Fresh But Not So Easy: NLRB Expands Scope of “Concerted Activity” To Individual Claims


recently described the NLRB General Counsel ruling that McDonald’s Corporation is a joint employer of its franchisees’ employees. The NLRB has now given me another hot topic, just in time for Labor Day. I’ve written previously about NLRB decisions impacting both union and non-unionized employers—this new topic is another such situation.

In Fresh & Easy Neighborhood Market, Inc., the NLRB decided that an employee who solicited statements from her coworkers about the employee’s individual complaint was engaged in “concerted activity” under Section 7 of the National Labor Relations Act (NLRA). As the Board and courts have long been established, “concerted activity” requires that two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. The NLRA prohibits all employers, whether unionized or not, from doing anything to quell employees concerted activities. What is new in the Fresh & Easy decision is the NLRB application of this principle to a single employee’s activity in pursuit of her individual claim.

In Fresh & Easy Neighborhood Market, Inc., an employee filed a complaint of sexual harassment over a cartoon drawn on a whiteboard in the breakroom that she believed was sexual harassment directed at her. Because she had no camera, she drew a picture of the offending whiteboard, then asked her coworkers to verify that the picture was an accurate representation of what they saw in the breakroom.

During the NLRB hearing, she testified that she filed her harassment complaint for her own behalf only. Moreover, the co-workers said that they had no intent of filing complaints themselves.

For a complete description of the facts, see the Littler post by Jonathan E. Kaplan here, or read the opinion.

Nevertheless, despite the emphasis on the individual nature of her complaint, the three Democrat members of the NLRB held that the employee’s actions amounted to concerted activity “for the purpose of mutual aid and protection.” This majority of the Board found that the simple solicitation of support from fellow employees was “concerted,” even though the co-workers did not support the complainant’s claim.

Moreover, the majority held that the coworkers had an interest in helping the complainant, even if only the complainant had a stake in this case, because “next time it could be one of them that is the victim.”

Of course, this rationale applies whenever an employee complains about any employment issue, so completely abrogates the earlier limitations in case law on what constitutes “concerted activity.”

By contrast, the two Republican NLRB members dissented from this extension of the “concerted activity” principle. Each of the dissenters filed a separate opinion. Member Miscimarra criticized the majority’s opinion as having “limitless application” to workplace claims. He concluded that the Board majority expanded Section 7 coverage “for every individual employee—regarding every individual complaint implicating any individual non-NLRA right—as soon as the individual seeks the involvement of anyone else who is a statutory employee.”

Member Johnson’s dissent argued that the majority had created created an irrebuttable presumption that an employee seeking the support of coworkers is always acting for the purpose of “mutual aid or protection.” This would impose Section 7 protection any time an employee seeks assistance on an individual employment issue from a coworker, contrary to the intent of the NLRA.

The only good news in this case is that all five members of the NLRB ruled that Fresh & Easy (the employer) acted appropriately in asking the complaining employee not to solicit statements from her co-workers while it investigated her complaint, because the employer had a legitimate interest in conducting a fair and impartial investigation. None of the employees involved was disciplined for their actions.

However, the majority of the Board also stated that employers cannot issue blanket instructions not to discuss complaints, because that might chill concerted activity. So the case ended up being a soap box for the majority to expand the application of the “concerted activity” principle in a non-union context, without any liability imposed on the particular employer in question.

Thus, it remains important for non-unionized employers, as well as unionized workplaces, to consider potential NLRB action when handling employee complaints. After the Fresh & Easy decision, all employers must be careful whenever they investigate an individual complaint, including interrogating employees, conducting workplace surveillance, and email and property searches.

Moreover, as Member Miscimarra pointed out, after Fresh & Easy, employers cannot know which individual complaints may be subject to NLRA protection, because they cannot even ask employees whether their actions are “concerted.” In the Fresh & Easy case itself, the employer incurred years of litigation because it asked two questions during an investigation of a sexual harassment complaint, questions that were ultimately found to be lawful. Many more employers are likely to incur similar costs in the future due to NLRB involvement in matters already handled by the EEOC, OSHA, and a variety of other federal, state, and local agencies.

