Tag: NLRB

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How employers should prepare for a federal push to unionize workplaces

unionize

As the Biden administration begins its push to strengthen unions and encourage workers to organize, employers should know what this could mean for their workforce.

Biden in late April announced through an Executive Order the formation of a pro-union task force to examine existing policies and provide recommendations on how they can “promote worker organizing and collective bargaining in the federal government” and recommend what new policies should be created. It’s unlikely that employers will see any concrete action in the near future given that there’s a 180-day window for the task force to report back, said Gerry Golden, a labor relations attorney with Neal Gerber.

Vice President Kamala Harris and Labor Secretary Marty Walsh will lead the task force.

It’s no secret that union membership has suffered a drastic decline. Just 10.8 percent of workers belonged to a union in 2020, compared to 20.1 percent in 1983. The numbers among private employers are bleaker. According to Gallup, over one-third of government employees (37 percent) belong to a union, versus just 6 percent of all private sector employees.

Also read: 10 simple rules for managing in an organized setting

Four labor law experts — Gerry Golden of Neal Gerber; Aimee Delaney of Hinshaw Culbertson; Anthony George of Bryan Cave Leighton Paisner LLP; and Amy Gaylord of Akerman LLP — offered their thoughts on Biden’s union push and what it could mean for employers now and into the future.

Workforce: We saw a failure of unionization at the Amazon warehouse in Alabama. Is there still an appetite on the part of workers to unionize? 

Gerry Golden: It’s very difficult to draw conclusions from one election or to extrapolate those results as indicating a general trend. From the union’s viewpoint, the Amazon employees were very dissatisfied over things like productivity pressures and inadequate measures to protect their health during the pandemic. While the union apparently had the support of at least half the employees when they filed their petition with the National Labor Relations Board, only about half the employees ended up voting and of those who voted, the union lost 2-1. One could speculate that at the end of the day, support for the union was dispelled by Amazon’s arguments, the generally favorable wages and benefits Amazon employees are paid and perhaps by fear that if the union won, Amazon might reduce or even move the operation. Those are just possible reasons and without more it’s impossible to know why the union lost so badly.

Gerry Golden, attorney at Neal Gerber

Aimee Delaney: Certain industries and categories of workers will always be prone to unionizing. Usually wages are a strong driver for employee interest, so when you see the movements like “fight for $15” and similar campaigns, you can see segments of workers who most definitely have an appetite to unionize.

Anthony George: (The appetite to unionize is not) nearly as great as in past decades. Union members are now barely 6 percent of the private sector workforce in the U.S., and that number has been declining steadily for many years. Unions may score an occasional high-profile success now and then, but the overall pattern is steady decline.

Amy Gaylord: While the loss at Amazon was obviously a huge disappointment to unions looking to make inroads into organizing some of the retail giants, I believe that this administration’s emphasis on union organizing, including this task force and its endorsement of the Protecting the Right to Organize Act, will reinvigorate workers and unions and lead to increased organizing efforts not just in sectors where we have traditionally seen unionization but in areas, such as the tech industry, where unionization efforts have been fairly rare up to this point.

Workforce: What sectors could see a push in unionization? Are Sun Belt states ripe for unionization pushes given the newly released population shifts?

Golden: Sun Belt states are unlikely to see significant shifts toward unionization in the foreseeable future. They are mostly states with low union representation now, many are right to work states, which makes it more challenging for unions to organize and politically and culturally they aren’t environments in which unions have support. As to sectors that might see greater organizing activity, I think it will continue to be in poorly paid jobs such as health care, warehousing and transportation. Keep in mind, many workers in the gig economy are likely open to unionization but they have many legal hurdles to overcome. So organizing among those groups won’t happen until some legal issues are changed or clarified.

Aimee Delaney, wage and hour violation
Aimee Delaney, attorney at Hinshaw Culbertson

Delaney: The South has generally been a region that is not ripe for significant labor movement. It is not impossible to think that if population trends were significant enough, that this could begin to chip away at the unfriendly climate. However, more likely trends would be based on the industry and job sectors. Sectors whose wage rate is tied closely to the minimum wage could see an increased push for unionization as those efforts to increase minimum wage continue. There are also stories popping up in sectors that have traditionally been less susceptible to unionizing, (i.e., the tech sector and professional services).

George: All aspects of the gig economy are at risk of unionization as federal, state and local governments attempt to force Uber drivers, independent web designers and other individual entrepreneurs into the “employee” mold.

