Unionized employers and those facing representation elections should be aware that it’s back to business as usual—at least for the time being—because a recent Court decision has suspended the Board’s new rules due to a failure to reach a quorum of the board members necessary to pass the resolution.
The NLRB has recently been inundated with court challenges to its various new initiatives, including the ongoing poster ruling saga. This most recent challenge affects the changes to the processing of representation elections, which were originally implemented by the NLRB on April 30, 2012.
The changes aimed to reduce unnecessary litigation while modernizing and streamline the process. They included:
- Focusing pre-election hearings on those issues relevant to determining if there is a question concerning representation;
- Providing for post-hearing briefs after pre-election hearings only when it will assist decision makers;
- Reducing piecemeal appeals to the Board by consolidating requests for Board review of regional directors’ pre-and-post election determinations into a single, post-election request;
- Making Board review of post-election regional determinations discretionary;
- Eliminating duplicative regulations.
However, because only two of the NLRB’s five-member board actually voted on the final rule and implementation, the Court determined that a quorum was not reached. As a result, Acting General Counsel Lafe Solomon has withdrawn his previous guidance to regional offices and advised regional directors to revert to their previous practices for election petitions filed starting May 15, according to an official NLRB news release.
In a new report dated May 30, 2012, the National Labor Relations Board dissected the social media policies of several U.S. giants—and explained that most of them contained significant violations of the National Labor Relations Act.
The 24-page report, authored by acting general counsel Lafe Solomon, reproduces the specific sections of each company’s policy that the NLRB deems to be unlawful, and helps employers by explaining why that’s the case. The NLRB produced this report—the third publication the Board has provided on social media compliance—in response to employer requests for more specific guidance.
The NLRB discussed that Target’s policy regarding the use of social media technology, and the associated requirement to keep company policy confidential is overbroad.
The Target policy instructs employees: “Don’t release confidential guest, team member or company information.” The Board found this section of the policy could be interpreted as preventing staff from disclosing or discussing wages and conditions of employment—a violation of section 7.
In addition, Target’s policy has two bullet points regarding the confidentiality of information that the NLRB finds unlawful:
- Make sure someone needs to know. You should never share confidential information with another team member unless they have a need to know the information to do their job.
- Watch what you say. Don’t have conversations regarding confidential information in the Breakroom or in any other open area. Never discuss confidential information at home or in public areas.
Again, the restrictions on confidentiality were considered by the NLRB to stifle discussion of terms and conditions of employment; particularly the restrictions on location, which the Board noted was “virtually everywhere such discussions are most likely to occur.”
The NLRB identified several concerns with the DISH network policy, in particular the prohibitions on “disparaging or defamatory” comments—deemed to be unlawfully overbroad—and the company’s restrictions on contact with the media and government.
DISH Network has several extensive policy sections that pertain to communications with outside agencies. DISH requires that employees seek permission from the company before engaging in any “public communication including, but not limited to, any contact with media and members of the press: print (for example newspapers or magazines), broadcast (for example television or radio) and their respective electronic versions and associated web sites. Certain blogs, forums and message boards are also considered media.” The Board found this language to be unlawful and a violation of an employee’s protected right to seek help from third parties.
The NLRB appeared to take personally the next section of DISH Network’s policies. Language discussing employee contact with government agencies was considered to be a direct prohibition of an employee’s “protected right to converse with Board agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same.”
The NLRB found that much of GM’s policy with respect to “non-public information” and friending others on social media sites could be considered “chilling” to an employee’s rights under section 7 of the Act.
In particular, the requirement that employees “must also be sure that your posts are completely accurate and not misleading” was deemed to be a violation. Under the Act, as long as employees do not engage in discussions that are maliciously false, they are not under an obligation to ensure the complete accuracy of their commentary on employer practices and conditions of employment.
In addition, the requirement that employees must check with the company and receive permission before posting topics if they were unsure whether to post was considered unlawful. The company’s requirement that employees not post pictures or use company logos and trademarks was a violation because it could mean employees were prohibited from posting pictures, for example, of them engaging in picket activity if the signs contained the company logo.
The NLRB stated: “Although the Employer has a proprietary interest in its trademarks, including its logo if trademarked, we found that employees’ non-commercial use of the Employer’s logo or trademarks while engaging in Section 7 activities would not infringe on that interest.”
