Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don't have.  Do you think some of those ineligible employees might be confused about the rights?   If I'm an employee, I'm not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer's inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don't think this specific regulation is cause of our Nation's economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

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I suggested that employers should wait until November 14, 2011 (the implementation deadline) to post the new regulatory-requirement posting on employees' NLRB rights because of several lawsuits seeking to enjoin the requirement.

The Board has now postponed the initial posting deadline until January 31, 2012 "to allow for further education and outreach."  I'm not sure who else they feel they need to educate and reach out to, but the deadline is changed nonetheless.  Because there is still some uncertainty as to when, and even if, employers will have to make this new posting available to employees, don't post it until you have to.  If you already posted it, take it down.

Hat tip to Jon Hyman at the Ohio Employer's Law Blog for first alerting me to the news.

Follow me on Twitter @RussellCawyer.

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If you are are regular reader of this blog, you know that by November 14, 2011, most private employers (union and non-union) have to post notice of employees' federal labor rights to form and join a union.  Some of you may have even already posted the NLRB-sanctioned poster.  

However, several lawsuits have been filed seeking to have the new NLRB rule declared invalid.  The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce sued in federal district court to have the new posting rule declared invalid.   The U.S. Chamber's lawsuit follows on the heels of last week's suits seeking similar relief by the National Federation of Independent Business and the National Association of Manufacturers.

Given the uncertainty about whether the posting requirement will actually take effect, it may be prudent to wait and see whether one or more federal courts will enjoin the NLRB from enforcing its new rule.  And while an injunction may or may not be binding on the NLRB in Texas (because neither lawsuit seeking an injunction was filed in Texas) an injunction could prohibit the NLRB from enforcing it nationwide.  In the meantime, employers should hold off on posting the new poster until November 14, 2011 so that the courts have an opportunity to address this issue.

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I've previously written about the new NLRB requirement that most employers post notice of employee's NLRB rights (post here).  The posting requirement is effective November 14, 2011, for both union and non-union employers.  Yesterday, the NLRB made available an appropriate posting for download.   The NLRB's site also has answers to some commonly asked questions about the posting requirement that you can access here.

Follow me on Twitter @RussellCawyer.

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Yesterday, the NLRB issued its final rule requiring all employer subject to the National Labor Relations Act to post notices to employees of their NLRA rights such as the right to form and join a union, bargain collectively over wages and to file unfair labor practice charges with the Board as well as instructing employees on how to file those charges. 

Highlights of the Final Rule posting requirement include:  

• Posting required not later than November 14, 2011;
• Posting must be at least 11 x 7 inches;
• Posted in conspicuous places where will be readily seen by employees and in all places where notices to employees concerning personnel rules or policies are customarily posted;
• Must also be posted electronically on employer's intranet or Internet site if the employer regularly communicates with its employees about personnel rules or policies in such manner;
• Must be posted in language spoken primarily by 20 percent or more of workplace; 
• Federal contractors are also covered;
• Excluded from posting requirements are U.S. (and its wholly owned Governmental corporations), Federal Reserve Banks, States or political subdivisions, persons subject to the RLA, labor organizations and a few others. 

You can access the full Final Rule here (skip to page 174 to see the text of the Rule).  The content of the required posting is found in Appendix A (beginning on p. 185).  The NLRB also published a Fact Sheet on the new posting requirement you can read here.

Follow me on Twitter @RussellCawyer.

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There has been significant coverage of the unfair labor practice charges that have been filed by employees who were terminated over their postings made on Facebook, Twitter and other social media applications.  (Examples here, here and here).  The NLRB actions in some of these cases have lead to the belief by some union agents and employee representatives that comments made by employees (whether working at union or nonunion shops) through social media have greater protection than comments made in person. 

Recently, the NLRB Office of General Counsel issued three advice memoranda clarifying what does and does not constitute protected concerted activity in the social media context.  This advice dispells the argument that comments made through social media gain any greater protection under labor law than comments made in person.  This guidance is important in that it makes clear that employers may discipline employees for their personal comments made in the social media world when:

• the comments are merely expressions of an individual's gripe or frustration with an individual in management rather than an attempt to initiate or induce coworkers to engage in group action.
• the comments are made to those who are not co-workers of the employee (and the employee wasn't Facebook friends with any co-workers).
• merely communicating with friends about happenings at work.

