employment law briefing 2015 - dlapiper.com/media/files/insights...2015 employment law briefing 3...

*This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

EMPLOYMENT LAW BRIEFING 2015National Labor Relations Board Trends and Developments (For Unionized and Non-Unionized Employers)

• Enter Hyperlinks here

• Go to View>Master> Slide Master to edit

National Labor Relations Board

2015 Employment Law Briefing 2

• The National Labor Relations Board is expanding its reach over unionized and non-unionized “employers” (maybe even over college football teams)

• The National Labor Relations Act gives “employees” the right to act together for mutual aid and protection – union or no union

• Individuals can easily file Unfair Labor Practice charges (e.g., to challenge a termination) – around 4,500 get filed nationally per year by individuals (not counting the additional 16,500 or so filed by unions)



Expansion of protected activity


• The NLRB is broadening what constitutes “protected” and “concerted” activity – and limiting what jeopardizes same

• In May 2014, the NLRB decided that a non-union employer unlawfully terminated an employee who told his boss to his face, during a meeting about his wages and the workplace bathroom…

• “you’re a “f****** crook,” • a “f****** mother f******” and• an “a******” that nobody likes • if you fire me, you’ll “regret it”

• The NLRB decided that conduct was not objectively “menacing, physically aggressive, or belligerent” enough to justify firing – the employer had to reinstate and pay back wages

Plaza Auto Center, Inc., 360 NLRB No. 117 (May 28, 2014)



Email griping and organizing


Under its “new analytical framework,” the NLRB in December 2014 decided that employees “must presumptively be permitted” to use employer-provided email accounts for “statutorily protected communications on non-working time”

The only exceptions are:

• employees are not granted access to email as part of normal work duties

• if an employer can justify a “total ban” on non-work use of email by proving “special circumstances” “necessary” to “maintain production or discipline”

This decision expands the opportunities for employees (or unions behind the curtains) to use company-provided communication systems, on a mass basis no less, to be critical of or hostile to management

Purple Commc’ns, Inc., 361 NLRB No. 126 (Dec. 11, 2014)



Joint employer assault

5

“The Board should abandon its existing joint-employer standard because it undermines the fundamental policy of the Act to encourage stable and meaningful collective bargaining . . . The current standard also ignores Congress’s intent that the term “employer” be construed broadly in light of economic realities and the Act’s underlying goals, and has particularly inhibited meaningful bargaining with respect to the contingent workforce and other nontraditional employment arrangements”

2015 Employment Law Briefing



Joint employer assault

6



Ambush union election


New NLRB Rule Enables “Ambush” Elections (aka, The “Rocket Docket”) [challenge by Chamber of Commerce filed in DC Circuit on Jan. 5, 2015]

• Starting April 14, Employers may have as little as 8 days to find legal counsel, submit a position statement, and appear at a NLRB Regional office for a pre-election hearing after a petition is filed – an election may then be held 6-13 days later

• Beyond undermining the ability to campaign against a union, key disputes over eligibility will be resolved after elections – potentially giving unions a do-over if they lose and tangling things in the courts

• Bottom line: there will be more unfair labor practice charges and election objections; many employers will likely refuse to bargain if they lose (which is the only basis to appeal a unit determination)



Caught in the crossfire


Even for employers who are not facing unionization, many are increasingly caught in crossfire

For example, companies outsourcing functions like security, maintenance, or food service have recently faced “secondary pressure” such as:

• Handbilling• Bannering • Rallies • Phone calls from local politicians • Adverse testimony at local planning commission hearings

employment law briefing 2015 - dlapiper.com/media/files/insights...2015 employment law briefing 3...

Documents