Thursday, January 29, 2015

Top Five Employer To-Do Items in Today’s Union Organizing Environment

Since the end of last year, we have been blogging about the rapidly-changing environment for labor relations and union organizing in light of new positions and rulings of the National Labor Relations Board.

As a follow-up to our recent posts (see here and here) I'm sharing my top-five list of preparation steps for employers. Of course, every employer has to assess its unique risks of union organizing activities and make reasonable choices about how much and where to invest in preparation and prevention. When you make that assessment and those choices, however, keep in mind that many, many employers are more than a little surprised to learn that a union representation petition has been filed with the NLRB.

As such, it makes business sense to invest at least some resources in prevention, assessment, and planning around union organizing issues. The new election rules and the new email ruling, among other actions of the NLRB, make this more urgently true than perhaps ever before.

As you think and plan, here are my TOP FIVE TO-DO priorities for employers:
  1. Position on Union Organizing. Develop and articulate (for internal management use) a position statement on unions and union organizing in your workforce. Take into careful consideration all your constituencies and the various interests of your business or organization. Your position should be well-tailored, with an understanding of what is lawful in this arena, so your managers have a clear understanding about legal do's and don'ts.
  2. Management Training. Train management on the labor law, union organizing, and collective bargaining rights and duties.
  3. Assess Your Employee Relationships. Assess the relationship between management and your workforce. Take action to build or improve communications and trust in labor relations. Trust goes a long way in disincentivizing organizing activity.
  4. Review & Revise Policies. Review employment policies and procedures for labor law compliance and make any necessary or advisable changes before there is organizing. At that point, it will be too late under the law to make changes.
  5. Design a Communications Plan. Prepare a plan for how (by whom and using what means) you will communicate with your employees about union organizing and related issues should the need arise.
The latest breaking news on Jan. 28 is that the Senate labor committee announced in a press release that U.S. Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. Lamar Alexander (R-Tenn.), chairman of the committee, have introduced the NLRB Reform Act. The purpose of the proposed Act is to to turn the National Labor Relations Board (NLRB) from an advocate to an umpire and to keep the NLRB general counsel from operating as an activist for one side or the other.

The press release quotes McConnell as saying, “The NLRB’s politically motivated decisions and controversial regulations threaten the jobs of hardworking Americans who just want to provide for their families. So it’s time to restore balance and bipartisanship. The NLRB Reform Act would help turn the board’s focus from ideological crusades that catch workers in the crossfire to the kind of common-sense, bipartisan solutions workers deserve.”  (See the full press release here.)

Any such reform, however, is likely to be vetoed by President Obama and, in any event, is undoubtedly a long way off. Meanwhile, employers will have to continue to deal with the NLRB and the union organizing environment as it stands today. 

Toward that end, members of our labor law team this week presented a “Breakfast Briefing” and webinar on the topic “Getting Union Organized for the New Year.” (To download a free version, click here.) A primary theme was that employers at risk of organizing should proactively prepare. As my colleague included in wrote in her Dec. 30 post on NLRB's the new “Quickie” Election Rules: 
So what's the main take-away for employers? BE PREPARED! After implementation of the new rule, it is more important than ever to prepare for possible organizing activity and to respond immediately once a petition is filed. The new rule gives employers a very short window to gather employee information, formulate a position, raise issues, and communicate with employees.

The labor law is complex, nuanced, and ever-changing (or so, at least, it seems to most of our clients!). Our labor law team is available to help navigate the challenges you face in this arena.

Wednesday, January 21, 2015

Two-Factor Authentication Is a Necessity for Companies

It seems as though every other week brings news of a new social media hack. Last week, Crayola had hackers post inappropriate content on its Facebook page, and the official Twitter feed of U.S. military's Central Command was briefly taken over by ISIS sympathizers. Such incidents inevitably bring with them bad publicity, as well as a panicked scramble by the hacked entity to try to regain control of its account.

The problem is that having just one layer of password protection makes an account ripe for hacking. A potential hacker can either guess or learn the answers to secret questions to reset the account's password. Alternatively, the potential hacker can launch a “brute force attack” in which a computer automatically runs thousands of common passwords or letter combinations through the login screen to try to discover the correct password. Some have speculated that the infamous celebrity nude photo iCloud hack from last fall was perpetrated in this manner.

