An Important Loss for the NLRB in the D..C. Circuit

From my partner, Jim Hendricks:

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia  rejected an NLRB rule published on August 30, 2011 which provided that  “. . . all employers subject to the NLRA (nearly 6 million employers) must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . .”  This ruling effectively kills the notice posting requirement unless the NLRB appeals the ruling to the Supreme Court.
The poster was to have been 11″ x 17″ and informed employees of their right to form, join, or assist a union, to bargain collectively through representatives of their choosing; to discuss wages, benefits, and other terms and conditions of employment with fellow employees or a union; to take actions to improve working conditions; to strike and picket; or to choose not to engage in any of these activities.  The poster also referred to items that were “illegal” for an employer to prohibit at work.  Conspicuously absent from the notice posting requirement was any statement that employees could decertify unions or not pay union dues in right to work states.
As an enforcement mechanism, the rule declared that an employer’s failure to post the notice was an “unfair labor practice.”  In addition, the rule allowed the Board to suspend the running of a six-month limitations period for filing any unfair labor practice charge under §10(b).  Further, the Board said the employer’s “knowing and willful refusal to comply with the requirement to post the employee notice as evidence of unlawful motive in a case in which motive is an issue.”
The Board attempted to justify its rule, citing its statutory “rule making” authority.    However, the Court of Appeals found the rule unlawful without addressing the Agency’s rule-making authority. The Court found that the posting requirement ran afoul of employer’s “free speech” rights found in the NLRA.    Relying on prior Supreme Court precedent, the Court found that §8(c) of the Act “expressly precludes regulation of speech about unionization “so long as the communications do not contain a threat of reprisal or force or promise of benefit.”  The Court concluded, in referencing the First Amendment, that “[t]he language of §8(c) explicitly covers more than just the  ‘expressing’ of the speakers views.  It covers as well the “dissemination” of “any views, argument, or opinion, “as long as the written, printed, graphic, or visual” material disseminated is not coercive.”  (29 U.S.C. §158(c)).
The Court concluded that the Board’s rule violates §8(c) “because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving, for example, unlawfully motivated findings or refusals to hire – in other words, because it treats such a failure as evidence of an unfair labor practice.
The ruling effectively brings an end to this particular rule-making effort, without Supreme Court intervention.  Because each and every decision of the NLRB is reviewable in the DC Circuit, the ruling pending in the Fourth Circuit is largely academic.  All employers can thank the National Association of Manufacturers and others for their efforts to bring the rule-making authority of the NLRB back to reality.  Employers vigorously attacked the NLRB poster rule as they have on the current Board’s attempt to establish “ambush elections,” which significantly shortens the time for representation elections monitored and conducted by the NLRB.
This decision by the D.C. Court of Appeals follows its January 25, 2013 (Noel Canning v. NLRB, (D.C. Ct. 2013) decision holding that two current Board members were unlawfully appointed by President Obama as “recess” appointments, rendering all decisions by this Board void.  That decision is currently pending appeal to the US Supreme Court.

Tracking the Wild Employee

The advent of cheap and relatively unobtrusive RFID technology, along with data crunching capacity on a large scale, is offering employers lots of new ways to monitor and improve productivity in the workplace. This article discusses a fairly scary trend (at least, it’s scary for me): the real time, full time tracking of employee movements during the workday.

The radio tracking of people is done for exactly the same reason that biologists fit radio collars to high value wild animals - it’s possible to glean a lot of useful information from simply watching them go through their daily routines. When you merge productivity measures with this data, you can start to develop strategies that can help make the workplace a better environment for collaboration, concentration, and productivity.

For example, knowing that your most productive workers are interacting directly and closely with a particular group of colleagues means that you should schedule your work breaks for those people as a group, rather than at fixed times for each individual. Similarly, noting a correlation between higher productivity and face-to-face interactions might lead a company to cut back on telecommuting and out-of-office time for its employees. An indication that people are using their lunch breaks, to eat at their desks and check emails might lead you to upgrade the quality of your in-facility cafeteria to encourage people to eat together. You might increase the size of your tables in the lunchroom so that more people can sit at them together, and cut down on the size of your conference rooms, so that you can have more of them so that people can meet in smaller groups that seem to foster more productive meetings.

