Tag: NLRA

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Employee grievances including wage theft, COVID-19 concerns come to a head for one brewery

beer, brewery

The sign on the door of Platform Beer’s Columbus, Ohio, taproom reads: “The entire Platform Columbus crew has quit. The taproom is closed until further notice. Thank you!”

The employees and their former(?) employer are battling it out on Twitter.

-vs-

Oliver Northern, the employee leading the walkout, told Alive Columbus that “employees started seriously discussing walking out about a week ago, frustrated by a growing list of grievances that he said the company had not taken steps to address.” He added that they initially intended to use the walkout as a bargaining tool with management, but that conditions had gotten so bad that no one had any interest in remaining with the company no matter its response.

What does it all mean?

1. If these employees simply walked off the job in protest instead of quitting their jobs, an alphabet soup of employment laws would have protected their jobs. The NLRA (protected concreted activity), FLSA (wage and hours), and OSHA (safety) are just a few examples of anti-retaliation protections these employees would enjoy. Because, however, these employees quit, these anti-retaliation measures are largely moot (although I could craft an argument that post-employment retaliatory acts such as defamation could still trigger one or more of these statutes).

2. This employer has a massive PR mess. No matter how meritorious or genuine the employees’ claims, the employees thought enough of them to quit their jobs en masse. An employer simply cannot allow these issues to fester until they boil over into a mass protest. If an employer doesn’t know that its employees have these concerns, then that employer’s managers and supervisors aren’t doing their jobs. They are your eyes and ears, and they must understand their role as such.

Moreover, open-door policies and other prophylactic measures aren’t worth their weight if you don’t take them (and the issues employees bring to you) seriously.

 

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Your employees walk out in protest over coronavirus-related working conditions. Now what?

COVID-19, coronavirus, public health crisis
This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.

According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.

  • When an employee tests positive for coronavirus, the immediate notification of all employees at the facility, and the closure of the facility for two weeks with full pay.
  • Regular and deep cleaning of all facilities, including after a positive test.
  • The provision of proper safety equipment to all employees, with training on effective use.
  • 14 days of paid sick leave for anyone with symptoms and 12 weeks of emergency paid family leave for employees to care for loved ones who get sick.
  • Healthcare for all Amazon employees.
  • Hazard pay, including time-and-a-half during the crisis and childcare pay and subsidies.

Amazon employees are not unionized, and this isn’t a strike. It’s a short-term walkout of non-unionized employees. Just because these employees aren’t unionized, however, doesn’t mean that their walkout isn’t protected. In fact, it’s very protected. The National Labor Relations Act covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including walking off the job in protest.

Also read: What a business operating in the time of coronavirus cannot look like

An employer’s first instinct might be to fire the instigators (as Amazon is accused of doing). That would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity. It’s also just a really bad look, especially now.

Instead, I’d view these protests as a wake-up call.

For starters, we know that one or more labor unions are in employees’ ears helping them organize their walk-outs. A mass walk-out could easily lead to a mass walk-in to the nearest NLRB field office to file an election petition. Don’t offer the union more ammo by firing the organizers.

Secondly, this type of protest offers employers an amazing opportunity to heal some wounds. Amazon likely won’t offer these employees each item on their laundry list of demands, but it should consider all of them and offer those that can be accommodated.

These employees just want to feel safe and know that their employer takes their concerns seriously. At the end of the day this is not that big of an ask, and treating it as such only makes the situation worse.

Also read: The rise of the sick, distressed and oppressed worker

Also read: The role of businesses in addressing a public health crisis

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NLRB Asks for Help to Overturn Some Foul-Mouthed Bad Decisions

Jon Hyman The Practical Employer

Editor’s note: This post contains extremely graphic language in the context of the case described here.

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

Except, in the first example, the employee ended his obscene tirade with, “Vote YES for the UNION!!!!!!!”

The latter example was directed by striking workers walking a picket line to African-American replacement workers crossing that picket line. According to the National Labor Relations Board, the employees’ rights to engage in protected concerted activity trumps all.

The NLRB, however, might be changing its mind on these rules. Last week, the agency invited briefs on the issue of how far the law should go to protect profane or obscene workplace statements.

The National Labor Relations Board requests briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature. In a notice issued today, the Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).

In the specific case at issue, a union committeeperson, while arguing about employee cross-training, told a supervisor that he did not “give a fuck about [his] cross-training” and that he could “shove it up [his] fucking ass.”

Specifically, the board is looking for input on five issues:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
  2. How much leeway should employees engaged in section 7 activity be given, when their language if profane or otherwise offensive to others on the basis of race or sex?
  3. Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated, in judging the legality of these profane or obscene outbursts?
  4. To what extent, if any, should the Board continue to consider context — e.g., picket-line setting — when determining whether racially or sexually offensive language loses the Act’s protection?
  5. What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

I find all of the examples above to be abhorrent. The NLRB’s current rules require employers to suborn the worst degree of insubordination, or permit horrific racial or sexual harassment, all in the name of “protecting” employees section 7 rights under the NLRA.

These rules must change, and I am very optimistic that the board will craft a much fairer and equitable rule on this issue.
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Is It Legal to Dock the Pay of Employees Who Skip a Political Rally Being Held in the Workplace?

Jon Hyman The Practical Employer

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by President Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees’ attendance at a rally Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

While attendance at the rally wasn’t mandatory, the employer told its employees that they would only be paid for the work day if they attended. Otherwise, they had the option to take a PTO day or take the day off excused and without pay.

While it sounds terrible to withhold pay for employees who choose not to attend a political event during the work day, just because it’s terrible doesn’t make it illegal.

Indeed, in all likelihood, there is nothing illegal about this practice. That said, I can envision a few arguments that could give this employer trouble.

1. You might jeopardize an exempt employee’s overtime exemption. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime. Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption.

2. You operate in one of the few jurisdictions in which political affiliation discrimination is illegal. “Political affiliation” is not a protected category protected by any federal law. Still there are a few states that protect it under their own anti-discrimination laws. In California, for example, an employee docked because he or she chose not to attend a rally of a politician they did not support would have a cognizable claim for political affiliation discrimination.

3. You’ve violated an employee’s right under section 7 of the National Labor Relations Act to engage in protected concerted activity. Private employers cannot prohibit discussions by and among employees about wages, benefits, and other terms and conditions of employment. Therefore, if employees skip the Trump rally as part of a mass protest over how his policies impact the workplace, then it might be unlawful for their employer to dock their pay as a result.

Legal or illegal, however, you need to ask yourself whether coercing employees’ attendance at a political event is a legitimate business practice. How you answer the question of whether you think it’s OK to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes.

I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.