Employment Law Roundup: NLRB Union Election Rules, Social Media, Exempt Employees, and More…

For your reference, a roundup of recent updates and news from Employment lawyers and law firms on JD Supra:

On NLRB Changes to Union Election Rules…

NLRB Votes in Favor of Major Changes to NLRA Election Procedures and House Passes “Workforce Democracy” Bill (Morgan Lewis) 

“By a 2–1 vote, the National Labor Relations Board (NLRB or Board) decided to move forward with major changes to the Board’s representation election procedures. The vote adopted a subset of procedural reforms first proposed by the Board on June 22, 2011. The new rules are designed to substantially change—and speed up—the existing union election process, as well as limit employer participation in that process. The adopted rules will take effect after the Board drafts the revised regulatory language and then votes on the final language.” Read more»

NLRB Approves Significant Changes in Union Election Procedures (Schottenstein Zox & Dunn Co., LPA):

“The most significant changes will come in the form of speedier union elections – which could occur within two to three weeks after the filing of a petition, although the specific time frame is left entirely up to the NLRB’s regional offices. The obvious downside is that employers will have little time to discuss the impact of unionization with workers before they vote. Also, employers may have no right of appeal before an election occurs if there are questions of law or fact on who should vote or other legal issues, and employers may have no right to be heard on appeal even if there is some grievous error in the process.” Read more»

NLRB Chairman Issues Proposed Resolution on Election Rules In Advance of Today’s NLRB Meeting (Franczek Radelet P.C.):

“According to an explanation posted by the NLRB, the Chairman is proposing this ‘scaled back final rule’ because of the possibility that the NLRB will lose its quorum. Notably, the resolution only commits the NLRB to draft a final rule incorporating six amendments, and that rule would be finalized, circulated and then subject to approval by a majority vote of the NLRB.” Read more»

The NLRB Issues New “Quickie Election” Rules (Miller & Martin PLLC):

On their face, these changes appear to make ‘good common sense’ as far as streamlining and thereby minimizing the amount of litigation which is related to the union election process. What this ‘streamlining’ means to employers, however, is that the time between the filing of the petition which precipitates an election and the election itself will be substantially reduced. Accordingly, employers who wish to remain union-free will have to be proactive.” Read more»

Inside The Beltway – NLRB’s “Scaled Down” Quickie Election Rule (John Raudabaugh):

“Because unions organize for long periods prior to formally filing a petition for election and because the period between the petition filing and election will now be significantly reduced by as much as three to four weeks, employers are once again advised to ‘campaign’ daily, engage employees now, and be prepared.” Read more»

On social media…

Socially Aware: The Social Media Law Update — Vol. 2, Issue 6 — November 2011 (Morrison & Foerster LLP):

“Online social networking, and its capacity to connect our professional lives to our personal lives, have introduced a variety of new legal issues in the workplace – issues that we explore regularly in Socially Aware. Many managers and supervisors have connected with subordinates on social networking sites, and have likely wondered about the practical and legal implications of doing so. Applying long-standing legal concepts to this new context, a number of potential issues stand out.” Read more»

Take 5 – Views You Can Use – Labor & Employment – November 2011 (Epstein Becker & Green, P.C.):

“A survey cited in The New York Times reported that 75 percent of recruiters research candidates online, and 70 percent of recruiters report that they have rejected candidates on the basis of online information. BNA reports that Edward Loughlin, a trial attorney with the EEOC’s Washington, D.C., Field Office, noted that employers can access through social media a great deal of information that they could not access before and that social media might reveal information showing membership in protected classes. He cautioned that, in reviewing adverse actions in an employment claim, the EEOC will apply the same rules that are applied under traditional Title VII analysis, whether the information was obtained through social media or more traditional means.” Read more»

Can Your Employer Fire You For Facebook and Twitter Posts? – Maybe (Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck):

