Posted by marykeating on August 31, 2011 under Collective rights | 
The National Labor Relations Board believes that most employees are unaware of their rights to form unions and engage in collective bargaining, and that the Board protects their rights. In order to make up the education gap, the Board proposed that employers be required to put up a poster about those rights, similar to the posting requirements under the EEOC, workers’ compensation laws, and the Fair Labor Standards Act. After reviewing more than 7,000 comments, the Board resolved the differences. It decided to require a poster, available for free from the Board, and also electronic communication of the contents of the poster if the employer usually communicates with employees in that manner, must be used to inform or remind workers of their statutory rights.
The majority of the comments opposed the rule. Employers argued that such a requirement interfered with their free speech rights, or that it was unnecessary because everyone knows they can join a union. The Board was persuaded that many people, especially immigrants but including people in unions, are unaware of their rights, and believe they can be fired for even mentioning the word “union.”
The rule is criticized as an administrative response to the lethargic progress of the Employees’ Free Choice Act, long pending in Congress. But a rule is easier to withdraw by a subsequent Board. For as long as this Board retains the votes to require this rule, employers will have to post the following language, beginning in November:
EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT
The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.
Under the NLRA, you have the right to:
• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.
Under the NLRA, it is illegal for your employer to:
• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non- work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
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• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.
Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:
• Threaten or coerce you in order to gain your support for the union. • Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall. • Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take adverse action against you because you have not joined or do not support the union.
If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.
Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.
You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired. If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB’s Web site or by calling the toll-free numbers listed above.
*The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).
This is an official Government Notice and must not be defaced by anyone.
Posted by marykeating on August 25, 2011 under Collective rights, retaliation |
The National Labor Relations Board has taken or considered action in several cases involving twitter and facebook. The cases arise when an employer disciplines or fires an employee after finding out about something the employee posted on facebook or twitter. The NLRB has taken the position that facebook is not much different from any other meeting of employees to talk about their work conditions. If they are acting together, their conduct may be concerted activity protected by the National Labor Relations Act. If, on the other hand, the employee is venting only about his own issue, or if he’s using inappropriate language or sentiments, then the discipline is lawful.
The first cases took many people by surprise. Part of the surprise stemmed from two widespread misconceptions. The first is that the Act applies only to unionized workforces. Not so; the Act protects workers’ rights to organize. They can’t organize if they’re not allowed to speak to each other about the workplace. If employees get together to protest working conditions, a supervisor, or their pay, they are protected from retaliation, even if they have no plans to form a union.
The second misconception is that employees have a First Amendment right to speak out whenever they want. In the private sector (non-government employees), there is no such right. The First Amendment prohibits government from squelching the right of free speech. Most people find their speech can be regulated by their boss.
Because there is no private sector right of free speech, some employers have fired workers for posting derogatory messages. The NLRB has intervened when the messages have led to concerted activity. The intervention includes holding certain policies to be unlawful. For example, in one case, the employer’s policy prohibited employees “from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.” Another prohibited “disrespectful conduct” towards others. A third made “inappropriate discussions” grounds for discipline. Sometimes rules prohibit employees from sharing their salary information. All violate Section 8(a)(1), according to the NLRB.
In its new memorandum, OM 11-74, the NLRB discusses some of the recent cases in an attempt to explain where the lines are drawn. A posting on facebook, just like a discussion at work, can lose its protection if it’s over the top. The Board does not protect speech if it is disloyal, reckless, or maliciously untrue. It also requires some protected activity. An employee venting alone is not covered by the Act, nor are rants that don’t concern the terms and conditions of employment. For example, a reporter was fired for inappropriate tweets about the city’s homicide rates; a bartender complaining that he did not get tips, and hoped that the bar’s clientele “choked on glass” was properly fired. Employees seeking to be protected must be speaking with or on behalf of others, not just expressing an “individual gripe.”
Employers are still getting the word about these decisions, and how much they can regulate. Good rules of thumb for the employee who wants to discuss the problems at work are: avoid gratuitous personal remarks about the supervisor; don’t disclose confidential information about the clientele; ease off the profanity; make sure the issue is of wider concern than yourself; and take a breather before you post. Angry, sarcastic comments may not do much to express concerns that the other employees share, and usually don’t reflect well on the poster.
Posted by marykeating on August 23, 2011 under Sex-based discrimination |
This just in – a study of gender and agreeability shows that mean men make the most money. But being disagreeable does not help a woman’s earnings; nice women make just slightly less than mean women. Men make more than both groups.
The authors of the study confess that they are somewhat perplexed by the findings. With corporations and management studies touting the benefits of teamwork, why should nicer people not be valued more? They point out, though, that agreeable people are motivated by building good social relationships. Altriustic behavior does not help when it’s time to look out for number one. The disagreeable employees are better able to negotiate well for themselves, “possibly stemming from their high sense of psychological entitlement and lower level of willingness to compromise their self-interests.” (Study citations omitted) But the gap is not solely due to the efforts of the disagreeable to advance their own interests. They are also perceived differently; the psychological literature shows that people who are angry, or highly critical of others, are rated as more competent.
