With the upward trend in commercial bankruptcy filings likely to continue, what happens to collective bargaining agreements in bankruptcy?
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
- The Equality Act
- The Protecting Older Workers Against Discrimination Act
- The Pregnant Workers Fairness Act
- The Protecting the Right to Organize Act (PRO Act)
- The US Department of Labor’s Overtime Rule
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
The Protecting the Right to Organize Act (PRO Act) passed the US House of Representatives for a second time this March. If it’s signed into law, the legislation would eliminate state right-to-work laws, increase the number of workers eligible for collective bargaining and ban mandatory arbitration agreements.
In this video, McDermott partner Ron Holland breaks down the PRO Act’s most significant changes to employment law.
As the US election cycle begins to wind down, labor stakeholders say one thing is clear: Labor relations across the nation could see big changes under Democratic president-elect Joe Biden. In a recent article by the Daily Journal, McDermott partners Ron Holland and Chris Foster discuss the impacts a Biden presidency could have on the National Labor Relations Board and the state of labor relations in the United States.
Employees gathering with friends, expressing their political views and posting about these things on social media have created for employers an increasingly urgent question: When the people engaging in unsafe or politically charged behavior are your employees, and the conduct happens off the clock, is it appropriate or even possible to discipline them?
Some essential workers are refusing to go to work out of fear of contracting COVID-19. Their employers must weigh the employees’ legal rights and understandable health concerns with the organizations’ business needs. It can be a tough balancing act.
In a recent article, McDermott Partner Pankit Doshi said employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work.
In 2015, I predict an increased focus on employees’ rights regarding their personal social media accounts. Since 2012, individual states have enacted laws prohibiting employers from requesting access to their employees’ (or job applicants’) personal social media accounts. In 2014 alone, six states enacted such laws, bringing the total number of states with this type of legislation to 18. (Click here for additional analysis of the impact of these laws on employers.)
In addition to individual states’ laws, I expect clarification on a national level regarding employer policies and actions related to employees’ personal social media accounts. In the past year, the National Labor Relations Board (NLRB) has started to focus on whether employer policies regarding employee social media accounts are consistent with the National Labor Relations Act (“Act”). The Act prohibits employers from interfering with employees who come together to discuss their employment for the purpose of collective bargaining or other mutual aid or protection. According to the NLRB, employees’ comments on their personal social media accounts can constitute protected activity under the Act. One recent NLRB case involved two employees who posted on their Facebook accounts about the employers’ alleged failure to correctly withhold taxes from their paychecks. The employer terminated the employees because of their comments on their personal social media accounts. The NLRB found that the employee’s comments were protected under the Act, ordered the employer to reinstate the employees, and ordered the employer to clarify its social media policy. The employer is now appealing the NLRB’s determination in court.
I predict not only that more states will enact employee social media account legislation, but also that the NLRB and the courts will provide more guidance on employer restrictions or sanctions related to employee social media use.
In 2014, there is a new trend developing in the workplace: wearable technologies. The lesson to be learned from the dual use device experience of the past decade: Companies should consider taking proactive steps now to identify the risks presented by allowing wearables at work, and develop a strategy to integrate them into the workplace in a way that maximizes employee engagement, but minimizes corporate risk.
An effective integration strategy will depend on the particular industry, business needs, geographic location and corporate culture, of course. The basic rule of thumb from a legal standpoint, however, is that although wearables present a new technology frontier, the old rules still apply. This means that companies will need to consider issues of privacy, security, protection of trade secrets, records retention, legal holds and workplace laws like the NLRA, the Fair Labor Standards Act, laws prohibiting harassment and discrimination, and more.
Employers evaluating use of these technologies should consider two angles. First, some companies may want to introduce wearables into the workplace for their own legitimate business purposes, such as monitoring fatigue of workers in safety-sensitive positions, facilitating productivity or creating efficiencies that make business operations run more smoothly. Second, some companies may want to consider allowing “dual use” or even just “personal use” wearables in the workplace.
In either case, companies should consider the following as part of an integration plan:
- Identify a specific business-use case;
- Consider the potential for any related privacy and security risks;
- Identify how to mitigate those risks;
- Consider incidental impacts and compliance issues – for instance, how the technologies impact the existing policies on records retention, anti-harassment, labor relations and more;
- Build policies that clearly define the rules of the road;
- Train employees on the policies;
- Deploy the technology; and
- Review the program after six or 12 months to confirm the original purpose is being served and whether any issues have emerged that should be addressed.
In other words, employers will need to run through a similar [...]