For more information on the Fresh & Easy decision, see

Fresh & Easy Neighborhood Market, Inc. (the NLRB opinion)

Employers Dealing With Harassment Retaliation Claims Now Have To Deal With the NLRB, by Christina Stoneburner (Fox Rothschild), August 13, 2014

NLRB Again Expands Its Definition of Protected Concerted Activity – One Hand Clapping May Be Concerted, by Ian Gabriel Nanos (Epstein Becker & Green), August 15, 2014

NLRB Expands Reach of NLRA by Finding Employee Who Sought Help From Coworkers For Her Sex Harassment Complaint Was Protected, Littler, by Jonathan Kaplan (Littler), August 19, 2014

NLRB Continues to Broaden its Reach Over Non-Union Employers, by McMahon Berger, August  21, 2014

What changes will your workplace make in response to the expanded NLRB definition of “concerted activity”?

 

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Situational Leadership Theory: It’s Just Common Sense


Situational Leadership Model

Situational Leadership Model

I talked last week to a friend who is about to take a leadership training program sponsored by the government entity where he works part-time. This man had had leadership training in the military, but seemed overwhelmed by the thick manual he’d been given to study before the training program. The manual had a lengthy section on “situational leadership theory.”

Although I was a manager for many years and participated in—and even taught—management training programs, I am not educated in organizational and management theory. I’d never heard of “situational leadership theory.”

So I asked my friend what it was, for two reasons. First, I wanted to know. Second, I figured he would learn the material better if he had to describe it to me than if he muddled through the manual in a vacuum.

He started talking about four quadrants and “high relationship/low relationship” and “high task/low task” situations, and how a manager should behave differently.

But of course, I thought. The best way to manage good people is to get out of their way and let them run with what they want to do. That’s all being a “low task” manager means.

The trick is to know when someone is a strong enough employee to let them run, and when they need more guidance. And the only way to do that is to build a relationship with them (be “high relationship”) and test them on little things while giving them direction (be a “high task” manager).

My friend and I worked through several examples—new employees, trusted employees, good performers, and poor performers. In each case, I asked him whether it was better to spend more time or less time in getting to know the individual, and whether it was better to be more directive or less directive in giving instructions.

He could answer the questions using just common sense. The terminology didn’t matter. He knew what to do. And so did I, despite never having heard of “situational leadership theory.”

situational_leadership3

My preferred style is S3 – Supporting

My own bias is to work on relationships in almost every situation. Most employees want their manager (and also their coworkers, peers, and even subordinate) to know them better. It takes time, but usually bears fruit.

My bias is also to be less directive with all but the newest employees. But that doesn’t always work well. I have been burned on occasion when I’ve found out that an employee took a project in a direction that I didn’t think was going to fly in the organization.

Still, I’d rather err on the side of letting employees make their own mistakes and helping them recover afterward. We’ll both learn more than if I had told them what to do every step of the way.

Management is an art, not a science. It’s judgment, not four quadrants in a grid. It’s knowing your people, not knowing what’s in some manual.

When have you found that management theories or other aspects of interpersonal relationships were really just based on common sense?

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Sexual Harassment: Size Rarely Matters


Image from Forbes

Image from Forbes

If any employment law issue stays hidden “behind the corporate veil,” it is sexual harassment. Until the cover is blown, and the problem becomes public. What many start-up businesses and non-profits don’t realize is that sexual harassment issues can arise in workplaces with very few employees.

Why do sexual harassment laws matter to small businesses?

Small businesses usually operate informally and have few policies and procedures when they start. Moreover, the early employees are often friends or family members, and these relationships add complexity to the work relationships.

Still, if you are running a small business, you are at risk if you do not comply with sexual harassment laws.

Title VII of the Civil Rights Act, the federal law administered by the Equal Employment Opportunity Commission, regulates sexual harassment. Title VII applies to employers with fifteen or more employees. But most state anti-discrimination laws cover employers with just a handful of employees—five in California and four in New York, for example. City ordinances also impose requirements on very small employers in some jurisdictions.

