Cover of Just Cause (Snap Case)

Employment at will and Just Cause go together

I was reading this thread on HR Toolbox the other day where someone asked,

 “If an employee has already submitted his/her two weeks notice with their supervisor/HR department, can the company legally “fire” them during that two week period to avoid paying the remainder of that person’s salary?”

The various responses were varied, and somewhat interesting, but something else caught my attention and made me just a little crazy.   People started throwing around terms related to employment.   Terms  like “employment at will state” and “right to work state”.  

 Maybe it is just me, but I see these things getting mingled into the wrong metaphors all the damn time.   Time to set the record straight, kinda…

The concept of right to work has nothing whatsoever to do with the concept of employment at will, except that unless you work in HR, you will not usually not hear these terms anywhere except at work, your lawyer’s office, or when you are filing for unemployment.

Right to Work

 Right to work deals with whether or employees can be required to join a union and required to pay union dues or not.   Individual states have the right to enact laws stating that people do not have to join a union or be required to pay dues.  There are currently 22 states with such laws on the books.   See the map from Wikipedia below to determine if your state is one of the twenty two states.    If you live in a gray state, you are not in a Right to Work state.  If you are in a union in a gray state, you can be required to join a union, and be required to pay union dues.  This is often called working in a “closed shop“, even though technically that terms refers to an outlawed practice which was a form of union security agreement under which the employer agreed to only hire union members, and employees had to remain members of the union at all times in order to remain employed.

Employment at Will

The legal definition of Employment at will generally means either employer or employee can end the employment relationship at any time.   According to About.com, employment at will means that an employee can be terminated at any time without any reason. It also means that an employee can quit without reason. Employers are not required to provide notice when terminating an at-will employee.

Numerous factors can modify the strict definition of employment at will including such things as state and local statutes, company policy statements in handbooks, the language of an offer letter, an employment contract, or having a collective bargaining agreement in place.  It is always wise to check local laws to understand the status of the area you are doing business in before making final decisions of employment relationships.

Just Cause

Most union contracts contain a specific or implied concept of just cause when it comes to ending an employment relationship.  Just cause is a higher standard for employment whereby an employer must prove just cause, often before an arbitrator in order to justify a termination.  The burden of proof rests with the employer in such cases.

Just Cause is also a video game, and a crappy movie from the 90′s starring Sean Connery and Laurence Fishburne.  Please don’t try to rent it by asking for “Right to Work” or “Employment at Will”!

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Facebook is NOT Free Speech for Employees

There is a short article on the Mashable/ Social Media page written today by Julie O’Dell.  It is entitled “For Employees, Facebook counts as free speech“.  As I write this, the article had been retweeted 1,353 times, and liked on Facebook 1,975 times.  This is a massive amount of views for an article relating to a charge pending before the National Labor Relations Board.

The Mashable perspective on Facebook, the NLRB and Free Speech

Here is the article, if you haven’t seen it.

A federal agency has declared Facebook posts are legally protected speech, even for employees who write negative things about their employers.

In a lawsuit that probably won’t sit well with most employers trying to enforce social media policies, the National Labor Relations Board said that a recent Facebook-related termination was unlawful.

The employee in question, Dawnmarie Souza, used some vulgar language to deride her boss on Facebook when he denied one of her requests. Several of Souza’s co-workers joined in on the thread, also making negative comments about the supervisor. Souza made these comments on her own time and on her own computer.

An NLRB representative told The New York Times that company social media policies that prohibit making negative remarks about one’s boss or company online are actually in violation of labor laws that protect employees’ right to talk about things like wages and working conditions.

Hence, Souza’s supervisors may not have had the right to fire her for what she did.

Of course, not all Facebook activity is likely to be protected speech. Given the nuances of employment law, you may want to call an attorney before you post something derogatory about your boss or workplace — or perhaps just skip the public, online venting altogether.

According to the NLRB’s Facebook page, Facebook comments can lose protected status depending on where the discussion takes place, the subject matter, the nature of the outburst and whether the comments were provoked by an employer’s unfair labor practice.

What do you think: Should companies have the right to make and enforce social media policies about what you can and can’t say about them online? Or should your personal social networks be protected from any work-related consequences?

Michael VanDervort’s perspective on Facebook, the NLRB and Free Speech

Here is the comment I posted in response on Facebook.

