Upcoming Fall 2011 Seminar; Why Non-Union Employers Should Care About the NLRB’s New Quickie Election Rules and Poster Requireme
The Goldstein Law Firm
October 2011 Newsletter
“Upcoming Fall 2011 Seminar; Why Non-Union Employers Should Care About the NLRB’s New Quickie Election Rules and Poster Requirements; Understanding Employee Retaliation Claims; How to Deal With Disaffected Employees’ Comments about their Employers on Social Media Sites; and New Employment Laws for 2012”
Employers are faced with the dual challenge of operating their businesses and organizations in a challenging economic environment and at the same time protecting themselves against unnecessary lawsuits and administrative actions. In this month’s issue, we deal primarily with two topics which are a watershed in the development of employment law at the federal level: (1) the National Labor Relations Board’s (“NLRB’s) new “quickie” election rules and poster requirements; and (2) Dealing with Disaffected Employees’ Comments about their Employers on Social Media Sites”. It is vital that non-union employers understand the NLRB’s new rules re-interpreting and enforcing the National Labor Relations Act (“NLRA”), and adopt lawful and effective strategies for complying with these new rules and agency interpretation of existing rules. Tough times do not last, but tough people do, and those employers who invest the time and resources to protect themselves will survive and prosper.
I. The Goldstein Law Firm’s 35th Annual Labor & Employment Law Seminar:
The Goldstein Law Firm will hold its 35th Annual Labor and Employment Law Seminar from 8 a.m. - 12 p.m. on Wednesday, October 19, 2011, at the Cerritos Center for the Performing Arts, located at 12700 Center Court Drive, Cerritos, California 90703.
To attend our firm’s October 19, 2011 Seminar, please complete the Attendance Form sent as a separate Attachment and fax the Attendance Form to The Goldstein Law Firm. Fax No. (310) 282-8070 or Email to cgoldstein@gpfirm.com.
II. Most Employers are Non-Union: Why Should Non-Union Employers Care About the NLRB Adopting “Quickie” Election Rules?
In my September 2011 newsletter article talking about the subject, I told you that practically every private sector employer under the jurisdiction of the NLRB must post a “Notice of Employee Rights” under the National Labor Relations Act on or after November 14, 2011.
Now the Obama Administration’s NLRB has proposed rules to speed up NLRB elections because union membership in the private sector stands at less than 7% of the U.S. workforce and is sinking fast. The rules are designed to help union organizers unionize the 93% of the work force that is non-union. The Unions believe that if they could have quick elections then they could succeed in regaining large numbers of new members. The new NLRB proposed election rules would unduly speed up NLRB union elections so that your employees would be deprived of the right to make an informed decision of whether or not to vote for a union. The “quickie” election rules are also designed to prevent you, as an employer, from having the time to effectively present your case as to why your employees should reject the union and to be able to effectively respond to the threats and outrageous promises that union organizers generally make to employees during a union campaign.
Under the new NLRB rules:
An NLRB union election could be held within 10 to 14 days from the date that you as the employer become aware that a Union is asking the NLRB to conduct an election.
Tips for Employers
- Many of our clients have not had to face the threat of unionization for many years because unions have been steadily losing power. In order to deal with the present threat posed by the NLRB’s aggressive new rules, employers have to learn again why employees join unions in the first place and how to create a work environment that makes unions unnecessary.
- Employers have to train their managers and supervisors to learn “the tell-tale signs” that a unionization effort is underway and how to legally and effectively act to prevent unionization.
- You should make your employees aware of what unions can and can not do so that even if for a time the NLRB’s rules for “quickie elections” become effective, your employees will reject the union’s wild promises and understand that real job security comes from working for a healthy company that will continue to be profitable.