One of the easiest things a company can do to reduce the risk of an embarrassing hack is to set up two-factor authentication on their social media accounts. Two-factor authentication essentially provides a double layer of password protection. It commonly involves the social media provider sending an automated text message or email with a temporary, secondary login code to a pre-set recipient when someone tries to access the user’s account from an unknown computer or mobile device. This way, a hacker trying to gain access to the account password will be prevented from doing so without the second code. In addition, an added benefit is that the company will be alerted to any attempt to break-in to its account and can take additional protective steps.

Setting up two-factor authentication is not hard, and set-up information is readily available online through a search of  the social media provider’s name and the phrase “two-factor authentication.” With Facebook, for example, two-factor authentication can be turned on by going into Settings – then Security Settings – and then Login Approvals. For Twitter, it’s under Account Settings – then Security and Privacy – and then Login Verification.

A company should also keep a tight watch over which employees have access to its social media passwords while making sure that it has an access back-up  plan in place if the person with the “keys to the system” is unavailable.

Ashley Bennett Ewald is a Principal at Gray Plant Mooty and is this week's guest blogger. 

Tuesday, January 13, 2015

Minnesota’s New Expungement Law: A Second Step to a Second Chance for Some Potential Employees?

A new year may bring new employment chances for Minnesotans with criminal records. Minnesota’s new “Second Chance” law, providing for broader and more effective expungement of criminal records, became effective on Jan. 1, 2015. Expungement is a process for the sealing of one’s criminal record through a court order. The revised expungement law is meant to provide a more effective remedy for those persons who are able to qualify for an expungement of their criminal record, including ensuring that information held by various governmental agencies is also effectively expunged. Minnesota law previously did not reach those other records, which may include records of criminal law agencies and prosecutors’ offices, among other agencies and offices. A more detailed discussion of this law and its purpose may be found here. One of the primary motivations for the enactment of this revised law was to increase the employability of persons with minor or remote criminal histories.

The enactment of Minnesota’s Second Chance law was in essence the second step of the Minnesota legislature in the last two years towards creating second chances for employment by persons with criminal records.  One year ago, Minnesota’s “Ban the Box” legislation become effective. The Ban the Box law places certain restrictions on the ability of employers to seek the disclosure of criminal records from job applicants. In general, Minnesota employers may not lawfully ask job applicants to disclose their criminal history at the application stage. Employers are allowed to seek that information once the applicant has been accepted for a job interview or given a conditional job offer (if interviews are not conducted). Even though Minnesota has provided guidance to employers on the Ban the Box law, employers have still been encountering some difficulties in complying with that law during its first year. The purpose behind Minnesota’s Ban the Box law is similar to the concerns that led to the enactment of the Second Chance expungement law. 

Minnesota was the third state to enact a Ban the Box law and there are now 13 states with similar laws, in addition to the enactment of such laws by several cities and counties throughout the country. In addition to the various Ban the Box state laws, the EEOC issued a guidance three years ago requiring employers to perform an individual, case-by-case analysis before rejecting a job applicant on criminal history. The EEOC has been active in enforcing that guidance. 

Such “second chance” laws may also actually provide benefits to employers by expanding the pool of possible job applicants and, ultimately, new employees. In any event, employers need to be aware that the landscape is shifting significantly regarding the ability to seek–and ultimately obtain–broad information regarding the criminal history of job applicants. 

Wednesday, January 7, 2015

Purple Communications - An Employer's Guide to the NLRB's New Ruling on Email Use

As we all get started on our New Year’s resolutions, employers should add one more to their list – revising any email policies. In the waning days of 2014, the National Labor Relations Board (NLRB) issued an important email ruling that affects all employers, whether unionized or not. In the Purple Communications case, the NLRB held that non-management employees with access to their employer’s email system have a presumptive right to use that system during non-working time to communicate about union organizing or about other topics related to improving their wages and working conditions. The NLRB’s year-end decision upended and reversed an earlier 2007 decision in the Register Guard case holding that employees did not have these workplace email rights.

The email policy at issue in Purple Communications limited use of the employer’s system to “business purposes only” and banned its use for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.” Sound familiar? In fact, many employers have similar policies prohibiting non-work use of email and electronic resources. The NLRB has now held, however, that such policies violate federal labor law rights of non-management employees because email is ubiquitous in the workplace and non-work use of email doesn’t unduly infringe on or burden the employer’s technology systems.

