Boeing NLRB filing

Former General Counsel to the National Labor Relations Board, Fred Feinstein has posted a piece on Politico characterizing the assault on the decision to issue a complaint in the Boeing case as nothing less than an assault on the rule of law. Its a pretty good statement of a pro-labor argument. Feinstein is not without controversy.

Right to strike

Joe Burns has a pro-labor comment posted at In These Times on the Boeing issue. His point, the opposition to the NLRB's issuance of a complaint is part of the continuing assault on labor's right to strike.

Unemployment rises in June

Bureau of Labor Statistics (BLS) reports a slight uptick in unemployment 9.1 to 9.2%.

Employers must verify immigrant legality

Governor Jindal has signed two bills relating to employers obligations to verify aliens may lawfully work for them. The first, HB 342, requires contractors seeking contracts from state and other governmental entities to use the federal E-Verify system. The second bill, HB 646, requires suspension of a business license or permit for the third violation for hiring an illegal immigrant. UNder this bill the employer could use E-Verify or the traditional I-9 method of verification. First offense $500 fine per illegal immigrant, second offense $1,000, third offense $2,500.

GINA and ADA record keeping

Title I of the ADA and Title II of GINA limit employer access to medical information. Regardless of whether an employer or an occupational health provider maintains information in paper or electronic files, it must ensure that personal health information about applicants or employees cannot be accessed, except under the circumstances permitted by the statutes. The EEOC has issued an informal opinion letter providing some guidance.

Who is the one city employee with an unsatisfactory 2010 performance evaluation?

Jarvis Deberry has an interesting op ed in the July 3rd Times Picayune. It seems that despite there being more than a few marginal employees working for the City of New Orleans, only 31 of the 4,315 city employees evaluated in 2010 were found to "need improvement." I'm not kidding, 31! And just one received an "unsatisfactory."   

I'm not a big fan of employee performance evaluations. I think most employer's do a lousy job of the evaluation process. I also think its implausible to believe that a supervisor is going to give a frank evaluation of an employee he/she does not yet want to fire. As long as a supervisor's department or job is dependent on the performance of subordinates, there is an inherent conflict in the evaluation process that plays against fair evaluations. And no, I don't mean unfavorably towards the employee. Only after a supervisor has made a decision to "get rid" of a subordinate can you expect a full accounting of job deficiencies, and sometimes not even then.

Things go bump day or night

Mayor Mitch Landrieu wants to eliminate bumping rights for laid off workers. Under current rules and employee laid off in one department can "bump" an employee with less seniority in a similar position in another post in city government. Private sector employers have long rejected straight seniority as a basis for layoff decisions. Moreover, outside of the context of collective bargaining, bumping rights are rejected as counter-productinve and disruptive.

Politicking

Why all the furor over the NLRB issuing a complaint in Boeing? Political opportunity.

Rathke on organizing

Acorn founder Wade Rathke has posted three interesting and insightful posts about the new NLRB election rules, here, here, and here. In his first post he correctly sets out the passage to approval and predicts accurately the legal challenges and time table (years). More after the jump

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation. Details after the jump

New Rules for union organizing

The NLRB has issued its proposed changes to representation procedures that will dramatically affect the representation election process by shortening the time between petition and election, by creating administrative traps to prevent employers effectively to  investigate issues before they are precluded and by creating union access to employees for communication. For example, the Excelsior list requirement is expanded to include known e-mail addresses of employees, and the information must be provided to the labor organization within 2 days of a direction or stipulation for an election. This together with the new persuader rules for attorneys and consultants finally provides substance to the claim the NLRB is changing the game to help unions organize. There is so much here to digest you can expect much disinformation and a lot of teeth gnashing. We will provide an objective analysis soon.

Victory for large employers

The Supreme Court in Wal-Mart v.Dukes reversed the Ninth Circuit's certification of a class of aggrieved females claiming sex discrimination by Wal-Mart. The court unanimously rejected certification under Rule 23(b)(2) finding individual backpay claims were not incidental to any requested injunctive or declaratory relief. By a 5-4 majority the court also rejected certification under Rule 23(a)(2) because the many claims did not involve common questions of law or fact. This decision likely means certification of discrimination claims for class actions will be significantly reduced to those fitting within this narrow interpretation of the Rule. Very good news for large employers.

Labor Consultant Rules

The Department of Labor has just published its long anticipated new rule governing disclosure of "persuader activity." The rule is designed to require law firms and other consultants to detail the fact of any agreement to undertake certain activities to persuade employees concerning their collective bargaining or organizing rights. As expected the terms are broadly construed to require disclosure.

