From the Presidential debates to lawn signs, and TV ads to the Voters’ Pamphlet in your mailbox, there’s no denying that election season is in full swing. For employers, the home stretch to November 6 means not only around-the-clock coverage, but the potential for spirited debates—and resulting employee discord—in the workplace. Although with limited exception political activity or affiliation is not a protected status, and Oregon employers no longer have to worry about giving employees time off to vote due to mail-in ballots, the impending election still has significant potential to invoke myriad workplace issues ranging from discrimination and harassment to free speech and bullying. Here are some “dos and don’ts” to help guide employers over the next several weeks and keep polarizing political discourse from disrupting your workplace:
* Do set the tone. If you haven’t already, employers should clearly communicate their expectations to employees and foster a culture of mutual respect and understanding. Diversity—even with respect to politics—can be embraced as a positive. Employers lead the way by conveying their acceptance of varying ideologies, and encouraging employees to handle differences of opinion civilly and without letting it affect normal operations. Political conversations between employees often lead to discussion of sensitive (and protected) issues such as race, religion, immigration, and women’s rights. However, election season should not provide a license for employees to harass or bully one another by attacking contrasting political views, bragging about which ballot measures did or did not pass, or gloating over a candidate’s defeat. Employers can minimize risk by reminding employees that their policies prohibiting harassment, discrimination and retaliation apply to all political discussions, and investigating any complaints promptly. Moreover, some employers have in fact included political activity in their EEO or anti-harassment policies, so it may be prudent to dust off and review your handbook, because employees certainly will know what you have promised. Similarly, given that unions are frequently politically active, some union contracts prohibit politics-based discrimination.
* Don’t allow bad behavior in the name of “free speech.” Contrary to popular belief, there is no blanket right of “free speech” in a private workplace. The First Amendment covers only state action, and private sector employers are therefore free to limit political discussions in the workplace. Be careful, however, that any such limitations don’t run afoul of laws such as the National Labor Relations Act (NLRA) (see next "do," below) or federal and state anti-discrimination laws.
Read on for more election "dos and don'ts" below!
* Do be mindful of the NLRA. The NLRA offers some protections for employees’ political speech, both on and off the job, and even if you do not have a union-based workforce. As the National Labor Relations Board (NLRB) states on its website, employees have the right to work together to “improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” (See https://www.nlrb.gov/concerted-activity). Employers should be particularly cautious to ensure that any restrictions on employee communications, political or otherwise, don’t impede on employees’ ability to act in concert with respect to work-related matters such that they would run afoul of Section 7 protections.
* Don’t forget about social media. Undoubtedly, social media has played a significant role in 2012—and it’s likely becoming an increasing presence in your employees’ day-to-day lives, too. Employers should remind employees of any policies regulating internet usage in the workplace, along with any policies specifically governing social media. Although such policies should encourage employees to be respectful, they should not be so broad-sweeping as to prohibit political discussions over social media, as this again has the risk of crossing over into Section 7 protections referenced above. The NLRB has stated that employers should not “caution employees against online discussions that could become heated or controversial.”
* Do be cautious of Company political endorsements. It’s common for employers to provide general election information to employees, such as informing them when ballots are mailed or simply encouraging them to vote. In recent years, however, many employers have taken it further and perhaps garnered unintended press for making political statements—most often during election season. Although there is no per se law prohibiting a private company from voicing its own political views to employees, employers who do so should also make clear that employees retain the sole right to vote as they choose. Employers should also be mindful of the resulting pitfalls. For example, would a gay or lesbian employee be more likely to bring a sexual orientation discrimination claim against an employer that had voiced its opposition to same-sex marriage? There’s no way to know, but most employers probably wouldn’t want to be the test case.
* Don’t enforce policies on a selective basis. Many employers maintain no-solicitation or no-distribution policies, which generally prohibit employees from requesting support for or distributing materials about non-work events or causes. To be effective, however, these policies must be both strictly and evenly enforced. Don’t let a Democrat post political flyers, but not a Republican. And don’t let the CEO hand out buttons supporting the candidate of his or her choice, but prohibit employees from doing the same thing.
* Do know if local or state law protects provides greater protections. As mentioned above, political activity is not a protected status for most employees working for private employers under federal law, and only a handful of states have promulgated laws making it unlawful for employers to discriminate or retaliate based on an employee’s political activity or affiliation. Oregon in Washington have not, but California is one of the few states that has. Some protections are derived on a more local level, such as the City of Seattle, which prohibits discrimination based on political ideology, affiliation or similar terms. Public employers need to be ever mindful of the circumstances when political speech crosses the threshold into free speech, thus precluding adverse action on that basis.
* Don’t hesitate to reach out if things get sticky. Election-related employment issues can be complex and difficult to navigate. If you run into problems in the pre- or post-election flurry, contact your employment attorney. Although it may seem that all anyone cares about these days is the election, you’ve still got a business to run—and help is available.
The Obama NLRB’s regulatory agenda continues to fare poorly in the federal courts. On the heels of court decisions staying the NLRB’s new “notice” requirement, see previous posts here, the United States District Court for the District of Columbia Circuit has just struck down the NLRB’s new rules designed to speed up union representation elections.
Employers and their representatives have been concerned about the Board’s new election rules since they were issued in September. See our previous posting here. Employers’ concerns were heightened when the Board’s Acting General Counsel issued a “Guidance Memorandum” directing the Board’s Regional Offices on how to implement the new rules. That Guidance Memorandum is available here. That Guidance Memorandum articulated several “best practices” that would further accelerate the election process.
