialty Healthcare “Micro-Unit” standard.

That decision related to the appropriateness of the make-up of a newly petitioned-for bargaining unit and seemingly placed great emphasis on the extent in which the petitioned-for unit was organized.

Under that standard, and employer could only add to the individuals included in a petitioned-for unit if it could prove an overwhelming community of interests.

The Labor Board has now returned to previous precedent and will examine whether petitioned-for employees share a community of interests “sufficiently distinct” from excluded employees to warrant their own unit.

In the coming months, the Trump Administration Labor Board is likely to overturn other labor law decisions, including those related to college student’s rights to unionize, and employee use of employer e-mail systems to engage in protected concerted activities, among others.

Such is the nature of a labor board that pays little regard to precedent and instead shifts according to the administration in power.

Stay tuned.

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.

generalassemblySo, employers are probably tired of hearing me say that there’s always something to update in your employee handbook.

But if employers can do it, why can’t the legislature get its act together and clean up our existing laws to the ones that are relevant — or at least update them.

Instead, we get layers upon layers of laws that employers probably have no idea even exist.

Did you know that if you’re over 66 years old, you can’t work in a bowling alley or “photograph gallery” after 10 p.m.  Unless you “consent”.  (Conn. Gen. Stat. Sec. 31-18.)

Let’s just ponder this one for a second. What is a “photograph gallery”? And what does it mean to “consent” to work? Can a 66 year old simply say that he’s not going to work late?

Then there is the ban on minors operating elevators — something I’ve talked about before.  Do we even have ANY elevator operators left in Connecticut? Is that even a job?

Then there is Sec. 31-43 which declares that “A public laundry shall be regarded as a manufacturing establishment within the provisions of the statutes. No laundry work shall be done in any public laundry in a room used as a sleeping or living room. No employer shall permit any person to work in his public laundry who is affected with pulmonary tuberculosis, a scrofulous or venereal disease or a communicable skin affection.”

Raise your hand if you even know what a “scrofulous” disease is.  And I’m pretty confident that bedrooms aren’t being used as public laundries anymore.  (And besides, various OSHA rules probably more than cover this.)

To their credit, the General Assembly finally eliminated the law regarding telegraph operators in 2014. But there are still plenty more laws on the books that could use a refresh.

Now that the legislature is done with the main business for the year, perhaps it can take this summer to review the other laws we have before adding some more.  It might just be a useful exercise.

 

 

 

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.

From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz
From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz

As I talked in yesterday’s post, I moderated a community forum on Religion and the Workplace at my firm. We had a terrific crowd and I’m grateful to all the speakers for making time out of their busy days to come.

I have posted on this blog before about some of things we talked about at the presentation — like how to provide accommodations to employees or addressing what is a “sincerely held” belief.

But Cheryl Sharp, Deputy Director of the CHRO, emphasized one point several times that I think is important for employers to understand.

Too often, she said, employers have policies that are not followed by their managers and employees.  Indeed, she said that when she gives training to companies, she is always surprised that employees tell her that they probably know only 10 percent of what the employee manual says!

While that’s an unscientific study of handbooks, Ms. Sharp’s point is that employers cannot simply have policies that sit on a shelf (or in a computer) anymore. Training your employees and educating them on what your policies say is critical.

Why?

Because Ms. Sharp said that inconsistency of application of a neutral employer policy can lead to discrimination.  And whether you or not you agree with that hypothesis is beside the point. The CHRO — the agency charged with investigating complaints of discrimination — is going to make that same conclusion.

If, for example, you have a policy that you are not to ask job applicants about accommodations until after a job offer is made — and your supervisor asks an applicant in a wheelchair that question before the offer is made — you’re going to have some explaining to do with the agency.

So, what’s the takeaway for employers?

Review your policies and make sure that the policy tracks the practice of your workplace. If it does, make sure to continue to provide training and education to your employees on those policies every year or two.  If it doesn’t, then you either need to modify your policy or your practice.

For more on handbooks, see my prior posts here and here.

