The NLRB and Labor Take Aim at Employee Handbooks:

Wednesday, October 10, 2012

What Employers Need to Know to Avoid Costly Mistakes

p r e s e n t e d b y

Jennifer L. Mora Attorney

Littler Mendelson, P.C. Los Angeles

(310) 772-7243 jmora@littler.com

Alan I. Model Attorney

Littler Mendelson, P.C. Newark

(973) 848-4740 amodel@littler.com

Agenda The Latest in D.C. Handbook Provisions

Under Attack The Next Targets What Employers Can

Do to Prepare

What’s Happening in D.C.?

The National Labor Relations Board

Five members appointed by the President

NLRB Acting General Counsel Lafe Solomon

Recent NLRB Agenda – Save private sector unions

– Increase union power without regard to employee rights and legitimate management interests

– Proposed election rule changes

Employer Poster Requirement

Effective Date? – Employer to display poster advising

employees of rights under National Labor Relations Act

– Would apply to all private sector employers covered by the NLRA

– Similar in form and content to the notice the Department of Labor recently approved for use by federal contractors

“Quickie Election” Rule – Deprives Employees of Right to Know

June 21, 2011: NLRB published rules governing elections

December 21, 2011: NLRB issued its final rule to accelerate elections; set for implementation on April 30, 2012.

May 14, 2012: Rules struck down in Chamber of Commerce v. NLRB, D.D.C., No. 11-cv-2282

Understanding the Basics

The National Labor Relations Act

Applies to union and non-union workforces – “Employees shall have the right . . . to engage in

other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . . and shall also have the right to refrain, from any or all of such activities.”

– “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

Interference: Common Management Mistakes

Surveillance of concerted activities

Asking employees questions about concerted activities

Threats based on concerted activities

Promising employees benefits if they agree not to engage in protected activities

Two employees complaining about the holiday schedule

Interference: Common Management Mistakes

Prohibiting concerted activities

Discriminating against concerted activity

Inconsistently enforcing lawful rules and policies

Employee Handbooks Under Attack

Handbook Provisions Violate the NLRA if . . .

They actually interfere with Section 7 activities

They have been applied to interfere with Section 7 activities

They were promulgated in response to union activity

They could be construed to interfere with Section 7 activities

Confidentiality: Internal Investigations

Banner Health System (July 30, 2012) – “Interview of Complainant Form” included

a general instruction that employees making internal complaints not discuss their complaints with coworkers during the investigation.

– Unlawful, unless the employer can identify a specific need to:

Protect witnesses

Avoid spoliation of evidence or fabrication of testimony

Prevent a cover-up

Confidentiality: Wage and Benefits

“We honor confidentiality. We recognize and protect the confidentiality of any information concerning the company, its business plans, its partners [i.e., employees], new business efforts, customers, accounting and financial matters.”

Cintas Corp. (2005)

Harassment Policies

“Making false, vicious, profane or malicious statements toward or concerning the [Employer] or any of its employees.” Lafayette Park Hotel (1998)

“Abusive or threatening language to anyone on Company premises.” Adtranz ABB Daimler-Benz Transp. (2000)

Lutheran Heritage Village-Livonia (2004) – “abusive or profane” language

– “harassment”

– “verbal, mental and physical abuse”

Social Media

Heightened interest in employers restricting social media activities – Three General Counsel Operations Memos

– All social media cases must be submitted to the Division of Advice

Social Media

Costco Wholesale, Corp. (Sept. 7, 2012) – Company’s electronic posting rule prohibiting

statements that “damage the Company . . . or damage any person’s reputation” was overly broad because it encompassed complaints about the company’s treatment of its employees.

Knauz BMW (Sept. 28, 2012) – Company’s rule that “no one should be disrespectful

or use profanity or any other language which injures the image or reputation of the dealership” was overly broad because it encompassed employee complaints.

Social Media: Common Pitfalls

Inappropriate discussions

Defamation

Disparagement

Privacy

Logo

Photographs

Confidentiality

Social Media: Key Takeaways

What is the subject matter of the post?

Who is participating in the discussion?

Is the employee expressing only an individual gripe?

Are employees acting collectively?

Are the posts a direct outgrowth of group discussion?

Talking to the Media

Trump Marina Associates (2009) – “It is the policy of Trump

Hotels & Casino Resorts that only the following employees, Chief Executive officer, the respective property’s Chief Operating Officer, General Manager or Public Relations Director/Manager is authorized to speak with the media.”

Solicitation and Distribution Rules

Solicitation – Can solicit in working areas

– Exception: retail sales employees

Distribution – Employers cannot prohibit the distribution of literature

in non-working areas during non-working time

Avoid discriminatory enforcement of a valid policy

Uniform or “Button” Rules

Wearing union buttons or other insignia is protected under Section 7 of the Act unless the employer can establish special circumstances to justify a ban – Being in a customer-facing position or wearing a uniform are not

necessarily a special circumstance

Uniform or “Button” Rules

Examples of “special circumstances” – Exacerbate employee dissension

– Employee safety or damage to equipment

– Mocks employer’s business or policies

– Unreasonably interferes with public image

Starbucks: Baristas and Buttons

Discriminatory enforcement

Off-Duty Access Rules

Policy will be upheld only if it: – limits access solely with respect to the interior of the

facility and other working areas;

– is clearly disseminated to all employees; and

– applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities.

St. John’s Health Center (Dec. 30, 2011)

Sodexo America LLC (July 3, 2012)

Internal Complaints

Unlawful if employees reasonably would interpret them as prohibiting employees from going outside the management structure with their work-place problems – Guardsmark, LLC (2005)

– U-Haul Co. (2006)

Walking Off the Job

Restraints against permissible labor actions – Heartland Catfish Co. (Sept. 11, 2012)

Rules directed at employees leaving their workstations during work time. The Board determined that the rules reasonably read to prohibit unauthorized leaves or breaks were permissible. However, the rules prohibiting employees from “walking off the job” or from “willfully restricting production” were unlawful because they prohibited participating in a protected strike.

– Ambassador Services, Inc. (Sept. 14, 2012)

The Board struck down a work rule prohibiting “walking off the job and/or leaving the premises during working hours without permission” as violating Section 8(a)(1) because it would reasonably be construed as prohibiting Section 7 activity.

Looking Toward the Future

At-Will Handbook Provisions?

American Red Cross Arizona – “AGREEMENT AND ACKNOWLEDGEMENT OF

RECEIPT OF EMPLOYEE HANDBOOK. I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”

Union Access to Company E-mail?

Roundy’s Inc., 30-CA-017185 (Filed 2005) – The Board is expected to revisit Register Guard to determine

whether an employer may prohibit employees from using its work email system for non-work related purposes

The Best Defense Is a Good Offense

What Does This Mean for Employers?

Notice to Employees – 60 days

Jurys Boston (Mar. 28, 2011) – Overturn an election

Now What?

Privileged review of handbook provisions

Consider a properly-worded disclaimer

Positive employee relations training

Know the signs of union organizing

Develop a plan for responding to union organizing

Jennifer L. Mora Attorney

Littler Mendelson, P.C. Los Angeles

(310) 772-7243 jmora@littler.com

Alan I. Model Attorney

Littler Mendelson, P.C. Newark

(973) 848-4740 amodel@littler.com

t h a n k y o u !