“The [National Labor Relations] Board, however, refused to extend protection to Facebook and Twitter posts in other cases where the comments did not rise to the level of protected concerted activity. In these cases, the Board considered the subject matter of the comment – was it regarding working conditions or terms of employment; the parties involved in the discussion – was it a discussion amongst multiple employees or just one single employee griping; and e substance of the comment – was is vulgar, threatening or harassing toward other employees or Individuals?” Read more»

On the liability of individual employees…

Personal Liability for Employment Decisions (Robert Haurin):

“Many decisionmakers believe that only their employers can be held liable for making decisions that negatively impact other employees of their organizations. This belief is not always correct. The attached white paper illustrates that some employment decisions can result in personal liability to the decisionmaker.” Read more»

When Employees Steal, The SEC May Punish The Company And The CEO (Allen Matkins Leck Gamble Mallory & Natsis LLP)

“According to the SEC’s complaint, Koss Corporation’s former Principal Accounting Officer and its former Senior Accountant, engaged in a wide-ranging accounting fraud to cover up the PAO’s embezzlement of over $30 million from the company… Yet, the SEC filed a lawsuit against the company and its CEO. So why did the SEC feel compelled to punish the victims?” Read more»

On international employment issues…

Conducting International Employment-Related Investigations (Fisher & Phillips LLP):

“If you are a Human Resources or other manager at a multi-national company, it is likely that at times you receive complaints from employees and others requiring investigations to ensure your workplace environment is free from illegal harassment, discrimination, theft, defamation, violence and other violations of the law and/or company policies. However, those responsible for investigations for global organizations must be aware of statutes, policies, and guidelines in countries and regions outside of the United States that could impact the way investigations must be conducted, the actions that may be taken as a result of investigations, and the decisions regarding whether an incident violated applicable law or workplace policy.” Read more»

Launching a Whistleblower Hotline Across Europe (White & Case LLP)

“Domestically within the US, workplace whistleblower hotlines are a largely uncontroversial “best practice” to which few ever object. But tensions rise when a multinational extends report channels abroad. In Europe in particular, whistleblower hotlines can spark blowback from staff, employee representatives and government enforcers, and can trigger confounding legal issues without US counterpart. To a socially-responsible American, the hurdles impeding European whistleblower hotlines have gotten higher than they should have any right to get.” Read more»

On exempt employees…

The FLSA and Myths of Exemption (Ryan Nalley):

“It is typical for employers who wish to avoid complying with the relevant overtime laws to engage in a variety evasive tactics, such as improperly classifying employees so they appear to fall within certain exemptions from the statutes, or by disguising wages as reimbursements or bonuses—to name just a few of the less sophisticated tactics. While there are legitimate exemptions, in my experience they are less prevalent than many imagine. Moreover, it is the employer’s burden to prove the employee’s exempt status.” Read more»

Pharmaceutical Sales Representative Case Goes to Supreme Court (Franczek Radelet P.C.):

“… the Supreme Court announced that it has granted certiorari in Christopher v. SmithKline Beecham Corp., where the Ninth Circuit affirmed that Christopher, a pharmaceutical sales representative, was an ‘outside salesman’ exempt from overtime under the FLSA. In SmithKline, the Ninth Circuit concluded that it owed no deference to the Secretary of Labor’s current interpretation of the outside sales exemption and, in fact, disagreed with the Secretary’s interpretation. This was in contrast to the Second Circuit’s Novartis decision, which adopted the Secretary’s interpretation.” Read more»

On violence in the workplace…

OSHA Publishes Game Plan for Workplace Violence-Related Inspections (McNees Wallace & Nurick LLC):

“Homicide has consistently been one of the top four causes of work-related fatalities over the past decade, with an average of 590 incidents per year. Shockingly, in 2009, homicide was the leading cause of work-related death for women. The Occupational Safety and Health Administration has addressed the hazard of workplace violence from time to time over the past fifteen years in various ways, including publication of specific guidelines for high-risk industries such as late-night retail, health care and social services… Given the persistence of the problem, OSHA recently took another step toward developing a standard approach to the issue.” Read more»


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