Wait…. What?

Yes, in Shore Point Distribution Co., Inc., the NLRB’s General Counsel’s Office issued an Advice Memorandum yesterday (dated October 15, 2015) in which it stated that an employer did not violate Section 8(a)(5) of the National Labor Relations Act by failing to bargain with union before installing a GPS device on an employee’s truck.

In March 2015, the employer became concerned that one of its employees was taking more time than other drivers to complete the same routes. It therefore hired a private investigator to follow and videotape the driver on his routes. The employer placed a GPS device on the employee’s truck to ensure that the investigator would be able to regain contact with the truck if he lost visual contact during the course of the surveillance. Over the course of his surveillance of the employee, the investigator personally observed the employee engaging in work rule violations including operating his truck in an unsafe and illegal manner, failing to follow specified delivery times, stealing time, and falsifying his daily log. Finally, after the GPS located the employee stopped in the employee’s hometown, he located the employee’s truck parked in the driveway at his home during work hours. Thereafter, the employer terminated the employee based on the investigator’s report. There is no indication that the employee was ever aware that the GPS device had been installed on his truck or that the employer had notified its employees that it might use GPS tracking for any reason in association with their employment.

Hard to see the NLRB’s General Counsel going along with this. Obviously, there are some other facts at play here.

First, the collective bargaining agreement contained work rules that prohibited drivers from “stealing time” and requiring that they adhere to Department of Transportation regulations mandating that drivers accurately account for their time on daily log records.

Second, the employer “has a practice of retaining a private investigator to follow an employee suspected of stealing time and using any results obtained through the investigator’s personal observations for disciplinary purposes.” The union was aware of this practice and “has no objection to it.”

Continue Reading NLRB General Counsel Advice Memo absolves employer for not bargaining over use of GPS devices to track employee

Back in September of last year, we reported on an NLRB decision finding that a Connecticut sports bar, Triple Play Sports Bar & Grille, had unlawfully terminated two employees – one of whom commented on a former employee’s criticism of the employer’s handling of the tax withholding on employee paychecks and the other who clicked “Like” in response to that comment. This past week, the Second Circuit, on Triple Play’s petition for review, upheld the Board’s decision, in a case captioned Three D, LLC, d/b/a Triple Play Sports Bar & Grille v. NLRB.

In its decision, the Second Circuit held that the employees’ respective comment and “Like” were protected concerted activity under Section 7 of the National Labor Relations Act because they both related to ongoing employee concerns over the employer’s workplace tax withholding and their resulting tax liabilities. The court also concluded that the employees’ Facebook communications were not so disloyal or defamatory as to lose the protection of the Act. Specifically, the court found that the employees did not disparage the employer’s products or services and their communications were not “maliciously untrue.”

The court was not swayed by any profanity contained in the one employee’s comment because it was not made in the presence of or directed at customers and did not reflect the employer’s brand. According to the court, accepting Triple Play’s argument that the Facebook discussion took place “in the presence of customers” could lead to the undesirable result of chilling virtually all employee speech online. “Almost all Facebook posts by employees have at least some potential to be viewed by customers.” As a result, the court upheld the Board’s order requiring the employer to offer reinstatement and full back pay to the terminated employees.

Continue Reading Second Circuit upholds NLRB finding that Triple Play Sports Grille unlawfully terminated employees for Facebook postings

Following a decision last week by the National Labor Relations Board (NLRB), it is likely that all companies that use temporary staff workers will be considered a “joint employer” with the temporary staffing agency if efforts are made by a union to organize the temporary workers.

The use of temporary staff is a significant part of the business plan for many companies. Although it was in the past a strategy used primarily by manufacturing companies, temporary staffing is now common across many industries, including warehousing, logistics and service. The potential advantages to using temporary staff include off-loading human resource responsibilities, lowering unemployment and workers compensation expenses, tax withholding responsibility, and many of the other attendant costs of the employment relationship.