Bans on taking photos at work are addressed in the NLRB report.
Bans on taking photos at work are addressed in the NLRB report.

The NLRB’s General Counsel’s office today released a lengthy report “concerning recent employer rule” cases.

That sounds generic. It’s not.

Rather, the NLRB is now outlining its views on otherwise-neutral employer policies and whether they could be deemed to violate federal labor law.  While part of the report is a recap of existing caselaw, this is probably the most comprehensive approach I’ve seen in a while. And more importantly, it provides policies that were approved by the NLRB in a recent settlement with Wendy’s.

This is an issue I’ve talked about before, whether policies on photos and videos, or social media, or confidentiality.

There’s a lot to take in but this should provide employers with guidance should they wish to avoid the NLRB’s steely gaze.

The “model” policies it approves of may not be your preferred language (and indeed, in one area, it would seem to almost encourage union-related activities), but employers who want to stay well within the limits of the law will certainly want to use this as a guide.

I’ll have more on this in an upcoming post after a more comprehensive review.

Hat tip: Jon Hyman.

Back from a long holiday weekend, my colleague Chris Parkin this morning takes a look at a new Connecticut Appellate Court case about employee compensation.  

A new case that will be officially released tomorrow reminds employers to take care with their words and promises when it comes to employee compensation.

The facts of the case are fairly straightforward:

A 20-year employee for a major financial firm had been rewarded handsomely with generous six-figure bonuses that typically exceeded his annual base pay.  The financial crisis hit the employer hard.  Bonuses paid in early 2008 were down appreciably compared to prior years.  By 2009, the employer had been infused with cash from the United Kingdom government to maintain stability.

The tenuous financial position caused the employer to alter its bonus system.  In January 2009, bonus eligible employees were advised that they would be subject to a “deferral program.”  This program called for the bonuses to be paid as bonds with vesting dates over a three year period.  The full amount of the bond would only be owed if the employee was still employed by the employer at the end of the three year term.

The employee resigned before the first vesting date and the employer determined that he forfeited his right to payment on the bonus bond. The employee sued, alleging that he was entitled to his bonus as a matter of contract.

Who wins?

The lower court said that there was no contractual obligation to pay a bonus because the employee was never guaranteed a bonus but rather was simply eligible for one in the discretion of his employer.

On appeal, the Appellate Court agreed, noting that while, “all employer-employee relationships not governed by express contracts involve some type of implied contract of employment,” there was no contractual obligation to pay a bonus here.

The Court’s analysis in Burns v. RBS Securities, Inc. (download here).  hinged on the fact that no evidence was introduced to suggest that the employee was ever guaranteed a bonus.  His supervisor testified that the employee had only been told he was “eligible” for a bonus and the employee handbook clearly conditioned the payment of any bonus on discretionary factors including the health of the company.  There was also undisputed evidence that the financial health of the employer was “abysmal” at the time.

The one argument available to the employee was that he was entitled to the bonus because an implied obligation arose over the course of years of generous annual bonus payments.  The court flatly rejected this argument noting that “the mere practice or custom of an employer does not, by itself, create a contractual obligation.”

This decision is, of course, good news for employers who are careful not to make promises about bonus payments.  Managers should be trained not to make any promises about bonuses unless there is absolute certainty that the company will make such payments.  Handbooks should similarly be drafted to prevent the creation of an implied contract to pay a bonus.

The Appellate Court underscored this advice by distinguishing another matter, Ziotas v. Reardon Law Firm, P.C. (which was covered here back in 2010).  In Ziotas, the court said the employer was obligated to pay a bonus because it made a verbal promise that “this has been a very successful year for the firm, and for you, and… you’re going to get a bonus that fairly reflects that.”

It may not sound like much, but the difference between, “you’re getting a bonus” and “you’re eligible for a bonus” could be costly.

Some cases are easy to explain in a short blog post.

This is not one of them.

But a new Connecticut Appellate Court case released today, Grasso v. Connecticut Hospice, Inc. (download here)  has too many nuggets of information to pass up.  It is an example to employers about how cases never truly seem to be over in this litigious climate and that details are important — even in settlement agreements. 

