”. . . acknowledgement form [with at-will language] is essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.  For all pratical purposes, the clause in question premises employment on an employee’s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship.  Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights.”

     This appears to be another effort by the NLRB to extend its reach beyond the typical sphere of labor relations.  Quite frankly, it is extremely difficult to understand the rationale by the ALJ.  Needless to say there probably have been tens of thousands of union organizing campaigns and petitions to the NLRB for representation in which the employer has promulgated the traditional at-will language in an employee handbook, employment application or policy manual.  Obviously, and contrary to the ALJ’s holding, the at-will language did not, in fact, “chill” any employee’s efforts to organize or for that matter to engage in protected concerted activity.

    This holding, if upheld and/or followed is quite troubling.  Employers who are not unionized need to consult with their counsel to review their at-will provisions and possibly make some addition or modification to avoid an Unfair Labor Practice Charge.

While many people are aware that President Obama signed the Middle Class Tax Relief and Job Act on February 22, 2012 extending the payroll tax cut, few knew about a provision in that law which helps employer avoid layoffs.  This provision is called the Layoff Prevention Act of 2012.  This new law amends the Internal Revenue Code by creating the Short-Term Compensation Program.  

This new program helps employers avoid layoffs during an economic downturn.  The benefit to employers is the ability to keep employees who would otherwise be laid off and possibly find new employment before a possible recall.  The benefit to the employees who would have been laid off is they get to remained employed.  The employees who were not selected for layoff however, will suffer a reduction in compensation.  Here’s how it works: 

Instead of laying off some employees, the employer is empowered to reduce the hours worked by the workforce, or part of the workforce.  Employees, whose hours are reduced by at least 10 percent, but not more than 60 percent, will not be disqualified from receiving unemployment insurance benefits.  The employees whose hours are reduced would then receive a prorated share of the unemployment benefits to which they would have been entitled had they been totally laid off.  

This program is completely voluntary for employers.  There are several other requirements for implementing this program and employers should consult with their employment law counsel for guidance. 

Note however, that if the employees are represented by a labor union, it does not appear that this statute will be applicable.  Under federal labor law an employer whose employees are represented by a union will have to bargain with the union regarding a reduction in hours to avoid a layoff.  Employers may want to consider negotiating a provision in future collective bargaining agreements to facilitate such a program.

 The case being heard by the D.C. Circuit is the one brought by the National Association of Manufacturers, among others.  The Court, in its very brief Order, noted the very recent holding by the United States District Court for the District of South Carolina, holding that the National Labor Relations Board lacked the authority to promulgate the notice-positing rule.

 Stay tuned . . ..

The Employer and theUnionhad previously agreed to the following language in their collective bargaining agreement: 

The Employer shall continue to contribute to theCentralStates, Southeast and Southwest Areas Teamsters Pension Fund, the sum of $49.00 per week per covered employee for the year beginning December 1, 1988, $55.00 per week for the year beginning December 1, 1999, and $61.00 per week for the year beginning December 1, 2000.  The Union and the members of the Bargaining Unit have agreed that only the liability of the Company to the Pension Benefit Plan of the Central States, Southeast and Southwest areas [sic] Pension Funds are, have been and shall be limited to the actual contributions it makes during the course of the past, present and future Contracts, and the Company shall not be liable for any other obligation or contingent obligation of any kind or nature whatsoever.  TheUnionshall indemnify the Company for any contingent liability which may be imposed under the Multi-Employer Pension Plan Amendments Act of 1980. 

During the negotiations for a new collective bargaining agreement, theUnioninformed the Company that it disclaimed its representation of the employees of the Employer.  As a result, the Employer withdrew from the pension plan.  Subsequently, the Health and Welfare and Pension Funds imposed withdrawal liability against the Employer. 

 The Employer then demanded indemnification from theUnion.  TheUnionrefused and the Employer commenced a lawsuit in federal District Court, seeking to enforce the indemnification provision.  TheUnionargued that the provision violated public policy and alternatively argued that the issue must be arbitrated.  The District Court stayed the lawsuit and enforced the arbitration provision.

 The matter was the arbitrated and the Arbitrator held that the indemnification provision was enforceable and did not violate public policy.  Subsequently, back in District Court, the Court upheld the Arbitrator’s award and ordered theUnionto comply with the indemnification provision.  That resulted in the appeal to the Sixth Circuit.

