Unintended consequences?

Does Citizens United compel public sector employees to support corporate political campaigning? One Harvard professor thinks so. Most public sector employees are required to make contributions to a pension plan. Many public sector pension trustees make investment decisions in the private sector in corporate securities. The problem is Citizens United permits corporations to make political expenditures from the corporate treasury. Essentially public sector employees are compelled to finance private corporate political expenditures with no mechanism for opting out. Unions, of course, cannot use employee dues money for political expenditures if the dues payer objects. The professor suggests this compelled financing of corporate political speech violates the public sector pension contributors' First Amendment rights. Intereting argument.

Who hates unions?

Here is Rush on unions. Classic, but not playing real good with some sponsors.

Union decline

Union decline: the chart

Belmont in jeopardy?

Will a labor dispute prevent a triple crown?

Ruh Roh

The latest jobs report from the Bureau of Labor Statistics (BLS) notes a net job creation of only 69,000, and that the unemployment rate has risen to 8.2%. Also of note the jobs numbers for March and April were revised downward.

NLRB Member Flynn resigns

Over the holiday weekend, NLRB Member Terence Flynn resigned, effective July 24, 2012. Flynn has also recused himself from all agency business. Flynn has been accused by the Board's Inspector General of leaking non-public information.  Previous posts on accusations against Flynn are here.

Unionization rate by state

Today's Workplace blog has a post (with chart) showing the "unionization" rate on a state by state basis. Nationally the rate in 2011 was 13.3%. Top ten states: New York (26.4%). Alaska (24.3%) Hawaii (24.0 %) Washington (21.2%) Michigan (19.2%), New Jersey (18.8%), California (18.5%), Connecticut (17.6%), Oregon and Rhode Island (17.4%), and Nevada (17.3%). The "unionization" rate statistic is inflated a bit because it includes not only union members, but also those represented under a collective bargaining agreement. Louisiana is 46th (5.9%) and Mississippi is 41st (7.0).

EEOC Statistics

The EEOC has released a fascinating statistical chart depicting case filings on a state by state basis. Mississippi generated 1.8% of total charges and Louisiana 2.1%. Texas and Florida generated the most total charges, with California ranking third, despite a larger population. Of course California's state laws and state courts may provide a favorable environment for aggrieved employees thereby encouraging a bypass of the federal system.

Unionadelphia

In 2008 Philadelphia Magazine published an excellent piece on how big labor still dominates the City of Brotherly Love. Its a long piece but well worth a read as it pre-dates the Teaparty movement, but presages the anti-labor causes that fueled its rise.

NLRB Election rules suspended

The NLRB has "temporarily suspended" implementation of the new representation procedure rules in light of judicial decisions questioning the validity of the approval process. The Board has indicated it will process the petitions filed since the April 30, effective date under the new rule, and similarly indicated it is determined to reimplement the new procedures, and likely in short order.

Court strikes down NLRB election rules

A federal district court has struck down the NLRB's new election rules finding the NLRB lacked a quorum when they were promulgated. Apparently the fact that Member Hayes did not vote meant, in this case, he did not participate so the other two members who voted for the rule did not constitute a quorum.

Gimme your info or else

The Password Protection Act of 2012 was introduced yesterday. If passed the Act would severely restrict an employer's ability to compel or coerce employees into providing access to any information stored anywhere on the internet.

Whose been in office when the jobs grew?

Bloomberg reports a "who knew" moment. Since 1960, private sector job growth when Democrats resided in the White House almost doubles the growth occurring when Republicans resided there. This despite the Republicans holding the presidency 5 years longer than Democrats. The average number of jobs created during a Democrat's residency is 150,000, compared to 71,000 for Republicans.

