Tag Archives: National Labor Relations Act

Unleashing Weingarten Rights

When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.

The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:

“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”

Nonetheless, in Circus Circus the panel broke with these seemingly settled principles.

So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third party denied this request and advised the employer that the temporary employee refused to cooperate.  The employer suspended the employee pending an investigation.

Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.

The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:

“I called the Union three times [and] nobody showed up, I’m here without representation.”

After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.

Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.

Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.

Attorney John Getty* assisted in preparing this blog post.
*Admitted in Louisiana and Georgia

Arbitration Update: Eleventh Circuit Finds in Favor of Florida Employers

Florida employers are beginning to benefit from recent U.S. Supreme Court and National Labor Relations Board (NLRB or Board) rulings.  On June 26, 2018, the federal Eleventh Circuit Court of Appeals issued two decisions in favor of Florida employers in which it rejected NLRB rulings that the employers had violated the National Labor Relations Act (NLRA). The cases are Everglades College, Inc. v. NLRB and Cowabunga, Inc. v. NLRB.

Applying the Supreme Court’s Epic Systems decision (for further information on Epic, click here), the Eleventh Circuit held in both cases that the inclusion of class and collective action waivers in these employers’ mandatory arbitration agreements did not violate the NLRA. Additionally, relying on the Board’s Boeing decision (for more information, on Boeing click here), the Eleventh Circuit vacated the NLRB’s holdings that the arbitration agreements were unlawful because employees could “reasonably believe that they were prohibited from filing unfair labor practice charges with the NLRB.”

In Boeing, the NLRB retroactively changed the rationale it used to evaluate the lawfulness of facially neutral employee policies, thus eliminating the broadly applied “reasonably believe” standard that prohibited any rule that could be interpreted as covering protected activity. Without that standard, the Board could not defend its prior decisions in the appeals. Therefore, the Eleventh Circuit remanded the remaining issues in the cases to the NLRB so that it can apply its new Boeing rationale, which does not interpret ambiguities against the drafter and does not ban all activity that could conceivably be included in generalized provisions.

Even with the NLRB General Counsel’s recent memo addressing the application of the Boeing standard (for more on the memo, click here), it is unclear how the Boeing rationale will apply to arbitration agreements. Regardless, employers should remain hopeful as the new standard provides for a more balanced review.

Gail E. Farb
gfarb@williamsparker.com
941-552-2557

[Editor’s Note: Williams Parker attorney Gail E. Farb represented the employer in the Everglades College, Inc. case cited above.]

Jimmy John’s Takes on Disloyal Employees and the NLRB and Wins

Doling out a refreshing victory, the U.S. Court of Appeals for the Eighth Circuit sided with Jimmy John’s in a protected, concerted activity case brought under the National Labor Relations Act (“NLRA”). On July 3, the full en banc court reversed an earlier decision of a three-member panel of the court that had affirmed a National Labor Relations Board (“NLRB”) ruling for the employees. Unless appealed to the Supreme Court, this decision brings to an end a torturous legal saga lasting over six years.

This case was set in motion in October 2010 when an Industrial Workers of the World (IWW)-affiliated union lost a union election to represent Jimmy John’s employees at ten franchised stores in the Minneapolis-St. Paul area, owned and operated by MikLin Enterprises. After the unsuccessful election, several union supporters continued to pressure the franchisee’s management to adopt workplace policy changes, including the adoption of paid sick leave. The disgruntled sandwich-makers claimed that current attendance policies forced them to work while sick.

The dispute escalated when six of these employees placed posters in and around the restaurants, calling attention to their claims. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. One was labeled as being made by a “sick” employee and the other by a “healthy” employee. The caption below the picture read “Can’t tell the difference?” and was accompanied by a message criticizing the employer’s attendance policies. The employer terminated the six employees responsible for these posters.

The employees challenged their terminations claiming that the employer’s actions were in retaliation for concerted protected activity under the NLRA. Both the NLRB and the three-member panel of the Eighth Circuit agreed. However, the full panel of the Eighth Circuit ruled that the terminations were lawful. Specifically, it found that the claims about food safety were false and misleading and therefore, sufficiently “disloyal” to place the actions of the six employees outside of the protections of the NLRA.

The decision is heartening for employers, as many recent NLRB decisions have been overly protective of worker actions that were calculated to harm a company’s reputation.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Another Day, Another March: Did This One Impact Your Workforce?

