Unions and Collective Bargaining
Discrimination Based on Age
A department chair at one university is being accused of calling older, non-tenured instructors these things: "an old lady who can't walk" "the Grim Reaper" "dead wood" "millstones around my neck"
Performance Appraisal Process Lack of Consistency in Evaluations
A performance appraisal which is inconsistent with prior appraisals raises legal issues After an employee has filed a charge, it appears to be retaliation Shortly before layoffs or a termination, it appears to be pretext to justify the decision to layoff or terminate Performance appraisals must not be manipulated and made more negative than actual performance warrants
Contents of Appraisals:
Appraisers should not shy away from criticism, but their tone should be measured and professional Extreme language suggests hostility or stereotyping, and may become the basis for a cause of action for discrimination or defamation >>>> Courts may view appraisals with both positive & negative comments as an indicator of a lack of bias
Under the OSH Act:
Employees and unions have the right to access members' medical and exposure information. Such access must generally be provided within 15 working days Medical monitoring of employees may be required. Records of exposure to toxins must be kept for 30 years Medical records must be kept for the duration of employment, plus 30 years
Performance Criteria... (2 of 3)
Employers are free to establish criteria and standards of performance, but must: take into account the needs of disabled employees; be consistently applied; be as objective as possible; be job related and consistent with business necessity Failure to adhere to the above could result in charge of negligence in performing appraisals, or even fraudulent misrepresentation
Performance Criteria... (3 of 3)
Employers can and should hold disabled employees to the same standards of performance as nondisabled employees who do the same jobs, but...
Overview of Workplace Privacy Protections
Employers gather a great deal of information about their employees, monitor their employees' actions and investigate allegations of wrongdoing The volume of information available about employees and the means of monitoring them have expanded greatly in recent years, raising questions of privacy What are the legal limits to incursions upon privacy in the workplace?
Personnel Records (2 of 2)
Employers generally must allow union representatives to see the personnel files of their members
Video Surveillance 2
Employers must not conduct surveillance of employees engaged in protected concerted activities, including union organizing.
Other Circumstances...
Firms that contract with the federal government must comply with the Drug Free Workplace Act (DFWA), and
Searches (2 of 3)
Generally, employers may conduct workplace searches, subject to the Fourth Amendment (for public employees) and privacy torts (particularly intrusion upon seclusion)
Constitutional Protection (2 of
If an employee cannot be said to have had a reasonable expectation of privacy in the circumstances, she will not prevail in a privacy claim Employers should establish privacy policies that alert employees to the limits of their privacy rights in the workplace
Is social media activity considered protected concerted activity?
If it's a group conversation for the purpose of "mutual aid or protection", likely. If it's an individual gripe (others don't join in the conversation), it's not protected
In regard to union organizing, employers CAN: (3)
MRM 1. Make their views about unionizing known 2. Require ee's to attend "captive audience meetings" to present management's views (except during 24 hours preceding NLRB election 3. Make predictions about likely consequences that are objectively probable because of economic realities beyond employer control
3 issues in Bargaining
Mandatory Permissive Prohibited
Selection of Trainees
Many training & development opportunities are offered on a limited basis and present questions of selection The successful completion of training is often linked to promotions and raises Much training received is on-the-job training from coworkers Another valuable form of training are apprenticeship programs, combining classroom instruction with work under the guidance of an experienced coworker
Medical Information
Such information should be made available to managers, supervisors and first aid personnel for reasons of reasonable accommodation and treatment
The NLRA doesn't apply to whom?