Just a word of caution, this case is only a charge, and the decision will be heard in January 2011. It is not yet binding on employers, (although it is a pretty good indication of where things may wind up!) Employees should be very careful NOT to assume that this means anything you say on-line regarding your company or supervisor is ok. That won’t be the case, even if this case is decided as insinuated here.

This thing is far from decided yet, and any decision is sure to be tested.   People offering advice from a social media perspective, as well as employees assuming that this notion of “free speech” is like a constitutional right need to be very careful in their assumptions.   Protected, concerted activity is a complex legal concept, and does not translate into ” I can say whatever I damn well please about my company and my employer”.

It would be very smart to bear this caution in mind.

For another perspective on this topic, see the excellent analysis  why the NLRB just gave you another reason not to have a social media policy by Lance Haun on TLNT.

Related articles

• Don’t Overreact To Case Over Employee Being Fired for Badmouthing her Boss on Facebook (blogs.forbes.com)
• For Employees, Facebook Counts as Free Speech (mashable.com)
• Free Speech on Facebook an Employee Right, Federal Agency Says (readwriteweb.com)
• Curse The Boss–You’re Protected? (workinglife.org)
• NLRB: Facebook Discussions Between Co-Workers are Protected Speech (workinprogress.firedoglake.com)

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NLRB releases a site for mobile phone users

Check out this use of mobile technology by the National Labor Relations Board.  Continuing their push into social technology, the NLRB has set up a website providing access to their information from your mobile phone.   Lawyers, managers and union organizers will now be able to access NLRB information in the field on topics such as new Board decisions, recent cases, do a case search, and others, all listed with links below!

NLRB Mobile

Home

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Management and Labor Unions still at odds

If you work in human resources, there are a lot of things going on right now – very quietly for the most part – that are going to impact the field, especially if you deal with labor relations.   If you work in human resources, and especially if you work in employee relations or labor relations, you really need to paying attention to these trends, even if you work in a company that is not currently unionized.

Leadership changes at SEIU

First up is the changing of the guard in the top leadership of the Service Employees International Union (SEIU), the largest union in the United States.   Andy Stern, one of the most influential and controversial union leaders of this decade  has stepped down and is moving into a speaking career.  Stern is being replaced by Mary Kay Henry, a relative unknown who drew on high levels of support in states like California and New York to move past Anna Burger, Stern’s number 2,  and his personal choice to succeed him as International President.

Under Henry, SEIU is expected to be more focused on organizing.   Henry recently announced a $4 million fund for organizing non-traditional SEIU targets, like banks, grocery stores, biotechnology companies and independent contractors.    The  Labor Union Report blog also recently broke a story detailing an SEIU plan for organizing in the fast food restaurant industry.

Rules changes make union organizing easier

The National Mediation Board, the agency that oversees labor relations issues in the rail and airline industries,  recently changed  the election rules governing  the voting process for deciding union representation  for railway and airline employees.  While narrowly focused, there is speculation that these changes could just be the first of many.   Some experts fear that similar rule changes  impacting elections for union organizing could be forthcoming from the NLRB, the agencies that oversees labor relations in most business sectors.

Under the former NMB rules, a union had to receive votes from over half the eligible voters to become the bargaining representative.  Under the new rules, a union just has to receive votes from over half the people who vote.   While the rule itself now mirrors the counting process of the NLRB, the change is significant because the NMB conducts  elections using mail-in ballots or other means for collecting votes from a widely dispersed electorate.   Current NLRB practice requires a live vote in the workplace.   Many labor experts fear that the NLRB may change this process, and give unions a potential organizing advantage by doing so.  For some, it even prompted fears about the return of the Employee free Choice Act.   Leo Gerard, International President of the United Steel Worker even wrote an article called Hey Union-busters, we’ll give you supermajority, highlighting his thoughts on the matter.  The U.S. Chamber of Commerce also filed a motion on May 24 challenging the NMB changes.

Department of Labor proposes rule changes

The Department of Labor (DOL) conducted a meeting today intended to be a forum for the discussion  of proposed rule changes covering  employer side consultants,  attorney and employer reporting  related to communication activities regarding “persuasion and advice” related to unions.  The changes would require consultants, including law forms to report many of their activities carried out on behalf of employers under section 203(c) of the Labor Management Reporting Disclosure Act of 1959 (LMRDA).   Penalties for violations could include hefty fines and prison terms.    The direct impact of the proposed change would be to try and stifle management communication efforts during union organizing campaigns.