Even employee advocate groups don’t seem to have much of a problem with this kind of tracking as long as it’s done at the group level, and individual employees are not singled out for reporting. But it seems to me that individual tracking and sorting will be the next and obvious step - most employers want to be able to identify their most productive and least productive people and structure their performance improvement efforts accordingly. Once employers start focusing on individual movements around the office, I’m guessing there will be some type of legislative backlash to address the issue. In any event, this "collaring" is just another indication of the way technology is shaping employment management

Is It Your Job To Evaluate Compliance with Corporate EEO Policies? Then You Might Not Be Able to File a Retaliation Claim

Looking through recent Supreme Court denials of certiorari (I have no life), I came across this case, which relates to an uncommon, but important aspect of employment retaliation law. The so-called “manager’s rule” is an key aspect of retaliation practice of which companies should be aware. It’s not found within the anti-retaliation language of the employment laws themselves, but is a result of interpretation by a number of federal circuit courts.  The rule holds that employees are not considered to have engaged in protected activity (a basic requirement for any retaliation case) if they express a disagreement with or oppose the actions of an employer that they consider to be discriminatory, if the opposition occurs as part of their normal job duties. More simply, if the employee’s job is to investigate claims of discrimination or ensure EEO compliance, she is not engaging in protected activity when she disagrees with a management decision or opposes a management action relating to application of EEO that is within the normal scope of her duties.

Typically, these cases arise with management employees in the human resources field, or with managers acting in some type of compliance capacity. For example, a manager who investigates a discrimination claim is not engaging in protected activity for retaliation purposes when she disagrees with the corporate response to her investigation, or challenges the conclusions reached by her supervisors as a result of her investigation, even though she believes that the decision is the result of illegal discrimination.

The manager’s rule bar for these specific types of employees is not absolute, of course. The employee can raise a claim of discrimination on his own behalf, or oppose some type of alleged discriminatory action in which he was not involved, and this would constitute protected activity. But employers should note that manager’s rule bar applies not only to EEO retaliation claims, but also FLSA, USERRA, FMLA, and Sarbanes-Oxley claims. Keep that in mind the next time you face such a complaint from someone who is charged with managing or overseeing employment law compliance in the organization.

The Murky World of LinkedIn Ownership

Many white-collared professionals (as well as a number of other folks) use the social media network LinkedIn as a way of promoting their name, reputation, and business-to-business interconnections. If you’re on the site frequently, and updating your contact lists and biographical data, the site can be of tremendous value for tracking the business activities of you and your networked acquaintances. Most people maintain a personal LinkedIn account that contains intermingled business development contacts and private acquaintances. So naturally, the question will arise as to who technically owns the business information contained in an employee’s personal LinkedIn account.

I’ve previously written on this subject in the context of a former employee’s use of LinkedIn information to violate a non-compete agreement. This latest variation on the personal/business overlap theme comes out of the Eastern District of Pennsylvania. In this case, a senior executive of a consulting company for the banking industry created a LinkedIn account using her company e-mail address. The company did not require its managers to operate a LinkedIn account and did not pay for LinkedIn premium accounts if the employee chose to upgrade. Moreover, the company had no policy in place with regard to use of social media accounts, and no standard practice with respect to the placement of business information on social media sites.

The employee/executive used her LinkedIn account extensively for business. She actually shared her LinkedIn password with other company employees, who then updated her account and also responded to business inquiries coming into the executive's site.

You can see how this co-mingling of business and personal information already appears problematic. When the executive was fired by the company, company employees immediately went into her LinkedIn account and changed her password, and then updated her LinkedIn account with the name of the employee’s successor.

Big red flag here – unless the company had a clear ownership claim to the LinkedIn account (it didn’t), doing something like this is an invitation to get sued.

Further inflaming the situation, the company did not change the LinkedIn homepage’s URL to remove the former executive’s name and also failed to remove her honors and awards listings. The company had full control of the account for approximately two weeks. After complaints by the executive, LinkedIn staff forcibly took over the account and returned access to the executive.

The effect of the company’s action was such that anyone searching for the executive’s name would be directed to the LinkedIn page of her corporate successor. There was no notice to someone searching for the executive that she no longer worked at the company. The clear implication, of course, is that the executive’s reputation was something that the company wished to take advantage of, even though she no longer worked there.

The executive sued for unauthorized use of name and likeness, invasion of privacy by misappropriation of identity, and misappropriation of publicity, as well as identity theft, conversion, tortious interference with LinkedIn’s contract, civil conspiracy, and civil aiding and abetting. She also alleged federal claims under the Computer Fraud and Abuse Act and Lanham Act for misuse of her likeness and interfering with her social media site.

