the nlrb & social media annual report/media/files/insights/events/...company’s name describe...

The NLRB & Social Media Annual Report

This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

Marilyn Pearson, DLA Piper LLP – Chicago Katharine Liao, DLA Piper LLP – Los Angeles

Agenda

§ The NLRB Report § “Quickie” or “Ambush” Election Rules

§ Definition of “Employer” and Joint Employment by NLRB and DOL

§ Social Media Report § “Like” Appeal in Second Circuit § Intersection of non-Solicitation clauses and social media

§ Social media hijacking § Fair Credit Reporting Act

2

2015 Developments at the NLRB 3

Ambush Elections

April 2015: NLRB institutes new election rules took effect that dramatically shorten the time frame for conducting representation elections

Election Rules


CONTESTED

FY 2005 - FY 2014:

PETITION 38 days ELECTION AGREEMENT

PETITION 70 days

ELECTION AGREEMENT

GENERAL

Elections Prior to Change


0

10

20

30

40

50

60

70

80

FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 FY13 FY14

Median Days With Election Agreement

Median Days in Contested Elections

“Quickie” Election Rules


Already, one election has been held in Region 22 (Newark, New Jersey) in just 9 days

PETITION Two weeks

ELECTION AGREEMENT

“Quickie” Election Rules - Changes


Documents may be filed and served electronically

Employers required to provide more information to unions (the “Excelsior List”): Name, address, email, home phone, cell phone, work location, shift, and classification

Employers must email the Notice of Petition to employees, in addition to posting it

The Employer must file a Statement of Position, generally within seven days after the Notice of Hearing is filed, and raise all issues it wishes to litigate. Any issues not raised in the Statement cannot be raised at the pre-election hearing

Written briefs following the pre-election hearing are only allowed with the express permission of the Regional Director

“Quickie” Election Rules - Effects


The shortened time period gives unions a dramatic advantage

Unions typically work behind the scenes for months or more, giving workers only their side of the story and then seeking an election at a time of their choosing

Even under the old rules, employers were usually on defense

With the new rule, employers will have even less notice and almost no time to secure counsel and educate their own workers

As the dissent noted: “[t]he Rule improperly shortens the time needed for employees to understand relevant issues, compelling them to 'vote now, understand later.”



The Faster the Election, the More Likely a Union Victory 2004 to 2014:

Fewer than 21 days: Within 42 days:

UNION WON 86%

UNION LOST 14%

UNION WON 60% UNION LOST

40%



They Are Working.

The Rules Are Clearly Designed to Encourage Unionization.



According to data provided by the NLRB, during the first month the new rules were in place, 280 representation cases were filed.

This was a 17% increase in filings over the same period in 2014 and a 32% increase from the previous month.

Of the 280 petitions, all but 4 resulted in a stipulated election agreement.

Meaning, employers gave up their right to a contested hearing 98.5% of the time and agreed to election issues with the union.



Don’t Wait for the Petition!

Be proactive.

The rules are designed to make

elections harder for employers to win.

By the time you get a petition, it might

be too late.

Have a communication and

counter-election plan ready to

implement at a moment’s notice.

13

Re-Expanding Definition of “Employer”

Expanded definition of “Employer”

Contractor

Subcontractor

Employees

Recent pushes to expand the definition of who is an employer open employers at the “top of the pyramid”

to joint employer exposure.

The EEOC’s Joint Employer Test

The term "joint employer" refers to two or more employers that are unrelated or that are not sufficiently related to qualify as an integrated enterprise, but that each exercise sufficient control of an individual to qualify as his/her employer. The "joint employer" issue frequently arises in cases involving temporary staffing agencies. A charge must be filed against each employer to pursue a claim against that employer. To determine whether a respondent is covered, count the number of individuals employed by the respondent alone and the employees jointly employed by the respondent and other entities. If an individual is jointly employed by two or more employers, then s/he is counted for coverage purposes for each employer with which s/he has an employment relationship. If a charge is filed by a contract worker who is jointly employed by a private-sector employer and a federal agency, s/he should be notified that a claim against the federal agency must be filed with the agency's EEO office.