III. Employee Retaliation Charges Against Employers Rise to Surpass Race Discrimination During Recession
According to recent statistics from the Equal Employment Opportunity Commission, over the past two years, complaints of employer retaliation – against employees have risen and now have surpassed even complaints of race discrimination that have long been the most filed charge of discrimination. As an employer, you should know what constitutes unlawful retaliation and how you can prevent this type of violation from occurring.
What is unlawful retaliation? The elements of a claim for retaliation are: (1) your employee engaged in a protected activity as an employee; (2) you subjected the employee to an adverse employment action; and (3) there is a causal link between the protected activity and your actions. An example of unlawful retaliation would be where an employee complains about being mistreated and ridiculed by his or her fellow employees because of his or her race, national origin, sex/sexual orientation and/or age, and rather than dealing with this problem the supervisor begins to find problems with the employee’s work performance that had not been criticized in the past and disciplines the employee who complained.
Tips for Preventing Successful Retaliation Charges
1. Have clear policies against discrimination, unlawful harassment and retaliation.
2. Make certain that your managers and supervisors are trained to enforce your anti- discrimination and harassment policies and your policy against unlawful retaliation.
3. Take all claims of harassment, discrimination and/or retaliation seriously.
4. Encourage all employees to bring claims of discrimination, harassment and/or retaliation to the attention of your managers, supervisors, and human resources department.
5. Immediately investigate and document all claims of discrimination, harassment and retaliation.
6. Report the results of your investigation to all parties, including the complaining employee.
7. Resolve valid complaints of retaliation so that they are effectively remedied and prevented from occurring in the future.
IV. National Labor Relations Board Tells its Regional Offices that Employer’s Can Discipline Employees Who Use Social Media To Voice Their Personal Grievances that are Not Concerted Protected Activity Under the NLRA:
Why Non-Union Employers Should Care?
Even if your employees are not represented by a Union, they are still covered by the National Labor Relations Act that protects them from being retaliated against by their employers for engaging in protected “concerted” activities. The “classic” example of “protected concerted activities” was when employees at a non-union aluminum plant in Baltimore, Maryland engaged in a walkout during the winter to protest the fact that the temperature in the plant was too cold. The U.S. Supreme Court concluded that even though these employees were non-union they were protected from retaliation by their employer who had fired them because they were engaged in protected concerted activities by walking out together because of poor working conditions.
Now the concept of protected concerted activities has been examined by the NLRB in the context of whether employees’ hostile statements about their employers made through their Face Book, Twitter, and other social media accounts, can be disciplined and/or terminated by their employers.
Recently the Advice Section of the NLRB General Counsel’s Office advised the NLRB Regional Offices in 3 separate advice memos on how to deal with issues that may arise from an employer disciplining employees because of what the employee says about their employer or says about his or her working conditions on their personal social media.
Memo #1: The first memo dealt with a bartender at a restaurant in Illinois who complained on his Face Book page that he had not had a raise in five (5) years and that he was required to do waitress work without the tips. He sent this response to his sister who had asked how his night went. Several days later, the employer sent a Facebook message to the bartender that he was fired. The Office of the General Counsel concluded that there was no NLRA violation because there was no evidence that the bartender had engaged in concerted protected activity. The bartender did not discuss his posting with any other employees and none of his coworkers responded to his posting. There was no attempt to encourage group action on the tipping policy or wage increase. The bartender’s complaint was made purely as an individual; and since it did not involve group action, his termination did not violate the NLRA.
Memo #2: The second memo involved an unhappy customer services employee of a Wal-Mart store in Oklahoma who ranted against Wal-Mart and in particular the employee’s supervisor. The Facebook posting was directed to the employee’s coworkers. Wal-Mart received a copy of the Facebook posting and disciplined the employee for “putting some real bad things on Facebook about Wal-Mart and the assistant manager.” The employee was told that he would be terminated if his behavior continued and was required to take one day off which was paid as a “decision day”, but he would be precluded from being promoted for 12 months. The Office of the General Counsel concluded that the comments were the product of the customer service employee’s own personal grievances rather than a call to concerted action and mere griping is not protected.