 The Sixth Circuit Court of Appeals agreed with the District Court and the Arbitrator and joined the Third Circuit in holding that the indemnification provision did not violate public policy.

 Employers should definitely consider negotiating this language into any future collective bargaining agreements.

 The plaintiffs alleged that BNSF “perceived” them to be disabled and that is why they were not hired.  BNSF asserted that it withdrew the offers based on the medical requirements and safety concerns for the positions for which they applied (Conductor or Conductor Trainee).  BNSF asserted that they were welcome to apply for other positions that did not have the same medical requirements. 

During its investigation, the EEOC requested that BNSF produce “any computerized or machine-readable files . . . created or maintained by [BNSF] . . . [for a period of over two years] . . . that contain electronic data about or effecting current and/or former employees . . . throughout theUnited States.”  BNSF challenged the scope of the request and asked for the documentation supporting the EEOC’s much broader investigation.  The EEOC then issued the subpoena claiming that it was now investigating a “pattern and practice” case, justifying the need for the nationwide information.  The EEOC did not explain the basis for its nationwide investigation.  After unsuccessfully proceeding through the administrative process, the EEOC applied to the District Court for enforcement of the subpoena.  Along with its application to the Court, the EEOC, for the first time, stated that there were four similar discrimination charges from four different states.  Although BNSF was obviously served with copies of the charges, it was not aware that they were somehow connected. 

The District Court refused to enforce the subpoena, stating that the underlying charge was not a “pattern or practice,” charge and the two individual charges did not support the demand for nationwide data.  The EEOC appealed the District Court’s denial of enforcement to the Tenth Circuit Court of Appeals.  The Court of Appeals held that the EEOC was only entitled to evidence that is relevant to the charge(s) under investigation.  Since the only charges under investigation were the two initial charges, the Court stated that the relevance of the subpoena was limited to those charges.  Based on those two charges, the Court held that the subpoena was overbroad and sustained the District Court’s denial of enforcement. 

Interestingly, the Court noted that the EEOC could still investigate the two original charges and if that investigation warranted a broader investigation, it could expand its search.  Alternatively, the Court stated that the EEOC could proceed under at Commissioner’s Charge.  The Court stated that “. . . nationwide recordkeeping data is not ‘relevant to’ charges of individual disability discrimination . . ..” 

Although the EEOC may pursue these types of claims as suggested by the Court, this is a lesson that employers should not take for granted that the EEOC’s subpoenas are always enforceable.

The Regional Offices were instructed to routinely include the following default language in all informal settlement agreements and compliance agreements: 

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party /Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings.   The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S.Court of Appeals Judgment may be entered enforcing the Board order ex parte.

In essence, the NLRB is now going to require the equivalent of a Confession of Judgment in all Informal Settlement Agreements.

The report gives new insight into how the NLRB is handling Facebook firings and other social media cases, and it also includes analysis of employee policies with which the Board has taken issue.  Social media continues to be key topic on the NLRB’s agenda, and it is certain that we will see additional guidance as the law continues to evolve. 

To give you a flavor for the discussion in the report, the NLRB continues to find employee policy language prohibiting “making disparaging comments about the company” through blogs and social media to be unlawful because it interferes with employees’ Section 7 rights to discuss terms and conditions of employment.  The NLRB believes that prohibiting “disparagement” is too broad because it could prohibit protected statements, such as statements that the company is “not treating employees fairly or paying them sufficiently.” 

The NLRB also continues to place heavy focus on whether employees are Facebook friends with co-workers, and whether the co-workers respond to the employee’s Facebook rants about the company.  When co-workers are silent, the employee’s posts are often not protected. 

 As these cases work their way through the administrative process, we will monitor them and update you on any significant developments.  Eventually, they will make there way to the federal courts of appeals, which, hopefully, will give us more guidance on how employers should frame their policies.

 

D.R. Horton required all employees to sign a Mutual Arbitration Agreement (MAA) which included a provision that all employment-related disputes must be resolved through individual arbitration and barred class or collective action arbitration proceedings.  The Charging Party, who initiated the NLRB proceedings, was a superintendent and was not represented by any union. 

The underlying rationale for the NLRB decision was rooted in Section 7 of the National Labor Relations Act.  Section 7 provides that employees have the right, among others, to “. . . engage in . . . concerted activities for . . . mutual aid or protection.”  The Board further held that “mutual aid or protection,” includes employees’ right to seek to improve their working conditions through judicial or administrative forums.  The NLRB held that “Collective pursuit of a workplace grievance in arbitration is equally protected by the NLRA.” 