Much ink has been spilled over the Purple Communications decision, but here is the short synopsis of what the NLRB did and did not hold:

The NLRB did hold that:

  • Non-management employees who have already been granted access to the employer’s email system are presumptively permitted to use it during non-working time for communications protected under the labor law. 
  • An employer may be able to justify a complete ban on non-work use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline, but the need must be more than theoretical and the employer’s interests in having the ban must not be similarly affected by employee email use that is permitted. 
  • Employers can apply uniform and consistent controls or monitoring of its email system in order to maintain production and discipline. These controls must be uniform, however, and must not target or discriminate against individuals for exercising labor law rights. 

The NLRB did not hold that:

  • Employer technology systems or property beyond email must be made available for employee non-work use during non-working time (although stay tuned, as this could be coming soon from the NLRB). As such, employers can, for now, still limit employee use of copy machines and bulletin boards for labor communications. 
  • Outside parties (like a union) can use an employer’s email system. As such, an employer can still limit third party access to and use of the email system. 
  • Employees can use an employer’s email system during working time for non-work purposes (such as union communications). As a practical matter, though, it may be difficult to distinguish between working and non-working time when it comes to email use. 
Future litigation is bound to build on and fine-tune the impact of the Purple Communications decision. In the meantime, employers have the unenviable task of trying to distinguish non-working time from working time and of determining whether and how to monitor employee email use. One thing is for certain – the Purple Communications decision is a good reason to take a red pen (or perhaps a purple crayon if you prefer) to your email policy.

Tuesday, December 30, 2014

The NLRB's New Quickie Election Rules: How to Handle the Unwelcome Stocking Stuffer

Last week we mentioned the many stocking stuffers the National Labor Relations Board ("NLRB") handed out over the past few weeks in the form of rules and opinions modifying the union-organizing landscape. While unions probably see these changes as shiny new toys, many employers see them as lumps of coal. One such unwelcome stocking stuffer was the final enactment of the new NLRB's "quickie” election rules on December 12. The NLRB final rule modifies the process for union representation elections in a way that streamlines and expedites the process for unions and sets high hurdles for employers.

These rule changes were not unexpected, as the NLRB first introduced them in 2011, received some 50,000-plus comments, and only abandoned them after they were enjoined by federal courts of appeal. In February of 2014, the NLRB re-issued the proposed rule, which left the 2011 proposed rule unchanged.

The NLRB has provided a helpful fact sheet and comparison chart showing the changes to the procedures that will result from the new rule, which becomes effective April 14, 2015. While we don't have space to cover all of the changes, the following are few important points for employers to note:
  • Length: They aren't called "quickie” election rules for nothing. The rules are meant to streamline and expedite the process for employees to elect union representation, from petition to election to post-election litigation. The Wall Street Journal reports that the new rules have been estimated to reduce the average time between petition to election to 25 days or less— substantially less than the 2013 average of 38 days. One specific change to the timeline is that a pre-election hearing generally will be set for eight days after notice of the petition, and, as discussed below, the new rule now requires employers to submit more information prior to that hearing. The shorter timeline makes it far more challenging than ever for an employer to prepare and conduct a reasonable campaign so that its voice can be heard on the unionization question along with the voices of the union. 
  • Employee Information: Two major changes were made to an employer's obligation to provide the union with employee information. First, when the employer provides the required list of prospective voters, it must now include their job classification, shifts, and work locations, within very few days of receiving the petition. Previously, this information was not required until after an election was ordered. Second, in an effort to "bring the representation rules into the twenty-first century," an that the employer must provide (to the union through the NLRB) after an election is ordered (commonly known as the "Excelsior List") must include employees' personal phone numbers and email addresses, if available to the employer, in addition to the home addresses that have long been required under the old rule. Also, this information is also due earlier than in the past—just two days after an election is ordered.
  • Making Challenges: The new rule limits the manner in which the employer may raise challenges during and after an election campaign. First, the employer must submit a "statement of position" identifying any issues the employer has with the petition, generally one business day prior to the pre-election hearing, which is, again, just a few days after the petition jump-starts this entire process. Significantly, subsequent litigation that is inconsistent with these positions will generally not be allowed. And, during the pre-election hearing, litigation will generally be limited to issues that are necessary to a determination of whether an election in the proposed unit of employees is appropriate. Issues involving voter eligibility that formerly would be decided at this early hearing now will generally be deferred until the post-election stage, and will often be mooted by the election results. Additional changes to the process for challenges to voter eligibility are discussed in the NLRB's fact sheet and comparison chart.
So what's the main take-away for employers? BE PREPARED! After implementation of the new rule, it is more important than ever to prepare for possible organizing activity and to respond immediately once a petition is filed. The new rule gives employers a very short window to gather employee information, formulate a position, raise issues, and communicate with employees.
We will be discussing this and other issues facing non-unionized employers at a free Breakfast Briefing by our Labor Law Team on January 27th in our Minneapolis office. Click here for more information and to register.