Memo #3: The third memo dealt with a recovery specialist at a non-profit residential facility for the homeless who made comments on her Face Book Page while she was working on the night shift. She made negative references to the facility’s clients. None of the people she was communicating these negative comments to were employers. None of the employee’s Facebook friends were co-workers. Instead, a former client of the facility was listed as her Facebook friend. He complained about her comments to management of the facility and the recovery specialist was terminated. The Office of the General Counsel found that the employee’s gripes were personal and that she was not attempting to induce group action and her activity was not an outgrowth of group concerns.
Tips for Management
- Using information that you learn directly or indirectly from an employee’s social media account presents a number of federal legal issues regarding concerted protected activity and also involving state law claims of invasion of the right to privacy and whether the employee who express his or her views is entitled to legal protection from employer retaliation.
- Attend The Goldstein Law Firm 35th Annual Seminar on October 19, 2011 to learn effective legal strategies on how to protect yourself and your organization.
V. Legislative Review: Governor Brown Vetoes 2 Anti-Employer Bills and Signs 2 Anti-Employer Bill Into Law
The following pieces of groundbreaking legislation reached the Governor’s desk at the end of the current Legislative session:
(Vetoed) AB 400: Under existing law, employers can provide their employees paid sick leave. This bill would provide that an employee who works in California for 7 or more days in a calendar year is entitled to paid sick days, as defined, which shall be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee's family member, or for leave related to domestic violence or sexual assault.
(Vetoed) AB 1062: Existing law specifies those types of orders and judgments from which an appeal may be taken, including, an order dismissing or denying a petition to compel arbitration, including an appeal from a trial court’s denial of a petition to compel arbitration in an employment case. This bill would delete an order dismissing or denying a petition to compel arbitration as a basis from which an appeal may be taken.
(Signed into Law) AB22: This bill would prohibit an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, as defined, for employment purposes unless the position of the person for whom the report is sought is: (1) a position in the state Department of Justice; (2) a managerial position, as defined; (3) that of a sworn peace officer or other law enforcement position; (4) a position for which the information contained in the report is required by law to be disclosed or obtained; (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment; (6) a position in which the person is or would be a named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf; (7) a position that involves access to confidential or proprietary information, as specified; or (8) a position that involves regular access to $10,000 or more of cash, as specified. This bill would also require the written notice informing the person for whom a consumer credit report is sought for employment purposes to also inform the person of the specific reason for obtaining the report, as specified.
(Signed into Law) AB 646: Currently, under the Meyers-Milias-Brown Act if the representatives of the public agency and the employee organization fail to reach an agreement, they may mutually agree on the appointment of a mediator and equally share the cost. If the parties reach an impasse, the act provides that a public agency may unilaterally implement its last, best, and final offer.
This bill would authorize the employee organization, if the mediator is unable to effect settlement of the controversy within 30 days of his or her appointment, to request that the matter be submitted to a fact-finding panel. The bill would require that the fact-finding panel consist of one member selected by each party as well as a chairperson selected by the board or by agreement of the parties. The fact-finding panel would be authorized to make investigations and hold hearings, and to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. The bill would require all political subdivisions of the state to comply with the panel's requests for information. This bill would further require, if the dispute is not settled within 30 days, the fact-finding panel to make findings of fact and recommend terms of settlement, for advisory purposes only. The bill would require that these findings and recommendations be first issued to the parties, but would require the public agency to make them publicly available within 10 days after their receipt. The bill would provide for the distribution of costs associated with the fact-finding panel, as specified.
Lastly, this bill would prohibit a public agency from implementing its last, best, and final offer until at least 10 days after the fact-finders’ written findings of fact and recommended terms of settlement have been submitted to the parties and the agency has held a public hearing regarding the impasse.
The Legal Practice Areas of the Goldstein Law Firm
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