Whether an employee's comments, whether made through social media or in person, constitutes protected concerted activity is an incredibly fact-intensive analysis.  It may depend on whether the employee has any co-worker Facebook friends, Twitter followers or included in Google+ circles; what comments or feedback co-workers provide to the posts; whether posts are discussed with or seen by co-workers; and of course, the content of the communications themselves.  The General Counsel guidance provide useful parameters for determining whether the conduct is protected under federal labor law.

You can download a copy of the Advice Memorandum here, here and here.

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For the next week, the biggest story in sports will be the Super Bowl.  For the next several months, the biggest story in labor-management relations will be ongoing negotiations with the NFL Owners and the Players Association over a new contract and potentially a lock-out or strike.  The negotiations have been contentious and gives suggest that Super Bowl XLV may be the last professional football game for an extended period of time. 

The Collective Bargaining Agreement between the NFL and the Players Association expires on March 1, 2011.  Once that Agreement expires, the parties are free to engage in activities such as strikes and lockouts.  While the Players Association has not indicated an interest in striking, the owners have expressed an interest in locking the players out of training camp and off-season workouts if a new CBA is not reached.

The biggest issues between the sides include:

Owners want to increase the credit they receive for operating expenses and capital improvements from the pot of revenue the players and owners share and reduce the percentage of adjusted revenue the players receive.  Additionally, the owners want to move to an 18 rather than a 16 game schedule.  An extended schedule would presumably increase the total revenue that the players and owners share.  The owners would also like to implement a rookie pay scale that would limit compensation of new players during their first several years in the league. 

The Players want to increase the total dollars that they realize under the revenue sharing arrangement with the league.  They do not want to make concessions to the owners by providing greater operating credits or reducing their share of the revenue without the owners providing more information on the teams' financial position.  As private entities, 31 of the 32 NFL teams do not have to make their financials available which makes the players view the owners' claims that they are not making a commensurate amount of money for the risk they take with skepticism.  The players also want to increase the owners commitment to post-career health benefits and pension payments.  At the end of the day, it really comes down to money.

If the rhetoric is to be believed, the parties are far apart and a work stoppage of some sort is likely.  However, the NFL is so profitable and the millionaire players and billionaire owners have so much to lose, I expect an agreement to be reached without any loss of regular seasons games during the 2011-12 season.  Regardless of the outcome, the NFL labor negotiations will be the hottest story in professional football after the Steelers and Packers finish their game.

A complete copy of the CBA is accessible here.

NFL Players Association informational lockout website here.

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The U.S. Supreme Court completed its 2008-09 term. On the docket were five cases of interest dealing with employment law.  Here is a summary of the holdings in those cases.

• Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn., (2009) An employee’s participation in an employer’s internal harassment investigation by responding to the employer's questions may constitute protected oppositional activity under Title VII that would support a retaliation claim. 
• 14 Penn Plaza LLC v. Pyett, (2009) Provisions in collective bargaining agreements that clearly and unmistakably require union members to submit statutory discrimination claims to the grievance and dispute resolution provisions of the agreement are binding and enforceable on the bargaining unit members.  More detail here.
• AT&T Corp. v. Hulteen, (2009) An employer does not necessarily violate the Pregnancy Discrimination Act when it calculates and pays pension benefits based on an accrual rule that applied only pre-PDA, and gives less retirement credit for pregnancy leave than for other medical leave.
• Gross v. FBL Financial Services, Inc., (2009)  A plaintiff asserting an age discrimination claim under a disparate (i.e., intentional) treatment theory must prove that age was the “but for” cause of the challenged employment action and the burden of proof never shifts to the employer to show that it would have taken the same action regardless of the age of the plaintiff.  More detail here.
• Ricci v. DeStefano, (2009)  An employer can avoid Title VII disparate-impact liability related to a promotional exam having a disparate impact on minorities if the employer can show a strong basis in evidence that, had it not certified the results, if would have been subject to disparate-treatment liability.  More detail here.