Monday, December 22, 2014

The NLRB’s Busy Holiday Season

The National Labor Relations Board has been busy this holiday season. In the last few weeks, the Board has pushed ahead with its “quickie election rules” and changed the analysis it uses to determine whether to assert jurisdiction over faculty at religious institutions of higher education, and whether faculty members are “managerial” employees with a protected right to unionize. In addition, the Board ruled earlier this month that employers must generally permit employees to use company email systems for a variety of protected labor law activity, including union organizing. Then, last week, the Labor Board issued complaints in nearly 50 unfair labor practice cases, alleging that franchisor McDonald’s Corporation is a joint employer with its franchisees and, therefore, responsible for alleged unfair labor practice.

In the coming weeks, we will issue a series of blog posts providing more information on these labor board actions and suggesting action steps for employers to consider in response to these significant changes in the labor law. In the meantime, if you need immediate labor counsel or advice on any of these subjects, our Labor Practice Group Team can be reached by emailing our chair, Mark Mathison, at or calling him at 612.632.3247.

Beware of Stock Vendor Background Check Forms

If you are like many employers, you use an online job application or are considering switching to an online process. Online applications have many benefits, and there are numerous vendors prepared to help you set up an online site, populate it with forms, and set up applicant tracking and background check processes. Employers should be wary, though, of adopting stock background check forms provided by vendors. However well-intentioned, vendors do not always provide stock forms that comply with the federal Fair Credit Reporting Act (FCRA) or other applicable laws.

A recent proposed class action against Whole Foods Market Group, Inc. highlights the risks of blindly relying on vendor forms or not carefully checking forms that you create. Earlier this month, a former Whole Foods employee filed a federal lawsuit in Florida, alleging that the company violated FCRA, the federal background check law, by using non-compliant background check consent forms in its online application process.

Under FCRA, an employer that intends to conduct a background check must first provide the applicant with an advance disclosure notice and consent form. This form must be in writing and contain designated information in a stand-alone format, separate from the employment application.  An employer must also use the form to obtain the individual’s written consent to the background check. The disclosure and consent form may not, however, contain any extraneous information, such as disclaimers, releases of liability, or other acknowledgements.

The recent suit against Whole Foods alleges that the company impermissibly used a background check disclosure form that contained extraneous release of liability language in violation of FCRA. The named plaintiff, Colin Speer, seeks to represent a nationwide class of Whole Foods employees or job applicants who were given the incorrect form in the last five years. The case is Colin Speer v. Whole Foods Group Market Inc., case number 8:14-cv-03035, pending in the U.S. District Court for the Central District of Florida.
This is not the first time Whole Foods has faced FCRA violation claims. In February 2014, a similar lawsuit was filed against the company in California. The Whole Foods lawsuits are part of a growing trend of class action lawsuits alleging FCRA violations against large national employers. In the last month, Dollar General and Publix Super Markets Inc. have settled FCRA-related class actions, each for millions of dollars. In addition, Home Depot, Uber, Disney, Domino’s Pizza, CVS, and K-Mart, among others, have all been hit with FCRA-related background screening lawsuits in recent years. As further evidence of this trend, just last month, the Federal Trade Commission (responsible for enforcement of the FCRA) issued a document called "Background Checks: Tips for Job Applicants and Employers."
Employers should be mindful of this trend and take preventive steps to ensure their application process is compliant with FCRA and other laws. If you conduct background checks, make sure the forms that you use are FCRA compliant and that you have considered any unique state or local laws.