Supervisors and Managers
Several statues concern privacy or have privacy-related provisions:
The Privacy Act of 1974 The Electronic Communications Privacy Act The Americans with Disabilities Act The National Labor Relations Act The Occupational Safety and Health Act
ECPA
The distinction between "intercepting" and "accessing" has proven troublesome for email and internet transmissions
Medical Information (1 of 3)
Under the ADA: Only medical information that is job-related and consistent with business necessity can be obtained from current employees
HIPAA
regulations primarily affect health care providers and self-insured companies
3 issues in Bargaining: Permissive
(Don't have to discuss, but can) Things that aren't specifically related to the nature of the job, but still concern both parties (company strategy, CEO pay, product price, etc)
Unfair labor practices (ULP's): Employer refrain from: (5)
*1. Interfering with, restraining, or coercing employees who exercise their right to organize* 2. Dominating or interfering with formation or administration of labor org. 3. Discriminating against employees for the purpose of encouraging/discouraging membership in any labor organization 4. Retaliating against ee's for filing ULP charges or providing testimony 5. Refusing to bargain collectively with a legally chosen representative of employees
What is the purpose of the NLRB? (2)
1. Determine appropriate bargaining units and whether the majority of employees want to be represented by a union. 2. Prevents and remedies illegal, unfair labor practices
3 types of strikes
1. Economic 2. Unfair labor practice strike 3. Wildcat strike
Protected Concerted Activity is NOT (3)
1. Extreme or abusive 2. employers can't engage in conduct meant to prevent concerted activity 3. be cautious about instituting policies that regulate employee conduct or communication
What constitutes protected concerted activity? (3)
1. conduct engaged in with or on the authority of other employees 2. Evidence of group activity (or intent to induce such activity) 3. Activity must be related to concerns regarding terms and conditions of employment
Electronic Communications
Business users of the provider's equipment are exempt if the equipment is used in the ordinary course of business
Under the Fair Credit Reporting Act 2
But if an adverse action is taken based on that information, the employer must disclose it to the employee
Current debate regarding right-to-work laws
Collective bargaining agreement would have clause that you have to pay union dues to get the benefits of the union -Those in favor of laws case them in the light of "individual freedom" -Those against laws argue they undermine labor unions by permitting those who don't pay union dues to benefit from the hard work of the union
Searches
Conduct investigations professionally The people conducting them should be credible and convincing if called on to be witnesses in legal proceedings
Performance Appraisals (4 of
Courts will not review performance appraisals to determine whether the appraisal was correct Only to determine if there is discriminatory intent or other illegal motives Recommended: Employers should conduct performance appraisals regularly and maintain credible, written documentation of performance
Employee rights (6)
EFBGER (Every f***boy buys girls earrings regularly) *1. Engage in concerted activities for mutual aid or protection*. 2. form, join, or assist labor organization 3. Bargain collectively with employer through representatives of employees' choosing 4. Go on strike 5. Engage in self-organization 6. Refrain from such activities
Medical Information (1 of 3
Employers must keep information regarding an employee's medical condition or history in a location apart from other personnel records and treat it as a "confidential medical record"
Feedback on Performance
Employers should not attempt to avoid unpleasant confrontations by failing to provide employees with feedback about their performance and opportunities to improve performance that are routinely provided to other employees
Who Conducts Performance Appraisals?
Employers should provide training or written instructions to those who conduct performance appraisals If coworkers or others also participate in performance appraisals, they also require instruction in good appraisal techniques and legal issues
Feedback on Performance
Employers should: communicate performance appraisals to employees, provide an opportunity for discussion, and allow employees to respond to and appeal them
Employers should:
Establish policies, Notify employees regarding the circumstances under which searches will occur, and Conduct searches only as stated
Elements of an NLRA Claim
Establish prima facie case by: 1. Employee engaged in protected activity 2. employer was aware of the protected activity 3. employer demonstrated hostility toward the protected activity 4. there was a causal connection between the hostility and decision to deny an employment opportunity
Personnel Records (2 of 2) Recommended:
Even though few private-sector employers are legally required to do so, it is sensible to obtain the consent of employees prior to divulging information from their personnel records to third parties
Searches (3 of 3)
Evidence obtained through searches, must be handled carefully and kept in a secure location Strip searches and deceptive means of conducting searches should be avoided
Recommended:
If your firm uses video monitoring, inform employees that they are subject to monitoring and surveillance, even though such notice may not be legally required
3 issues in Bargaining: Prohibited
Illegal or outlawed activities that cannot be discussed (requiring all ee's to join union or demand er uses only union-made goods)
Video Surveillance
In general, employers can train video cameras on their employees without significant legal concerns, at least in places open to view
When is Training Required? (2 of 3)
In general, employers have no duty to train their employees One important exception is training for safety and health reasons Over 100 OSH standards call for training employees exposed to certain hazards; failure to train would constitute a violation of the OSH Act Employees have a right to know about hazards on the job
Under the Electronic Communications Privacy Act (ECPA), employers (and others) are prohibited from:
Intentionally intercepting (through the use of electronic, mechanical, or other devices) wire, oral, or electronic communications Disclosing such information Unauthorized accessing and disclosure of stored electronic communications
Interceptions are legal with prior consent
Interceptions are legal with prior consent Communication service providers are exempt
Most states recognize the following privacy torts
Intrusion upon seclusion Public disclosure of private facts Placement in a false light Appropriation of a name or likeness
What is the purpose of the NLRA?
