NLRB Rulings – The Employment Lawyers

NLRB Makes It Easier for Unions to Organize Staffing Employees

July 25, 2016August 19, 2016LPLeave a comment

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.

Webinar – Back to School: Employment Law Update

August 27, 2015January 5, 2016LPLeave a comment

school-supplies 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

TOPICS

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

And more…

CLE Credit Available | This program has been submitted to the HR Certification Institute for review.

QUESTIONS

Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com

“Spring Cleaning” Item: Review Your Employee Handbook

May 14, 2015May 28, 2015LP1 Comment

You may want to include a review of your employee handbook in your “spring cleaning” this year.

Employee handbooks and work policies have been at the forefront of the National Labor Relations Board’s mind recently. The Board has held that a work rule may violate Section 8(a)(1) of the National Labor Relations Act if the rule has a “chilling effect” on employees’ Section 7 activity – whether it be union activity or simply discussing the terms and conditions of employment with one another. According to the Board, a work rule not only violates the Act if it explicitly restricts this protected activity, but also if it: (1) can be reasonably construed by its language to prohibit protected activity; (2) was promulgated in response to union or other protected activity; or (3) was actually applied to restrict the exercise of the protected rights.

Earlier this spring, the Board’s General Counsel issued a detailed report providing examples of unlawful policies as well as their lawful counterparts. The report discusses:

Confidentiality Rules
Rules Regarding Employee Conduct toward the Company and Supervisors
Rules Regulating Conduct Towards Fellow Employees
Rules Regarding Employee Interactions with Third Parties
Rules Restricting Use of Company Logos, Copyrights, and Trademarks
Rules Restricting Photography and Recording
Rules Restricting Employees from Leaving Work
Conflict-of-Interest Rules

The full text of the report can be found at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.

In light of this report, we recommend that you carefully review all of your policies, with particular emphasis on the ones listed above.

U.S. Chamber and Business Groups File Suit to Block New NLRB Election Rule

January 9, 2015January 12, 2015mbudka1 Comment

This week, the U.S. Chamber of Commerce and several business trade groups announced that they jointly filed a complaint in federal court against the National Labor Relations Board (NLRB), seeking to strike the Board’s new “ambush” election rule that shortens the period between the filing of a union election petition and the election itself. The NLRB adopted the rule on Dec. 12, 2014 in a 3-2 vote. If not overturned, the rule is set to go into effect on April 14, 2015. See our previous post here.

The complaint alleges that the new rule violates the National Labor Relations Act, the Administrative Procedure Act, and employers’ free speech and constitutional right to due process. Read the press release here.

Joining the Chamber in the lawsuit are the Coalition for a Democratic Workplace (CDW), National Association of Manufacturers (NAM), National Retail Federation, and Society for Human Resource Management (SHRM). Worth noting is that this is only the third time SHRM has challenged a federal regulation in court.

NLRB Issues Quickie Union Election Rules

December 22, 2014mbudka1 Comment

The National Labor Relations Board has issued final rules that are intended to speed up the union election process. These new rules will take effect on April 14, 2015. Read more about the final rule in the Federal Register.

The new election rules are being heralded by organized labor and decried by many in the business community. The new rules compress the timeline between petition and election, give unions access to more information about employees, set up new employer procedural requirements, and limit hearing issues and appeals that may be raised before an election. The end result is that the timeframe from petition to election will be significantly shorter, which is generally viewed as an advantage for unions.

Unless these rules are overturned, employers are well-advised to take precautionary steps to prepare for a union organization effort, rather than waiting for a representation petition to be filed.

NLRB: Employees Have Right to use Employer’s Email for Union Organizing if Other Non-Business Use is Permitted

December 11, 2014December 11, 2014mbudkaLeave a comment

Today, the National Labor Relations Board held that employees have a right to use their employer’s communications systems – including email – for protected activity during non-working time, unless the employer prohibits all non-business use. In so holding, the Board overruled its 2007 precedent-setting decision on the same issue.

“Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” Thursday’s decision said.

The wording here is important, and indicative of the division among the NLRB on this issue, as it specifically applies to workers who have been granted access to employer’s email systems, and offers an “out” for companies that ban non-work-related use of email. Of course, most employers permit some non-business use of communications systems, and so this carve-out is a narrow one.

The case is Purple Communications Inc. and Communications Workers of America, AFL-CIO; case numbers 21-CA-095151, 21-RC-091531 and 21-RC-091584 at the National Labor Relations Board. Read the entire case history here and view our previous posts on this issue by following the “Related” links below.

Do Employees Have a Right to Use Company Email to Organize?

May 2, 2014May 2, 2014LPLeave a comment

On Thursday, the National Labor Relations Board re-opened the question of whether workers have a right to use their employers’ communications systems (including email) for union organizing and other protected activities.

