HR That Works Blog

“All anyone asks for is a chance to work with pride.” —Dr. W. Edwards Deming

This issue discusses:

• Editor’s Column: Human Resource Information Systems (HRIS) – New and Improved
• Can You Cut Benefits Costs by Moving Employees to Medicare?
• Quantum HR
• Disability Employment Statistics
• Medical Documentation: Think About What’s Needed and Stop There
• ‘Bad Haircut’ and Unequal Policy Enforcement Lead to Trouble for Employer
• Leave as a Reasonable Accommodation

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Human Resource Information Systems (HRIS) – New and Improved

I see Human Resource Information Systems (HRIS) as the equivalent of “QuickBooks for managing the workforce.” They can handle employee data beginning with payroll right through to COBRA administration. Along the way, HRIS systems offer bells and whistles to help manage this data, including payroll, benefits administration, leave management, learning management, and more.

As a rule, companies with 100 employees or more have dominated the HRIS market, because these systems require a significant investment in time and money – with little short-term return. However, increasing competition in the upscale market means that HRIS providers are beginning to target smaller employers.

Here are some of the trends with these systems:

• Integration with social media platforms, including everything from Facebook to Twitter, et al.
• An improved interface that makes the system easier to use and more inviting for employees.
• Tie-ins to insurance billing (real time Workers Comp billing, benefits billing, etc.)
• Mobile access, including for time-keeping purposes, as well as integration with tablet accessibility (iPads, etc.)
• Greater assistance with online recruiting and link to recruiting portals.
• Increased use of “talent analytics” that help with recruitment, workforce planning, and succession planning, together with improved analysis of workforce facts, trends, etc.
• The “gamification” of these systems.
• Influence of “the cloud” — the storage of data maintained on secure third-party Web sites, rather than your own site (like HR That Works). Of course, you’ll have to make sure that these third-party sites are, in fact, secure.
• Integration of career planning “dashboards.”
• Increased usage of paperless technology for everything from submitting resumes to electronic signatures on documents.
• Integration with employee wellness programs.

The main advantage of an HRIS system, as with a QuickBooks program, is having well managed data. HRIS advertising stresses the time saved in pulling reports on such topics as turnover. However, most smaller companies already know their turnover level.

Second, bear in mind that companies using HRIS are already running at 75 mph. Where will they get more time to use the system? When analyzed properly, do these systems really save time? Are HRIS bells and whistles truly related to corporate strategy or are they nothing more than distracting shiny objects?

Can You Cut Benefits Costs by Moving Employees to Medicare?

Many employers are doing everything they can to reduce benefit costs. One of our HR That Works Members posed this question to Alan Levy, a benefits law expert in our network.

“Q: If an employee is eligible for Medicare, can we state/insist that they must leave our company plan and accept Medicare?”

“A: We had this question from a client recently. There are serious penalties for forcing an active employee to give up the employer’s plan and go to Medicare, and offering a personal incentive might pose a problem. However, an employee can change to Medicare voluntarily, without restrictions or charges for pre-existing conditions, etc. This also applies to Medicare supplements and advantage problems. Some employees make the change voluntarily to use the current rule’s automatic unqualified acceptance, as well as to assure any “grandfathered” rights if Congress reduces or alters the program in the future. (Every “reform” proposal seems to exempt anyone already on Medicare.) A bigger problem is what happens to an employee’s spouse who isn’t old enough for Medicare if the employee leaves the company plan and goes to Medicare. Although COBRA works for a while, extension of this period is problematic.

“Finally, an employer offering a Medicare supplement or advantage plan to all who could qualify is not considered an improper incentive; the danger comes when the employer offers an individual some extra amount. The only exception I know of in this regard is the Third Circuit rule (applicable only in PA, NJ, and DE), Erie County, which treats certain variations of this scenario as age discrimination under the ADEA. EEOC says it will not apply the Third Circuit rule anywhere else in the nation, which seems to support the idea that employers offering the supplement, etc. is permissible.”

This advice is limited to the facts of the situation. As Alan points out, the EEOC has not drawn a black and white line on permissible supplements. The Social Security Administration provides an excellent publication on the interplay between private insurance and Medicare payments. (See pages 13-14)

Quantum HR

Our understanding of the physical world grows ever deeper. Quantum physicists have taught us that simply observing matter can affect its activity. We know that bits of matter once bonded together remain “entangled” even when separated by great distances. We should remember from Physics 101 that matter likes to settle into its least active state (entropy).