Union pushes back for Saints players

The National Football League Players Association (NFLPA) has filed a grievance against the suspensions imposed by Commissioner Goodell. The union makes a procedural argument and a technical immunity argument. The union claims the discipline imposed by Goodell is outside his authority and that under the Collective Bargaining Agreement discipline of players can only be imposed by the System Arbitrator, not Goodell. The second argument relates to a provision of the new CBA that released players for conduct engaged in prior to its effective date (August 4, 2011). Of note, this is a challenge by the NFLPA, not the players, who have not yet appealed.

Job growth slows

Job growth slowed in April with only 115,000 new jobs created. unemployment dips to 8.1%.

GC Solomon issues "R" case guidance

NLRB Acting General Counsel Lafe Solomon issued a guidance memorandum concerning the NLRB's new procedures for handling representation elections. The new procedures take effect tomorrow, April 30th.

Criminal records and the EEOC

Employers who use criminal records checks as a part of an employee selection process should review their practices in light of the EEOC's new guidelines on use of criminal records. FAQ's here.

Blows

Louisiana has one of the weakest, and for employees most dangerous, whistleblower protection Acts in the country. Arguably no employee should want to run the risks they are exposed to for blowing the whistle on an employer. Not only is termination from employment possible, but the employee who unsuccessfully blows the whistle without winning the issue is exposed to liability for the employer's costs and attorney fees. Practically speaking there are few employees and fewer circumstances which warrant this type of risk. State Representative Walt Leger introduced House Bill 84 to correct the problem, but the bill stalled in committee on a 6-6 vote.

Employers use of social media as screening tool declines

A new CareerBuilder survey indicates that employer's use of social media to research job applicants has declined. In a 2009 survey 45% of the surveyed companies reported using social media. In the new survey only 37% did, and another 15% said they prohibited using social media as a screening tool. Maybe applicants ought to consider a dual site approach to social media, one for the real life and one for the perfect applicant.

DC Circuit enjoins NLRB Notice requirement

A federal court of appeals in Washington has issued an emergency injunction against the NLRB's employer notice posting requirements which were scheduled to go into effect on April 30th. Previous posts here.

Rejected! Federal Judge nixes NLRB notice requirement

A federal district court in South Carolina has ruled the NLRB lacks the authority to promulgate the rule which requires employers to post a notice advising employees of their rights under the National Labor Relations Act. The opinion is here. The opinion is by District Judge David C. Norton who was appointed by by President George H. W. Bush. At first blush this seems to be a rather extraordinary reigning in of the NLRB's rule making authority.

Deadline!

On April 30 two important new NLRB rules become effective. First, all employers subject to NLRB jurisdiction will be required to have posted a notice advising employees of their rights under the National Labor Relations Act. Previous posts here. The poster can be downloaded for free here. Second, the Board will begin operating under a new set of rules for conducting representation elections. Employers would be well served to perform a current vulnerability assessment, including taking affirmative steps to be prepared to respond promptly to any union organizing activity in their workforce.

Decline with nuance

While it is true that manufacturing jobs as a percentage of total employment has been declining for a long time, in absolute numbers, the decline began relatively recently.

Social media passwords protected in MD

Maryland becomes the first state to ban employers from requesting social media passwords from employees and applicants. As a practice I think asking employees for their Facebook or other social media password is just creepy. Particularly where the practice is not required of every employee or applicant in the same job classification, and there exists a rational basis for employer concern about the employees personal behavior.

Flynn hires former IG

NLRB Member Terrence Flynn has hired a former DoJ Inspector General to defend him against ethics charges lodged against him.

Wisconsin law challenged

A federal district judge has just struck down parts of Act 10's restrictions on public employee union rights.

Job growth signals strong economy in NOLA

Data released Friday by the Louisiana Workforce Commission confirmed anecdotal evidence that the New Orleans area economy is growing. The seven parish metro area added 8,800 jobs since February 2012. The unemployment rate also dropped from 7.4% in January to 7.0%. The state as a whole added 41,000 jobs in the last twelve months.