Because most states look to federal law, even small businesses should follow EEOC and federal court interpretations under Title VII. But employers must also be aware of their state laws also—sometimes state law permits broader theories of liability or remedies (such as higher punitive damage awards) than federal law.

What’s the minimum that a small business should do?

A good place for small business owners to start is to read through the EEOC’s sexual harassment fact sheet, Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors.

The law requires more of employers to avoid liability for a supervisor’s actions than for actions by co-workers or non-employees.

  • The EEOC position is that an employer is always responsible for harassment by a supervisor that culminated in a tangible employment action, meaning an action that results in harm to the harassed employee.
  • If the supervisor’s harassment did not lead to a tangible employment action, the employer is liable unless it proves that:
    (1) it exercised reasonable care to prevent and promptly correct any harassment; and
    (2) the employee unreasonably failed to complain to management or to avoid harm otherwise.

This means that as a business owner, you should communicate a policy against sexual harassment, provide viable methods for your employees to complain (other than to the alleged harasser), and promptly address any complaints of harassment. It is better to have a written anti-harassment policy, though orally communicating the policy might work, if you can prove the communication took place, for example, through staff meeting minutes.

But it may be difficult for your small business to develop a strong anti-harassment policy. Usually, such policies need two or more avenues for the employee to complain, in case one of the usual persons to whom complaints can be voiced is allegedly the harasser.

If you are the only manager in your business, how do you find a second person to take complaints? You may not be able to. In that case, you should have an attorney or a human resources consultant conduct an investigation into complaints that might involve you.

Unfortunately, that is likely to cost you. But litigation will cost you far more.

A few more cautions

If you do get a complaint of harassment in your business,

  • Investigate promptly, stop the harassment, and remedy any adverse employment actions against the complaining employee.
  • Keep the complaint confidential, to the extent possible, and
  • Don’t retaliate—complaints of retaliation are easier to make than the initial complaint of harassment, and harder to defend.

The Best Defense: Don’t Let It Happen

Although the anti-harassment policy and complaint procedure are important, the best way that a small business can avoid harassment complaints is by not permitting an atmosphere of casual remarks about sex and employees’ personal lives in the first place.

Even if the business started in a college dorm, the standards are different once the business becomes real. Even if the same people are involved.

Really.

I know it’s hard to accept that you can’t continue to treat your friends like you did when you were eighteen, but if you are running a business and providing people’s livelihoods, you need to act with maturity.

For more on this subject, see

Sexual Harassment Policy for Small Businesses, by Ruth Mayhew, Demand Media, on Chron.com

Sexual Harassment in the Workplace; Forming a Basis for Prevention and Management, by Caron Beesley, on SBA.gov

Even Start-Ups Need Anti-Discrimination Policies and Reporting Mechanisms, by Richard B. Cohen, on Employment Discrimination Report (Fox Rothschild)

When has an unprofessional atmosphere in the workplace caused you problems?

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Is Mandatory Mediation a Good Idea?


Businessman Conducting a Meeting with His StaffThe Mediator Network group on LinkedIn has had a debate recently over whether courts should call their ADR programs “mandatory mediation.” The theory is that mediation can never be mandatory, but must always be voluntary.

The comments in this debate have generally supported the position that while courts can mandate attendance at mediation, they cannot dictate the outcome of the mediation. The only aspect that is mandated is that the parties show up. It is properly called “mandatory mediation,” but not “mandatory settlement.”

I have participated in court-ordered mediations for over twenty years—as an attorney, as a corporate representative, and as a mediator. I agree with the comments on LinkedIn. These sessions may be “mandatory,” in that the judge has ordered the parties to sit down with a mediator, but the outcome of the sessions has never been predictable, nor have the cases all resulted in settlements. Therefore, I have always thought the programs properly called “mediation.”

I participate now as a mediator in a state court program in which the judge often tells the parties to meet with a mediator. I also mediate cases on a federal court docket, where the judge mandates participation in the mediation program, and even imposes a requirement that the parties “mediate in good faith.”