Yesterday was International Workers’ Day and, around the world, there were marches planned to bring attention to both the accomplishments achieved through the efforts of workers and to the hardships experienced by workers (who are we kidding – these marches are mostly about the latter of these objectives). Although the marches were intended to focus generally on workers’ rights, not all of the scheduled marches were intended to bring attention to the same subset of workers. Some participants marched to support immigrant workers and others to support women workers. More than a few participants in the United States joined the march to protest the policies of the current Administration.

The level of any workforce’s participation in the march for International Workers’ Day directly determines the impact of the event on you as the employer. Clearly, if no one participates then you have no cause for concern, as no one is missing work, no one is violating work rules, and tasks are being completed. However, if your employees did participate, and did so without properly requesting time off, then you have to decide how to respond. If you did not catch either of my blog posts here and here regarding “A Day Without a Woman,” then let this post serve as a refresher on what actions, if any, you can take if one or more of your employees missed work to participate in an International Workers’ Day march.

If the employee was not authorized to participate, his refusing to work when scheduled in order to march constitutes a strike. However, even though considered a strike, your employee may be protected if his activity yesterday was considered protected concerted activity under the National Labor Relations Act, i.e., if there was a sufficient nexus between employment-related concerns and the specific issues that were the subject of the march.

When the motivation for political activity is a national political issue that you as the employer have no control over, such activity will not be protected. In such cases, you may choose to discipline an employee for violating your well-established and neutrally applied policies (you have them right?). On the other hand, when your employees withhold services as an economic tool in their employment relationship with you, such activity is protected. If workers are taking action to alter the terms and conditions of their employment and you as their employer have the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act, and any action taken against the employee could subject you to liability.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Guidance for Employers from the Dark Side?

A long time ago in what seems like a galaxy far away, Congress passed the National Labor Relations Act. Since then, Congress has continued to pass laws governing the employee/employer relationship. In 1938, it passed the Fair Labor Standards Act; in 1964, it passed the Civil Rights Act; and in 1993, it passed the Family and Medical Leave Act. These acts and many others can make businesses feel like they have been thrown into a trash compacter or frozen in carbonate. Management attorneys, a.k.a the light side of the force, provide guidance and counsel to businesses and assist in navigating these laws which seem to appear and/or change as if powered by a hyper drive. On Thursday, April 27, from 8:00 a.m. to 12:00 p.m. at Michael’s on East in Sarasota, businesses will have an opportunity to learn about recent developments and current trends related to wage and hour compliance, employee criminal conduct, and sexual orientation and gender identity not only from their Jedi, but also from a Sith, a.k.a. a plaintiff’s employment attorney. It is not often that businesses have an opportunity to learn from both sides of the Force.

This seminar will provide guidance in important areas of employment law to assist professional service providers in their role as employers. The workshop will include best practices from legal compliance and human resources perspectives, and will conclude with a Sith providing insight into employers’ mistakes that strengthen the dark side. This seminar is intended to be an interactive presentation with the aim of providing solutions to troublesome employment issues confronting law firms and other professional service providers. To learn more about this event and to register, visit the Sarasota County Bar Association website.

Disclaimer: This seminar does not have a Star Wars theme; I just watched The Force Awakens on HBO this weekend.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

New Information About “A Day Without A Woman” Provides Some Insight to Employers

WomensMarchFlyerInstagram4Recently, additional details were released regarding the March 8, 2017, A Day Without A Woman, organized by the same group responsible for the Women’s March in January. In addition, other groups, such as the International Women’s Strike, are now planning their own events on March 8, International Women’s Day. Some of these organizations are encouraging women to ask their employers for the day off, while others appear to suggest women should actually refuse to work. When an employer approves the time away from work, then employees are not really engaged in a “strike” in the traditional understanding of the word. On the other hand, refusing to work when scheduled without employer approval is a strike.

As explained in our previous post, the purpose of the strike determines how an employer can legally respond to its employees that refuse to work. If workers are taking action to alter the terms and conditions of their employment, and their employer has the power to make the changes being sought, such activity will most likely be protected by the National Labor Relations Act.

The basic platform set forth for A Day Without A Woman, as explained in the draft letter to employers that can be downloaded from the Women’s March website, is that the event is to recognize “the enormous value that women of all backgrounds add to our socio-economic system — and the pervasive and systemic gender-based inequalities that still exist within our society, from the wage gap, to vulnerability, to discrimination, sexual harassment, and job insecurity.” As stated, this platform appears to focus on national, general objectives that may weigh in favor of a finding that the activity is not protected by the National Labor Relations Act. Yet, as evidenced by the charges filed against several McDonald’s a few years ago, if employees’ own wages and work conditions are an inherent and primary motivator for their participation in the strike, then the strike may be protected.