ALJ Finds Employee’s Facebook Comments Unrelated to Working Conditions are not Protected Under the NLRA
Two weeks ago, we wrote about a decision from an Administrative Law Judge (ALJ) (available here) finding that the National Labor Relations Act (NLRA) protected an employee’s Facebook comments made about his employer. Last week, an ALJ issued another decision involving social media and the NLRA, finding that an employee had engaged in some protected activity, but that he was ultimately fired for other, unprotected activity. In Karl Knauz Motors, a former salesperson claimed that he was fired after he posted pictures and comments on Facebook criticizing his employer’s choice of serving hot dogs at a sales event introducing the new BMW 5-series. The National Labor Relations Board (NLRB) recently issued a report related to social media (found here), in which it noted the employee’s posts in the BMW case were protected activity because they related to the terms and conditions of employment.
While the ALJ agreed that the employee had engaged in protected activity in discussing the sales event, the Judge held that the employer actually terminated the employee for his other Facebook posts, which mocked a co-worker for allowing a teenager to test drive a Land Rover, who ultimately drove the car into a nearby pond. The Judge found that the NLRA did not protect such a posting because it had no connection to the terms and conditions of employment, and was posted solely by the employee, not as part of a discussion with other employees. Therefore the employer did not violate the NLRA when it fired the employee.
In addition to the Facebook postings, the Judge also considered whether four provisions of the employer’s handbook violated Section 7 of the NLRA. The Judge dismissed the complaint regarding a provision that encouraged employees to have a good attitude at work, because it could be read to protect the relationship between the dealer and its customers, rather than to restrict employees’ Section 7 rights. However, the Judge held that the three remaining provisions, which each limited employees’ right to speak about employment, violated the NLRA because they all could be read as curtailing employees’ Section 7 rights, and if employees complied with these restrictions, they would not be able to discuss working conditions with union representatives or lawyers.
Based on this ALJ decision, employers should continue to exercise caution when making employment decisions based on social media comments. There continues to be a fine line between protected activity and unprotected activity when it comes to employees’ social media comments about their employers. In addition, employers should review and possibly revise their handbooks to ensure they cannot be read as restricting employees’ Section 7 rights.
In April 2011, we issued a blog post outlining some of the National Labor Relations Board’s (NLRB) decisions regarding employee use of social media (the post can be accessed here). In an effort to provide guidance on the issue, the Acting General Counsel of the NLRB (General Counsel) recently issued a report (found here) addressing cases from the past year arising in the context of social media use. The report uses 14 cases to illustrate how the General Counsel’s office determines that use of social media qualifies as protected concerted activity, and when the mere contents of an employer’s social media policy can give rise to liability under the National Labor Relations Act (NLRA), even when an employer’s employees are not represented by a union.
While the distinction between protected and unprotected activity on social media sites is not always obvious, several trends emerge from the illustrative cases, providing guidance on when the General Counsel’s office (the prosecution arm of the NLRB) will conclude that activity is protected. For example, in cases where the employee discussed his or her social media posts with other employees, or had discussions with coworkers and subsequently drafted a post based on such discussions, the General Counsel’s office tended to deem this “protected concerted activity” such that an employee could not be disciplined for the conduct. By contrast, when employees did not discuss posts with coworkers, or where an employee’s posts were merely “individual gripes” containing no language suggesting an attempt to engage other employees into group action, the General Counsel’s office generally concluded there was not protected activity, and the resulting disciplinary action did not violate the law. One case involving inappropriate and offensive “tweets” by an employee about his employer did not involve protected concerted activity because the tweets did not relate to the terms and conditions of employment, and again, did not seek to involve other coworkers in issues related to employment.
As for the content of workplace social media policies, the key takeaway from the report is that employers should avoid using overbroad terms that could be construed to prohibit protected concerted activity. For example, the General Counsel’s office has taken issue with policies barring comments compromising the “privacy or confidentiality” of a coworker or that could “damage the reputation” of the employer, or that could “put your job in jeopardy,” because the terms were not defined in the policies. As a result, the General Counsel’s office concluded that the undefined terms could “reasonably be interpreted as prohibiting protected employee discussion” of the terms and conditions of employment, which would be unlawful.
However, the General Counsel’s office declined to prosecute an employer based on its policy that prohibited employees from “pressuring” coworkers to connect or communicate via social media, finding that this restriction could not be reasonably read to restrict protected activity. Similarly, the General Counsel’s office concluded that policies limiting employee contact with the media in an effort to ensure a [...]