Just a day after the newly Republican-majority National Labor Relations Board (NLRB) restored its “direct and immediate control” test for joint employer status and implemented a new employer-friendly test for handbook policies, it took two more big steps: overturning a ruling limiting the changes employers can unilaterally implement in union workplaces and disallowing so-called “micro-units”.
In its decision regarding unilateral changes, the Board restored old precedent that permits employers to unilaterally change policies without the union’s permission – and without first bargaining with the union – if they have taken similar actions in the past.
In its decision regarding micro-units, the Board overturned its 2011 decision that made it easier for unions to organize very small groups of employees (which, in turn, made it easier for unions to get a foothold in an otherwise non-union company). Instead, under the Board’s decision Friday, the old standard – where employers could establish that all employees sharing a community of interest should be included in the same unit – once again stands, and the playing field between unions and employers has become a bit more level.
These rulings aren’t surprising. As we wrote last week, we expect that the trend of employer-friendly decisions will continue, so stay tuned.
The newly Republican-majority National Labor Relations Board (NLRB) has been busy — just yesterday overturning two employee-friendly standards.
First, the Board overturned its decision in Browning-Ferris, which said that “indirect control” or the ability to exert such control over another company’s workers is sufficient to make a you a joint employer. With this ruling, the Board returned to its more employer-friendly joint employer standard, which looks to “direct and immediate” control.
Second, the Board reversed its aggressive position on employee handbook policies and provisions. Previously, the Board had held that a policy is illegal if employees could “reasonably construe” it to prohibit them from exercising their rights to come together (or collectively bargain) under the National Labor Relations Act (NLRA). This standard had been used by the board to find many employer policies (such as social media and confidentiality policies) illegal. However, per yesterday’s decision, the Board will instead be focusing on the “nature and extent” of a challenged policy’s “potential impact on NLRA rights” and the “legitimate justifications associated with the rule” — which together make for a far more pro-employer approach.
Employers now find themselves in a far better position when it comes to joint employer claims and handbook policy challenges. We expect to see additional employer-friendly decisions soon, so stay tuned.
The National Labor Relations Board just made it much easier for unions to organize employees of staffing firms – sometimes called temp agencies.
It used to be that both the staffing firm and the client had to consent before a union could represent a group of employees that included both staffing firm employees and your regular employees.
However, under the NLRB’s new standard, consent isn’t required. This means that a union can lump together staffing firm employees and regular employees, even though they are employed by different companies and viewed and treated as separate groups.
Under the NLRB’s decision, unions will also have an easier time organizing all of a staffing firm’s employees, regardless of where they work or are assigned.
As a result of the NLRB’s decision, unions will have a far easier time organizing.
So what can you do? Here are 3 steps all Companies that work with staffing firms should take in response to the NLRB’s new standard:
- Ask your staffing firm what steps they’re taking to improve employee satisfaction and avoid unionization, keeping in mind that the lowest cost provider may bring with it lower employee satisfaction and higher risk of unionization.
- Take a close look at your company’s union avoidance efforts. Make sure that you’re paying attention to all employees – both direct and those through staffing companies – and consider stepping up your union avoidance efforts by educating your team about the realities of unionization and how to spot organizing campaigns.
- Finally, make sure your agreement with your staffing firm includes a cooperation clause so that, if there’s an organizing campaign, you’re in the best position to work together quickly to respond.
In avoiding unions, the best defense is a good offense. Take steps now to ensure that you – and your staffing firms – are in the best position possible to avoid union organizing efforts.
Is commenting on a Facebook post protected, concerted activity under the National Labor Relations Act? What about hitting the “Like” button on a post? The Second Circuit recently agreed with the National Labor Relations Board that they are.
In a decision last year, the Board ruled that a sports bar had unlawfully terminated two employees for their activity on Facebook. The first employee had commented on a status update of a co-worker stating that the bar’s owners “couldn’t even do the tax paperwork correctly” and that someone should do the owners “a favor” and purchase the business from them. The employee’s comment stated that she “owed too,” and referred to one of the owners as an “asshole.” The second employee “liked” the first employee’s status update. The Board held that both employees’ had engaged in protected, concerted activity under the Act, and that the bar had violated the Act when it terminated their employment.
Last month, the Second Circuit (Connecticut, New York, and Vermont) affirmed the Board’s decision. The court held that the employees’ actions amounted to a group of employees discussing labor issues and were protected by the Act. The bar argued that the Facebook comment and “like” were meant to defame the bar – with the use of profanity – and thus brought it outside the protections of the Act. However, the court reasoned that the Facebook activity at issue was different from obscenities voiced by employees in earshot of customers in a crowded shop (even though customers could view the comments on Facebook). The court also noted that the bar’s internet and blogging policy could be read as prohibiting employees from protected activity under the Act.
