NLRB and Social Media

The NLRB has issued a recent decision striking down an employer's overly broad social media policy on the grounds it might intimidate employees in the exercise of Section 7 rights. In Costco Wholesale Corporation, 34-CA-012421. The Board overturned an ALJ's decision upholding a

rule prohibiting employees from electronically posting statements that "damage the Company . . . or damage any person's reputation.

The Board concluded this policy would reasonably tend to chill section & activity. page 2 of the decision does a pretty good job of laying out the potential problems with social media policies. There are three potential problems: chilling effect, a rule promulgated in response to union activity and application of the rule to restrict Section 7 activities. Any one of the three could lead to a violation. The Board hinted that an employer providing examples of proscribed conduct, and a disclaimer of coverage of Section 7 activities might avoid a violation, but the ultimate analysis is going to be the ALJ/Board's view of whether the policy and its context indicates any one of the three problems exist.

Trumka tells Mass. vote for the woman

AFL-CIO president Richard Trumka made a hard pitch to vote for Elizabeth Warren over Sen. Scott Brown in the Massachusetts Senate race, even though she's not one of the boys.

Players support refs

The NFLPA has taken sides with the locked out referees. In a letter to owners the Players' Association denounces the Commissioner and the lockout as creating significant safety problems for the players.

Pensions, its about pensions?

The NFL referee strike revolves around pensions according to this analysis, and the issue is not whether the owners can afford them rather their belief they can eliminate a defined benefit plan because no one else has one.

Public sector jobs decline

Well, more job truthifying - Paul Krugman, informs Sen. Rand Paul that public sector jobs have declined since Obama took office.  In disbelief Sen. Paul retorts "the growth of government is enormous under President Obama." No, really, government employment is smaller now than before President Obama took office. That a United States senator is surprised at this important fact is discomforting. Krugman provides a dramatic chart here.

Woulda, coulda, shoulda?

ThinkProgress blames lackluster job growth on Republicans blocking passage of the American Jobs Act.

Middling jobs growth

The Bureau of Labor Statistics reported net job growth in August was shy of 100,000. Private sector jobs expanded by 103,000 and public sector jobs declined by 7,000. The unemployment rate dropped slightly to 8.1%.

Jobs, jobs and politics

The jobs report from the Bureau of Labor Statistics is due out Friday. It will likely have a higher than usual effect upon the political scene. A better than expected number good for the President, and a worse than expected number better for Gov. Romney. The jobs issue is a major one for the 2012 campaign. Talking Points Memo does a good job of "truthifying" the debate.

Hurricanes and exempt employees

What options exist for paying employees when a hurricane forces an employer to close?

• Non-exempt employees must be compensated only for hours actually worked. If the employer cannot, or does not provide work to those employees due to a natural disaster, it is not required to compensate them for hours not worked. An exception to this general rule exists where there are employees who receive fixed salaries for fluctuating workweeks. These are non-exempt employees who have agreed to work an unspecified number of hours for a specified salary. An employer must pay these employees their full weekly salary for any week in which any work was performed.

• As for other exempt employees, if they choose not to come to work due to transportation difficulties or other storm issues, but the employer is open for business, the employer may require the employee to use paid time off or vacation pay, or may choose to place the employee on unpaid leave. Any required use of PTO should be in full day increments., if the employee worked a partial day, then the exempt employee is entitled to full pay for that day.

• The employer will be required to pay an exempt employee’s full salary if the worksite is closed  or unable to reopen for less than the complete work week due to storm reasons. When the facility is closed for more than a complete work week, the employer is not required to pay exempt employees for any complete work week closure caused by the storm related closure.

It is also possible to require exempt employees to make up time missed. Issues regarding compensation are fact driven. Employers should consult with their employment attorney for specific advice.

College and economic security

The Georgetown Public Policy Institute for has released a report detailing how much better off college graduates fared in the economic downturn. Key points:

• unemployment rate for 4 year college graduates never exceeded 6.3% during the recession, compared with a peak unemployment rate of 13.4% in February 2010.
• unemployment rate for new high school graduates peaked at 30% in January 2010, and remained at 24% in May of 2012.
• during the recession (Dec. 2007-Jan 2010) there was modest job growth (187,000) for those with a bachelor's degree or better.
• During the recovery (January 2010-Feb. 2012) job losses for high school graduates or less education continued to decline (230,000) while job growth for those with some college (2,012,000) and Bachelor's degree or better (3,374,000) improved dramatically.
• Nearly 4 out of every 5 jobs lost in the recession were held by workers with a high school diploma or less.

There is a wealth of additional information.

Employer burden to justify ban on employees discussing ongoing investigation

In Banner Health Systems, 28 CA 023438, 348 NLRB No. 93, [Download here] the NLRB continues its aggressive expansion of protection for employee concerted discussions of workplace issues. In Banner, the employer had a blanket prohibition against discussion of its investigation of workers complaints. The Board rejected this approach as overbroad and required an individualized showing by the employer of its business justification for interfering with Section 7 rights. Money quote:

it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated,or there [was] a need to prevent a cover up.” Id. The Respondent’s blanket approach clearly failed to meet those requirements.

This result is unremarkable given the text of Section 7, yet the practical effect upon, and burden on employers during an ongoing investigation are potentially huge.

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.