Some employers may choose to support the national platform being proposed, and either allow those wishing to participate time off without question, or shut down their operations for the day. Other employers that are unable to provide such support and need workers in order to meet client expectations, may want to impose disciplinary action pursuant to a well-established policy applicable to employees who refuse to work. If this is the case, they should first ascertain the reasons for such refusal before imposing any such disciplinary action.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Managing Employee Participation in Social Movements: A National Strike for Women is Planned for March 8, 2017

The organizers of the Women’s March, which on January 21, 2017 drew an estimated three million participants worldwide, have announced that on International Women’s Day, March 8, 2017, they are planning a “General Strike: A Day Without a Woman.” Although the organization has not yet provided many details regarding its call to action, it is likely that as with last week’s national strike, “A Day Without Immigrants,” this event will include a call to supporters to refuse to report to work. Such a call to action will raise questions for employers regarding how they can respond to such political activity.

A walk out in support of a “General Strike: A Day Without a Woman” could be considered protected activity under the National Labor Relations Act, if there is a sufficient nexus between employment-related concerns and the specific issues that are the subject of the strike. When the motivation for political activity is a national political issue that the employer has no control over, such activity will not be protected and an employee’s discipline for a violation of well-established and neutrally applied policies is legally permissible. On the other hand, when employees leave work and withhold services as an economic tool in their own employment relationship, such activity is protected. For example, a few years ago, McDonalds’ employees held a nationwide strike in support of raising the national minimum wage. Although the national minimum wage was part of the reason workers refused to work, and their employers had no control over the national wage, the employees’ own wages and work conditions were an inherent and primary motivator for their participation in the strike. Thus, the National Labor Relations Board ascertained that a sufficient nexus existed for a finding that the strike was protected activity and filed complaints against several McDonalds challenging the disciplinary actions imposed on participating employees.

Since information is still forthcoming regarding this proposed strike, it is not yet clear whether participation in this event will be protected. Regardless, any action taken against an employee may be challenged through a complaint with the National Labor Relations Board, which has authority to enforce violations of the Act against both unionized and non-unionized employers. If your business is impacted by this event, before you make any disciplinary decisions, it is important to ascertain if the reason for the absence is related to any employment concern in your workforce.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Is It Time to Review Your Handbook Policies?

Earlier this month I posted about two decisions by the National Labor Relations Board finding employers’ workplace conduct policies and policies prohibiting recording people or confidential information in the workplace to be in violation of the National Labor Relations Act.  You can read the post here. Although it has not even been a month, another employer’s policies are being scrutinized by the NLRB for several of its policies: social media, email, confidentiality, workplace conduct, use of computer systems, solicitation and distribution, outside employment and internet use. Policies that have typically been accepted as legally compliant are now under attack. If you have not had your handbook reviewed in the last year or so, it may be time.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The National Labor Relations Board Continues its Assault on Employer Handbook Policies

In a recent case involving both T-Mobile and Metro PCS the National Labor Relations Board (“NLRB” or “Board”) continued to act as a super-personnel department, picking apart policies in employee handbooks. The NLRB found that a policy requiring employees to communicate in a positive and professional manner was overbroad. It also determined that policies requiring employees to behave in a professional manner and to communicate “in a manner that is conducive of effective working relationships,” could be reasonably construed by employees as prohibiting disagreements or conflicts, including protected activity such as discussions about the terms and conditions of their employment. It ruled that these policies were a violation of the National Labor Relations Act.

The NLRB further found that a policy prohibiting employees from recording people or confidential information in the workplace using cameras, camera phones, or other recording was a violation of the Act. The Board found the policy overbroad in that it did not limit the restriction to work time and/or work areas. The Board opined that employees could reasonably believe that the policy restricted their ability to document the terms and conditions of their employment and, in doing so, limited employees’ ability to obtain evidence of protected concerted activity.

There were several other policies reviewed by the Board in its decision. Policies that have typically been accepted as appropriate are now being declared unlawful by the Board. Employers should carefully construct handbook policies, as well as review and update them on an ongoing basis, otherwise it may face scrutiny from the NLRB.

The Board’s Decision may be accessed here: https://www.nlrb.gov/case/14-CA-106906

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558