Sun Belt states are also at risk as people migrate away from blue states into the red states of the Sun Belt. But even with those dynamics, I don’t see labor unions reversing their decades-long decline into oblivion — at least in the private sector.

Gaylord: I think we are going to see increased unionization in new areas such as tech that have not traditionally been organized. I think cannabis is another industry where we will continue to see growth in union organizing efforts, as well as gig economy workers such as ridesharing and grocery delivery services like Instacart. Many of these workers were on the frontlines of the pandemic and may be seeking to enhance their safety as well as their job security and compensation. As to the Sun Belt, we just saw a nurses’ union win a historic election at a hospital in North Carolina. It was the first nurses’ union win in North Carolina and I believe the largest hospital union win in the South since 1975. I think that win can be directly tied to the issues I just mentioned — being on the frontlines of the pandemic and seeking enhanced safety measures and better working conditions. North Carolina has the second lowest percentage of union-represented workers in the country, just under 3.5 percent. Only South Carolina is lower. I think this union win is a portent of things to come and, while I have my doubts about the PRO Act ever making it past the Senate, I think that abolishing right to work laws in places like the Sun Belt will continue to be a primary objective of the Biden administration.

Workforce: Could the Biden task force have an effect on pay scales, or employers voluntarily increasing the minimum wage to avoid a union push?

Golden: Employers generally only adjust pay scales in response to market forces or, in some cases, in response to the threat of unionization. Interestingly, following its election victory, Amazon has already announced improvements. It’s hard to imagine how the Biden task force and the administration could have an impact on wages outside of its ability to mandate changes applicable to federal contractors.

Delaney: Because the task force appears to be focused on the federal sector, I think that is unlikely. The task force itself would not have any ability to directly affect pay scales. However, I do think the proactive efforts you are seeing from, for example, big box retailers and some fast food chains to increase their hourly wage rates is done with an eye toward heading off unionizing efforts, among other reasons prompting the increases.

Anthony George of Bryan Cave Leighton Paisner LLP

George: Yes. Both to avoid a union organizing effort and to attract and retain good workers who might otherwise be lured away by the higher wages available (by government mandate) from federal contractors.

Gaylord: I think that employers who want to remain union free would be wise to make sure they are paying competitive wages and benefits so that their employees will feel that a union is unnecessary. I believe that is one reason Amazon was able to prevail in Alabama. They were already paying extremely competitive wages and benefits. We have heard unions and this administration talk a lot about a $15 minimum wage. Most of the warehouse workers at the Amazon facility in Alabama were already earning $15 an hour or more. So, Amazon workers did not believe that a union was necessary and voted against union representation.

Workforce: What should employers do to remain compliant with current labor laws?

Golden: All employers should bear in mind that the National Labor Relations Act applies to virtually all employers regardless of whether their employees are represented by a union. As a result, all employers should be familiar with the protections the NLRA provides their employees including their right to obtain union representation and how that may occur.

Delaney: It is important for employers to understand the rights and obligations imposed by the National Labor Relations Act. Non-union employers often don’t realize that their employees have rights under the NLRA and that they can be subject to unfair labor practice charges, even though their workforce is not unionized. If an employer is faced with an organizing campaign, it is critical for the employer to understand what it can and cannot do in its campaign efforts and for the election. This is also a reason that it is important for employers to be aware of the Protecting the Right to Organize Act and potential changes this bill could bring if passed.

George: Pay attention, stay current, and speak with a labor lawyer. A president can do only so much by Executive Order, but both the National Labor Relations Board and the Department of Labor can and will make life easier for labor unions and harder for employers over the next few years. Changes are coming. Don’t get caught flat-footed.

Gaylord: Audit their existing policies now. Make sure they have the assistance of competent labor and employment counsel, whether internal or external. Things are going to be changing quickly and employers need to make sure they are being kept up to date on the latest developments.

Workforce: Do you see any long-term ramifications from this action? In your crystal ball, what does the labor movement look like in 2024-25?

Golden: Today’s workforce is changing rapidly due to technology and things like AI and robotics. More and more employees are comfortable confronting their employer over workplace issues. The future success of unions will depend on their ability to develop messages that address these issues, connect with diverse workforces and convince employees that a union can have a positive impact on their work lives.

Delaney: It’s safe to say that we will see a shift toward pro-labor policy under the current administration. I think the biggest issue that should be on the radar of private employers at this time is the proposed Protecting the Right to Organize Act. There are significant changes proposed by this bill that upend decades of precedent and practice in favor of tilting the scales toward organized labor. This will impact union and non-union employers alike as it impacts, for example, the actions an employer can take if faced with an organizing campaign.