What do these facts have to do with HR? It’s simple: How people think about doing their jobs has implications that might be far broader than realized. If we accept the teachings of quantum physics at face value, then:

• Due to entanglement, how you go through your day will have an invisible, but perceptible impact on how the people you bond with feel every day. If you’re having a bad day, at some point, many of your co-workers and loved ones will feel this fact.
• Much of our existence depends on what we choose it to be. The very concept of “making your day” has scientific backing. As the proverb says, “As you believe, so shall you achieve.”
• Finally, unless you’re excited, it’s natural to use the least amount of energy possible to do a job. If you want to move yourself to a higher frequency, you have to get excited. Although some of us do this naturally, most people need a little motivation to get going. Don’t underestimate the power of this motivation in your business and personal life.

Because any organization is a collection of individuals, these concepts apply to the group as a whole. A positive company culture means that there’s a positive vibration among the workforce.

Disability Employment Statistics

The Institute on Disability at the University of New Hampshire has just issued its Annual Disability Statistics Compendium. Here are some of the stats related to employment in 2010. Click here to see the entire report.

Among the 19,048,426 individuals with disabilities ages 18 to 64 years living in the community, 6,368,644 were employed — an employment rate of 33.4%. In contrast, among the 172,089,634 individuals without disabilities ages 18 to 64 years living in the community, 125,358,735 were employed — an employment rate of 72.8%. The employment rate for people with disabilities was highest in North Dakota (54%) and lowest in Kentucky (25.7%).

The employment rate for individuals with disabilities ages 18 to 64 years living in the community was 33.4% while the rate for individuals without disabilities ages 18 to 64 years living in the community was 72.8% — an “employment gap” of 39.4%. The employment gap was greatest in Maine (48.9%) and smallest in Wyoming (27.7%).

The employment gap between individuals with and without disabilities ages 18 to 64 years living in the community was 39.4%, compared with 39.1% in 2009.

Among the 19,048,426 individuals with disabilities ages 16 to 64 years living in the community, 3,834,727 were employed fulltime, year-round — a full-time, year-round employment rate of 20.1%. In contrast, of the 172,089,634 individuals without disabilities ages 16 to 64 years living in the community, 88,683,091 were employed full-time, year-round — a full-time, year-round employment rate of 51.5%. The full-time, year-round employment rate for people with disabilities was highest in North Dakota (32.1%) and lowest in Maine (15.2%).

Finally, the full-time, year-round employment rate for individuals with disabilities ages 18 to 64 years living in the community was 20.1%, while the full-time, year-round employment rate for individuals without disabilities ages 18 to 64 years living in the community was 51.5% — a full-time, year-round employment gap of 31.4. The full-time, year-round employment gap was greatest in Maine (38.8%) and smallest in Utah (24.1%).

What can an employer take away from this?

• Obtaining gainful employment can be a real struggle for people with disabilities.
• Some communities are more “open” to employing the disabled. Some of this difference has to do with the types of jobs available, employment programs, and incentives.
• As “good people” we can rise above any perceived limitations and employ those with disabilities based on the results they are capable of producing.

To help with accommodation ideas go to http://askjan.org/.

Medical Documentation: Think About What’s Needed and Stop There

In our experience at JAN, there seems to be a great deal of confusion about medical documentation under the ADA. Employers aren’t sure what they can ask for, when they can ask for it, or whether the ADA Amendments Act has changed the rules for medical documentation. Employees aren’t sure what medical information they have to provide or how much to disclose. Medical professionals aren’t sure what documentation will be most helpful in getting their patients the workplace accommodations they need. Most of these questions come up when an employee requests an accommodation.

The good news: The medical inquiry rules that apply when an employee requests an accommodation are less complicated when they might seem. The general rule is that when the disability or need for accommodation is not obvious, an employer may require an employee to provide documentation that can substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but can’t ask for unrelated documentation. So when thinking about what medical information to request or to provide, think about what is needed and stop there!

Let’s start with the documentation needed to substantiate that the employee has a disability. The definition of disability for accommodation purposes is “a physical or mental impairment that substantially limits a major life activity or a record of such an impairment.” To determine whether an employee has a disability, the employer can ask whether the employee has (or had) an impairment. If yes, you can ask whether the impairment affects (or affected) a major life activity. You can also ask whether the impairment substantially limits (or limited) the major life activity.

This is where the ADA Amendments Act has made some changes. Although the definition of “disability” remained unchanged, the threshold for showing substantial limitation is much lower than before. This means that the documentation needed to show that an employee has a disability should be far less extensive.

