Aggressive NLRB Has Surprises in Store for HR
Unions are desperate, says attorney Kevin McCormick, because their numbers are down and many of the things they once promised workers (like safer workplaces) are now mandated by government agencies. The result? They’re getting aggressive in new ways.
McCormick, a partner at Whiteford, Taylor, and Preston LLP in Baltimore, Maryland offered his warning—and his tips—at BLR’s Advanced Employment Issues Symposium, held recently Nashville, Tennessee. (AEIS Las Vegas is November 17-18.)
The Employee Free Choice Act is dead, but the Obama administration and the unions are not giving up their efforts to make it easier to organize your workforce; they are going to try to carry out that mission through decision-making and rule-making, McCormick said.
Decision to Award Daily Compound Interest
The NLRB has announced it will not award compound interest on back pay awards, which will mean larger settlements, which in turn will encourage employees and their unions to file more unfair labor practice claims.
New Posting Requirement
If an employer is found to have committed an unfair labor practice, , in addition to posting the notice of the violation, employers, if they use intranets, websites and emails, will have to distribute that notice electronically to employees. Unions will use that, McCormick says.
PCA in Social Media
We’re seeing a dramatic increase in “protected concerted activity (PCA) cases in the context of social media, says McCormick. So far, there’s no brightline test, but NLRB did outline four preconditions for an employee’s use of social media to qualify as PCA:
The social media must:
- Involve the terms and conditions of employment.
- Act as a “logical outgrowth” of earlier co-worker discussions about those terms and conditions
- Be directed to or involve co-workers
- Be intended to invite or induce co-workers to take action
Overly broad social media policies may also be illegal, McCormick adds.
Pre-Emptive Firing
NLRB is also finding violations when the employee in question has not discussed issues with co-workers yet. NLRB has found violations because an employer fired an employee “to be certain that she does not exercise her Section 7 rights” and discuss her concerns with co-workers. This is a new theory adopted by NLRB.
Poster Requirement Postponed
McCormick noted that NLRB has postponed until January 31, 2012 the requirement to post a notice of employee rights.
What to Do
McCormick suggests that employers review their social media policies to make sure they are “narrowly tailored” and include a disclaimer that the policy does not aply to the employee’s Section 7 rights.
Also, because elections are likely to come faster, employers should prepare by talking to employees about unions, and considering offering the kinds of benefits that unions might offer. For example, initiate a grievance program if you don’t already have one.