HR That Works Blog

A National Labor Relations Board Administrative Law Judge ruled on September 28th, 2011 that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity.

The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first, the employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Though the salespeople did not directly complain to their employer that the food offerings could affect their commissions, they discussed with each other that their sales could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to and commented on the Facebook page.

On the same day, the salesman posted photos of an accident that had occurred earlier involving a vehicle from an adjacent dealership that was accidently driven into a pond. Both dealerships are part of the same ownership group. Judge Biblowitz found that while the postings involving the sales event and the subsequent exchange of comments with other employees was protected activity, the postings involving the accident were not. Further, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act.

Regarding the employee policy, Judge Biblowitz found that certain paragraphs were overly broad and tended to chill employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. Though the employer had changed the policy prior to the hearing, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.

Inc. Magazine did an excellent article on the history of the workplace you can read by clicking here.

Many, many an employer has given me grief over the NLRB’s new posting requirements. Whew. “I feel ya” I tell them. Then I tell them it’s the law and I didn’t do it!  So yes you have to post it. Just do it. You can tell your employees the Obama administration required you do so, which is a fact. Half of them will be happy about the idea and the other half will think it’s ridiculous. Or something like that.

Federal Contractors are already familiar with this posting requirement. The justification for having them post it in 2009 was:

“The Department of Labor’s regulations implement Executive Order (E.O.) 13496 signed by President Barack Obama on January 30, 2009.  E.O. 13496 advances the Administration’s goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector and engaged in activity related to the performance of Federal government contracts are informed of their rights to form, join, or assist a union and bargain collectively with their employer. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.” Really?? So this is saving the government money. Good thing. They need it.

Here’s the justification for the current NLRA posting requirement:

“The Board believes that many employees protected by the NLRA are unaware of their rights under the statute and that the rule will increase knowledge of the NLRA among employees, in order to better enable the exercise of rights under the statute. A beneficial side effect may well be the promotion of statutory compliance by employers and unions.” Or… more union campaigns.

After getting employer feedback the NLRB granted a few concessions with the notice: “The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.”  Nice of them. So post it in black and white.

Since many have asked; here’s what the penalty is for not posting it

Q: What will be the consequences for failing to post the Notice?

The NLRB does not audit workplaces or initiate enforcement actions on its own. A failure to post the Notice would need to be brought to the Board’s attention in the form of an unfair labor practice charge by employees, unions, or other persons. In most cases, the Board expects that employers who fail to post the Notice were unaware of the rule and will comply when requested by a Board agent. In such cases, the unfair labor practice case will typically be closed without further action. The Board also may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.

If an employer knowingly and willfully fails to post the Notice, that failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Q: Can an employer be fined for failing to post the Notice?

No, the Board does not have the authority to levy fines.

Here’s the reality: This agenda is about Power. Politics always is. For the 8 years of the Bush administration employers got most of the breaks. Now it’s the employees turn. The way blue collar workers have always exercised their rights is through unions. Your daddy or granddaddy may have been in one. I continue in my belief that there are good and bad unions, employees, bosses, and…yes, even politicians. Ultimately it is the market place that should determine who succeeds in business and who does not. All employers face this pressure, including the political ones. What are you going to do different than your competition to rise above all of it is my question?!

Here’s a last thought: Imagine if the government required an Employer Rights Notice Under What is Left of Capitalism posting like the one I created. I think I’m starting to sound like Ayn Rand…and I used to be an employee rights attorney! What’s that tell you? Enough already. Fact is, while this agenda may garner votes it does little to help people grow in their careers and that my friends is the main reason unions have been fighting to hold on for survival. Post my poster at your own risk. Maybe you just leave on the bulletin board at the country club.

Only yesterday we posted the warning re how the NLRB is deciding these cases and now another one for the books!

According to the NLRB press release:

In the first ruling of its kind, a National Labor Relations Board Administrative Law Judge has found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.  

The NLRB has received an increasing number of charges related to social media in the past year, as that means of communication grows in popularity. The Office of General Counsel issued a report last month outlining some of the cases. This is the first case involving Facebook to have resulted in an ALJ decision following a hearing.

To read the rest go to http://www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfully-discharged-employees-following-fac.