Companies who use temporary staff (I will call them “user” companies here) often take careful measures to limit the risk of being determined a joint employer with the company providing temporary staff. Those steps include having the temporary staffing company (I will call them “temporary staff providers” here) be responsible for all hiring, discipline, and termination decisions. In some cases, the user company relies on the temporary staff provider for on-site supervision and sometimes even human resources support on-site. In most cases, the user company has an indirect impact on wages of the temporary staff by virtue of the negotiated labor rate but, in almost all cases, all other employment benefits are provided solely by the temporary staff provider.

What if a union targets the temporary workers at a user company’s workplace for organization? If the union is successful, who is the “employer” required to recognize and bargain with the union? Until recently, the answer was pretty easy. As long as the user company was careful not to exert direct control over the terms and conditions of employment of the temporary workers, then the employer required to recognize and bargain with the union was the temporary staff supplier only. Efforts made by unions to argue for a joint employment determination were usually unsuccessful. All that has changed.

What does the case say?

Last Thursday, in Browning-Ferris Industries of California, Inc., the NLRB decided that the user company and the temporary staff supplier are a joint employer. The user company was Browning-Ferris (BFI), which operates a recycling facility. The temporary staff supplier was Leadpoint. The Teamsters Union tried to organize a group of 240 Leadpoint employees working at the BFI facility. The temporary staff performed work different than that performed by the BFI regular workforce. The BFI regular workforce was already unionized. Leadpoint provided on-site supervision and an on-site human resource representative. Leadpoint also kept control of hiring decisions, subject to certain broad criteria imposed by BFI. When there were on-site misconduct issues involving temporary staff people, BFI made Leadpoint aware and Leadpoint was responsible to investigate and take action, though BFI retained the right to discontinue the assignment of any of the temporary staffers. In other words, Browning-Ferris did all “right” things in its effort to remain separate from Leadpoint.
Continue Reading Are you a “joint employer” with your temporary staff supplier? The National Labor Relations Board says “Yes.”

In April 2015, the National Labor Relations Board (NLRB) implemented a rule that effectively speeds up the time in which union representation elections occur. The process toward a union representation election typically starts when the union petitions the NLRB to conduct an election. During the months since the rule took effect, the time between petition filing and the representation election has been about 23 days. That is down 39.5 percent from the 38 day average that was common before the rule went into effect. As long as the rule remains in effect, there is every reason to expect this trend of quicker elections will continue.

The employer community has great concerns about the NLRB rule and the resulting reduction in the time for union representation elections. It is often referred to by employer groups and representatives as the “quickie election rule” or the “ambush election rule.” The time between petition filing and election is a crucial period for employer communication to employees. When a union files a petition for representation election, the union is usually at the peak of its support among employees. Between petition filing and election, the union’s representatives will actively campaign for employee votes in the upcoming election. Employers have the same right to communicate lawful and honest information to employees in an effort to influence them to vote to stay non-union. An abbreviated time for communication makes it much more difficult for the employer to convey the message, especially in a large workforce. Therefore, shortening the time between petition and election may give unions an advantage. Although, it is interesting to note that in the months since the rule took effect the union percentage win rate in elections has been about 62 percent, which is very close to the overall union win rate in elections for the past few years.
Continue Reading Another Federal District Court upholds NLRB expedited election rules

In what looks to be an ominous development for public-sector unions, the United States Supreme Court, on June 30, 2015, granted a petition for certiorari by the plaintiffs in Friedrichs v. California Teachers Association, a case out of the Ninth Circuit challenging the constitutionality of requiring public-sector workers who opt out of union membership to still pay union dues as part of “fair share fee” arrangements in collective bargaining agreements. It is ominous because a little over one year ago in the Supreme Court’s 2014 decision in Harris v. Quinn, Justice Alito wrote a majority opinion that blasted Abood v. Detroit Board of Education, the 1977 Supreme Court decision that was the seminal case upholding the constitutionality of fair share fees in the public sector. In Harris, Justice Alito noted that Abood rested on “questionable foundations”, but since Abood was not directly at issue in Harris (rather, the defendants in Harris were arguing for an extension of the holding in Abood), the majority did not address whether Abood should be overruled. In contrast, in Friedrichs, the validity of Abood has been directly challenged and it appears the Supreme Court is now willing to revisit Abood and decide whether forced fair share fees for public-sector unions should now be deemed unconstitutional.
Continue Reading U.S. Supreme Court grants certiorari in a case challenging the constitutionality of fair share fees for public-sector unions

Caitlyn Jenner has dominated the national public interest stories and social media of late. However sensational the news has made this particular story, the issues surrounding transgender individuals are increasingly impacting employers.