Not surprisingly, the court had little difficulty finding against the company on the unauthorized use of the executive’s name, misappropriation of identity, and misappropriation of publicity. The company sought to exploit the executive’s reputation by keeping her name associated with the company after it terminated her, and took steps to screen that fact by diverting traffic to the successor’s LinkedIn account. Unfortunately, the executive was not able to prove any compensatory or punitive damages resulting from the company’s conduct. The court determined that there was insufficient evidence to support claims of lost business, and the expert witness offered on damages calculations could not point to a single piece of business that was diverted as a result of the company’s conduct.

A couple of lessons here. Don’t think that you can run willy-nilly through somebody’s social media account just because it has some business information located in it. If a company doesn’t have the rights to social media accounts, then those accounts are private property. Moreover, it wouldn’t be a bad idea for companies to start thinking about their social media policies in terms of ownership of this kind of information, and its use after termination. A policy or agreement stating that the employee understands that business information located on a social media site cannot be used to compete with the company  might have solved much of the problem here. Finally, even when there are clear violations, damages are notoriously difficult to establish in these cases. But that doesn't mean that the employer should invite litigation by not taking preemptive steps.

Another Reason to Read The Onion

"Company Lacks Manpower To Complete Newest Round Of Layoffs"

Obvious Obliviousness

Some folks say that if you're going to "go bad, go big."  Or, if you're going to lie, tell a lie so huge that no one will believe you're lying. I guess that works in some circumstances, but certainly not with respect to something that can be readily quantified and measured.

So, if you're going to claim that you billed 3600+ hours on legal work, you should not be surprised if somebody grabs a calculator and figures out that you worked 10 hours a day, seven days a week, for 12 continuous months.

As we say in the legal biz, "your claim proves too much."  More specifically, "you're lying."

The rest of the story follows naturally from there.

Touchy Questions at the NFL Combine

An interesting issue arose at the NFL rookie workouts held in Indianapolis several weeks ago. At least one player reported that he was asked about his sexual orientation during the club interviews.

The workouts for prospective NFL players, formally referred to as the "Combine", involve a variety of physical tests of speed, agility, and strength. The players are also required to take a kind of intelligence test (the "Wonderlic" test), and participate in hour after hour of interviews by the personnel departments of the respective clubs. As the NFL has become a higher profile sport, with the commensurate rise in player compensation, clubs are paying a lot more attention to the type of people on whom they are contemplating dropping millions of dollars, and who might become the face of their franchises.  Players get asked a lot of questions about their lifestyles, brushes with the law, substance abuse, disciplinary history with their college team, personal associations, and the like that would rarely pass muster in a normal job interview.  Again, because this is the entertainment business, clubs can usually point to a bona fide business basis for these questions. Because of a particularly high profile incident with a star college player this year, questions about sexual orientation apparently rose to the fore.

Such questions are not illegal per se under federal employment law. Sexual orientation is not a protected employment category under Title VII, nor is it considered a disability under the ADA.  A number of states, including many with NFL franchises, preclude discrimination on the basis of sexual orientation, however.  The NFL and its union have specifically agreed that sexual orientation cannot be considered in making employment decisions.

Of course, simply asking the question is not illegal. But if a player was to disclose his homosexuality, a club could not use that in an employment decision without violating the collective-bargaining agreement, and perhaps a state or local ordinance. The devil in such a case is proving it.

The truth is that most of these players will be drafted, so they will be employed by somebody. My personal opinion is that it is almost impossible for a draft-eligible player to prove that homosexuality was the basis for his draft position, rather than his performance as collegiate player, his physical stature and attributes, or some obscure response during the interview. The situation gets a little bit easier for openly gay players who have been in the league for a while. It's much easier to compare their performance with other players at their position, and extrapolate from there the player's value or desirability for a particular football team, which then might be affected by a consideration of homosexuality.

Given the public nature of pro football, gender orientation is a highly inflammatory subject. Moreover, coaching staffs and players have expressed concern about the impact of openly homosexual team members on the dynamic of the club.  These are not valid considerations under the collective bargaining agreement, but they obviously factor into the thought processes of club management everywhere.  This issue will likely surface again, and perhaps before the next combine takes place in 2014.