To read the case itself go to http://mynlrb.nlrb.gov/link/document.aspx/09031d4580622877

As part of an agenda to give employees more control over the workplace, and to be able to air grievance about the terms and conditions of their employment, the NLRB has been attacking all sorts of company policies and procedures. This time they decided a case against Hyundai which as part of its order required the employer to change the language in its handbook as follows because it could “chill” the employees Section 7 rights under the NLRA:

(a) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading Electronic Communications and Information Systems that contains the following language: “Finally, employees should only disclose information or messages from theses [sic] systems to authorized persons.”

(b) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading Personnel Files that contains the following language:

“Any unauthorized disclosure of information from an employee’s personnel file is a ground for discipline, including discharge.

(c) Within 14 days of the Board’s Order, revise or rescind the rules in its Employee Handbook under the heading, “Employee Conduct” that contains the following language: “Voice your complaints directly to your immediate superior or to Human Resources through our ‘open door’ policy. Complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all.”

(d) Within 14 days of the Board’s Order, revise or rescind the rules in its employee handbook under the heading,

“Employee Conduct” that contains the following language threatening disciplinary action for: “Performing activities other than Company work during working hours.”

Hyundai America Shipping Agency, Inc. (28-CA-22892; 357 NLRB No. 80) Scottsdale, AZ, August 26, 2011.

Watch Don’s 35-minute video on what you must know about a recent NLRB Memo on Social Media today! HR That Works members can see the updated Social Media Policy and Special Report in the Social Media Training Module.

The National Labor Relations Board today issued a final regulation that will require nearly all private-sector employers to post a notice advising employees of their rights under the National Labor Relations Act. According to the NLRB press release, the final rule is expected to be published in the Federal Register on August 30 and will take effect 75 days after publication. The NLRB states that the required notice will be available at no charge from regional offices or can be downloaded from its website on or before November 1.

This rule was initially proposed last Spring. The NLRB received over 7000 comments regarding the proposed rule. According to the press release, the final rule does reflect some modest revisions suggested by the comments submitted in response to publication of the proposed rule.

With the exception of agricultural, railroad, and airline employers, nearly every employer in the country will be expected to comply with the final rule. There are some minor exceptions for very small entities that have a negligible impact upon interstate commerce, and the United States Postal Service has been exempted from coverage because of the unique requirements it is subject to pursuant to the National Labor Relations Act. The final rule is quite similar to a rule published by the Department of Labor that requires federal contractors to post a notice of employee rights under the NLRA. Federal contractors that comply with the DOL rule will not have to post a separate notice pursuant to the NLRB rule.

Employers will be expected to publish the notice where other federal notices are posted in the workplace. In addition, employers that distribute personnel policies and procedures by means of Internet or Intranet sites will be required to post the NLRB notice there also. If 20% or more of the workforce speaks a foreign language, the employer must also post a notice in that language. According to the NLRB press release, the NLRB will make available notices in various languages.

One obvious consequence of posting this notice is that your employees will be better informed about their rights to organize. This suggests that it is more important than ever to know the signs of union organizing activity and what steps you can — and cannot — take in response to union organizing efforts.

Article courtesy of Worklaw Network firm Elarbee Thompson Sapp Wilson (www.elarbeethompson.com)

The National Labor Relations Board’s Acting General Counsel released a report detailing the outcome of investigations into 14 cases involving the use of social media and employers’ social and general media policies. In releasing the document, Acting General Counsel Lafe Solomon said, “I hope that this report will be of assistance to practitioners and human resource professionals.”

Each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.  In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

Lesson for HR That Works Members: The NRLB and present administration continue to do everything possible to socialize the workplace. According to these cases any time an employee complains about conditions of employment and involve other employees they are clearly protected.  It seems to make little difference how rude they are and whether they slam the company or its management. I have no doubt some of these companies got advice from counsel that termination was proper. I’m sure many of the “overbroad” policies were drafted by counsel too.  It is a tricky area and a trap because the law changes almost daily. While much of it seems a bit insane (i.e. getting away with calling your boss an asshole on a public website and worse), it is the law. As an additional note, since some of the employees complained about health or safety type matters they may also be protected by whistleblower and similar laws. Bottom line: Get some advice before terminating anyone who does anything with social media and make sure your policies are not overbroad.

The National Labor Relations Board has unanimously found that the Santa Claus engaged in multiple unfair labor practices during a union organizing campaign by a group of disgruntled elves, and ordered North Pole Productions to offer reinstatement to eight fired elves, among other remedies.

Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejecting arguments that the elves’ actions were not protected because in part they chose to blast Santa on numerous websites geared towards children. The decision largely upholds a 2007 ruling by Administrative Law Judge William G. Kocol, which Santa had appealed.