WHD’s Reimagining of “Employer”

“Economic realities” 1.  The extent to which the work performed is an integral part of the employer’s business. 2.  Whether the worker’s managerial skills affect his or her opportunity for profit. 3.  The relative investments in facilities and equipment by the worker and the employer. 4.  The worker’s skill and initiative. 5.  The permanency of the worker’s relationship with the employer. 6.  The nature and degree of control by the employer.

“Applying the FLSA’s definition, workers who are economically dependent on the business of the employer regardless of skill level are considered to be employees, and most workers are

employees.”

15

16

§  industrial realities suggesting another entity is essential to remedy

NLRB’s Re-Expanding Definition of “Employer”

The NLRB has re-expanded its test, discarding direct and actual control (driven by DOL’s Wage and Hour Division) and is poised to find joint employment with any of these factors:

§  indirect control over working conditions

§  unexercised potential to control working conditions; or

Joint or co-employment comes in three discrete contexts.

NLRB’s Re-Expanding Definition of “Employer”

The first is in the realm of common ownership: •  e.g., remedy sought

from parent corporation based on conduct of subsidiary toward its own employees.

The second is in the realm of franchising: •  e.g., remedy sought

from franchisor based on conduct of independently-owned franchisee toward its own employees.

The third arises merely from an arms length business relationship: •  e.g., remedy sought

from business customer based on conduct of maintenance contractor toward its own employees while working for customer or on customer’s premises.

1 2 3

17

What Does This Look Like in The Real World?

Joint Employer

Traditional Relationship

•  Setting employment policies •  Monitoring the number of hours worked •  Influencing discipline / promotions •  Setting pay rates and job classifications •  Dictating employment conditions

e.g., work schedules, breaks, timekeeping •  Dictating recruitment and hiring practices •  Running payroll and benefits •  Training / supervising their employees •  Hyper-managing their efficiency / profitability •  Keeping records on their employees •  Ensuring consistency of service •  Protecting branding and advertising •  Providing high-level shared services •  Consulting with them about start-up issues •  Requiring reports re normal business issues

“Directly” or

“Indirectly”

19

#socialmedia

20

Three D, LLC v. NLRB – Second Circuit

Former Employee: Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

1 -‐ Like -‐ Reply

Former Employee #1 One of the bar owners f’d up the paperwork … as per usual.

Former Employee #2 Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks.

Current Employee #3 I owe too. Such an a**hole.

Like -‐ Reply

Like -‐ Reply

Like -‐ Reply

Current Employee #2 likes this.

21

Three D, LLC v. NLRB – Second Circuit

Current Employee: Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money … Wtf!!!!

1 -‐ Like -‐ Reply

Former Employee #1 One of the bar owners f’d up the paperwork … as per usual.

Former Employee #2 Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks.

Current Employee #3 I owe too. Such an a**hole.

Like -‐ Reply

Like -‐ Reply

Like -‐ Reply

Current Employee #2 likes this.

22

Social Media & Discipline – Considerations

Whether the record contained any evidence of the employer’s anti-union

hostility

Whether the employer provoked the employee’s

conduct

Whether the employee’s conduct was impulsive or

deliberate

Location of the Facebook post Subject matter of the post Nature of the post

Whether the employer considered language

similar to that used by the employee to be offensive

Whether the employer maintained a specific rule

prohibiting the language at issue

Whether the discipline was typical of that imposed for

similar violations or disproportionate to his

offense

23

Solicitations on Social Media

•  Social media often tells you when an employee leaves a company and what company he or she joins – how far is too far?

Does the agreement specifically reference social media or social

media activity?

Does the agreement define those frequently used

terms found in restrictive covenants (e.g., “contact,”

“persuade,” “recruit,” “induce,” “entice,”

“solicit” or “attempt to solicit”)?

Did the employee establish the relationships on social media before or after he or

she was hired?

What is the nature and frequency of the employee’s post-

termination social media contact with customers or

co-workers (i.e., it is passive or active contact

or communication)?

Is there really harm?