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Following Arlen Specter's announcement that he was opposed to the Employee Free Choice Act in its current form and other senators expressing strong reservations about the bill (See Michael Fox's post here), there has been much speculation about what the next step will be in organized labor's attempts to obtain labor organization reform.  Will Labor seek to have a compromise bill passed this year?  Will it wait until the 2010 mid-term elections or until the economy improves to try and pick up a filibuster-proof majority in the Senate?  Only organized labor knows for sure what it will do next.

However at this weekend's 27th Annual Multi-State Labor and Employment Law Seminar sponsored by the Tulane University Law School in San Antonio, Texas, Nancy Schiffer, Associate General Counsel for the AFL-CIO in Washington, D.C. presented a paper entitled "Change We Can Believe In --The Employee Free Choice Act."  In her remarks, Ms. Schiffer unequivocally stated that Congress will pass some form of labor organization reform this year --likely before September 2009.  The remarks, from the Associate General Counsel of one of the nation's largest unions, makes clear that organized labor has not given up on its efforts to pass the EFCA in its current form. It appears that organized labor does not intend to wait until after the mid-term elections or an economic recovery to seek this reform.  I expect that organized labor will rejuvenate its efforts and lobbying campaign to pass the EFCA once Al Franken is seated in the U.S. Senate and the Democrats have  a 60 vote majority in the Senate.  Consequently, the stories of the EFCA demise may be greatly exaggerated and employers should not forgo their efforts to prepare for its potential passage. 

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It seems likely that there will be some manner of labor organization reform to the almost seventy-five (75) year old National Labor Relations Act.  Three bills pending before Congress offer differing levels of reform.  

Pro-Labor:  Employee Free Choice Act of 2009 (H.R. 1409) Would require the National Labor Relations Board certify a union (without a campaign or election) that obtains signed authorization cards from a majority of the employees; requires companies and unions to enter into binding arbitration over the terms and conditions of an initial contract (binding for two years) if it cannot be agreed to after ninety (90) days of negotiations and thirty (30) days of mediation; and increases the penalties that can be assessed against employers found to have discriminated against an employee in violation of the NLRA.

Pro-Management:  Secret Ballot Protection Act (S.B. 478)  This bill would make it an unfair labor practice for an employer to recognize a union that has not been selected by secret ballot and also make it unlawful for a union to cause an employer to recognize and bargain with it in the absence of a secret ballot election.

Pro-Labor:  National Labor Relations Modernization Act (H.R. 1355)  This bill would require employers to provide labor organizations with equal access to the employees in the run up to a representational election.  It would require employers that intend to make presentations, provide handouts, display signage or have meetings to allow the unions to conduct the same activities and have the same access.  This bill does not, however, in its current form attempt to eliminate the secret ballot as the EFCA does.  

Labor organization reform is a priority for organized labor.  Maintaining the status quo, preserving the right to secret ballot elections is a priority of business.  With the emphasis each side is placing on the issue it seems likely to me that some form of reform will become law during 2009.  Stay tuned for more developments as we see which bill or compromise bill becomes law.

 

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Weingarten rights are the rights a union member has to, upon request, have a union representative present during an employer’s investigatory interview that may lead to disciplinary action. For nearly thirty years Weingarten rights only applied to employees who worked at employers that had been organized by unions.

In July 2004 a primarily Democratically appointed National Labor Relations Board extended Weingarten rights to employees working for private, unorganized employers. In July 2004, a Republican appointed majority of the Board reversed its position and held that private employees not represented by a union do not have Weingarten rights. Now that the Democrats occupy the White House, are Weingarten rights on the horizon for non-organized employers?

The Board is currently comprised of two members –one appointed by President Bush and one by President Obama. With three open vacancies, President Obama can appoint a majority of the Board. Thereafter, with a Democratically appointed majority of the Board it is predicted that Regional Directors will once again begin accepting unfair labor practice charges by employees of non-organized employers who have been denied Weingarten rights. As those cases once again reach the Board level, I think it is likely that Weingarten rights will again apply to non-unionized employers.

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