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Government imposes new worker-friendly policies

The set of concerns human resources professionals must consider grew this year with new decisions and regulations proposed by government agencies.

These new worker-friendly policies dictate changes in how employers must respond to union organizing, whistleblowers and social media use in the office. Here’s what you should know about them:

Delaying NRLB rule

Last month, the NLRB postponed to April 30 the effective date of its controversial new rule requiring private employers to post a notice informing their employees of their right to form and support a union.  This is the second time the NRLB has delayed the implementation date of the rule.

There have been legal challenges filed in federal court to the new rule which requires private employers to post an 11- by 17-inch notice to employees describing their rights under the National Labor Relations Act (NLRA) to “organize and bargain collectively with their employers, and to engage in other protected activity or to refrain from engaging in any of the above activity.” 

The notice also provides a comprehensive list of conduct by employers and unions prohibited by the NLRA.  For example, the notice provides that it is illegal for an employer, among other things, to: prohibit employees from talking about or soliciting for a union during non-work time; discourage union support; take an adverse employment action against an employee due to his/her union activity or because the employee engaged in concerted activity for mutual aid or protection; or to offer promotions, raises or other benefits to discourage or encourage union support. 

The notice also encourages employees to contact the NLRB promptly if they believe that their rights have been violated.  Failure to post the required notice alone constitutes an unfair labor practice and can hinder employers’ ability to defend themselves against other unfair labor practice charges.  All employers are impacted by this new rule. 

Sarbanes -Oxley and Dodd-Frank

Most employers are aware of a provision of the 2010 Dodd -Frank Act, which significantly expanded and amended the whistleblower protections and remedies under the Sarbanes-Oxley Act.But they may not know about new rules that expanded employees’ rights even more.

The 2010 changes extend whistleblower protection to employees of subsidiaries of companies whose financial information is included in the parent company’s consolidated financial statements.  Recent rulings by the Arbitration Review Board of the Department of Labor (ARB) significantly broaden the scope of the whistleblower protections and thus markedly erode the employers’ effective defenses in Sarbanes-Oxley whistleblower cases.

For example, the ARB expanded the scope of adverse action in the context of Sarbanes-Oxley to also include nontangible employer actions — actions that are not directly related to an employee’s position or economic benefits. In addition, the ARB took a broad view of the scope of protected activity under Sarbanes-Oxley in concluding that allegations of shareholder fraud are no longer required for a claimant to establish activity protected under the act.

Similarly, departing from longstanding doctrine, the ARB concluded that the reported misconduct need not even allege fraud or securities violations under the act, and an employee’s reasonable belief that a violation had occurred is sufficient. Because of these recent changes, a broader range of whistleblower conduct will be protected under the act.

Social media

Tthe social media phenomenon is now a large part of mainstream life. Thus, employers cannot ignore social media since their employees are online every day.  Surprisingly, the NLRB in 2011 became involved in the issue in a significant way.

By way of background, the NLRA makes it an unfair labor practice for employers — in union and non-union shops — to interfere with or restrain employees’ right to engage in concerted activities for their mutual aid and protection. Employees’ online posts to social media sites that are critical of their working conditions may qualify as protected concerted activity. As a result, employers may come under the NLRB scrutiny if they restrict the employees’ use of social media or discipline them for their activities.  

Similarly, employers may run afoul of the NLRA if they maintain a social media policy that prohibits, or reasonably can be construed by employees to prohibit, the exercise of the employees’ rights under the NLRA.

While the flurry of NLRB complaints, decisions and advisory rulings in 2011 suggests that the NLRB will continue to take a broad view of employees’ rights to bring their workplace issues online, there are no clear, definite rules regarding the type of social media activity that the NLRB deems protected. 

It is also apparent that the NLRB will review the language in an employer’s social media policy to ensure that it strikes the proper balance between allowing employees to exercise their rights under the NLRA and employers’ right to manage their workforce. 

Although recent NLRB actions and decisions provide some insight on these issues, this is yet another area that employers must be mindful of in managing their workforce in 2012.

David B. Ritter is a partner at Chicago-based Neal, Gerber & Eisenberg LLP.

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