The posting requirement has created a firestorm among employers.  It is designed to overcome the anti-union environment.  Some employees believe that they have no right to talk among themselves about the conditions of the workplace, and that some workplaces are non-union, and they have no right to try to change it.

The first postponement required the poster to be on employer memo boards by January 31.

As of now, the poster must be used by April 30, 2012.  The rule is pending a court challenge to the requirement, so further postponements or even a withdrawal of the requirement could occur.

In NLRB v. White Oak Manor, an employee wore a hat to work to cover an embarrassing haircut.  After a few days (before the haircut had grown out enough, apparently), she was ordered to remove the hat.  She complained that others were allowed to wear hats, and that the dress code was not enforced fairly.  She was written up.  The employee still felt unfairly treated.  She took pictures of employees who wore hats without being reprimanded, and otherwise violated the company’s dress code by displaying tattoos.  She discussed the pictures, and the employer’s unequal enforcement of its rules with other employees.  The employer fired her for taking pictures.

The Fourth Circuit agreed with the National Labor Relations Board that the employee’s efforts to win converts to her side was concerted activity.  Employees griping, uniting, or discussing terms and conditions of employment all fall under protected activity, and firing them for getting together violates the National Labor Relations Act.  This includes both dress codes and discipline.  The court rejected the employer’s contentions that the employee raised the concerns and took the pictures only in her self-interest.  “Equitable enforcement of a dress code definitionally benefits all.”

The NLRB now states that it wants to enhance education and outreach before enforcing the poster requirement.  The new effective date is January 31, 2012.

Here’s an interesting narrative: How Walmart Trains Managers.  This blog post shows an unexpected inside look at the Walmart indoctrination program, and the extent to which the company tries to root out union activity long before it starts.  For example, to post a notice for a “baby shower committee” will warrant a warning or a write-up.  Committee is “unlawful Walmart language.”  Assistant managers may not fraternize with managers or hourly employees.  Finally, and hilariously, the eight weeks of training did not show the new assistant manager how to do her job!

While repressing union activity is illegal, it is not easy to prove.  Perhaps if the NLRB gets a lot of complaints about write-ups for unlawful Walmart language (such as “group”), some of these charges will be viewed more closely.

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.

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.

While learning that a coworker makes more can lead to resentment, transparency in pay structure can also help root out and remedy discrimination. The study’s authors point out, for example, that gender-based pay discrimination stands at about 11% in government service, where salaries are often public records, while the 23% gender gap in the private sector continues despite state and federal equal pay laws. The authors quote another study’s conclusion: “It is estimated that discrimination (rather than differences in occupations, industry, experience or education) is responsible for about 40 percent of the wage gap.” (Blau, Francine D., and Lawrence M. Kahn. 2007. ‘The Gender Pay Gap: Have Women Gone as Far as They Can?’ Academy of Management Perspectives, 21,1: 7-23.)

The now famous case of Lilly Ledbetter demonstrates the danger of secrecy. Ms. Ledbetter learned that she had been underpaid for years at General Electric; the Supreme Court said she sued too late, since the first such pay decision, in which she was paid less than her male counterparts, was well out of the statute of limitations period. Congress fixed the problem in early 2009, but no one can claim discrimination without having some facts.

It stands to reason that similar wage gaps affecting minority workers are also perpetuated by such secrecy laws. The good news is that this kind of workplace rule is illegal under the National Labor Relations Act.  (My discussion here explains this more). Employees are entitled to discuss work conditions, including, or course, pay, without retaliation. With the law on the side of employees, they just need to get past their childhood admonitions that talking about money is rude.

Here is how it began.  An employee of a non-profit, Hispanics United of Buffalo (NY), apparently stated that some of the coworkers weren’t doing enough to help the non-profit’s clients.  Another employee posted that comment on her facebook page, and several coworkers weighed in, complaining about the work load and other workplace related conditions.

Hispanics United fired five employees who had complained on facebook.  The NLRB believes that they were engaged in “concerted activity.”  Under the National Labor Relations Act, employees are protected from complaining about workplace conditions “in concert,” meaning as a small or large group.  This law protects the rights of employees to form unions, but also behavior short of such formal organization.  Many employers forget that they are covered by this law, and announce rules against sharing information on pay, for example, or talking to each other.

Employers seem very testy lately about how they are portrayed on facebook, twitter and websites.  Employees’ rights to complain publicly (and in concert) need to be related to workplace conditions to be protected activity; for example, gossiping about a boss’s private life is probably not protected (unless it affects the terms and conditions of employment).

The case is scheduled to be heard on June 22.  The last such NLRB complaint was settled.

The premium payments often are offered for working unpopular shifts, such as overnight work or on major holidays.

The rule also clarifies certain rules for tipped employees.  Many tipped employees, such as wait staff, receive a very low minimum wage with the expectation that the tips will raise the individuals’ pay to at least the federal minimum wage.  An employer may pay as little as $2.13 per hour.  The regulations make clear that the employer may not use the tip credit unless the employee actually receives the tips used for the tip credit, and the tip credit may not be used where the employer keeps some of the tips.

Ironically, the more beleaguered unions become, the less they are able or willing to do for their workers.  I hear employees complaint frequently about their union’s ineffective grievance process, or lack of attention to a workplace problem.  In survival mode, the union personnel may think that they should keep their heads down, rather than protect the workers.  But that is a recipe for obsolescence.