Potential “nationalizing” of private retirement plans

Fox News is reporting that Democratic Senator Bob Casey (D-PA.) is introducing legislation for a bailout of troubled union pension funds.  If passed, the bill could put another $165 billion in liabilities on the shoulders of American taxpayers.   The news could be even worse, according to Fox – although the price tag of this legislation is estimated at $165 billion, it could go much higher, depending upon a number of factors, including life expectancy of the receipients.

NLRB and Social Media

Labor law slowly begins the process of catching up with technology as the NLRB issues an advisory letter on employer social media policies.

The Labor Relations Today blog recently profiled an advisory letter from the NLRB Division of Advice in which they analyzed the issue under the framework set forth by the Bush Board in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a case that dealt with a rule prohibiting certain types of interactions in the workplace.   This is one of the first instances of a case dealing with labor law and social that I have seen come to the NLRB for review.   It is very interesting just for that reason.  You can view the LRT report here.

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Continuing the Dialogue

Yesterday I posted a bit of a mini-rant about the seminars dealing with the inherent risks of social media for employers that were presented as part of the 2010 Employment Law & Legislative Conference.   My statement was that SHRM failed to fulfill what I consider to be an obligation to present a balanced perspective on this topic, or any other topic.

There is another side to this story that I didn’t hot on yesterday.   People like me who want to see SHRM doing a better job of covering topics need to be doing our part by submitting proposals to speak at SHRM conferences on topics that we feel are important.

I know that many people at SHRM are already doing a lot in this regard.  I am not bashing SHRM in the other post.  I was just pointing out what I believe they could better in handling the legal aspects of a rapidly developing and changing subject matter, where quite frankly lawyers don’t have that much more expertise than skilled social media users.

SHRM National has a better platform for bringing state of the art information and expertise to more people than anyone else, including the local chapters. They need to add some method for selection of “Developing subject matter” to ensure that timely presenters are able to get onto the  conference schedules in  in a more timely way than relying on Calls for Proposal that require submissions nearly a year before the conference date.  I know this is difficult.  I also know this can be accomplished.

Where to submit speaking proposals to SHRM

If you are interested in submitting ideas for presentation at an Calls for presentation to #SHRM Conefernces for 2011 can be found at the links below:

Employment Law  http://bit.ly/bQaEWK

Global HR http://bit.ly/dt2oM3
Staffing and Employment http://bit.ly/amMhYC
Annual Conference http://bit.ly/b2SqKn

Speaker Information for #SHRM http://www.shrm.org/Conferences/SpeakerInformation/Pages/default.aspx

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This isn’t a termination. This is a reality check.

It seems as if lately I am seeing an increasing number of articles, webinars, and people standing on street corners selling seminars on terminating someone from their job.

George Clooney is even playing a guy who fires people for a living at a theatre near you. (although you would be better off seeing “Up” than “Up in the air”)

You know the seminars and articles I mean.  They are the ones with titles like:

• How to terminate an employee safely
• How to avoid legal risk when doing a termination
• Successful Terminations
• How to legally terminate employees with attitude problems

Termination is not rocket science!

These classes and their ilk have a role in business, but the idea of terminating someone is being turned into something far more scary than it should be.   I’m not saying just fire someone at the drop of a hat.

Where things are going wrong is that terminations are turning into events with multiple chapters, rather than business decisions.  If you are doing things halfass right anywhere near correctly to begin with, a termination should normally not be that much of a surprise.  It should feel and look much more like the culmination point of a series of events that were designed to prevent this final step from ever happening in the first place.

Terminate your fear

Here is what you need to do every day to be able to terminate without fear.

1. Hire good managers
2. Have fair rules in place
3. Enforce the rules fairly
4. Hold employees accountable
5. Document according to the rules
6. If the rules are broken enough times, and you have rached the end of the process steps
7. Terminate the employee
8. Go do some productive work

You will get in trouble if you fail to do the above, so don’t do that.   You can pay for a class, or call a lawyer if that makes you feel better, but you shouldn’t have to that very often.

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Badass  MoFo Lawyers Rock Wash DC

I encountered these guys while attending the ABA Labor and Employment Law section conference in Washington DC last week. I’m guessing that the firm of Morrison and Foerster LLP is tough to deal with!

From Drop Box

Show me the money!

My son Eric sent me this one.  It is a fairly self-explanatory statement on employee recognition techniques.

From Drop Box

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Be smarter than your competition

Back in the stone age when I actually used to have a weekly newspaper subscription, I made it a point to read the Help Wanted ads every week.   I didn’t do this because I was engaged in a never ending job search.  I did it because it was a really simple way to stay abreast of the changing trends in the local job market and to see what the competition was doing in regards to pay, benefits, and hiring requirements.

