Tag Archives: employer legal advocate

NLRB GC outlines federal protections for employee social media activity

Report addresses what employers can and can’t do when an employee goes all @normarae

By George AsimouVictor Geraci and Todd Sarver

The Office of General Counsel of the National Labor Relations Board (“NLRB”) issued a sprawling Report of the General Counsel (“Report”) on the interaction of employee social media activity and the National Labor Relations Act yesterday.   The Report summarizes the Office of General Counsel’s findings in a wide array of cases submitted for its review and provides some useful guidance for employers grappling with employee social media activity.  As a reminder, the NLRB has jurisdiction over union and non-union workplaces.

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Alleged employee theft highlights continued need for employers to protect themselves

As reported in Employment Law360 just recently (www.law360.com/articles/264657), allegations of employee theft of confidential and trade secret data require that employers ensure that adequate safeguards (i.e., restrictive covenants, confidentiality agreements, technology controls) are in place to prevent the loss of this valuable property.TradeSecretLock.jpg

For example, Citigroup Global Markets, Inc. just sued its former Vice President in New York, claiming that she sent at least 11 emails to her personal e-mail account that contained the company’s strategic initiatives, financial projections for projects, and details of marketing strategies and campaigns.  These e-mails, according to the filing, were sent just days before the Vice President’s resignation from the company.

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Wisconsin recall results and what it means for S.B. 5

As we recently reported, opponents of changes to Ohio’s Public Employees’ Collective Bargaining Law (popularly known as S.B. 5) recently succeeded in collecting the signatures necessary to place the issue of overturning S.B. 5 on the 2011 November ballot.  We also noted that polling from the Quinnipiac University Polling Institute indicated that 56% of respondents favor repeal, while 32% support keeping the law in place.

Tuesday night, Wisconsin voters in six state senate districts went to the polls to vote on the proposed recall of six Republican state senators who voted in favor of similar (arguably, more aggressive) public bargaining reform proposed by Wisconsin Governor Scott Walker and passed by the Wisconsin State Assembly amid much partisan rancor.  Republicans retained four of the six seats contested, narrowly averting the loss of a third seat that would have tipped the Wisconsin Senate majority in favor of the Democrats. 

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On Like Donkey Kong: S.B. 5 referendum officially set for November

Ohio Secretary of State Jon Husted officially certified that opponents of recently enacted changes to the Public Employees’ Collective Bargaining Law (popularly known as S.B. 5) had collected 915,456 valid signatures, easily surpassing the necessary legal requirements to place the issue on the 2011 November ballot.election_ballot_box_2.bmp

The most recent polling from the Quinnipiac University Polling Institute indicates that 56% of respondents favored repeal, while 32% support keeping the law in place.  But the fight is far from over:  The same polling suggests that Ohioans support mandatory minimums on public employee health care and pension contributions and basing pay on merit rather than seniority by similarly strong majorities.  This polling data suggests that Ohioans may be generally leery of limiting public employees’ right to bargain over terms and conditions of employment, but support imposing certain conditions on all public employees.

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Ohio House Bill 286 follows Arizona’s lead as to employment of unauthorized aliens

On May 26, 2011, the United States Supreme Court upheld an Arizona statute regarding the employment of unauthorized aliens.  The Arizona law requires employers within the state to use the federal government’s E-Verify program to check the work authorization status of employees and imposes licensing sanctions against employers that “knowingly or intentionally” employ unauthorized aliens.  In upholding the Arizona law, the Court determined that states were free to act in this area under the terms of the federal Immigration Reform and Control Act (IRCA).

On June 29, 2011, in the wake of the Supreme Court’s decision, House Bill 286 was introduced in the Ohio House of Representatives.  The bill, which was sponsored by 14 lawmakers, seeks to amend Ohio law to include provisions similar to those included in the Arizona statute.

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EEOC to Employers Via $20M Verizon ADA Settlement: Can you hear me now?

The EEOC announced on Wednesday July 6, 2011 that it had settled a nationwide class disability discrimination suit with Verizon for $20 Million – the largest ADA settlement in EEOC history.  The EEOC filed suit in federal court earlier this month alleging that Verizon’s “no fault” attendance policies mandated “that when an employee accumulates a designated number of ‘chargeable absences’ an employee is placed on a disciplinary ‘step’ and additional ‘chargeable absences’ during such step period result in the placement of the employee in the next step, which has more serious consequences, up to termination.”

The EEOC noted that such policies made no exceptions for disability-related leaves, which is contrary to the EEOC’s enforcement position that one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) are violative of the Americans with Disabilities Act.  The policy did exempt FMLA leave.

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How Not To Be A "Horrible Boss": A defense litigator’s perspective

The dark comedy “Horrible Bosses” opens nationwide this weekend.  The film’s trailer highlights Colin Farrell’s character directing a subordinate to “trim the fat” by firing all “the fat people.”  The other two bosses – played by Jennifer Aniston and Kevin Spacey – are equally despicable.

This may make for good cinema, but employment defense attorneys rarely see such blatant expressions of bad intent.  Most supervisors are well aware that it is illegal to discriminate against employees based on protected characteristics (which in some states include weight).  Nonetheless, communication problems that occur every day make employment defense attorneys cringe.

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Ohio voters likely to decide fate of S.B. 5 on November 8th

In a demonstration that worker revolt in debt-laden states is not the mere province of cheese loving peoples (the Greeks, the French, and Wisconsinites), members of Ohio’s public employee unions, under the banner of “We Are Ohio”, took to the streets of Columbus on June 29th and presented Secretary of State Jon Husted with nearly 1.3 million signatures in favor of a petition for a public referendum to repeal recently passed amendments to the Public Employees’ Collective Bargaining Law (popularly known as S.B. 5). The 1,298,301 signatures collected far exceed the 231,149-signature requirement for putting repeal of S.B. 5 on the ballot this coming November—and in fact represents the largest haul of signatures ever collected for a referendum petition in the state’s history. 

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The Times They Are A-Changin’: The Obama NLRB issues proposed new rules to revamp the union election process

In the face of the failure of the Employee Free Choice Act, the Liebman-led NLRB has taken it upon itself to overhaul the union election process.  According to the NLRB, the changes will “remove unnecessary barriers to the fair and expeditious resolution of questions concerning representations,” despite the fact that in FY 2010, the median timeframe for conducting initial elections was 38 days and 95% of all elections were conducted within 56 days.  As Member Hayes said in his dissent, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation process takes too long.  It is that unions are not winning more elections.”

The proposed changes to the current election process include:

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The Death of Employer Free Speech: Labor relations and the proposed rules by the DOL and the NLRB

In a one-two punch, the DOL and the NLRB issued notices of proposed rulemaking that together seek not only to hamstring employers in communicating with employees during a union organizing effort, but also to hamstring employers in communicating with employees about unions at all. These efforts are little more than a thinly veiled attempt to circumvent Congress and salvage the Obama administration’s support from organized labor – particularly following the Employee Free Choice Act debacle. Indeed, perhaps the “transparency” repeatedly espoused in the notices would be a little more credible if the agencies just came clean and admitted their role as political pawns.

The net effect of the proposed regulations is to expedite union elections, thereby providing a further advantage to organized labor (which is already winning over 50% of elections), and to effectively kill what an employer can actually do in the truncated time they would have. With a current median election time of 38 days from the date of petition (with 95% of elections occurring within 56 days), the NLRB’s proposed rules realistically seek to reduce that time period to not much more than 20 days. The purpose of the quickie election, of course, is to allow the union to propagandize its target audience, file a petition and hold the election immediately – before employees can be educated on the fact that there is a view other than the union’s.

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