In response to the new rules, the US Chamber of Commerce and other groups sued the Board, citing a number of substantive and procedural objections to the new rules. Judge James Boasberg (an Obama appointee) struck down the Board’s decision solely on procedural reasons: the absence of a quorum. Just two years ago, the United States Supreme Court had emphasized the importance of the Board having a minimum of three members to act. The court had emphasized in New Process Steel that the quorum requirement is not, under the Taft-Hartley Act, a mere “technical obstacle.” Ironically, concern about the then-impending loss of a quorum in December, 2011, caused the Board to rush its normal internal processes. Member Hayes had previously expressed his opposition to the proposed rules. When the final proposed rules were circulated among the three Board members, member Hayes did not participate – but the two member majority adopted the rules anyway. The District Court concluded that the Board thus acted without a quorum:
“According to Woody Allen, 80% of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
In the absence of a lawful quorum, the rules were not properly adopted, and therefore must be struck down. The judge expressly did not reach any of the substantive objections to the rules.
This will likely raise substantial uncertainty in the near term. The Board could attempt to readopt the rules with its current membership – but doing so would only be more controversial: any quorum relying on the President’s “recess” appointments to the Board (made at a time when the Senate was not in recess!) will be subject to further attack. It is also not clear what course Regional Offices will take as to elections that were being handled under the now-stricken rules or what effect will be given to the Acting General Counsel’s “Guidance Memorandum.”
Employers should stay tuned for further developments – and if you receive a union election petition you should call your Stoel Rives labor lawyer immediately!
The NLRB gave organized labor a meaningful gift just before the holidays by issuing a final rule adopting new election case procedures that will likely result in more and faster union elections, and probably also result in more employers having unionized workforces. The new rule becomes effective on April 30, 2012.
The New Year: Out With The Old Rules...
During union campaigns, the union and the employer may disagree (vigorously) about the proper size ("scope") of the proposed bargaining unit. Such disputes can include whether certain employees are "supervisory" employees and thus ineligible to vote, or whether different classifications of employees share enough of a "community of interest" to be included in the same bargaining unit, and covered by the same contract. How those disputes are resolved often determine the outcome of the election. Under the existing (er, now old) election rules, employers had the opportunity to litigate these types of bargaining unit scope issues before the election.
...In With The New
The NLRB's new rule essentially eliminates the employer's opportunity to litigate, prior to the election, any disputes over the scope of the bargaining unit proposed by the union. Under the rule, such issues will ordinarily be addressed only after the election takes place. Employers should be aware of how this "vote now, litigate later" rule could impact union elections.
Shorter Election Campaigns: Under the old rules, litigating bargaining unit scope issues usually delayed the election, giving employers additional time to discuss the pros and cons of unions with its workers before the vote. That additional campaign period is now lost, depriving employers of valuable time to counter an organizing campaign that may have started months before the union went to the NLRB seeking an election.
Greater Difficulty in Challenging The Union's Proposed Unit: Although employers may technically be able to litigate unit scope and voter eligibility issues after the NLRB conducts the election, in those cases where the vote results in a "yes" vote for the union (which under the old rules happened more than 60% of the time), employers will be in the difficult position of having to contest threshold legal issues after the employees have already "won" the right to representation. This procedure tilts the playing field in favor of unions.
Considered in the context of the NLRB's August 2011 decision in Specialty Healthcare, this rule means that the petitioning union will get a quick election in the unit of employees it has chosen to organize. Specialty Healthcare enables unions to organize small or "micro" units of employees (such as single classifications of employees or individual departments). The Board held that for an employer to add excluded employees to the union's proposed unit, it must demonstrate that the excluded employees share an "overwhelming community of interest" with the employees the union seeks to represent. In a dissenting opinion, NLRB Member Brian Hayes noted that this test makes it “virtually impossible” for the employer to prove the union's proposed unit is not proper. To make matters worse, now the Employer will ordinarily have to make that argument after the union has already "won."
Why Now? Election Year Politics, That's Why.
That the NLRB issued these new rules now probably had less to do with the holiday spirit than with an election of a different sort--the 2012 U.S. Presidential election and the related gridlock in the U.S. Congress. Up until last week, the Board had three members (out of a possible five) which, after the U.S. Supreme Court's 2010 decision in New Process Steel, is the minimum required for the NLRB to decide cases and issue regulations. Last week was when President Obama's controversial recess appointment of Member Craig Becker ended. The NLRB may have wanted to enact the new rules before it was reduced to two members again, as that may be the last opportunity in an election year for the Obama Administration to do something substantial for organized labor, an important constituency. While nominations for the three NLRB Member vacancies are pending, the gridlocked Senate is not expected to act on those nominations any time soon. While the President could make another recess appointment to ensure a functioning, three-member NLRB, that risks (further) alienating Senate Republicans, all 47 of whom recently signed a letter urging the President not to fill NLRB vacancies using recess appointments. The next few weeks, before Congress reconvenes on January 23 from its holiday recess, could be very interesting for NLRB-watchers. Stay tuned...
...well you didn't have to stay tuned for long! President Obama has announced three recess appointments to the NLRB. The appointees include two Democrats (Richard Griffin and Sharon Block) and one Republican (Terence Flynn), giving Democrats a 3-2 Board majority. The President’s decision to bypass the Senate confirmation process quickly drew the ire of Senate Republicans, but the President chose that fight over the alternative of allowing the NLRB to go through a prolonged period in which it was unable to issue decisions or adopt regulations. As a result of these appointments, we can expect more pro-labor decisions in 2012.