Only once in my years as a mediator have the parties ever refused to continue after I explained how the mediation process works. In that situation, one party was willing to participate, but the other was not, so we adjourned. This was a case in state court; in federal court, the “good faith” requirement would probably have forced me to keep hostile parties in the process for a couple of hours to explore whether there was any possibility of movement in their positions.

Other than this one case, the parties I have worked with have signed the “agreement to mediate” and proceeded to discuss their case with me. I certainly have not settled all the cases I have mediated, but the parties have at least been willing to discuss their positions.

In some situations, the parties have had unreasonable expectations of what they could achieve by continuing the litigation, so they didn’t have reasonable settlement positions. In other cases, their emotions were too involved, and in those cases, too, their settlement demands were unreasonable. (A pound of flesh is seldom available through the judicial process.)

As a mediator, I believe it is always advisable to explore settlement opportunities. For that reason, I support court-ordered mediation in almost every situation. Only where the balance of power between the parties is so uneven that the less empowered party might be overwhelmed or bullied do I think mediation is a bad idea. But where both parties are competent and empowered, or where both are adequately represented by counsel, then mediation can give the parties more control over the outcome of their dispute.

Is mandatory mediation appropriate in your opinion?

 

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McDonald’s Ain’t Loving This: NLRB General Counsel Says McDonald’s Is Joint Employer With Its Franchisees


I’ve been searching for a good topic involving the National Labor Relations Board to write about for Labor Day next month. But the latest news from the NLRB fell into my lap a month early.

Richard F. Griffin Jr., the General Counsel of the NLRB has ruled that McDonald’s Corporation is a joint employer of its franchisees’ employees.  The rationale for the General Counsel opinion is that McDonald’s Corporation dictates certain standards of cleanliness, food preparation, and employment practices that the franchise owners must follow

To the extent that McDonald’s Corporation imposes employment practices on its franchisees, the “joint employment” doctrine may make sense.

But it is my impression after working with licensees and franchisees for many years that typically the franchisors go to great lengths to distance themselves from their franchisees’ hiring, firing, and management decisions. For precisely this reason—the franchisors do not want to be held responsible for what their franchisees do.

This NLRB General Counsel opinion has the potential to upend franchising as we know it. If franchisors can be joint employers, why should they bother franchising? As joint employers, they acquire the risks of having employees in all the locations where they license their operations. They multiply their employee bases far beyond what their in-house HR departments are prepared to handle. They could become liable for employment discrimination claims, wage and hour violations, FMLA and disability claims, and unfair labor practices charges.

Franchised operations touch the lives of most Americans every day.

  • About 90% of McDonald’s restaurants are owned by franchisees.
  • Many other restaurant and food chains are also largely franchise operation, such as Subway, Jimmy John’s, and Menchie’s Frozen Yogurt.
  • Other small businesses also set themselves up under license or franchise agreements, in industries as diverse as Ace Hardware, Allstate Insurance, Cottage Care home cleaning, Geeks On Call, Hallmark Cards shops, and O’Reilly Auto Parts

Moreover, millions of Americans are employed by small business franchisees in almost every community in the U.S.

The NLRB General Counsel ruling imposes a huge hurdle on the development of small business. Many individuals wanting an entrepreneurial opportunity start by pursuing franchising. By making franchising less attractive to franchisors because it imposes costs on the franchisors, the ruling insures that fewer franchises will be made available.

It appears that this General Counsel opinion is politically motivated, and is a blatant attempt to foster unionizing attempts at large franchisors. It is no secret that labor would like to increase wages at small businesses across the nation and similarly would like to see more union members at these businesses.

The Service Employees International Union has supported increased wages and organizing efforts by fast food workers for years. It is far easier for SEIU and other unions to put pressure on one McDonald’s Corporation than on hundreds of franchisees across the nation.

If a majority of the five NLRB members (three of whom are Democrats and typically support unions) agree with the General Counsel, it is likely that McDonald’s will pursue this case through the federal courts, probably all the way to the Supreme Court. The joint employment issue is that important to both franchisors and franchisees—and to both labor and management representatives throughout the nation.