“The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against the elves because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct,” the decision states.

The union organizing campaign began in the winter of 2006 after a number elves resigned to protest what they claimed was interference with their reporting of what they claimed were “Grinch-like” working conditions generated at the North Pole facilities. An election petition was filed in the winter of 2006 by the International Brotherhood of Elves, Reindeer and Santa’s Helpers, and the employees voted overwhelmingly in favor of the Union. Santa rejected the union vote claiming “I’ll be dammed…I mean darned… that I’m going to kowtow to a bunch of disgruntled elves who were the worst performers in the shop. Yeah I work ‘em hard but it’s the dreams of millions of kids I’m worried about. This is my shop and I plan to run the way I have since the beginning”. The decision covers the period following the petition filing.

The Board ordered Santa to cease and desist from the illegal activity, and to take the following affirmative remedial steps: offer reinstatement to eight elves, including six who hung a banner from a footbridge urging children to cancel their Christmas plans and two others who were ostensibly fired for ‘complaining about rushed work conditions’; rescind discriminatory evaluations of four union supporters; rescind suspension notices sent to eleven elves; and make all discriminated elves whole with back pay awards.

Chairman Liebman and Member Becker also ordered that Santa read, or be present at the reading of, the complete NLRB notice to be posted.

How Santa intends to respond to this ruling has not yet been disclosed.

In three recent cases, the National Labor Relations Board (NLRB) has indicated that employee comments about their employment on social media web sites like Facebook may not be protected under federal labor law. These cases signal a retreat from the NLRB’s trend in late 2010 and early 2011 to issue complaints involving employer discipline of employees who posted complaints about their employment online.

Section 7 of the National Labor Relations Act (NLRA) protects employees who engage in “concerted activity” for their “mutual aid and protection.” The NLRB had long held that an employer could restrict public statements by its employees, provided that the purpose of the employer’s policy was to maintain a “civil and decent work place” and did not explicitly restrict employees’ rights to engage in protected, concerted activity, such as supporting an organizing campaign.

However, with the widespread popularity of social media web sites like Facebook, the NLRB issued several complaints against employers that enforced social media policies and disciplined employees—both union and non-union—who posted online comments about their employment. In February 2011, the NLRB settled a complaint that had challenged an employer’s policy prohibiting employees from depicting the employer “in any way” on social media sites and prohibited disparaging comments about co-workers or superiors. In May 2011, the NLRB issued a complaint involving the discharge of an employee who made a hostile Facebook posting about a sales event that he believed could impact the earnings of car sales employees. Similarly, in late June 2011, the NLRB alleged that a nonprofit organization had illegally fired five employees for posting on an employee’s Facebook page negative comments about working conditions and staffing. These cases strongly suggested that the NLRB would treat as protected activity virtually any social media posts by employees.

However, in three recent cases, the NLRB’s Division of Advice declined to issue complaints involving employer discipline of employees for their social networking activity, even where their online comments were job-related. In each instance, the NLRB explained that the employee comments did not constitute protected concerted activity, but instead were more appropriately considered personal gripes outside the protection of the NLRA:

• In JT’s Porch Saloon & Eatery, Ltd., an employee’s online conversation with a relative, stating that he had gone five years without a raise and commenting negatively about his employer’s customers, was not protected concerted activity. The NLRB held that the online complaints were never discussed with other employees nor did other employees respond to the posting.
• In Martin House, an employee commented during an online conversation on Facebook with non-employees about her work for a mental health service provider, stating that it was “spooky” working at night in a “mental institution.” The NLRB found no basis to issue a complaint, finding that the online postings did not mention any terms or conditions of employment, were not discussed with other employees, and received no comments or responses from other employees.
• In Wal-Mart, a customer service representative posted disparaging comments about his manager and Wal-Mart on his Facebook page. Although two co-workers responded to his posting, the NLRB concluded that the comments merely expressed the employees’ “individual gripes” and did not constitute an effort to induce Wal-Mart employees to engage in group action.

These cases suggest that the NLRB is retreating from its recent overly expansive definition of “protected concerted activity” in the social media context, and that employee social networking activity is not without reasonable limits. These cases serve to reassure employers that while the NLRB has taken an aggressive approach toward overly broad or restrictive social media policies, simple online personal attacks posted outside the workplace are not guaranteed protection under federal labor law.

Article courtesy of Worklaw® Network firm Franczek Radelet P.C.