Amy Gaylord of Akerman LLP

George: Long-term, no. Among other things, anything Biden does by Executive Order will simply be reversed by Executive Order when the next Republican president takes office. I think the private-sector labor movement in 2025 will look very much like the labor movement in 2020 — and 2015 and 2010. Slowly but inexorably dying.

Gaylord: This task force is one way that Biden hopes to deliver on his promise to be most pro-union president this country has ever seen. I think over the next few years we will see labor law shaped in a way that is more union and employee friendly, making it easier for unions to organize workers, sometimes without the protections of an NLRB conducted election, and extending the coverage of the National Labor Relations Act to more workers than ever before such as individuals that have previously been considered independent contractors or supervisors.

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Pro-Union Do’s and Don’ts

Jon Hyman The Practical Employer

Four former Google employees claim that their ex-employer fired them Thanksgiving week in retaliation for their efforts to organize a labor union.

The NLRB is now investigating the firings. For its part, Google denies that anti-union animus played any role in the firings. “We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.”

The NLRB will ultimately have the final word. Suffice it to say, however, an employer cannot terminate a pro-union employee if the employer’s anti-union animus is a substantial or motivating factor for the termination.

But that’s just the tip of the iceberg of an employer’s prohibited conduct when confronted with union organizing.

And my use of the idiom “tip of the iceberg” is no coincidence, as T.I.P.S. is the acronym commonly associated with the four main categories of employer prohibited conduct in a union organizing campaign.

Threaten: Employers cannot threaten employees, or, worse, carry out those threats against employees, because they support unions or unionizing. For example, a manager cannot tell employees he will lower their wages or demote them if they support the union. Or, in the Google example, fire employees.

Interrogate: Employers cannot ask employees about their own, or other employees’, support of unions or unionizing. For example, management cannot ask employees if they signed a union authorization card or how they intend to vote.

Promise: Employers cannot promise employees some reward for not supporting a union. For example, management cannot offer raises or bonus if the union loses.

Surveil: Employers cannot spy on union activity. For example, management cannot photograph or video record union activities or eavesdrop on employee conversations.

And, if it’s not already clear (Google), you cannot fire employees because they support the union.

Yet, just because an employer cannot engage in T.I.P.S. does not mean that an employer is powerless to oppose and fight a labor union that is trying to organize its employees. Indeed, an employer has its own legal rights under the National Labor Relations Act to a fair and balanced secret-ballot election prior to the NLRB certifying a labor union as the bargaining representative for its employees. An employer that does not take advantage of these rights is omitting valuable information and a valuable opportunity to communicate its beliefs.

What can an employer communicate to its employees?

What are your values as an employer?

What are the benefits of working for your company? Wages, benefits, steady work, responsive management, etc.

Explain to employees what union authorization cards, how the secret-ballot election process works, and that just because an employee signed an authorization card does not bind that employee to vote for the union in a secret election.

Remind employees that just as you will not retaliate against any employee who is pro-union, you will not tolerate any employee who retaliates against a co-worker for being pro-management.

Explain the meaning of “dues checkoff,” and let employees know that union dues will almost certainly be deducted from their paychecks whether or not they support the union or use its services.

Inform employees of the potential disadvantages of labor unions, such as the possibility of strikes and work stoppages, that in the event of a strike you might hire replacement workers to take their jobs, that a collective bargaining agreement might require promotions and raises to be granted on seniority and not merit, and that employees might lose direct access to management to adjust issues in favor of a formal grievance and arbitration process.

Tell employees of your prior experience with labor unions, and any facts you know about the particular union that it trying to organize them.

Remind employees of the advantages of your benefits package, especially as compared to union fringe benefits that they might have to accept in lieu of your traditional benefits (which will still be offered to anyone outside of the bargaining unit).

Finally, you are always free to express your hope that employees vote against this or any union.

These issues can be nuanced, and if handled incorrectly, can expose an employer to significant liability at the NLRB. When in doubt, there are professionals you can hire (labor lawyers or other consultants that specialized in union avoidance campaigns). The bottom line, however, is that you cannot ignore a union organizing drive, because if the only viewpoint your employees hear is that of the union, it’s not hard to guess how the election will turn out.