GM’s policy encourages staff to “think carefully” before friending coworkers. The NLRB sees this as a clear violation of section 7, because it would discourage communications between coworkers.
A much more detailed analysis of GM’s policy, and those of several other employers, can be found in the full report. The publication also contains Walmart’s full policy as a sample for employers to reference, because the company’s policy was found to be lawful in its entirety.
The SEP will establish a specific framework and approach “for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination.” As a result, the Commission is reaching out to employers, advocacy groups and any other interested parties who would like to submit input on the specific items that should be considered under the plan.
The EEOC has already identified several points of focus for the plan:
- Strategic Law Enforcement
- Education and Outreach
- Efficient Service to the Public
However, the Commission would like feedback and suggestions on what the national priorities should be for the plan to have “the greatest impact in combating discrimination in the workplace,” and is seeking recommendations on specific ways to improve enforcement, outreach and customer service in those areas.
If you have input to provide, don’t delay. All submissions must be submitted by 5:00 pm EDT on June 19, 2012. Be sure to enter your contact email or mailing address, because selected submissions will be invited to testify before the Commission in Washington, D.C. Phone or video feed would also be available for individuals to testify without traveling.
Send your suggestions to:
Mail: Executive Officer,
Office of the Executive Secretariat,
U.S. Equal Employment Opportunity Commission,
131 M Street, NE,
Washington, DC 20507
Layoffs are never easy, but the Department of Labor has a program that works in partnership with employers to provide a variety of services to assist with the placement, retraining and administrative needs of displaced workers.
The “Rapid Response” program is operated by your state’s dislocated workers’ office and is happy to work with employers—no matter what the schedule or layoff situation—to offer assistance and resources to workers who will be laid off. The program provides:
- Customized, on-site services.
- Career counseling.
- Job search programs, local labor market information and jobseeker resources.
- Workshops (resumes, interviewing, financial planning, stress management, etc.)
- Unemployment insurance assistance.
- Education and training.
The Rapid Response team also works with community partners—such as the One-Stop Career Center—in your community to provide additional resources and services for affected employees.
If your company is expecting a layoff or plant closure, you can contact the Rapid Response team in advance to prepare a plan. Don’t wait until layoffs have already happened—workers who receive retraining prior to layoff will be less stressed and become reemployed more quickly after the event.
Using these services doesn’t just help the affected employees—you may be able to retain trust with survivors, who will see that the company goes above and beyond to minimize the impact of layoffs and provide departing workers with as much assistance as possible. The program also offers employers
- Assistance with the media and communications strategy.
- Employee rumor control and information management.
- Guidance to meet federal and state requirements such as notice periods.
For more information, please visit our website www.laborlawcenter.com or call (800) 745-9970
In the midst of the recession, youth workers are having an increasingly difficult time finding jobs or even gaining the experience necessary to be considered. The Bureau of Labor Statistics reports that current peak youth employment rates are 48.8—more than 10 percent lower than youth employment five years ago and nearly 15 percent lower than the 63.3 percent of youth workers who were working a decade ago.
In response to the youth employment crisis, President Barack Obama established the Summer Jobs+ initiative, saying: “America’s young people face record unemployment, and we need to do everything we can to make sure they’ve got the opportunity to earn the skills and a work ethic that come with a job. It’s important for their future, and for America’s…That’s why today, we’re launching Summer Jobs+, a joint initiative that challenges business leaders and communities to join my Administration in providing hundreds of thousands of summer jobs for America’s youth.”
The Department of Labor is asking businesses to get involved in one of three ways:
- Life Skills: Provide soft skills training, such as communication, time management, teamwork, resume or interview workshops. Skills can be provided through study or on-the-job experience.
- Work Skills: Provide job shadow days and/or internships.
- Learn and Earn: Provide paid on-the-job opportunities to gain experience.
To register and add your commitment to the summer jobs program, employers should go to the designated registration page maintained by the Department of Labor. Next, tag your existing opportunities and your jobs will be advertised through the program in the summer jobs bank.
The Department of Labor has prepared a detailed toolkit for employers interested in participating in the program, which gives advice and guidance for creating youth opportunities; an assessment guide; tools to define the scope of the program and strategies to plan, pilot, refine and grow the company’s initiatives over time.