The take-away here? It’s a good time for employers to review their social media policies. As we have warned in the past, these policies as written and as enforced must not “chill” employees from engaging in protected, concerted activity. There is often a fine-line between lawfully prohibiting certain types of activities on the internet and unlawfully interfering with employees’ protected activity. It’s a good idea to check with counsel on how to best craft the wording of these policies to protect the employer’s interests while not interfering with employees’ rights.
Late last week the NLRB issued its long awaited decision in Browning-Ferris Industries – drastically expanding who may be considered a “joint employer” under the National Labor Relations Act (NLRA).
In Browning-Ferris, the company (“BFI”) had contracted with a labor services company – Leadpoint – to provide workers for BFI’s recycling plant. The Leadpoint employees were hired and supervised by Leadpoint supervisors. Their schedules were set by Leadpoint schedulers. Any discipline was determined by Leadpoint managers. However, under its contract with Leadpoint, BFI set requirements for candidates and retained the right to refuse or discontinue use of any employee. Also, because of how the facility worked, BFI set the hours for the various shifts (though Leadpoint determined which workers would work each shift).
The Teamsters decided to organize the Leadpoint workers at the BFI facility. However, instead of filing their petition for representation solely with regard to Leadpoint, the Teamsters filed their petition also naming BFI as the employees’ employer, on the theory that Leadpoint and BFI were joint employers and, as a result, that BFI could be required to negotiate the union.
The Board agreed with the Teamsters, holding that BFI was a “joint employer” of the Leadpoint employees. As a result, the union was permitted to move forward with its petition.
In its decision, the NLRB rejected the prior test for joint employment – which required that an entity not only possess the authority to control employees’ terms and conditions of employment but also exercise that authority in a meaningful manner – and set a new rule: that indirect or reserved authority, even if not exercised, can be sufficient to establish a joint employment relationship.
This ruling is particularly important for companies that work with subcontractors or staffing firms, or are themselves contractors or staffing firms. Contracts governing staffing and subcontractor relationships regularly include provisions setting minimum standards for the individuals performing the services, the right to refuse workers or discontinue their use, and other requirements relating to the individuals who are performing the services. There are strong business reasons to include these provisions, but, in light of the Board’s ruling in Browning-Ferris, companies need to be aware that the provisions which keep control over these aspects of the relationship also open the possibility that the company receiving the services will be deemed a joint employer under the NLRA. Companies entering into these relationships should carefully weigh the benefits of control against the risk of being deemed to be a joint employer and reflect their desired balance in their contract, practice and procedures.
As fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.
Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER
- Proposed changes to overtime regulations that will make more employees overtime-eligible
- New standards in accommodating religious practices and pregnancy
- The NLRB’s “quickie” election rules and what they mean for union organizing efforts
- Raising the standard to establish that a worker is properly classified as an independent contractor
- The EEOC’s new position on wellness programs and disability discrimination
- Expanding employee retaliation and whistleblower claims
- New state and local laws that impact minimum wage, paid sick leave and accommodation requirements
CLE Credit Available | This program has been submitted to the HR Certification Institute for review.
Contact Annie Darmofal at 312.476.7626 or firstname.lastname@example.org
The NLRB’s “ambush election rules” – which became effective this Spring – continue to be challenged by business trade groups. See previous blog posts. These groups, however, have yet to persuade a court that the rules violate any laws. What that means is that employers should take precautionary steps to prepare for a union organization effort, rather than waiting for a petition to be filed. If you wait for that petition, you won’t have much time at all (as little as 10-21 days) to effectively communicate with your employees .
What can be done now?
- Training. Your managers/supervisors need to know how to detect union “storm warnings.” They should be aware – and immediately inform higher management – of:
- Employee complaints changing or increasing
- Employees being out of normal areas
- Employees being on premises while “off duty”
- Employees making unusual requests for information and materials concerning job descriptions, pay, benefits, compensation, policies, etc.
- Employees asking unusually aggressive or argumentative questions at group meetings
- Normally talkative and open employees avoiding speaking with managers/supervisors
- Employee group conversations quieting down when managers/supervisors pass by
- Lunchroom, locker room, and bathroom cartoons and graffiti
- Over-qualified job applicants with spotty backgrounds
- Employee complaints being made by groups of individuals
- Strangers on company premises
- Use of unusual technical language by employees
- Communicate now. Educate your employees on the company’s position on unions and unionization now. Make sure your managers/supervisors are maintaining an open door policy with their employees and continue to train them on effective communication.
- Review your policies and practices. Make sure all employment policies and practices are compliant with employment laws and the views of the NLRB.
- Develop campaign materials in advance if any “storm warnings” are detected. You want campaign materials at your fingertips when a petition is filed so you can start campaigning right away.
The future of the NLRB’s new election rules is unknown. But as of right now, they stand, and employers need to be prepared.