2011 Update: Compliance and regulatory considerations in implementing your value based interventions
Please join Stoel Rives Partners Ed Reeves and Bob Thompson as they present "2011 Update: Compliance and regulatory considerations in implementing your value based interventions" an Oregon Coalition of Health Care Purchasers educational seminar and national webcast.
This seminar focuses on understanding the federal law traps and pitfalls associated with the use of incentives and penalties when implementing value-based employee benefit plan design as well as, the use of a 'HIPAA-based' safe harbor wellness program.
August 4, 2011
9:00 – 10:30 a.m. (Pacific)
Stoel Rives, Portland Office
For more details or to register please contact Linda Dixon (firstname.lastname@example.org) by Friday, July 29, 2011.
On Monday, February 7, the NLRB issued a news release about a settlement in a case in which an employee criticized her supervisor on her Facebook page. In that post, she called her supervisor a “17,” (which is terminology for a psychiatric patient) and said her supervisor was being a “d***” and a “scum***." This new development has garnered a significant amount of media attention.
We say “development” because, despite the media furor over this case, there was no landmark opinion issued by the NLRB, which is the way the Board makes a policy change or an announces a new policy. Instead, an NLRB Regional Director in Hartford, Connecticut -- there are over 35 of them nationwide -- decided to issue a complaint alleging the firing of the employee was unlawful and the policy was overbroad. After the complaint was issued, there was no hearing before an administrative law judge and there was no ruling by Members of the NLRB in Washington. There was simply a settlement for an undisclosed amount, which was likely modest since remedies under the NLRA are limited to reinstatement (waived in this case), back pay and benefits. The company also agreed to revise its policy.
So, what’s to be learned from this settlement? Not much. The basic rule that came into play is an employee’s right to engage in protected and concerted activity – sometimes referred to as “free speech” in the workplace. Under NLRB case law, broad rights are provided to employees to criticize their supervisors, their employer, and, in general, to communicate in the work place about good and bad developments, such as pay raises and bonuses. However, employees cannot make threats of physical violence and they cannot engage in disloyal conduct.
Unresolved questions going forward include:
(1) Whether an employee is engaged in concerted activity when posting on a social media platform?
(2) What is protected and unprotected on social media, and do the same rules that apply to verbal communications in the workplace apply to social media?
(3) Does it make a difference if the post is done during non-work time?
There are several issues to work through and unfortunately this case clarified very little.
The National Labor Relations Board (NLRB) is on its way to making some significant changes, which favor organized labor. One change that may be coming relates to non-solicitation rules. These rules determine when a union organizer can come on a company’s property and solicit employees to join a union. For the time being, a company can prohibit a union organizer from coming on its property so long as it’s not discriminating by allowing other third parties on its property to solicit employees.
There are exceptions; for example, an employer can allow third parties on its property if it’s intended as a benefit for employees, such as a yoga or fitness company holding meetings on site to describe group rates. An employer is also allowed to bring charities such as United Way on site to solicit employees. If an employer allows only these types of solicitations, it is not considered discriminatory to prohibit union organizers from the premises. The blurry line relates to the situation when employees solicit for third parties that are good causes but not charities, such as the girl scouts or fundraisers for public schools.
A pending NLRB case called Roundy’s involved distribution of handbills on company property in front of its retail stores (sidewalks and parking lots). The handbills asked consumers not to shop at Roundy’s claiming unfair wages. The Union contends that Roundy’s allowed several outside third parties on its property – bloodmobiles, Salvation Army, Veteran of Foreign Wars, Shriners and others – and that union agents should be allowed the same access.
The NLRB took the unusual step of requesting amicus briefs from interested parties before it makes a decision. This often signals a major policy shift. Given the labor-friendly composition of the NLRB, it’s likely to give greater rights for union organizers to enter onto a company’s property, such as parking lots, sidewalks and possibly inside the facility itself – in a non-work area. If this becomes law, it’ll be much easier for an organizer to solicit an employee on company property.
One step employers can take now is to review and update their non-solicitation policy and ensure that’s it’s being applied in a consistent manner. That is, ensure that you’re not allowing third parties on your property to solicit your employees – or you may be opening your door to a union organizer.
A recent Oregon Court of Appeals case, Rogers v. RGIS, LLP, presents an opportunity for employers. In Rogers, the court awarded an employer a whopping $180,854.09 in attorney fees. The plaintiff brought one lawsuit but several wage and hour claims (overtime, minimum wage, late payment of final wages, unpaid wages for rest and meal breaks).
The court found the plaintiff prevailed on a few claims, but the employer prevailed on most. As a result the employer was awarded six figures and the plaintiff was awarded only $880 to cover fees.
This case is saying that a prevailing party may recover fees, which relate to each separate wage claim. For example, if the plaintiff brings five separate wage claims and the employer prevails on four, the employer will (in the court’s discretion) get to recover its fees to defend against the four claims upon which it prevailed.
If you’re sued under Oregon wage and hour laws, you should seek fees under ORS 20.077 and 653.055(4). You can also use the potential for recovering fees as leverage before a lawsuit is filed. Will this logic be extended to other employment claims, such as discrimination and retaliation claims?
The NY Times recently ran a story about internal union squabbles, which are hindering organized labor from achieving its political goals. The high profile dispute is between the Service Employees International Union (SEIU) and the National Union of Healthcare Workers (NUHW).
The NUHW broke off from the SEIU and is now trying to take over several bargaining units formerly represented by the SEIU. The dispute is complex, but seems to boil down to a power struggle between the two leaders (Andrew Stern at the SEIU and Sal Roselli with NUHW). Hanging in the balance is over 2 million union members.
What does this mean for employers? If you’re non-union, this could be a good or a bad thing. It could be bad if you have to deal with a 3-way race, where your employees vote for the SEIU, NUHW or no union. If that's the case, you can expect the campaign to be active and aggressive with plenty of unfair labor practice charges. On the other hand, employee-voters could get turned off by the two unions attacking each other and decide not to support either.
What does this mean for the Employee Free Choice Act (EFCA - the card check bill)? If key unions can’t work together, the labor movement may have difficulty getting an effective EFCA passed.
After months of litigation, Al Franken has been declared the winner of the Senate race in Minnesota. He will be the 60th Democrat in the Senate, which could enable the Democrats to override a filibuster in the Senate.
So the question becomes where does Senator Franken stand on the Employee Free Choice Act (EFCA)? Just as a reminder, this is the bill, which gives unions the right to organize by showing that a majority of employees signed cards and it basically does away with secret ballot elections.
Here is Senator Franken's answer:
Ouch. He doesn't sugarcoat it, does he? Senator Franken is a big supporter of EFCA. So, what does this mean? It makes it more likely that Democrats will push the original bill forward in the Senate or will not compromise (too much) on the original terms. Stay tuned. The EFCA drama is likely to play out in 2009.