NLRB REPORT – IMPACT OF TWO NEW MEMBERS

President Obama made controversial recess appointments in early April, adding Craig Becker and Mark Pearce to the 5 person National Labor Relations Board. Adding these two new members, both of whom have strong union ties and were unlikely to win Senate confirmation without extended filibusters, brings the NLRB to a 4 person complement and allows the Board to operate with a mandatory 3 person quorum for the first time in years.

Becker is particularly controversial, having served as the General Counsel for the left-leaning Service Employees International Union. The following are some of Becker’s published views about the National Labor Relations Act:

• Employers have no statutory right to communicate with employees during union organizing drives. Per Becker, the NLRB is empowered under current law to issue a rule that forbids companies from conducting employee meetings on company time to communicate the facts about unions.
• No part of the National Labor Relations Act says that the NLRB must conduct secret ballot elections as the means of determining whether a majority of employees favor union representation. Under this view, passage of the Employee Free Choice Act is irrelevant, since the NLRB could decide that it will use other means (card check) to determine employee support for a union.
• There is no need for time-consuming legal procedures to determine the appropriate unit for collective bargain before a decision is made about whether employees favor a union. Instead, decisions about whether individuals or groups of employees should be included in bargaining groups can be made after a union is certified. This change would dramatically reduce the time between the filing of a petition by a union seeking certification and the NLRB’s decision on whether to certify the union. If enforced, this change would allow unions to organize for months, file a petition, and get a decision in a matter of days with little to no time for the company to express its views.

Remember, Mr. Becker has said that these changes do not require any action by Congress. It remains to be seen whether other NLRB members agree or whether Congress will act to overrule these changes if any or all of these measures are put in place without Congressional approval.

HEALTH CARE OVERHAUL – NEW RIGHTS FOR EMPLOYEE WHISTLEBLOWERS

President Obama’s new health care law – the Patient Protection and Affordable Care Act (PPACA) - is incredibly complex, far-reaching, and costly. Many of the PPACA’s new requirements will be phased in over several years, but one part of this new law is effective now and will have an immediate impact on employers.

New FLSA Rights

The PPACA amended the Fair Labor Standards Act by adding a new section (18C) protecting employees who report possible violations of the PPACA to their employer or to state or federal law enforcement agencies. Employees are also protected if they participate in internal or external investigations or if they refuse to perform any task or job assignment they “reasonably believe” might violate the PPACA. The PPACA is so broad that it is difficult to predict the scope of conduct that could be protected under this new whistleblower law. Clearly, an employee of a health insurance company who reported the company for denying coverage to someone with a pre-existing health condition would be covered, but there are many other requirements of the PPACA that affect all employers – not just those in the health care field. Those companies are covered by this new whistleblower law as well.

How Will This Law Be Enforced?

Employees who feel they have been unfairly punished must file a complaint with OSHA, which seems strange since the Wage and Hour Division of the Department of Labor enforces the other provisions of the FLSA. The time limit for filing is 180 days – like other discrimination laws. If OSHA does not resolve the complaint within 210 days, the employee can file a lawsuit in federal court. The law specifically prohibits the use of arbitration agreements to resolve these claims.

Once in court, it will be relatively easy for employee plaintiffs to get a full jury trial. The employee need only show that the protected conduct was a “contributing factor” to the employment decision in question. The employer then has the burden of showing by “clear and convincing evidence” that the same employment decision would have been made regardless of the employee’s protected conduct. Remedies include reinstatement, back pay, front pay, attorneys fees, and compensatory damages.

COPY MACHINES – IS YOUR COMPANY “LEAKING” CONFIDENTIAL INFORMATION?

It is a little known fact that copy machines – like computers – are equipped with a hard drive that retains an electronic image of all documents ever copied on that machine. Think about the treasure trove of information on those hard drives – social security numbers, drivers license information, passport data, bank records, credit card numbers, medical information, trade secrets, and other confidential information. If used copiers are disposed of without removing or “cleaning” the hard drives, all this sensitive and confidential information is automatically disclosed to anyone who purchases the copier and uses readily available software to scan the hard drive. Sophisticated information “thieves” are in the business of buying used copiers for the express purpose of mining this data and selling it to those who might be interested. Consider what a competitor might do with a used copier from your sales department or how identity thieves might use information from HR department copiers.

The tip? Copier manufacturers sell software that automatically erases images from the copier’s hard drive. The cost? About $500, but the manufacturers report that only about one third of their customers purchase this option. Another solution is to remove the hard drive before selling a used copier or at least have your IT department scan the hard drives to delete sensitive information. Check with your IT experts to see how your Company is handling this potential problem.

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Disclaimer regarding legal advice: The information in this newsletter should not be construed as legal advice. This information is not intended to create or constitute an attorney-client relationship. For more information or an explanation about the matters discussed in this newsletter, please contact an attorney in this practice group.