Background Facts

Here are the background facts:

  • Plaintiff employee worked as an employee for the hospice from 1998-2010. 
  • In 2009, she filed two complaints with OSHA regarding some defective chairs.  The administration ordered the hospice to repair the chairs.
  • Later that year, the Plaintiff then filed a whistleblower complaint with OSHA claiming that she had been retaliated against and harassed since the filing of the OSHA complaints. The administration found “reasonable cause” to believe a violation had occurred.
  • Thus in January 2010, the Hospice and Plaintiff entered into a settlement agreement on the whistleblower complaint where she worked as a part time employee in two offices.  The agreement contained a release of future claims for events that occurred prior to the execution of the agreement.
  • End of story, right? Wrong. One week later, the Plaintiff-Employee wrote to the company and alleged that they were breaching the settlement agreement.  Later that year, she quits.
  • You know what happens next, right? She filed a six-count complaint in Superior Court alleging a whistleblower violation, breach of the settlement agreement, breach of the employee handbook and claims of intentional infliction of emotional distress.   The defendant filed a counterclaim asking for declaratory judgment on the release she signed.  The Superior Court granted summary judgment to the employer.

The legal rulings

I’ll admit something that might seem a little unusual and ironic:  I’ve grown a bit tired about writing about the NLRB and social media. 

Perhaps, it’s because I’ve seen too many law firms and lawyers issuing newsletters, blog posts, and alerts each time the NLRB says something, anything, about social media. 

Hearing Too Many “Alerts” on the NLRB?

Because people on social media love WRITING about social media, decisions on the subject keep getting a disproportionate share of coverage.  Frankly, it’s like drivers that use their horns too much. After a while, it’s just noise.

With some notable exceptions, what’s missing from the coverage is perspective.  

Take the latest decision by the NLRB in the Knauz BMW case this month. Yes, it’s one of the first times the Board (as opposed to an administrative law judge) has upheld the legitimacy of a firing that was based on some inappropriate photos posted by the employee Facebook page. 

But that really wasn’t a big issue for the Board because the ALJ’s decision on this topic was affirmed without comment.  Indeed, there was nothing to indicate that the Facebook post was “protected and concerted” — i.e. discussing the terms and conditions of employment with co-workers. 

As the Workplace Prof blog correctly noted, the Knauz BMW cases is just one of a series of “largely run-of-the-mill concerted and protected cases….” 

Of course, as the NLRB has said they would do, the Board has also been issuing decisions that attack what appear to be  facially neutral employment policies and finding that these policies violate the employees’ rights to engage in protected activity.  (Jon Hyman, of the Ohio Employer’s Law Blog, recaps three of them.)  On first glance, this too, has seemed somewhat important to follow.

But its important to recognize that this “trend” is not new.  For example, back in 1998 (and in several other cases beforehand as well), the NLRB issued a decision in Lafayette Park Hotel that attacked bans on “derogatory” statements or policies that prohibited the disclosure of “confidential” information if it prevented employees from discussing wage & benefit information. 

The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend. 

Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?

So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB.  Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years. 

Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity. 

Ultimately, resist the urge to obsess over each decision from the NLRB.  Becuase it just may change again before you know it.

I’ve had a little more time to digest the latest memo from the NLRB opining on what is and what isn’t appropriate for employers to have in their policies. And I’ve come to a very serious conclusion:

It’s an utter mess. 

New Guidance = Utter Mess

(Fellow employment lawyers use the phrases “bungled mess” (Jon Hyman), “not good” (Molly DiBianca), and “Inconsistent, overreaching, it’s a hot tepid mess” (Eric Meyer) to describe the latest missive.)

For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal. 

For example, telling employees “Don’t release confidential guest, team member or company information. . . .” is now deemed to be “illegal” because it could, in the NLRB’s view, “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves–activities that are clearly protected by Section 7.”

Continue Reading After NLRB’s Memo, Drafting Employment Policies Got Trickier