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NLRB Rolls Back 2 Key Obama Era Anti-management Decisions

Jon Hyman The Practical Employer

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

Apogee Retail is a much bigger deal than Caesars Entertainment. Purple Communications required employers to allow employees to use their email systems for union-related communications if they otherwise allowed employees to use the email systems for any other purpose. Because it’s still the employer’s system, however, the employer still has access to the communications. I question why any employee would want to use an employer’s email system to talk union business, as they should assume the employer is reading all of their union-related emails.

Apogee Retail, however, reverses the biggest tragedy of the Obama-era NLRB. As I wrote all the way back in 2012 criticizing Banner Estrella Medical Center:

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel. …

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

The Board concluded that determined that a confidentiality rule limited to the duration of an internal investigation is generally lawful.

Bravo NLRB (for now). Still, it’s best to save your policies that complied with Purple Communications and Banner Estrella Medical Center. All bets are off if a Democrat takes back the White House in 2020, and you just might need to dig them out.
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Girl Scouts Good, Union Organizers Bad

Jon Hyman The Practical Employer
What rights do you have to ban union organizers from your property?

A lot. Your property is your property.

What if, however, you allow your employee’s daughter’s Girl Scout troop to set up a table outside and sell cookies? Have you just opened yourself to an argument that allowing cookie sales unlawfully discriminates against the banned union organizers?

Historically, yes, but currently, no. Or at least not under the NLRB’s most recent pronouncement on the issue of employer property rights, in Kroger Mid-Atlantic.

To establish that a denial of access to nonemployee union agents violated the Act …, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.

Since the Girl Scouts (or the Salvation Army, or the American Cancer Society, or any other charitable, civic, or commercial activity) is nowhere near “similar in nature” to union organizing activities, an employer should be safe permitting the former while banning the latter.
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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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NLRB Streamlines Process for Employers to Withdraw Union Recognition

employee compensation

The National Labor Relations Board has relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement.

In the July 3 Johnson Controls Inc. decision, the NLRB upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.

The 3-1 decision found that such actions would not form the basis of unfair labor practice charges even if the union were to subsequently reestablish majority support through the filing of a new representation petition (within 45 days thereafter).

In so holding, the NLRB overruled conflicting aspects of prior precedent in 2001’s Levitz v. Furniture Co. of the Pacific, which evaluated an employer’s “anticipatory withdrawal” by application of a “last in time” rule that relied extensively on union evidence establishing that it had regained majority support. A NLRB majority also suggested that it remained open to reexamining other forms of existing precedent governing the decertification process.

 The Levitz Standard for Anticipatory Withdrawal

Under Levitz, the receipt of objective evidence prior to CBA expiration that a majority of unit employees no longer desired union representation allowed an employer to withdraw recognition and refuse to bargain, but only “at its peril.” If the union subsequently produced evidence (typically in the form of recent signatures) that a majority had either changed their minds or otherwise wished to retain representation, however, then the employer was subject to unfair labor practice charges for refusing to bargain in the interim.

In the recent Johnson Controls Inc., decision, the NLRB found this back-and-forth test to be unworkable. It opined that the test failed to properly safeguard employee free choice, while undermining labor relations stability by subjecting employers to legal exposure for circumstances that arose after a good faith decision to withdraw.

 The New Standard

Under the NLRB’s new test as articulated in Johnson Controls, you will now be privileged to withdraw recognition from an incumbent union and refuse to bargain commencing within 90 days of CBA expiration upon receiving evidence that the union has in fact lost majority support.

Although the union may still respond with unfair labor practice charges, the NLRB will no longer evaluate the merits of those charges by considering evidence that it has reacquired majority status. Instead, the union may present such evidence by filing for a new representation election within 45 days from the date on which you first gave notice of your anticipatory withdrawal.

Under those circumstances, you may lawfully continue recognizing the union without exposure to additional unfair labor practices charges in the absence of another representation petition from an intervening union. As the NLRB pointed out, “such issues will be resolved as they should be: through an election, the preferred method for determining employees’ representational preferences.”

 What Does This Mean for Employers?

Johnson Controls provides employers with a road map for lawfully withdrawing union recognition before CBA expiration. While the NLRB has removed some impediments to the “at your peril” nature of the Levitz anticipatory withdrawal standard, you will want to at least take the following considerations into account if you are exploring such a strategy:

  • The NLRB left other aspects of the Levitz standard in place, including a requirement that employers rely upon objective evidence (as opposed to good faith subjective belief) that the union has actually lost majority support. Such evidence has traditionally derived from a proper disaffection petition containing validated signatures (and dates) from a majority of bargaining unit employees; although employee polls or other objective evidence may suffice in limited circumstances.
  • Unilateral changes in wages or working conditions implemented during the intervening period between CBA expiration and an ensuing representation election conducted under the Johnson Controlsstandard could still subject you to additional unfair labor practice exposure.