There will doubtless be significant challenges to enforcement. The new rules require broad disclosure of financial matters for law firms, including arguable economic activity not logically related to persuading employees concerning union representation.

Off Target

Labor has targeted Target for organizing efforts. None of its 1700+ stores is organized. But a petition was filed at a New York store, and the election results are in. By a vote of 137 - 85 the employees rejected the United Food and Commercial Workers (UFCW) as their representative for purposes of collective bargaining.

Walker wins one

In a 4-3 decision, the Supreme Court of Wisconsin has given the Governor a win in his war on public sector unions. The decision overturns the trial court invalidation of the legislation. Previous post here.

Quacks like a duck . . . .

The New York Times has an interesting article about a non-union employee group organizing Wal-Mart workers. The Group, OUR Wal-Mart, does not intend to negotiate collective bargaining agreements, but does intend on assisting workers by using the protections afforded organizing and collective action. It also charges $5 a month in dues. The group is supported by the United Food and Commercial Workers (UFCW). Wal-Mart spokesperson claims this group is a stalking horse for a union. I think its more than that. Sounds like a labor organization.

Using employer e-mails waives privilege

The BP oil spill litigation has provided an interesting decision concerning the affect an employer's e-mail policy has on the spousal privilege (and arguably the attorney/client, doctor patient, and religious privilege claims). Communications between an employee and his spouse, also a BP employee, were made through BP e-mail accounts. The employee argued BP permitted personal use of the accounts, third parties could not access the accounts, and the employers notifications (that e-mail was not private) were not sufficient to overcome spousal privilege. Rejecting the employee's argument, the court found, the accounts were not private, they could be monitored by the employer, and they could be subpoenaed. Of course this latter assessment begs the question of privilege.

The SEIU's poor choice

Randy Shaw takes on the SEIU and its strategy of non-workplace organizing.

95 million verdict in gross conduct case

A national retail employer Aaron Rents, Inc. recently lost a suit (complaint here) involving allegations of assault, battery, negligent hiring, negligent retention, negligent supervision, negligent investigation of a sexual harassment claim, negligent repair, intentional infliction of emotional distress, retaliation, sexual harassment. The allegations of the complaint provide an excellent checklist of what to consider and avoid in responding to employee harassment complaints. The allegations are enough to outrage a lot of potential jurors. Seems the 20 year old female plaintiff was subjected to months of unwanted attention from her store manager and gifts that were accompanied by inappropriate requests, one allegation involves the store manager. One alleged incident involved the manager sneaking up behind her as she was sitting on the floor and banging his penis on her head. Another allegation involved the manager grabbing her, throwing her to the floor, pulling up her shirt to expose her chest and masturbating to ejaculation on her chest. When plaintiff complained her complaints were not adequately investigated and she was retaliated against according to the allegations of the suit. Various legal caps may reduce the jury award to $43 million.

Muddle, Meddle, Boing, Boeing

South Carolina's Attorney General has along with 14 other state's AG's filed a horribly muddled amicus brief in the Boeing case. While there are excellent arguments against the NLRB complaint, particularly the remedy sought requiring the work to be relocated, this brief only exposes the AG's utter lack of understanding of the National Labor Relations Act. Too much Chicken Little, too little understanding that the statute was designed to reign in managerial decision making.  More explained in our previous posts.

A new approach

Here is a good piece from a pro-labor perspective on unions taking different approaches to address declining membership and clout.

SCOTUS Reverses Fee Award to Defendant

The Supreme Court has unanimously reversed and remanded an attorney fee award to defendant under 42 U.S.C. § 1988. The district court had dismissed meritless federal claims and remanded non-frivolous state law claims to state court. Defendant asked the federal court for attorney’s fees under §1988, for time spent on the entire suit, without differentiating between time spent on the dismissed federal claims and on the remaining state claims. After finding the federal claims were frivolous the district court awarded defendant for all work the attorneys had performed in the suit. The Fifth Circuit affirmed (2-1, Southwick, J. dissenting). The High Court opinion written by Justice Kagan holds:

In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may re- cover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.

I've got a secret (maybe not)

In this information age, employers need to guard their secrets and proprietary information. Many employers think having an "off the shelf" internet and computer use policy is all they need. Far too often employers fail to consider the more serious problem of data theft, unfair competition and the machinations of disloyal employees. Non-compete and confidentiality agreements are one further step in the right direction, and clear policies about non-distribution of stored electronic data. And don't forget the requirements of e-discovery. Most employers are ill prepared for the emerging worst case scenarios. A complete audit of data security issues and systems is in order for most employers not wanting all of their information in the public domain.