Tag: NLRB

Union Basics for Employers

Union Basics for Employers (Webinar Recap)

On September 20, 2018, I presented a complimentary webinar called “Union Basics for Employers.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here to watch the webinar now.

In the webinar, I discuss:

  • Representation Procedures
  • Grievances and Unfair Labor Practices
  • Negotiations
  • Strikes and Lockouts

This webinar may be helpful both to companies that are currently unionized and those that are not. The content primarily focuses on private companies subject to the National Labor Relations Act. This includes most businesses other than governmental entities.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Union Basics for Employers”

Let’s face it, most employers would rather not have to deal with a union. While this webinar mentions some tips for staying union-free (i.e., be a good employer), the emphasis is on explaining what it means to have a union.

Topics include how unions come to represent employees in the first place and what happens once the union is in. I also describe the primary procedure for employees to vote their union out.

The webinar is also a good primer for human resources personnel joining a unionized company for the first time. Learn what to expect and what it all means for your company.

If nothing else, learn how to better co-exist with a union in your workplace here.

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Retaliation Federal Law

Preventing Federal Retaliation Claims

According to EEOC statistics, retaliation is the most common basis for discrimination or harassment claims against employers. Retaliation occurs when an employer takes an adverse employment action against an employee for filing a complaint or otherwise participating in protected activity. Adverse actions include firing, giving undesirable assignments, and harassment. A retaliation claim can be asserted even if the original discrimination or harassment claim turns out to be unfounded, so long as the claim was made in good faith.

In addition to preventing lawsuits, employers should avoid retaliation because of its harmful effects on the workplace. Employees often do not report perceived harassment or discrimination because they fear reprisals from supervisors or other employees. If employees don’t report and potential issues remain unresolved, it can harm productivity and produce higher turnover. If employees see that their employer does not tolerate retaliation, they are more likely to report concerns.

Retaliation claims can arise in many contexts:

Title VII

Under Title VII of the Civil Rights Act of 1964, covered employers may not discriminate against employees on the basis of race, color, religion, sex, or national origin or by their association with others who are of a particular race, color, religion, sex, or national origin. Therefore, if an employee files a discrimination claim, employers should ensure that they suffer no adverse employment action because of the filing.

Disability Accommodation

Under the Americans with Disabilities Act, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” This means employers cannot retaliate against employees for requesting reasonable accommodations, such as a disabled cashier asking if he can sit on a stool while working.

Sexual Harassment Investigation

Sexual harassment cases are ripe for potential retaliation because the alleged harasser is often higher in the chain of command than the alleged victim. Employers should ensure that employees who feel they are being harassed have multiple avenues of reporting their concerns to management.

Retaliation for Contesting Terms of Employment

Many other federal laws and agencies afford employees protection against retaliation.

Under the National Labor Relations Act, it is illegal for employers to retaliate against employees for filing charges with the NLRB or participating in that agency’s investigations or proceedings.

The U.S. Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act. This law requires employers to pay minimum wage and overtime. It also prohibits retaliation against employees’ efforts to assert their rights under the FLSA.

The Occupational Safety and Health Administration (OSHA) enforces various “whistleblower” provisions. These include protections from retaliation for employees raising workplace safety or health concerns.

What Constitutes Retaliation?

U.S. Supreme Court cases have clarified what the scope of adverse employment actions can constitute retaliation if they are in reaction to protected activity. This includes retaliation for oral or written complaints. The standard is whether the employer’s response would deter a reasonable employee from engaging in protected activity. Examples include:

● Strongly opposing a promotion or denying a raise
● Denying training or mentorship opportunities
● Poor performance reviews
● Exclusion from meetings or projects
● Changing shifts or work assignments

Claims of retaliation can arise even after the employment relationship has ended. Negative job references can constitute retaliation if an employer gives them because the former employee made a complaint. Refusing to provide a reference can also be retaliation, as can informing a potential future employer of protected activity. For example, the Supreme Court found retaliation for requesting disability leave when an employer described a former employee’s leave for “medical issues” in a job reference.

Retaliatory references are unlawful regardless of whether they affect the potential employer’s decision. However, whether the employee obtains the job may reduce the monetary relief available to the employee. To reduce the risk of liability, many employers adopt a neutral reference policy. By policy, these employers only give the dates of employment and final job title. Employers with these policies must apply them consistently and equally.

Zone of Interests

Adverse employment actions can be unlawful even if they are not directed against the employee who claims retaliation. The Supreme Court looks at whether the employer’s retaliatory conduct affects the employee’s “zone of interests.”

The “zone of interests” includes family members. For instance, the Supreme Court held that an employer unlawfully retaliated by terminating the husband of an employee who filed a charge of sex discrimination. The Supreme Court has not clarified whether the “zone of interests” includes friends. But it has ruled out mere acquaintances.

Conclusion

Employers must train supervisors and managers to avoid retaliation. These employees must know that no one can retaliate throughout or after an investigation. During an investigation, employers should inform participants of the company’s retaliation policy and encourage them to report perceived retaliation. If an employee alleges retaliation, the employer should conduct another investigation into the claim.

John Ring NLRB Chair

John Ring Joins the NLRB

On April 11, 2018, the U.S. Senate narrowly confirmed management-side labor attorney John Ring as the fifth member of the National Labor Relations Board. Ring fills the seat vacated in December 2017 by former Board Chairman Philip Miscimarra. The Senate voted 50-48 along party lines. Ring, a Republican, was a partner with Morgan, Lewis & Bockius LLP before his confirmation.

Current NLRB

Following Ring’s confirmation, the White House announced that he would replace Marvin Kaplan as Chair of the NLRB. President Trump had just named Kaplan the Chair in December. Despite the unusual demotion, Kaplan confirmed he would remain on the Board.

In addition to Kaplan, Ring joins members William Emanuel, Mark Pearce, and Lauren McFerran on the Board.

Other than formally making Ring the Chair, no further changes to the Board’s composition are expected until Member Pearce’s term expires on August 27, 2018. Traditionally, no more than three members of the Board have represented the same political party. However, that is not dictated by law. Thus, it will be interesting to see what the White House does regarding Pearce’s seat.

Republican Majority

Republicans now hold 3-2 majority control of the Board. This foretells a continued shift away from pro-labor decisions by the Obama-era NLRB. The Republicans recently held the majority for just a short time before Miscimarra’s term expired. They issued several significant reversals in the last days of his term. (Read more in 2017 NLRB Buzzer Beaters.)

However, the Republican majority still faces a hurdle that may slow the anticipated shift in federal labor law. Member Emanuel’s vote in one of the December 2017 reversals (regarding the joint employer standard) created controversy based on an alleged conflict of interest. Emanuel’s former firm had represented a party in the case that was overruled. The Board subsequently excluded Emanuel and vacated the decision in which he had participated, reverting to the Obama-era precedent.

Emanuel, who had been a partner at national labor law firm Littler Mendelson, may face similar conflicts in many other cases. Ring could also struggle with conflict issues given Morgan Lewis’ substantial client list.

More About John Ring

Before his confirmation, John Ring was a co-leader of Morgan Lewis’ labor/management relations practice.

He received his Bachelor’s Degree from Catholic University and his law degree from Catholic University’s Columbus School of Law. He is a Fellow of the College of Labor and Employment Lawyers.