On Monday, February 26th, the U.S. Supreme Court will hear oral arguments in Janus v. AFSCME, Council 31, a case that could have a substantial impact on Delaware’s public-sector employers and employees. The Court is being asked to decide whether a public-sector employee who refuses to join a union can be required to pay so-called fair share fees to the union.
Recently there has been a lot of talk in Delaware regarding right-to-work laws.
When a private-sector company is organized, the union will try to negotiate a requirement that all employees either join the union and pay union dues or pay a so-called agency fee for the services provided by the union like negotiations and grievance processing. The National Labor Relations Act (NLRA) authorizes individual states to outlaw this practice. Any state who passes such a law is called a “right-to-work state.”
The NLRB issued another social-media decision last week, finding that an employer violated the National Labor Relations Act (NLRA) with respect to one “Facebook firing” but clearing the employer with respect to a second termination. I’ll leave it to my blogging cohorts to write about the termination that didn’t get the employer into trouble and will focus in today’s post just the one that did.
The Facebook firing that landed the employer, a Maryland ambulance company, in hot water was in response to an employee’s comment, posted on a former co-worker’s Facebook page. The former co-worker, the complainant’s partner, posted on her Facebook page a note indicating that she’d been fired by the employer. The complainant, William Norvell, and others, posted comments in response. One of Norvell’s comments was a suggestion that his former co-worker get a lawyer and take the company to court. Later, he added that she also “could contact the labor board.” Someone turned over a printed copy of the posts to the HR Director who, after consulting with the COO, decided to terminate Norvell.
I hope it doesn’t surprise most readers that the Board was not happy about the decision to terminate and found that the termination violated the NLRA. One of the basic foundations of employment law is this:
Thou shalt not take adverse action against an employee in response to the employee’s protected activity.
The law (several laws, actually), prohibits this. It’s called retaliation. In non-legalese, I equate retaliation to telling a child he may have a cookie, holding out the cookie jar, and then smacking his hand when he proceeds to take one. You may not punish someone for doing what the law provides he may do.
Applied in this context, the former co-worker certainly had a right to consult a lawyer. She also had a right to contact “the labor board,” whether that meant the state Department of Labor or the Regional Office of the NLRB. If her termination had been for lawful reasons, the lawyer, with any luck, would have told her so. So, too, would the DOL or NLRB. And, armed with that knowledge, she could move on with her life. But she had a right to investigate her legal rights either way.
And, in turn, Norvell had a right to suggest or even encourage her to investigate those rights. Consequently, Norvell was engaging in protected legal activity for which he could not be “punished” (or, as we like to say in the law, “be subjected to an adverse employment action”).
Butler Med. Transport, LLC, 5-CA-97810, -94981, and –97854 (Sept. 4, 2013).
The NLRB’s social-media war has been front and center for employers since 2010. Decisions by administrative law judges and by the Board itself, as well as advisory memoranda from the Acting General Counsel have created an impossible patchwork of prohibitions and rules that, if followed, would make managing an efficient workforce effectively impossible. And it doesn’t stop there.
But social media hasn’t been the only target in the NLRB’s sights. There have been a series of decisions and other events that, if taken seriously, make the NLRB seem more out of touch than ever. The Board’s positions have become so extreme that, in my opinion, they’re likely to work to employers’ advantage as the public disgust grows. Here are a few of the reasons that I believe the NLRB is likely its own worst enemy.
NLRB Message No. 1: Racist Language and Racially Insensitive Displays In the Workplace Are Perfectly Acceptable
An employee wore a shirt with “slave” and a picture of a ball and chain printed on the back. The employee, who was a known union supporter, was disciplined pursuant to the employer’s dress-code policy, which prohibited clothing displaying: (a) vulgar or obscene words or phrases; (b) images that may be racially, sexually or otherwise offensive; or (c) content that is derogatory to the Company. An ALJ found that the dress code was unlawfully overbroad because it prohibited protected concerted activities and racially or sexually discriminatory language.
NLRB Message No. 2: The Supreme Court Ain’t the Boss of Me
In 20__, the Board issued its D.R. Horton decision, in which it held that employees could not waive their right to bring a class action under the NLRA. Earlier this year, though, the U.S. Supreme Court ruled in American Express v. Italian Colors Restaurant, that arbitration agreements should be enforced. But the AmEx case was brought under antitrust law, not the NLRA, so it did not directly overrule D.R. Horton. Nevertheless, many employment lawyers believe that the ruling in AmEx would effectively overturn the Board’s ruling.
Well, an ALJ disagrees. On Monday, a judge found that a mandatory arbitration agreement, which waived the right to pursue a class action, violated the the NLRA. Instead of following the Supreme Court’s direction as stated in the AmEx case, the judge ruled that she was bound by the Board’s decision in D.R. Horton unless and until it was overturned.