Recently, the Eastern District of Michigan permitted one of the first sex-discrimination cases over a transgender employee’s firing to proceed. The Court refused to dismiss the case despite the fact that transgender persons are not a protected class under Title VII, finding instead that transgender employees are like other employees who are permitted to sue their employers over sex stereotypes. The Eastern District of Michigan is part of the Sixth Circuit and should this case proceed to the Sixth Circuit upon appeal, its decision would be binding upon Ohio employers as well as Michigan employers.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc, the U.S. District Court Eastern District of Michigan Southern Division, Amiee Stephens, a transgender woman, had been employed with R.G. & G.R. Harris Funeral Homes, Inc. in Michigan since October 2007 as a Funeral Director. She was hired and proceeded to work identifying as a male employee. On July 31, 2013, Stephens informed her employer and co-workers in a letter that she was undergoing a gender transition from male to female and would begin dressing in appropriate female business attire at the workplace.  According to the Complaint, on August 15, 2013, her employer fired her, telling her that what she was “proposing to do” was unacceptable.

On behalf of Stephens, the EEOC brought an employment discrimination lawsuit against the Funeral Home, asserting the that the Funeral Home’s decision to fire Stephens was motivated by sex-based considerations and violated Title VII. Specifically, the Complaint alleged that the Funeral Home fired Stephens because of Stephens’ transition from male to female and/or because Stephens did not conform to the Funeral Home’s sex or gender based preferences, expectations or stereotypes. The key allegation was that the termination was based on gender stereotypes. The EEOC also alleged that the Funeral Home engaged in an unlawful employment practice in violation of Title VII by providing a clothing allowance to male employees and failing to provide a similar allowance to female employees because of their sex.
Continue Reading Transgender status may not be a protected class, but lawsuits involving transgender employees are permitted to proceed

It is summer, and you know what that means: teenagers, everywhere. And they are not just hanging out at the mall, they are working at the mall, at the local pool, and in other entry-level positions. Unlike other workers, however, teenagers come with their own special set of complications. Generational issues aside, the real concern for employers with employment of minors is complying with federal and state laws specific to employment of minors.

Hiring

Before hiring minors, each employer should verify whether it can hire minor employees in the industry in which the employer operates and the state in which the business is located. Many states, including Ohio, require that an employer first obtain some type of work permit before hiring minors. Under Ohio law, every minor 14 through 17 years of age must have a working permit unless otherwise exempted, e.g., 16 and 17 year olds who only work during the summer in nonagricultural and nonhazardous employment. R.C. § 4109.02.

There are, however, some occupations deemed too hazardous for minors. In Ohio, they include the following:
Continue Reading Hiring minors: Not my teenage dream

One issue that comes up for many employers in the summer is hiring seasonal workers. Hiring temporary seasonal employees presents some substantial legal traps for the unwary. Employers should assess their seasonal hiring practices to ensure compliance with various state and federal laws. In other posts, we advised you on the issues in hiring interns

We all pretty much know the drill at this point. Organization announces data breach, sends out notices as required under state and/or federal law to those individuals that are affected, offers some kind of identity theft protection or credit monitoring service, awaits public criticism and backlash. The NLRB and the American Postal Workers Union (“AWPU”)

The NLRB’s controversial “quickie election” rule is slated to take effect April 14, 2015. That’s next week! Two lawsuits filed by employer groups in January to block the rule are pending in separate federal courts of appeals. However, absent a “hail Mary” ruling by one of these courts, employers have to ask themselves if they