Concerted Activity

How to Handle Digital Damage Control: Texas Lawyer

How to Handle Digital Damage Control: Texas Lawyer

Lee Winkelman and Alan Bush are freelance contributors for Texas Lawyer. Their latest article, “How to Handle Digital Damage Control” appeared in the In-House Focus section on May 1, 2017.

Employees can get into a lot of trouble with a smartphone and a social media account or two. Here’s what Lee and Alan had to say about it:

Arbitration Class Waivers: Another Victim of the NLRB

Remember those pesky overtime claims where one bad policy can trigger a class action-like lawsuit?  We've suggested heading off the class warfare with mandatory arbitration policies that prohibit class-wide arbitration.  Well, the NLRB just stuck its nose into that too.  And you can imagine how that one went...

Class waivers, says the NLRB in D.R. Horton, violate employees' NLRA-guaranteed right to engage in "concerted activity."  Not that long ago, the NLRB used this same right to move aggressively into regulating social media.  If you force employees to sign an arbitration policy that has a class waiver, the NLRB will haul you in for an unfair labor practice.

The NLRB's ruling applies to you so long as you're covered by the NLRA—even if you're union free.

But there's good news.  Managers, supervisors and independent contractors have no right to engage in "concerted activity" under the NLRA.  The NLRB's ruling does not cover them.  Satisfy the NLRB that your worker falls into one of those groups and you might require a class action waiver.

What about class waivers that are selectively imposed?  Instead of including the waiver in a blanket arbitration policy for all employees, you might have all (or many of) your exempt employees sign an arbitration agreement with a class waiver.  That might keep classes of your employees from ganging together to claim they were misclassified as salaried exempt.  Better be sure, though, that the workers truly meet the NLRA's definition of managers, supervisors or independent contractors.  Or you the NLRB could put you in a world of hurt.

I doubt we've heard the last of D.R. Horton.  The NLRB's ruling will probably be appealed to the courts.  Stay tuned.

Union Rights Posters: A Union's Newest Tool to Organize

Well, it happened.  We predicted the NLRB would approve the proposed rule that requires all employers covered by the NLRA to post a union rights notice.  The rule became law yesterday.  It impacts basically all private employers—unionized or not.

Here's the NLRB's Q&A sheet on the final rule.  The poster will be "similar" to the one already required of federal contractors.  You can find that poster here.  You must comply by November 14.

You now have the privilege of telling your employees about their rights to unionize and engage in concerted activity.  The rule requires you to post the notice in "conspicuous places where they are readily seen by employees."  That's your bulletin board.  You may also have to distribute the poster on via e-mail or on your intranet if you customarily use those channels to push out information to your employees.

The poster also tells employees how to complain to the NLRB if they feel their NLRA rights have been violated.  Get ready for a new type of complainers.  But remember that they are also protected from retaliation for filing an unfair labor practice charge.

Union avoidance measures now take on a higher priority.  Expect unions to leverage greater employee awareness into pro-union agitating and organizing drives.  After all, the NLRB is also considering a proposed rule to shorten union election timelines—giving unions a greater element of surprise.

Immunize against a union's biggest advantage with advance preparedness.

Facebook Firings: Unexpected trouble with the NLRB

You're non-union, so you're safe.  No need to worry about unfair labor practice charges.  Right?  Think again.

Imagine this one.  You learn that an employee hopped on Facebook and bad mouthed her supervisor.  Other employees joined in and supported her trash talking.  You fire the employee.  Next thing you know, the National Labor Relations Board ("NLRB") slaps you with an unfair labor practice charge, investigates the charge and finds that it has merit.  Now you're facing a full-on labor hearing before the NLRB's Board.

Yes, that's a reality for a Connecticut-based EMS company.  Proud of itself, the NLRB issued press release on the case.

Non-union employers must keep an eye on labor law.  A key provision of the National Labor Relations Act ("NLRA") applies to employers without unions.  All employers, union or not, can be charged with an unfair labor practice if they take an action against an employee for engaging in "concerted activities" for "mutual aid or protection."

The definition of concerted activities, says the NLRB, is extremely broad.  The activity must simply be done by two or more employees, or it must be done by one employee acting on behalf of others.  Shoot, the activity doesn't even have to be related to a union or union membership.  If your employee tries to initiate or prepare for group action or complaints, the activity may be protected "concerted activity."

The penalty for losing a "concerted activity" charge can tip the scales on a union campaign at your company.  The NLRB may order your company to post a notice of its unfair labor practice ruling where all your employees can see.  On top of that, you can be ordered to reinstate a terminated employee with back pay and benefits or take any other action needed to make the employee whole.

Who wants a union waving around an NLRB order like that, right in the middle of a unionization campaign?  It makes you sound like you're out to take advantage of your employees.

Here are just a few examples of cases where the NLRB has tagged companies for "concerted activity" charges:

  • An employee was fired for copying everyone in the company on an e-mail where he roundly criticized the COO for proposing changes to the vacation policy;
  • An employee was disciplined for voicing her disgust with her company's management and its new break policy at a meeting on the new policy; and
  • A company punished an employee for breaking an unwritten policy that prohibited all employees from talking about their wages with each other.

Watch your back.  Don't unexpectedly give unions an edge in organizing your company.  The cost is far too high.