In its decision, the Board asserted that its findings did not conflict with the Federal Arbitration Act (FAA).  In sum, the NLRB held that the MAA waiver of class or collective action interferes with employees’ rights under Section 7 of the National Labor Relations Act (NLRA), while the intent of the FAA was to leave substantive rights undisturbed.  In a effort to distinguish this case from the United States Supreme Court’s ruling in AT&T Mobility, the Board argued that the scope of the potential class or collective action in the employment context is much smaller than the potential classes in retail or service industry proceedings.  The NLRB stated that a “. . . class-wide arbitration is thus far less cumbersome and more akin to an individual arbitration proceeding along each of the dimensions considered by the Court in AT&T Mobility – speed, cost, informality, and risk – when the class is so limited in size. 

The Board also held that even if there was a conflict between the NLRA and the FAA, the FAA would be trumped under the terms of the Norris-LaGuardia Act.  The Norris-LaGuardia Act provides that private agreements prohibiting a person from litigating concerted activities for mutual aid and protection are unenforceable.  The NLRB held that because the Norris-LaGuardia Act was enacted after the FAA, the newer statute implicitly repealed any inconsistent provisions in the FAA.  

In view of the potential effects of this holding, it seems very likely that the decision will be appealed through one of the federal Circuit Court of Appeals.  Stay tuned.

In this case, there was a provision in the collective bargaining agreement permitting the Union to designate up to ten days for employees to take off work for “memorial periods.”  In 2008, the Union designated two days under this provision as memorial days and the employees did not work on those two days.  The Employer alleged that the Union used the “memorial periods” provisions as a subterfuge for one day strikes, in violation of the no-strike provision in the agreement. 

The Employer brought a Section 301 lawsuit against the Union, claiming that the Union violated the agreement by using the memorial days to actually engage in a work stoppage.  The Union sought summary judgment, which was granted by the District Court.  On appeal to the Eleventh Circuit, the Circuit Court reversed and held that the Employer was not required to arbitrate the contract violation.  

The essence of the holding was that in the absence of specific language stating that an employer, as well as employees and the union, were required to arbitrate alleged contract violations, the employer may assert its claims in court.  Although the agreement in this case initially stated that all disputes and claims under the contract would be arbitrated, the provision went on to discuss only grievances filed by employees.  

Because there is a split in the Circuit Courts of Appeals, an appeal to the United States Supreme Court is a real possibility.  

Stay tuned . . .

Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee’s physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year’s wages. In determining the availability of suitable employment the continuance in business of the employer shall be considered and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall govern.

 In DeBoer Transportation, Inc. v. Swenson, the plaintiff argued that after returning to work as a truck driver, DeBoer terminated his employment for refusing to complete the company’s re-orientation program. DeBoer maintained a policy which required any employee who had been off work for two (2) months or longer, for safely reasons, to complete the re-orientation program, which includes an “overnight check-ride” with a certified driver.  The “overnight check-ride” can last several days or weeks. 

Mr. Swenson’s pre-injury route assignment, from midnight to 10:00 a.m., facilitated his ability to care for his terminally ill father. After returning to work, Mr. Swenson completed all the required re-orientation programs except the overnight check-ride, claiming that he could not leave his father alone, unless left in the care of a day nurse. Because he could not afford to pay for a day nurse, he asked the company to pick up the cost. The company refused, and he was terminated for not completing the re-orientation program. 

The Wisconsin Supreme Court noted that an employer must show “reasonable cause” for refusal to rehire an employee who has been injured on the job.  In the past the Court had defined reasonable cause to mean that an employer is required to reinstate the employee if suitable work is available, and is only allowed to refuse to rehire the employee if the reason is fair, just or fit in some circumstances.  In this decision the Court held, however, that employers do not have to change their legitimate and uniformly applied business polices to meet the “personal obligations of their employees.” 

Unlike discrimination claims, the Court noted, an employer is not required to make reasonable accommodations for an employee under the refusal to rehire statute. Since the overnight check-ride was uniformly applied and enforced, the Court held that DeBoer had reasonable cause to terminate Mr. Swenson. Looking past the particular facts in this case (which may seem harsh to some), the significance of this decision is that it greatly lessens the burden onWisconsinemployers to defend refusal to rehire claims.