24

Social Media Hijacking

Protect your social media sites and define whose property is the corporate social media account:

Name the account in the

company’s name

Describe the company’s

business in the account’s profile

Directly link the account with the

company’s website and/or its other online

accounts

1 2 3

Ensure that their corporate social media accounts are being used

solely for business purposes

3

25

WA

OR

NV

AZ

UT

ID

MT

WY

CO

NM

AK HI

TX

OK

KS

NE

SD

ND

MN

IA

MO

AR

LA

MS AL GA

FL

SC

NC TN

KY

IL

WI

MI

IN OH

VA WV

PA

NY

ME

VT NH

MA

CT RI

NJ

MD

DE

CA

Pending legislation

Enacted legislation

Social Media Privacy Laws - 2015

Fair Credit Reporting Act 15 USC § 1681: Employer Requirements

Prior to obtaining a report, the employer must:

Disclose in a stand-alone written

document that a consumer report

may be obtained for employment purposes;

1

Get written authorization from the individual; and

2

Certify to the consumer reporting agency that it

• notified the individual, • got written permission, • will comply with the

adverse action requirements of the FCRA, and

• will not use information in the report in violation of any federal or state equal employment opportunity law or regulation.

3

Recent FCRA Settlements

In April 2015, Home Depot settled for $1.8 million against roughly 120,000 individuals plus nearly $1 million in attorneys’ fees for allegedly using an authorization form that also released liability for the employer.

In March 2015, Food Lion settled for nearly $3 million against roughly 60,000 applicants for the alleged failure to provide the disclosure form

and receive authorization.

In October 2014, Publix settled for roughly $6.8 million against over 90,000 applicants for the alleged failure to provide the disclosure

agreement under the FCRA.

In October 2014, Dollar General settled for $4 million against over 200,000 job applicants for the alleged failure to timely provide an FCRA

summary of rights form. DOLLAR GENERAL

Contact

§  Marilyn Pearson has an extensive practice in the area of labor law under both the National Labor Relations Act and the Railway Labor Act.

§  Marilyn advises and represents clients on a broad range of traditional labor matters, including in response to union organizing efforts, collective bargaining and all aspects of strategic planning, public relations and employee communications, strike preparedness and employee job actions. She also has extensive experience in advising clients on labor contract administration and representing clients in arbitration and mediation. Marilyn has served as the lead negotiator for collective bargaining, including negotiations for consensual modifications to labor agreements and retiree medical benefits pursuant to Sections 1113 and 1114 of the Bankruptcy Code.

§  Marilyn has substantial transactional experience, advising clients on labor issues, performing due diligence, and drafting terms and agreements. She regularly conducts management training on negotiations, all aspects of contract administration and labor management relationships.

§  Marilyn also advises clients on a broad range of employment issues, among them federal and state employment discrimination, drug and alcohol testing, federal and state WARN Act, FMLA, USERRA and ADA compliance.

28

Marilyn Pearson Partner, Employment

[email protected]

T +1 312 368 4000

203 North LaSalle Street Suite 1900

Chicago, IL 60601

Contact

§  Katharine Liao focuses her practice on employment litigation.

§  She has successfully represented employers in all aspects of employment matters. Having defeated class certification on multiple occasions, Katharine's services focus on defending wage and hour class actions involving claims of meal and rest period violations, failure to pay wages and/or bonuses, off-the-clock work, seating claims and employee misclassification. She also represents employers in cases involving harassment, discrimination, retaliation, trade secrets, breach of contract and wrongful termination matters.

§  Katharine has defended clients in proceedings before the Department of Fair Employment and Housing, the Public Employment Relations Board, the Division of Labor Enforcement Standards, the Equal Employment Opportunity Commission and the US Department of Labor.

§  In addition, she provides day-to-day counseling to employers on various employment issues, including employment policies and procedures, wage and hour compliance, employment and commission agreements, and manager and employee training. Katharine speaks regularly on social media policies, anti-harassment measures and best management practices.

29

Katharine J. Liao Senior Associate, Employment

[email protected]

T +1 310 595 3000

2000 Avenue of the Stars Suite 400 North Tower Los Angeles, CA 90067