Leak, and it ain't St. David's day

It seems one of the recess appointments to the NLRB has been accused of doing things he should not have done. Republican Terence Flynn is accused of leaking confidential information to two former NLRB members one of whom works for the National Association of Manufacturers, and the other who is a labor advisor to Mitt Romney. Rep. John Kline (R-MN) says the problem is that Flynn's a recess appointment. You can't make this stuff up.

Chrysler success story

Well, I never watch 60 Minutes, but I sat down and caught their piece tonight on Chrysler's new (post meltdown) CEO Sergio Marchionne. He brought Chrysler back and the auto bailout helped. Chrysler has already repaid the federal government its 6 Billion Dollar loan, and is making $$$. Of incredible note is the fact that Marchionne blamed management, not workers for Chrysler's failures. And Marchionne gives credit to the hourly workers and engineers for the turnaround. There is also a priceless moment where he refuses to comment on the political criticism of the Eastwood Superbowl add but makes clear how much he disrespects the critics. Watch it here (air date 3/25/12).

Facebook stands up to employers

Facebook has announced it may sue employers who require applicants or employees to provide their Facebook password. Not so sure Facebook would win, but who wants the honor of being the test case?

Male Flight

Is it true that men leave a profession when women start entering it in numbers? Not exactly. But "male flight" is the name of the concept touted in this piece. When women enter in numbers, fewer men continue to enter the field. Is the future of law a "chick field"? 

Labors' Rx for the economy

Does labor have it right on these issues?

Orange? You're fired!

Sometimes employers do really silly things. Take this law firm that fired 17 employees for wearing orange. Now it did happen the Friday before St. Patrick's day, but there does not appear to be a sensitive Irish logic in the mix. It seems the employer thought the orange shirts were a protest. And as we all know at-will employees can be fired for any reason, even a silly one. The article even quotes an employment lawyer who says just that. But, isn't this protected concerted activity under the NLRA? Surely the employer thought it was, but more than that, if employees choose to dress alike, don't they have a protected right to do that? I think they do.

Member of L.L.C. not FLSA employer

The Fifth Circuit in Gray v. Powers becomes the first federal circuit to squarely address the liability of an individual member of an L.L.C. for FLSA wage claims of an employee of the L.L.C. The court rejected liability based solely on membership status and affirmed that operational control by the member is required to impose liability. The Court noted that it employs the economic reality standard for assessing operational control, and in this case, no reasonable jury could have concluded the Defendant possessed the power to hire and fire, ability to supervise, power to set wages, and/or maintained employment records.

Baseball gets it

There is nothing like an early spring to make you think baseball. And this is an early spring. The azaleas have just finished and the amaryllis and day lilies are a few days from busting out, but I digress. MLB has just issued a social media policy and it seems the most traditional of the professional sports leagues has gone progressive and actually encourages players to use social media to communicate directly with fans. The policy was embraced by the new collective bargaining agreement between MLB and the MLBPA. Bullet points courtesy of Greg Calcaterra at Hardball Talk:

• Players can’t make what can be construed as official club or league statements without permission;
• Players can’t use copyrighted team logos and stuff without permission or tweet confidential or private information about teams or players, their families, etc.;
• Players can’t link to any MLB website or platform from social media without permission; (i don't get this)
• No tweets condoning or appearing to condone the use of substances on the MLB banned drug list 
• No ripping umpires or questioning their integrity;
• No racial, sexist, homophobic, anti-religious, etc. etc. content;
• No harassment or threats of violence;
• Nothing sexually explicit;
• Nothing otherwise illegal.

The list is pretty straight forward except for that weird prohibition on linking to MLB sites. Hey owners, WTF, don't you want that? The list also avoids common issues the NLRB has with overbroad social media policies that would chill employees section 7 rights. In a follow up post Calcaterra discusses the NLRA and protected concerted activity, and I think he gets it right. I have a feeling the NLRB would  not find two players publicly criticizing an umpire protected activity. Think product disparagement.