Like so many other things, the Internet has changed the way I approach this review.

I no longer subscribe to a weekly newspaper.  I read all my news on web sites or via my Android phone.  If I need to do any kind of market research on jobs or competition, I simply search via Google, or jump onto any of the bazillion job boards out there to obtain the information I need.  I also set up some short cuts to help so that I can maintain at least a general knowledge base of the employment trends in my local community.

For example, I get several emails every weekend via Monster telling me about the various jobs that are open and being advertised on the job board in Florida.  I do this by setting up searches for several job categories, including Human Resources and having them mailed to me.    It takes me 15 minutes a week to review them.  I can do it whenever I want, and I don’t have to worry about recycling the newspaper.

This is one of my personal ways of being green!   This is also an easy tip for any manager to adopt, whether they are in HR or not.

Experts in Everything

As I was reading the Monster “HR Help Wanted”  email this morning.  I ran across the following ad.  (This is not a paid post.)  Take a look at the wide variety of skills that they are asking for in this job.  Check out the various links if you want to know more about a specific topic.  See you after the jump!

Faneuil is looking to fill the following position in Orlando, Florida.

• Employee Relations using a Customer Service Oriented Approach
• Policies – develop compliance policies and guidelines and ensure consistent application.​  Serve as the lead in writing and updating all HR policies and ensure that policies are updated.
• Employee safety, wellness and welfare compliance
• Oversees Worker’s Compensation
• Establishes effective manpower planning, recruitment and staffing strategies
• Oversees unemployment claim management
• Ensures that EEOC, ERISA, DOL and related compliance matters are handled appropriately.​  Ensures that HR policies and practices conform to governmental guidelines.
• Wage & Hour Laws – serve as company expert to provide direction on proper wages and employee classifications to comply with State and Federal laws
• Assist and advise company managers on Human Resources Issues
• Travel required up to 15%
• Assist with other projects and responsibilities as needed

That is a helluva lot of different skill areas for one work function to be experienced in, let alone to be considered an expert in on a singular basis.  The next time you sit at the table and look at the people working in functions like Finance, IT, and QC, you should mentally stick out your tongue at them and go “Neener -neener-neener”, knowing that you understand and deal with many more complex disciplines and issues  than they do.

Smile that secret smile, for you are the Smartest Person in the room!

Just don’t let it go to your head!

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Labor and Employment Law Conference

Today was day one of the 3rd annual ABA Labor and Employment Law Annual CLE Conference.  Like most conference events, this one comes complete with keynotes speakers and various breakout sessions.   Instead of being a conference for HR practitioners, this is a mainly a conference for lawyers.  This means a lot of the sessions are spent talking in case names and citations like 14 Penn Plaza LLC v. Pyatt, which was one of a number of labor and employment law case decisions handed down by the U.S> Supreme Court this year and reviewed by Kenneth Dau-Schmidt of Indiana University in the opening keynote.

This type of information is useful and informative for lawyers, but pretty dry to sit through all day long, and even worse to try and blog about.  So, in lieu of providing 6 dry and boring blog paragraphs, I decided to take notes on the things from each session that I found really surprising or interesting, or both.  So here are my interesting tidbits from each session that I attended today.

Top 5 issues in Employment Law

I found it a little odd that in a session called “Top 5 issues”, the panel talked about 4 issues which are of paramount importance at the Equal Employment Opportunity Commission.  These were:

• Genetic Information Non-discrimination Act (GINA)
  • Proposed regulations being finalized on Title II of the Act
  • Are people dealing with these cases yet?  Not so much.
  • GINA is a pro-active Civil Rights law, not a reactive one like most others.
  • Represents a huge challenge to EEOC. Requires training and education for agency and employers.
  • EEOC doesn’t expect to see a huge explosion of charges or litigation.

• Employment Non-Discrimination Act
  • “Gay Rights” bill – Congress held hearings on this proposed legislation. (I am very supportive of ENDA on a personal basis!)
  • Would add sexual orientation/sexual identity to Title VII (very important to members of the LGBT community and supported by the Obama administration)

• Family Responsibility Guidance
• ADAAA

Other important things going at EEOC

• Full complement of board members at the EEOC (finally?!?)
• Trying to change the way they do things at the EEOC
  • Have been struggling with financial resources
  • Finally able to hire 250 new practitioners
  • Able to do the real work they have been wanting to do and train people for their new approach

The new approach is that the EEOC is no longer a charge processing factory.  They now consider the EEOC to be a law enforcement agency!