Any withdrawal of recognition implemented during the pendency of bad faith bargaining or other unfair labor practice charges deemed to have caused the underlying employee disaffection will likely taint (and therefore invalidate) the withdrawal itself.

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NLRB Offers Significant Guidance on Its New(ish) Employee Handbook Rules

Jon Hyman The Practical Employer

It’s been just over 18 months since the National Labor Relations Board decided Boeing Co., perhaps its most significant decision in decades.

It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.
In applying this balancing, the NLRB announced the three-tiered approach to analyzing the legality of employee handbook and other workplace rules.

Category 1: Rules that are Generally Lawful to Maintain, which, when reasonably interpreted, do not prohibit or interfere with the exercise of rights guaranteed by the Act, or the business justification for which outweighs any potential adverse impact on protected rights

Category 2: Rules Warranting Individualized Scrutiny, which are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.

Category 3: Rules that are Unlawful to Maintain, which are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule.

Last month, the NLRB Office of General Counsel released its advice memo in Coastal Shower Doors (curiously dated 8/30/2018), which passed judgment on the legality or illegality of 10 different handbook provisions under the Boeing standard.
    1. “Obtaining unauthorized confidential information pertaining to clients or employees.” Lawful Category 1 confidentiality rule.
    2. “Rude, discourteous or unbusinesslike behavior; creating a disturbance on Company premises or creating discord with clients or fellow employees.” Lawful Category 1 civility/disruptive-behavior policy.
    3. “Soliciting, collecting money, or distributing bills or pamphlets on Company property by employees during non-working time, including rest and meal periods, is not restricted so long as such activity is in good taste.” Lawful Category 1 solicitation/distribution policy.
    4. “Un-business-like conduct, on or off Company premises, which adversely affects the Company services, property, reputation or goodwill in the community, or interferes with work.” Lawful Category 1 on-duty conduct rule, and lawful Category 2 off-duty conduct rule.
    5. “… all information gathered by, retained or generated by the Company is confidential. There shall be no disclosure of any confidential information to anyone outside the Company without the appropriate authorization. . . . nothing in this policy is intended to infringe upon employee rights under Section Seven (7) of the National Labor Relations Act (NLRA).” Unlawful Category 3 rule.
    6. “Disparaging, abusive, profane, or offensive language (materials that would adversely or negatively reflect upon the Company or be contrary to the Company best interests) and any illegal activities—including piracy, cracking, extortion, blackmail, copyright infringement, and unauthorized access to any computers on the Internet or email—are forbidden.” Lawful Category 1 civility and on-duty misconduct rule.
    7. “Employees should refrain from posting derogatory information about the Company on any such sites and proceed with any grievances or complaints through the normal channels.” Unlawful Category 3 rule.
    8. “Employees may not post any statements, photographs, video, or audio that reasonably could be viewed as disparaging to employees.” Lawful Category 1 civility rule.
    9. “Employees may not post to any on-line forums … providing any Company telephone number or extension. Do not create a link from any personal blog, website or other social networking site to a Company website without identifying oneself as an employee of the Company.” Part lawful Category 1 rule (as to self-identification) , and part unlawful Category 2 rule (as to telephone number ban).
    10. “The use of personal cell phones or other mobile devices is prohibited during working hours for personal use, including phone calls, texting and downloading of web content.” Unlawful Category 2 rule.
This memo, which delves into a lot more detail on each of the 10 policies, is required reading for anyone drafting, rewriting or reviewing an employee handbook, and offers great insight into how the NLRB will judge policies under its relatively new Boeing test.
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In Lamps Plus v. Varela, Supreme Court Signs Off on Death by a Thousand Cuts

Jon Hyman The Practical Employer

Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned it in 1905.

It translates variously as the slow process, the lingering death, or slow slicing. It’s more commonly known as “death by a thousand cuts,” in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

On April 24, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Management-side employment lawyers will herald this decision, along with Epic Systems v. Lewis (which held that agreements that compel employees to waive their rights to file or participate in class or collective actions and individually arbitrate their claims are valid under Section 7 of the National Labor Relations Act), as the death knell for wage/hour and other employment law class and collective actions. And, they are probably right. But, is this result a good result for employers?