It attempts to address the power difference between labor and management
Any employer that receives protected health information from insurers or health care must
Limit the uses and disclosure of that information; Train staff on maintaining the privacy of medical information; Designate a privacy officer with responsibility for compliance; and Notify employees of their rights
Performance Appraisals (2 of 4
Negative performance appraisals do not constitute discrimination However, if a biased negative appraisal becomes the basis for the denial of an employment opportunity, disparate treatment discrimination can be alleged Unwarranted negative performance appraisals could constitute "materially adverse actions" in cases of retaliation if they are used to punish employees for exercising their rights
When is Training Required? (3 of 3)
OSH's hazard communication standard is based on the principle of the employee's right to know about the dangerous chemicals they encounter on the job so that they can take steps to protect themselves Chemical manufacturers, importers must provide a material safety data sheet for each hazardous chemical Employers must be trained on hazardous chemicals in their work areas. Training must occur when initially assigned and then when new hazards are introduced.
Wildcat strikes
Occur in direct violation of collective bargaining agreement -no protection under NLRA -Injunctions can be issued against union -workers can be fired
Bargaining
Once a union is certified, parties are required by law to engage in "good faith bargaining" by: -supplying info that is relevant and necessary to effective representation -can't bypass union reps and appeal directly to ee's -can't make material changes to terms and conditions of employment without informing/negotiating with union
"community norm"
One court went so far as to cite the existence of a "community norm" in which it is now common practice for employers to monitor employee computer use
Major provisions of the NLRA (3)
POC 1. Prohibits certain actions by employers and unions (unfair labor practices) 2. Outlined the process by which unions become duly appointed representatives of employees for collective bargaining. 3. Created the NLRB (National Labor Relations Board)
What does the NLRA cover? (7)
PUUEBFL (People understand unusual employment, but fail law) 1. Protected concerted activity 2. Unfair Labor Practices 3. Union organizing 4. Elections 5. Bargaining 6. Failure to reach agreement 7. Labor Agreements
Feedback on Performance (2 of 2
Performance appraisal sometimes leads to identification of deficiencies and placement of employees on performance improvement plans (PIPs)
Interviews & Interrogations
Poorly performed interrogations have great potential for generating legal claims, especially for false imprisonment and infliction of emotional distress
Workplace Privacy Protections- Constitutional Protection
Public employees enjoy privacy rights deriving from the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures Note that such rights have limits Public employers need not establish probable cause or obtain warrants before conducting workplace searches But, such searches and other actions impinging on privacy must be reasonable
Union Organizing "Don'ts" (6)
RTPCQM (Randy the pervert can't quit masturbating) 1. Retaliate or discriminate against workers who support the union 2. threaten to take a negative job action against workers because they support a union, or threaten to shut down/ move business if union wins election 3. promise or give benefits to workers who oppose union; once campaign has begun, employer can't increase worker benefits to discourage union formation 4. conduct surveillance or otherwise spy on union meetings or on ee's who support union 5. question workers about union membership, meetings, or their support of union, nor ask ee's to report on union activities or their coworkers' union views 6. make unscheduled changes to compensation or benefits after an organizing campaign is underway
Criteria
Receipt of a reasonable accommodation should not be held in any way against a disabled employee If a disabled employee is unable to perform a marginal function of a job, that function should be removed from the job and not be reflected in performance ratings
Performance Appraisals (1 of 4
Regardless of the efficacy of performance appraisals, they hold great legal significance The central legal concern is that they not be discriminatory Employers cannot appraise only men and not women, as such action would be discriminatory In general, employers have no duty to conduct performance appraisals
Employee Involvement programs and the NLRA
Some involvement programs violate NLRA
Electronic Communications 2
The law regarding the privacy of workplace electronic communications are in flux Overall, employees should assume that their emails and other electronic communications will be read by their employers Recent cases held against employees, finding they had no reasonable expectation of privacy
When is Training Required?