In 2007, the NLRB handed down its decision in Register-Guard, holding that employees don’t have the right to use employer email systems for non-business purposes (such as union organizing). Since then, many employers have implemented policies requiring that email only be used for business purposes.

The question arose again in 2013 when Purple Communications was accused of committing an unfair labor practice for prohibiting the use of company equipment for non-business purposes. The Administrative Law Judge relied on Register-Guard and dismissed the charge; however, both the NLRB’s General Counsel and the Communications Workers of America filed exceptions, encouraging the NLRB to overrule Register-Guard and find that employees who use email for business purposes have the right to use it for union or organizing activity. In response, the NLRB has invited the public to weigh in (by way of amicus briefs) on whether the Board should overrule Register-Guard .

Employer groups will no doubt come out strongly in favor of upholding Register-Guard , but with the current composition of the NLRB, the employer-friendly holding of Register-Guard might be short-lived.

NLRB Rules Football Players are Employees. Really?

March 27, 2014March 27, 2014LPLeave a comment

In a decision that has been attracting a great deal of attention, the Region 13 Regional Director of the National Labor Relations Board (“NLRB”) ruled yesterday that football players at Northwestern are “employees” within the meaning of the National Labor Relations Act (“NLRA”), and directed that an election take place to determine whether the players should be represented by a union. (See decision here) The ruling is irrelevant to most employers in the private sector, but nevertheless we thought we would add our two cents to the discussion because it is an interesting subject.

First, it is important to keep in mind that the ruling is, at this stage, simply the view of a Regional Office whose job duty is basically to expand the jurisdiction of the NLRB and attract attention for its enforcement activities. The decision will inevitably be appealed, and the legal fight relating to the classification of these players is likely to go on for years.

Second, the decision is a good example of how the most ridiculous conclusions can sometimes be dressed up to look reasonable through references to a hearing record and the use of case citations. There is an old saying that “to a man with a hammer, everything looks like a nail.” In this situation, everyone looks like an employee to a Regional Office applying the NLRA. The fact of the matter is that the NLRB does a particularly poor job of applying its law and precedent to students in educational institutions. It has struggled for years with what to do about graduate students, and now it has “dropped the ball” (sorry, couldn’t avoid the pun) with college athletes. The NLRB only understands relationships in terms of an employer-employee dynamic. It cannot conceive of individuals (or institutions) pursuing something for anything other than monetary reasons. If you ask college athletes whether they would still play their sports and compete if they did not get a scholarship, odds are most would say “absolutely” (assuming they could still afford to do so). Yet Region 13 seems to think they are simply assembly line workers punching the clock.

The other problem with the decision from the Regional Office is that it hinges on the assertion that college athletes are not “primarily students” because they spend most of their time training or playing football. What does this mean for those who are getting debate scholarships and who can put in as much time as student athletes? Are they employees as well? If not, what is the difference? What about football players at Division III schools who put in as much time as Division I players but who don’t make as much (any?) money for their schools? What about high school athletes? In addition, if football players at Northwestern are not “primarily students,” then why are they accepting a college scholarship as the only return for their efforts? Most players at Northwestern are not going to the next level and turning pro in their sport. Apparently, they see some value in attending a prestigious university and getting a degree after four years.

Although the NLRB is addressing only the scope of the NLRA in the Northwestern case, is it fair to ask (based on the Regional Office’s reasoning) whether football players are also employees for purposes of other laws, such as wage and hour and tax laws? If not, why not? Many more questions of this kind can and should be asked about the Regional Director’s decision. Our own view is that there may be many things wrong with the way college athletics works in America today, but applying employment laws to the relationship between the student athlete and the university is not the right answer. We also believe that Region 13’s rush to extend its jurisdiction ultimately will be beaten back, if not by higher ups at NLRB, then by the Supreme Court or Congress.

Court of Appeals Deals a Blow to NLRB and a Boon to Individual Arbitration

December 4, 2013December 4, 2013LP

In a long awaited decision in the D.R. Horton case, the 5^th Circuit Court of Appeals ruled yesterday that an employer was within its rights to require employees to sign an arbitration agreement that mandated individual arbitration (i.e. not allowing for class claims). The National Labor Relations Board had taken the position that employees’ right to engage in concerted activity means that they cannot waive their right to participate in class or collective litigation or arbitration. The court disagreed, finding that the Federal Arbitration Act required that the arbitration agreement be enforced as written. This is a significant win for employers that seek to avoid class and collective actions by requiring employees to sign arbitration agreements that require that claims be brought individually. Employers using or considering such agreements should take heed, though, at the court’s finding that arbitration agreements need to make clear that they do not prohibit an employee from filing charges with the NLRB.