Mitt - "Eliminate the NLRB"

Does a Republican presidential candidate really want to eliminate the National Labor Relations Board? Be careful what you ask for. Does he intend to repeal the NLRA, or just shift enforcement to federal courts? As we have noted before, plenty in the labor movement might welcome the ability to use economic coercion which the NLRA prohibits.

Diversity training ineffective

Just read a fairly interesting article dissing diversity training. No, its not an assault on political correctness, rather it says its not effective. Money quote after the jump

Horton appealed

The NLRB's decision in D. R. Horton has been appealed to the Fifth Circuit. This is the case where the NLRB found an arbitration policy waiving class or collective relief on employment law claims interferes with employees rights under the NLRA. Our prior post is here.

Citizens United did what?

Did Citizens United open the door for broader union efforts for Democrats in 2012? The answer appears to be yes. The evidence is the Ohio referendum repealing anti-union legislation passed by Republicans.

"At will" policy violates NLRA

Can an employer's "at will" statement and handbook acknowledgement form violate the NLRA? One administrative law judge has ruled it can. In American Red Cross Arizona Blood Services Region, Case No. 28-CA-23443 downloadable here (February 1, 2012) the ALJ found an Employers acknowledgement form, which employees are required to sign, and which states “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way” violated the Act by maintaining and requiring employees to sign an acknowledgement form which is overly-broad and discriminatory. It is reasonable to expect the current NLRB to affirm this decision. If so, a whole lot of employers will be changing their at-will language. ALJ's money quote after the jump.

Jobs grow while February unemployment remains constant

The Bureau of Labor Statistics (BLS) issued its report on February jobs creation today. The nonfarm payroll employment added a net gain of 227,000  jobs in Frebruary. The unemployment rate remained at 8.3% due to more persons reentering the workforce. December's report also was revised upward from +203,000 to +223,000, and the change for January was revised upward from +243,000 to +284,000.

Public support of unions higher than thought

A new Bloomberg National Poll finds unions with more support than one might suspect.

Sixty-four percent of respondents, including a plurality of Republicans, say public employees should have the right to bargain collectively for their wages. Sixty-three percent, including 55 percent of Republicans, say states without enough money to pay for all the pension benefits they have promised to current retirees shouldn’t be able to break those obligations.

Indigestion

Radaronline reports on a discrimination complaint filed against Celebrity Chef Paula Deen and her brother by a former manager alleging harassment. The allegations of the 123 paragraph Complaint are remarkable.

Court (mostly) upholds Notice posting requirement

A federal district court judge has ruled the NLRB lawfully implemented a rule requiring employers to post a notice of NLRB rights. The court noted, however, the failure to post a notice could not be a per se violation of Section 8(a)(1). The Board must employ a case by case analysis which should include a finding of interference or infringement upon rights protected by the Act. As a practical matter this provides wide leeway to find a violation in almost all circumstances. The court also rejected the rule's provision that a failure to post could toll the 10(b) limitations period because it conflicted with the statutory mandated period. The requirements become effective April 30.

Secondary boycotts are effective

Business advocates who would do away with the National Labor Relations Board should think about what happens if effective collective actions by unions, like secondary boycotts, were no longer prohibited.  After all, other advocacy groups find secondary pressure extremely effective.

Boeing and Lafe

The Seattle Times has an interesting story on Lafe Solomon and the Boeing case, some of the political aspects and pressures, and background on Solomon himself.

Empire State union density declines

Union membership density in New York declined (incremental) for the second year in a row to 24.1%. The recorded high point is 1991 (29.1%). This decline is dramatic for a state with significant union membership, the decline is significantly smaller than the decline recorded nationwide.

Rustbelt Right to Work challenged

A union has sued to block implementation of Indiana's new Right to Work law.

$$$$$$$

Just how much will unions spend this election cycle? A lot.

NLRB nominations

The White House has formally sent the nominations of Terence F. Flynn, Sharon Block, and Richard F. Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members. The three received recess appointments in January. These recess appointments are controversial, subject of a congressional hearing, and being challenged in court.