Training and development programs can make employees more productive and help them advance in their careers There are circumstances under which training is legally required or highly advisable Significant legal questions can arise regarding who receives training and who pays for it
The federal Privacy Act governs the handling of personnel records of federal employees
Violations can be difficult to prove because plaintiffs must show that violations were intentional or willful and that there were actual damages, such as an adverse employment action
What is an impasse and what happens in this situation?
When negotiations over one or more mandatory topics have become deadlocked and both parties are warranted in assuming future negotiation is futile, then parties can make "last best offer"
What is the exception where Supervisors and Managers ARE covered under the NLRA?
When they refuse to commit an unfair labor practice
Common Law Protection (1
Whether there is a reasonable expectation of privacy is a case-by-case determination based on policies, practices, and other circumstances.
Personnel Records (1 of 2)
While a few states have laws governing an employer's handling of personnel records, the employer's policy generally controls Some states grant employees the right to review and copy their personnel files, and restrict access by others
What is protected concerted activity?
any efforts by employees to join together for mutual aid or protection, even if employees are not represented by a union or attempting to form one
Labor organization
any organization or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers, concerning grievances, labor disputes , wages, rates of pay, hours of employment, or conditions of work.
Ehling v. Monmouth-Ocean Hospital Service Corp.
denying nurse's claim that her employer violated the Stored Communications Act when she was suspended with pay for making offensive post on Facebook
Under the Fair Credit Reporting Act
employers may use outside investigators for suspected employee misconduct without obtaining consent
"Intercepting"
generally means capturing the communication at the exact time it is being sent
Rosebrough v. Buckeye Valley High School
high school violated ADA rights of woman born with only one hand who applied for job as bus driver, by requiring that she have a commercial driver's license to train for the position even though that was no such requirement for others
Cortez v. Walmart Stores
holding that a reasonable jury could find that plaintiff was passed over for promotions because of his age, and not because he was on a performance improvement plan under which he was receiving coaching, where there was no policy barring promotions for persons receiving coaching
Other Circumstances...2
inform employees about the drug-free policy and dangers associated with drug abuse; advise regarding available options for counseling, rehabilitation, and employee assistance programs; and advise potential penalties for drug violations.
reasonable expectation of privacy
is key to privacy claims based on the constitution and on other grounds
3 issues in Bargaining: Mandatory
issues employers and employee reps are required to meet and discuss once it's brought up (sick leave, PTO, etc.)
right-to-work laws
laws that make it illegal to incorporate union security clauses into labor agreement
Labor agreements
legally binding contracts that set the terms and conditions of employment for the unionized employees
National Labor Relations Act (1935)
made it legal for workers to organize into unions to protect their rights and interests
Economic strikes
negotiated and failed to reach agreement. -most common type of strike -fully protected -strikers can be permanently replaced, but they would be placed on a "recall list" for when other positions open
Searches should be conducted in a reasonable manner
not overly broad not resulting in destruction of employee property not discriminatory
Forced distribution rankings are
often accompanied by rigid policies calling for termination or other adverse employment consequences for those employees ranked in the lowest category
Performance appraisals affect many employment decisions, including
promotion, training and development, raises, and more
Forced Distribution Method:
require that predetermined percentages of employees be placed into particular performance categories
Forced distribution methods of performance appraisal have
seen wide use, although their popularity is waning
How can an employer have affirmative defense?
show that the disruptiveness of an employee's act, and not merely the violation of the policy, was the reason for the discipline/termination
Koeppel v. Spears
small insurance company might have committed tort of intrusion on seclusion when it placed a surveillance camera in small unisex bathroom in office
unfair labor practice strikes
there is a breach in good faith during negotiations -strikers can't be permanently replaced; they have greater rights to reistatement
Dominating a labor organization
to be bonafide employee representatives, labor organizations must be independent of employers
Compass Environmental v. OSHRC
upholding decision by Occupational Safety and Health Review Commission that construction company should have trained a new employee, electrocuted on the job, on the dangers of high-voltage lines in the vicinity of his work area
binding past practice
when a practice is clear, has been consistently engaged in for a substantial period of time, and exists with the knowledge and at least tacit consent of union and employer
Performance Criteria... Common performance criteria include
work quality and quantity; attendance and punctuality; judgment; ability to work with others in a team; leadership; and so on
