California Employment Law : Employment Lawyer & Attorney : Fox Rothschild Law Firm : San Francisco, Oakland, Los Angeles, San Diego

          Last July, I wrote about efforts by the National Labor Relations Board to argue that certain language in at-will provisions violated section 7 of the National Labor Relations Act. As of yesterday, the NLRB has clarified its position on at-will disclaimers. In doing so, the Board specifically approved a provision saying that the employee's at will status could only be changed in a writing signed by the company president.

          This seems to me more like an "about face" than a "clarification." But either way, it's good news for employers.

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Fresh off its efforts to dictate what can and can’t be in a social networking policy, to bar class action waivers in arbitration agreements, and to require all employers to post notice regarding rights to organize, the National Labor Relations Board is now claiming that common language in at-will provisions may constitute a section 7 violation.

Section 7 of the National Labor Relations Act guarantees employees the rights to organize and bargain collectively. As reported by Abigail Rubenstein in today’s Employment Law 360 (subscription required), the NLRB has pursued claims against two employers over language that appears in the vast majority of at-will provisions.

According to the NLRB, the problem is not the at-will language per se. It’s the language that says that it can’t be changed except in a writing signed by a particular company representative.

The requirement is intended to preclude employees from arguing that a discussion with some manager modified the at-will provision. But according to two claims that the NLRB filed out of its Arizona region, saying that the at-will language can’t be modified could be interpreted to interfere with employees’ section 7 rights.

There are ways around this, such as modifying policies to say that the at-will provision can only be modified by an enforceable written agreement. But for now, if you’re not in Arizona, the best approach is probably to wait and see if this goes anywhere. The trend of the NLRB trying to extend its reach to the non-union workforce, however, is unmistakable.

[Update: November 1, 2012 -- As of yesterday, the NLRB has clarified its position on at-will disclaimers. In doing so, it specifically approved a provision saying that the employee's at will status could only be changed in a writing signed by the company president.]

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No need to post that NLRB poster by April 30th.  Here's an update from Chip Zuver:

As most of you are already aware, the NLRB issued a rule requiring employers covered by the National Labor Relations Act (the Act) to post a notice advising employees of their rights under the Act, irrespective whether the employer was union or non-union. The notice posting rule was scheduled to go into effect on April 30, 2012.

The National Association of Manufacturers and the South Carolina Chamber of Commerce filed suit claiming the rule exceeded the NLRB's authority. In March 2012, a federal district judge in D.C. ruled that the NLRB had the authority to require employers to post a notice advising employees of their organizational rights. The National Association of Manufacturers then sought to enjoin the implementation of the rule pending its appeal of the district court judge's decision. The judge rejected the request. However, last Friday, a federal district judge in South Carolina concluded that the NLRB exceeded its authority in requiring employers to post the notice. This created a split in the federal courts. Then this morning, the U.S. Court of Appeals for the D.C. stepped in and enjoined enforcement of the notice pending the D.C. Circuit's resolution of the matter on the merits.  That means employers do not need to post the notice at this time.

Chances are that the court will not reach a decision on this matter before December 2012. Therefore, employers have at least a temporary reprieve before the notice must be posted. 

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Last week I participated on a panel that presented "50 Legal Tips in 50 Minutes" at the Cornell HR in Hospitality Conference.  Our goal was to provide 50 practical and pithy tips for HR practitioners.  The presentation was well received.  For a summary of tips 1-26 click here; for a summary of tips 27-50 click here.

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Thanks to Kent Bradbury for the following post:

On September 28, an Administrative Law Judge for the National Labor Relations Board issued his ruling in a case involving the termination of an employee at a car dealership for postings he made on his Facebook page about events at work.  The postings included pictures and comments on two subjects: (1) serving hot dogs and fruit at an important customer roll-out event and (2) an accident at the owner’s neighboring dealership where a salesperson let a 13-year old behind the wheel of an SUV.  The judge found that terminating the employee because of the postings did not violate the NLRB because it was primarily based on the SUV accident which did not involve any protected concerted activity.  Good news, right?

Maybe not. It appears from the opinion that only a very narrow set of facts will allow an employer to get out of an NLRB charge related to comments and postings on Facebook or other social media. 

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In honor of Labor Day, I wanted to devote this blog post to a recent flurry of pro-union activity. While these are federal law labor law issues, they will most certainly impact California employers.

So what’s going on? You may remember a few years back when we all thought the Employee Free Choice Act (EFCA) might pass. Under EFCA, secret ballot elections were to be wiped out in favor of mandatory card check, there would be tighter timelines for bargaining, mandatory arbitration, and increased penalties for employers. It was a pro-labor panacea. But no dice. The economy tanked and EFCA went down along with it.

So then what happened? The Obama Administration appointed two pro-union members to the National Labor Relations Board (NLRB), Craig Becker and Mark Pearce, who joined Wilma Liebman (a Clinton appointee elevated to Chairman by President Obama).

Given the make-up of the NLRB, what was predicted? Most of us labor attorneys anticipated there would be expanded rule making to try to implement some EFCA-type changes, that there would be expedited elections, and that other actions would be taken to make opposing organizing campaigns or disputing election results more difficult for employers.

And what has happened recently? Just that. Here are the highlights:

1) The NLRB issued a final rule requiring employers, even those without unionized workforces, to post a notice informing employees of their rights to unionize. The posting isn’t required until November 14, 2011 and will be available for free on the NLRB’s website around November 1st.

2) The NLRB issued proposed rules to expedite elections and shorten the amount of time for employers to fight off a union campaign.

3) The Department of Labor proposed regulations that would make it very hard for attorneys to advise employers in union organizing campaigns.

4) Three NLRB decisions overruled the prior administration’s pro-employer holdings and made it more difficult for employers to challenge a new union’s status or an incumbent union’s representation when a business is sold, and also made it more difficult to challenge the scope of a bargaining unit.

Of note, all of this happened just before Chairman Liebman’s last day on the job. Coincidence? Not a chance. Happy Labor Day!
 

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