So, why does this work for men and not for women? The reason is sex stereotyping. As the authors explain, “Men are expected to be high in agency and low in communion, while the opposite is expected of women. Both men and women who act in ways that are contrary to expected behaviors in certain contexts may encounter backlash when they do not conform to stereotyped expectations. Backlash refers to social and economic sanctions for counterstereotypical behavior. Counterstereotypical behavior often results in less favorable personnel decisions such as decreased recognition, compromised opportunities for advancement and, at worst, sabotage directed against ‘deviants.’” (Again, study citations omitted)
The study’s authors conclude: “Given the positive contributions made by agreeable people, demonstrated in prior research, it seems that the income penalty for agreeableness is out of proportion with its performance effects. Rather, for men and for women, the effects may be due more to expectations for behavior appropriate to one’s gender. This research raises important questions about the standards according to which people are evaluated and sheds further light on the issue of wage inequalities. In particular, it serves as a caveat to popular sources of career advice that either exhort people to be nice—or not. Closing the gender gap seems to hinge less on changing women’s behavior than it does on changing the minds of decision makers.”
Posted by marykeating on August 17, 2011 under Interesting cases, Wrongful termination, retaliation |
The Court of Appeals just released a decision reinstating a state employee’s wrongful termination case. Tyson Lawson, a member of the Bowie State University Police Department objected to an arrest that he believed was constitutionally defective. He was fired for violating the chain of command in his reporting of the incident and his suspicions. He lost at his administrative hearing because the administrative judge believed that his report of wrongdoing was motivated by his personal interest in changing the department’s culture, rather than his reasonable belief that his disclosure evidenced a violation of law, abuse of authority, gross mismanagement, gross waste of money, or a substantial and specific danger to public health or safety.
The State’s highest court rejected that analysis. The employee need not “possess a purely altruistic motive for the disclosure.” The public welfare is served by having employees disclose violations of law and waste of public money. To obtain protection under the whistleblower law, “an employee must prove that a reasonable person would believe the disclosure exposes a violation,” not that the violation actually occurred.
Whistleblowers may well be the people who want changes to the department, or to government as a whole. They are not altruistic bystanders, they are on the inside, and usually in a better position to uncover abuses. They are probably well aware that blowing the whistle will cause them problems. By disallowing a focus on their motivations, the Court adds some welcome protection for people willing to speak out.
Posted by marykeating on August 16, 2011 under Sex-based discrimination, retaliation, sexual harassment |
The Fourth Circuit recently overturned a decision dismissing the sexual harassment claim of a former Baltimore City employee, Katrina Okoli. Contrary to the trial court, the Court of Appeals first decided that the behavior of the supervisor created a hostile work environment. The behavior ranged from touching, sharing his fantasies of sex in a Jacuzzi, to yelling.The Court also determined that Ms. Okoli showed that her rejection of the boss’s advances led directly to her firing. It deemed “deeply suspicious” the fact that the plaintiff’s boss fired her “only hours after she culminated her rejection of him by complaining to the Mayor.” It also permits the retaliation case to go to trial.
The entire panel agreed that the unwelcome overtures and outright requests for sexual conduct amounted to sexual harassment. The concurring opinion discussed the ambiguity of the evidence that tied her job to her acceptance of the sexual advances. It also gave more credit to the City’s claim that the plaintiff was scheduled to be fired even before she complained to the Mayor. The important point, however, is that the jury should be able to decide whether the reasons for her termination were pretexts, given to cover up the discriminatory conduct.
It is still difficult for plaintiffs to get to trial in employment discrimination cases. But the Fourth Circuit has changed over the last few years, and this decision may be a harbinger of fewer cases decided without a trial.
Posted by marykeating on August 15, 2011 under Federal wage and hour law, retaliation |
The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.
Posted by marykeating on August 13, 2011 under Federal wage and hour law, retaliation |
The Maryland federal district court just ruled on a claim by workers who were fired after making claims that they were not being paid appropriately. (Randolph v. ADT Security Services, Inc.) The employees filed claims with the State of Maryland, which requested backup documentation to support the charges that their employer, ADT Security Services, was not calculating their commissions correctly. The documentation included detailed information about the company’s customers and their security system installations.
Upon learning of the claims filed with the State, the company suspended and then fired the workers, stating that they had violated the terms of the company’s confidentiality policy by disseminating the information outside of the company. They sued for retaliation, and wrongful termination.
The District Court made an important distinction between employees who participate in their own claims of illegal activity, and those who oppose illegal activity, by helping others in their claims. The first group has a higher level of protection from interference. The opinion states: “While protected activity under the opposition clause must be ‘reasonable,’ the Fourth Circuit has specifically refused to apply any reasonableness requirement in the participation clause context.”
Often this distinction comes up in the context of complaints that might be only marginally related to an allegation of race discrimination, for example. There is a fear that any fired employee could recharacterize statements or conduct as protected activity. So if an employee raises an issue about conduct that does not involve him personally, the complaint must be reasonably related to a violation of the law, and the conduct is viewed under a reasonableness standard. Therefore, releasing confidential documents may be unreasonable under the circumstances when the employee releasing the documents is not making a personal complaint.
When the employee is making a complaint about her own situation, however, “reasonableness has no place” in the analysis.
The Court pointed out that permitting employees to be retaliated against for using “confidential” documentation would harm employees with the best cases. Those employees with convincing documentation, if not allowed to use it, would be hamstrung solely by a policy that prevents them from taking documents that are used to establish their pay. The Court pointed out that this could not only lead to abusive policies, but also intrusive investigations by agencies that enforce the discrimination and wage payment laws.
Posted by marykeating on August 8, 2011 under Uncategorized |
The employment figures are slightly better as of July. The unemployment rate is 9.1%, and private sector jobs increased. The number of new unemployment claims declined as well. Of course everyone is worried. The specter of a new recession when the effects of the old one linger is enough to give us all nightmares. The Secretary of Labor calls for a new infrastructure bill to beef up our crumbling roads and bridges, while employing construction workers. Perhaps with the debt ceiling fight behind us there could be some helpful legislation.