I’ve previously discussed by distaste for arbitration as a forum for employment disputes. In sum: I do not think it’s the panacea many employers believe it to be; employers should instead consider jury trial waivers to cut the risk of runaway juries, and contractually shortened statutes of limitations to otherwise limit risk.

Also, however, consider whether by preventing employees from litigating claims as class or collective actions you are inflicting lingchi on your business. Yes, class actions are large, and unwieldy, and expensive. But they also offer the opportunity for finality. You will resolve the issue in one lone (albeit large) case. Alternatively, if you require employees to litigate their wage/hour claims (for example) in individual lawsuits, instead of facing one claim, you will expose your business to dozens, or hundreds, or thousands of individual claims, each carrying with it a small amount of damages for unpaid wages, and a large exposure for an attorneys’ fee award in each case. And while attorneys’ fees are the number one risk factor for employers in wage/hour class and collective actions, would you rather expose yourself to one potential award of fees, or dozens, hundreds, or thousands? And, don’t forget about arbitration fees, which, often times, employers are contractually obligated to pay in full.

So, before you jump on the class-action waiver bandwagon, talk to your employment lawyer and consider whether it’s really in the best interest of your business. Do you want one larger cut, or thousands of smaller ones?

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What a Lawful ‘Civility’ Policy looks like under the NLRB’s Boeing Test

Jon Hyman The Practical Employer

Consider and compare the following workplace civility policies:

Commitment to My Co-Workers

  • I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.
  • I will talk to you promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.
  • I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.
  • I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them, and ask you to do the same.
-vs-
Blogging 
Blogging outside of the hospital must not include … disparaging comments about the hospital.
The NLRB Office of General Counsel concluded that the former was lawful under the NLRB’s Boeing standard:

We conclude that the Commitment to My Co-workers document is a lawful civility policy. … [T]here is a distinction between regulations on what employees can say about their coworkers as compared to what they can say about their employer. … [W]hile protected concerted activity may involve criticism of fellow employees or supervisors, the requirement that such criticism remain civil does not unduly burden the core right to criticize. Instead, it burdens the peripheral Section 7 right of criticizing other employees in a demeaning or inappropriate manner.

Balanced against the minimal impact on Section 7 rights of these types of civility rules, employers have significant interests in maintaining such rules. These interests include the employer’s legal responsibility to maintain a workplace free of unlawful harassment, its substantial interest in preventing violence, and its interest in avoiding unnecessary conflict or a toxic work environment that could interfere with productivity … and other legitimate business goals.

While the latter was unlawful:

A rule prohibiting disparagement of the employer has a significant impact on NLRA rights Concerted criticism of an employer’s employment and compensation practices is central to rights guaranteed by the NLRA. A general rule against disparaging the company, absent limiting context or language, would cause employees to refrain from publicly criticizing employment problems, including on social media. Such criticism is often the seed that becomes protected concerted activity for improving working conditions, the core of Section 7.

The entire memo is worth reading for a lesson on how the NLRB analyzes work rules under Boeing. And, if you haven’t had an employment lawyer review your handbook or other work rules in the past few years, this is as good of a reminder as any that there is no time like the present.

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Salary Discussion Bans Are a Big Legal No-No

Jon Hyman The Practical Employer

AriesAviator posted the following question in the LegalAdvice subreddit:

Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do?

We both got pulled into a group chat over the app our work uses, and the first message reads as follows;

Hey I don’t want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don’t turn something we tried to do nice for you too into a pain for us.

Which, uh, what the fuck?

I’m pretty fucking sure everything in there is MASSIVELY illegal.

AriesAviator wins the labor law Kewpie doll.

Policies prohibiting pay-discussions among employees, or retaliating against employees who discuss how much they make, are per se illegal under the National Labor Relations Act.

Don’t just take my word for it. Here’s what the NLRB said on this very issue in Boeing Co.:

Rules that the Board … designates as unlawful to maintain because they … prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example … would be a rule that prohibits employees from discussing wages or benefits with one another.

So, AriesAviator, to answer your (albeit crassly asked) question, your employer’s response is 100 percent illegal, and, if you want to make a big deal out of it, jaunt over to your local NLRB office and file an unfair labor practice charge. It’s a pretty open and shut case.

Employers, if you have such policies in your handbooks, or have made such statements to your employees in the past, stop. It’s as easy of an unfair labor practice into which you can stumble.