What about the documentation needed to substantiate the need for an accommodation? The ADA Amendments Act did not change the reasonable accommodation provisions of the ADA, so the rules for medical documentation likewise remained unchanged. An employer may verify that the accommodation is needed, ask questions about the employee’s limitations that are causing the problem, and get other relevant information about the request to help determine effective accommodations.

For more information, see recently updated JAN publications related to medical documentation, including:

• How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act Amendments Act (ADAAA)
• Medical Inquiry in Response to an Accommodation Request
• Sample Medical Inquiry Form
• Practical Guidance for Medical Professionals: Providing Sufficient Medical Documentation in Support of a Patient’s Accommodation Request and Sample Accommodation Support Letter

- Linda Carter Batiste, J.D., Principal Consultant

‘Bad Haircut’ and Unequal Policy Enforcement Lead to Trouble for Employer

In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee for allegedly photographing employees at work without permission. The Court agreed with the Board’s findings that the employee was actually discharged because of protected concerted activity and that the employer had not enforced its photography and dress code policies consistently.

Nichole Wright-Gore worked as a supply clerk for White Oak Manor. White Oak’s policies prohibited employees from wearing hats and taking photographs inside the long-term care facility. Wright-Gore was embarrassed about a bad haircut and started to wear a hat to work, without comment from any supervisor. After a week, however, when supervisors told her to remove the hat, she refused and was sent home. The next day, White Oak employees dressed up in costumes for Halloween. Wright-Gore’s costume included a hat, but her supervisor made her remove the hat pursuant to company policy. Wright-Gore complained that White Oak was enforcing the hat policy unequally, but her supervisor told her to worry only about herself and gave her a written warning for insubordination because she had refused to remove her hat the day before.

During the next few weeks, Wright-Gore photographed several employees wearing hats to work and violating other White Oak dress policies, such as failing to cover up their tattoos. She photographed some employees with their consent, but also took photographs of employees without their consent. She also shared the photographs with other employees and discussed the unequal treatment with them in an attempt to build support for her argument. White Oak eventually discharged Wright-Gore for violating the photography policy.

She then filed an unfair labor practice charge alleging that White Oak interfered with her right to engage in protective concerted activity. The Administrative Law Judge (ALJ) found that Wright-Gore’s complaints became protected concerted activity when they evolved into an effort to have White Oak enforce its dress code policies fairly. Another important issue was whether she lost protection of the Act by taking pictures of other employees without permission, in violation of White Oak policy. The ALJ held that she did not, in part, because there was evidence that other employees took pictures of each other without permission, and even displayed the pictures around the facility, without repercussion. The Board affirmed the ALJ findings.

On appeal, White Oak argued that Wright-Gore could not have engaged in protected concerted activity because she initially acted out of pure self- interest, and did not intend to act on behalf of a broader group. The Fourth Circuit rejected this argument and enforced the Board’s decision. As the court noted, “[t]hat an employee’s self-interest catalyzed her decision to complain about working conditions does not inexorably bar a determination that her actions were protected and concerted.” Thus, the fact that Wright initially acted out of her own self- interest did not remove her actions from the protections of the Act. Moreover, the court’s decision emphasized the fact that White Oak had not enforced its photography or dress code policies consistently.

This case reinforces the importance of employers enforcing workplace policies consistently and the reality that seemingly individualized complaints can lead to employer decisions which conflict with the National Labor Relations Act.

Courtesy of Worklaw® Network firm Franczek Radelet.

Leave as a Reasonable Accommodation

One of the more vexing issues facing both employers and employees involves leave time related to a medical condition, especially when the period of leave exceeds an employer’s permitted leave allowance or otherwise violates an established attendance policy. Although such situations might be challenging and confusing, employers must confront them directly because using leave necessitated by an employee’s disability constitutes a “reasonable accommodation” under the ADA.

The U.S. Equal Employment Opportunity Commission’s (EEOC) Reasonable Accommodation Guidance provides examples of some of the reasons an employee with a disability might require leave:

• Obtaining medical treatment or rehabilitation services related to the disability.
• Recuperating from an illness or an episodic manifestation of the disability.
• Obtaining repairs on prosthetic device or other equipment such as a wheelchair.
• Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
• Training in the use of a service animal or assistive device.
• Training in the use of Braille or sign language.

Here’s a discussion of some frequent and confusing leave-related issues that employers and employee have presented to JAN.