That statement alone made this session worth attending.  If you have become blase about the EEOC, it is time to get over it.  They are resurgent in enforcement.  Coupled with their new systemic approach, this means HR professionals need to be aware of what is happening in your organization and vigilant.

A Conversation with the NLRB

This was a panel with the entire National Labor Relations Board in attendance.  That would be the complete 2 member board consisting of Wilma Liebman and Peter Schaumber.    Each gave opening comments before accepting questions from a panel and the audience.

Peter Schaumber

Schaumber has been thinking about the decline in organized labor membership.  According to Schanumber, this decline not due to employer resistance or employers committing excessive levels of Unfair Labor Practices.  He says it is more attributable to the loss of manufacturing jobs, the current high profile issues of some organized industries, a disinclination of many current workers to embrace the union model, and the development of a global economy.

Schaumber also observed that much of the current conversation of labor relations reform in the US revolves around the need to make it easier to organize.  Schaumber calls out organized labor for failing to give consideration to the possible need to revamp their business model to something more fitting with the realities of the present day economy. He then suggested some other approachs for discussion, including:

• Internal worker councils, such as are common in Europe
• Can unions  be more aligned with business?
• What would a labor law with this emphasis look like?
• Could following a more salutary approach change this paradigm?
• Obama board – will they change board law?
• Will they “Pass EFCA via the Board”?

He closed by saying it would be a grave mistake to undertake a wholesale reversal of  Bush board precedential board policy.  This would not promote collective bargaining.  The NLRB needs to be carefully balanced to represent the interests of parties, management and labor.  Stability in Board law is critically important in this economy.

Wilma Liebman

This is a time of great change, a time of great opportunity, a time of great uncertainty.   Supreme Court granted certiorari in a case to determine the status of a 2 member board.  She doesn’t think all 500 cases are at risk. Right now only 77 have been taken to Circuit Court for review.

Board would obviously decide what they would have to do if they were to lose in case.  Liebman believes the decision to proceed as a 2 member board was a good one.  Other issues facing the NLRB include:

• Uncertainty over the appointments of President Obama’s board nominees
• Looming uncertainty of labor law reform, when it will occur and what it might look like

Constant “flip flopping” may have been caused by extended 60 year period without reform by Congress.

Labor relations is a field of deep divisions.  Bush board was always divided.  3-2 splits and dissents were common.

Controversy has exacerbated the loss of confidence in the NLRB.  Resulted in a decline in trust of the Board.  Unions avoid the Board at all costs.  Deep divisions over EFCA and other types of labor law reform.  Liebman – this debate is welcomed, however rancorous.

There are constraints on the Board, whoever sits on the Board.  Liebman doesn’t think it likely that there will be fundamental changes from the Board itself.  This is much more likely to occur on Capitol Hill.

Union Response to Schaumber

Nancy Schiffer of AFL-CIO  termed it to be “stunning and breathtaking for a member of the board who has diminished coverage of the Act over the years of his service to present a critique of the Union movement right now without an equal critique on growing scorched earth policy in labor industry.  EFCA is a model for a less adversarial, more cooperative model of labor relations.”

Schaumber responded to this criticism by saying the NLRB has only one constituency:  employees.  Management and unions are customers.  Unions should encourage Board independence, not to serve the interests of any one stakeholder.

I know who you are and I read what you write:  Blogging, tweeting, GPS and e-mail

This was the title of the last session of the day.  The panel was mixed, with both labor and management side attorneys presenting.  Ironically, blogging was never mentioned.  There were many fireworks over the uses that management might find for these technologies, and whether or not employees needed to represented to avoid major issues.

It is clear that this is an area of developing practice for lawyers on both sides.  The lawyers who understand the technology are doing a lot of business giving advice to clients on both sides about social media concerns.  However, only about half the lawyers in the room had even a basic familiarity with sites like Facebook or Twitter.  Management attorney Eric Barnum gave some cautionary advice to the audience:  ”If you don’t understand this technology, you need to think really hard about advising clients in this area!”  Words for lawyers (and HR practitioners) to live by.

Labor-Management Rift Runs through it all

In all the sessions, there was an undercurrent of tension between the labor and management practitioners in the room.  It was noticeable by low key sniping and snide comments that took place over and over again.

It was an interesting first day.

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