NLRB Message No. 3: Your Business Is the Board’s Business
In a decision that shocked many employer’s lawyers, the Board affirmed the decision of an ALJ, which held that a confidentiality requirement violated the NLRA. Specifically, the employer’s mortgage bankers were required to sign employment contracts, which included a confidentiality provision that precluded those employees from disclosing certain personnel information, including: (a) “personal information of coworkers;” (b) home phone numbers or cellphone numbers; (c) addresses; or (d) email addresses.
Again, the ALJ determined that this provision was overly broad in violation of the NLRA. Most troubling to me is that the Board saw fit to take on language in a contract as opposed to in an employee handbook. Delaware law heavily favors the enforcement of contracts, including employment contracts. The NLRB seems to take the position that the ability of parties to negotiate and execute contracts is irrelevant.
A Message for Employers
Although the recent decisions by the NLRB have been frustrating for employers (to put it mildly), there is a bright side. It may well be that the NLRB’s position has become so extreme that it has managed to get the attention of more and more employers. And the attention has not been positive. If the NLRB continues in this direction, it may just result in more harm than the Board expects.
What does the NLRB have against handbooks? Doesn’t the Board have policies and procedures for its employees? I imagine it does, don’t you? So why does the Board continue to find fault with employers’ workplace policies?
The Board’s recent Order has my head spinning like I spent the afternoon on a roller coaster. In GCA Services Group, Inc.,, the United Food and Commercial Workers Union Local 99, AFL-CIO, filed a UPL, contesting the legality of various provisions in the employer’s handbook. The employer and the Union resolved the dispute by a Formal Settlement Stipulation, which was approved by the Board on January 16, 2013.
As a result of the Stipulation, the employer must remove the disputed provisions from the hourly-employee handbook, which, according to the Board’s Order, are “overly broad and discriminatory.”
Ok, kids, hang on tight. Here’s where the ride gets a little scary. Please keep your arms and other body parts inside the car until we have completed the descent.
As you may have guessed, the Confidentiality provision was the first to go. Here’s just a portion of the offensive language:
Confidential, proprietary, and private information about [the Company], employees, and customers, is intended for use within the scope of your job at the facility.
Not only is the company’s information no longer confidential but the employees’ personnel records are now open for business. Here’s the language that the Board says have to go:
Your employment record is considered confidential and includes your resume, benefit selections, performance reviews, employment history, and other employment information.
Even the non-harassment policy was a problem! I’m guessing it was the following language regarding confidentiality that caused the Board heartburn:
Confidentiality will be maintained throughout the investigative process to the extent practicable and consistent with the Company’s need to undertake a full investigation.
Perhaps the biggest shocker was the issue the Board had with the company’s policy titled, Use of Communication Systems, which outlined the acceptable use of company-provided email.
The problem with the Settlement for purposes of prevention is that there’s no indication of what exactly the Board objected to or what language the Board would not find objectionable. It seems virtually impossible that the Board took issue with each and every sentence of each of the disputed policies. But we really don’t know, since large excerpts were quoted in the opinion. And we definitely don’t know how the provisions could be altered to comply with the NLRA.
Last week, I posted about the decision of an ALJ finding that Quicken Loans’ confidentiality and non-disparagement provisions contained in its employment contracts violated the National Labor Relations Act (NLRA). Before the new year, though, the NLRB gave us some indication about its position with respect to confidentiality in the workplace. In short, it is not a fan.
On December 28, 2012, the NLRB announced its decision in American Baptist Homes of the West d/b/a Piedmont Gardens. In that decision, the Board overruled a decision from 1978, which established a categorical exemption for witness statements made during a workplace investigation. Under that long-standing precedent, an employer did not have to provide such witness statements to the union representing an employee concerning discipline.
Well, not anymore. Under the new decision, which found that the bright-line rule established in Anheuser-Busch, Inc., should be replaced by a balancing test. The Board found that the NLRA imposes on an employer a “general obligation” to furnish a union with relevent information necessary to perform its duties. Under the new balancing test, the employer will have to determine whether it has “any legitimate and substantial confidentiality interests.”
I’ve written before about the NLRB’s apparent lack of understanding of what exactly an investigation entails. By definition, a legitimate investigation involves legitimate confidentialty concerns. I won’t repeat myself here but will note that it’s not too late for us to pool together and buy the Board a new dictionary. Valentine’s Day is right around the corner, after all.
Just when you think the NLRA has been expanded as far as it can possibly go, POP!! Along comes a decision yet again expanding the reach of the NLRA and limiting the ability of employers to manage their workforces. The latest such expansion comes from an Administrative Law Judge in an unfair labor practice charge filed against