How Much Leave Is Reasonable? The ADA does not set a specific amount of time relative to the use of leave as a reasonable accommodation. As with any accommodation situation, you should consider a period of leave for an employee with a disability on a case-by-case analysis. If an employee needs a leave of absence that exceeds his or her accrued paid leave, the employer should permit the employee to exhaust the paid leave and then allow the use of unpaid leave absent undue hardship.

Although there’s no limit on the amount of leave used as a reasonable accommodation under the ADA, the EEOC has held that employers need not grant indefinite leave as a reasonable accommodation (see the EEOC Guidance on Applying Performance and Conduct Standards, Question 21). However, the employee need not provide a specific, fixed date of return. A request for leave is acceptable with an approximate date of return (e.g., around the end of August) or a range of dates for a return to work (e.g., sometime between August 24 and September 23).

ADA and the Family and Medical Leave Act (FMLA). An employee’s rights under the ADA and the FMLA are separate and distinct. The EEOC has ruled that when an employee is entitled to leave under both laws, the employer should allow leave under the law providing the employee with the greater rights (see the EEOC Fact Sheet on the FMLA, ADA, and Title VII). Additionally, employers should note that the ADA might require them to grant leave beyond the 12 weeks allowed under the FMLA as a reasonable accommodation. In this case, an employer can consider the FMLA leave taken in determining whether the requested leave time poses an undue hardship.

Erratic or Unreliable Attendance. The ADA can require employers to modify attendance policies as a reasonable accommodation in the absence of undue hardship. This does not mean that employers must exempt an employee from time and attendance requirements completely or accept irregular and unreliable attendance unquestionably. Frequent occurrences of tardiness or absenteeism, particularly during an extended period and without adequate notice, could certainly impose an undue hardship in many situations. See the Commission’s Guidance on Applying Performance and Conduct Standards for a detailed discussion with examples of specific scenarios.

Alternative Accommodations. Although it makes sense for employers to give an employee’s choice of accommodation primary consideration when more than one reasonable accommodation is possible, they can ultimately choose the accommodation to be implemented, assuming that it’s equally effective. Accordingly, under the ADA an employer can offer a reasonable accommodation that requires an employee to remain on the job, as long as it’s effective and doesn’t interfere with the employee’s medical needs.

Holding the Employee’s Position. The ADA requires an employer to consider returning the employee to his or her same position in the absence of undue hardship. If undue hardship applies, the employer must consider reassignment to a vacant, equivalent position for which the employee is qualified.

Undue Hardship. As with any other reasonable accommodations, whether an employer should allow the use of leave as an accommodation will sometimes come down to an undue hardship analysis. In the case of leave, undue hardship will generally relate to a possible disruption in operations of the entity. For instance, the absence of an employee who performs highly specialized duties might create legitimate undue hardship issues, as might leave that occurs in a frequent and unpredictable manner. Generalized assessments are not adequate, because undue hardship must be determined based on individual and specific circumstances. Additionally, the EEOC has ruled that an employer cannot base an undue hardship claim on the argument that a reasonable accommodation might affect the morale of other employees negatively or that other employees might have to cover for the employee who is on leave.

What to Remember. Ultimately, much of the confusion involving leave as an accommodation occurs when there are no clear and open lines of communication. Lack of communication is usually the major obstacle to executing an effective accommodation solution. All parties need to be aware of any relevant updates or concerns, and everyone should make an effort to keep the information flowing. If you need ideas on how to encourage ongoing communication during the accommodation process, contact JAN.

- Bill McCollum, MPA, Consultant

Form of the Month

I-9 Guidelines Audit (PDF) – Use this form for auditing your I-9 Forms, which verify the citizenship status of employees.

Podcast

Click here to to listen to this month’s newsletter podcast.

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses. 

The new effective date of the rule is Jan. 31, 2012. 

The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance. No other changes in the rule, or in the form or content of the notice, will be made.

Member Brian E. Hayes dissented from the adoption of the final rule. For this reason, he agrees with any postponement of the effective date of the rule.

Most private sector employers will be required to post the 11-by-17-inch notice, which is available at no cost from the NLRB through its website, either by downloading and printing or ordering a print by mail.

For further information about jurisdiction and posting requirements, please see our Frequently Asked Questions, which will be updated frequently as new questions arise. For questions that do not appear on the list, or to arrange for an NLRB presentation on the rule, please contact the agency at questions@nlrb.gov or 866-667-NLRB.

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.

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 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.