For more on this issue from a variety of news sources, see

McDonald’s Ruling Sets Ominous Tone for Franchisers (Wall Street Journal)

McDonald’s Ruling Could Open Door for Unions (New York Times)

McDonald’s Told It Has Responsibility Over Store Workers (Bloomberg)

McDonald’s Ruling By NLRB Counsel Puts SEIU’s Unionization Goal Within Reach (Forbes)

McDonald’s loses big on labor ruling (Fortune)

In your opinion, should franchisors be responsible for employees of their independently incorporated franchisees?

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Case Study on Marketing a Self-Published Novel


I am not a marketer by profession or by inclination. However, as a writer and self-employed consultant, I have to spend some time marketing my work. This post is for writers and describes a price promotion I recently conducted for my novel, Playing the Game.

The usual price of my ebook is $4.99, but I reduced it for a couple of weeks in late June and early July to $0.99.

Self-published writers debate whether free promotions or $0.99 promotions are best, but I decided on a $0.99 promotion for two reasons. First, I wanted to keep my book for sale on both Amazon and Barnes & Noble during the promotion. Amazon’s Kindle store will not permit free ebooks except (1) for a few days if the book is enrolled in Kindle Select, or (2) if the ebook is free somewhere else. Second, free ebooks work well as an enticement to get readers to buy other books, but at this point I only have one novel to sell. I had nothing for readers to buy after trying my work for free, so I wanted some money for the book I do have!

Keep in mind that at a price point of $0.99, the author earns just $0.40 per ebook—it takes a lot of books to get rich! Wealth as a writer, as of yet, has eluded me.

PTG #1Here are the results of my promotion:

  • Playing the Game became the #1 ranked financial thriller in the Kindle store during the promotion, and stayed in the Top 100 in this category for a month—for several weeks after the promotion was over.
  • My sales at $0.99 per ebook covered the costs of paying for several book promoters to advertise the novel. I chose free and inexpensive promotional sites. Some were more successful than others.
  • The most successful site where I promoted the novel was EReader News Today. This book promoter takes 25% of the royalties earned through clicks through their site, which I thought was eminently fair, because it guarantees that the writer won’t lose money.
  • By contrast, I did not recoup my costs in advertising on The Fussy Librarian. I like the look of this site’s advertisements, but I did not sell enough ebooks through The Fussy Librarian to make it worth my while, even at the low price of $6.00.  Maybe if their readership grows, this will be a better opportunity for writers.

I learned a lot conducting this price promotion. Next time I promote my novel, I will probably invest more money up front on more expensive book advertising sites. It takes money to make money, in this context as in so many others.

And I also learned I should get back to writing!

In the meantime, I hope that my sales continue to grow and the book continues to get positive reviews.

Many thanks to readers who purchased my book. If you read and liked it, please post a review on Amazon, Barnes & Noble, and/or Goodreads.

I appreciate those of you who have already reviewed it. Each review has made me smile.

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Increasing Problems for the Affordable Care Act—In the Courts and In the Boardrooms


In recent weeks, the Affordable Care Act (popularly known as Obamacare) has suffered several setbacks and conflicting interpretations in the courts. These decisions and the impact of the law on employers show the increasingly urgent need for changes in the ACA. Unfortunately, our political mood is unlikely to result in the kinds of changes businesses need for clarity.

Recent Legal Decisions:

The Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc., June 30, 2014, that privately held corporations need not comply with the HHS mandate to cover birth control methods and services that violate the owners’ religious beliefs in their employee healthcare plans.

A few days later, the Supreme Court ruled in Wheaton College v. Burwell, July 3, 2014, that Wheaton College need not comply with the HHS work-around for employers who disagree with the birth control mandate. Wheaton College was allowed to avoid sending the notification HHS required until after its case is decided sometime next spring.

HHS sealAnd then on July 22, two Circuit Courts ruled opposite ways on the question of whether Obamacare subsidies are available to individuals who purchased their insurance through the federal Healthcare.gov exchange instead of through state exchanges. In Halbig v. Burwell, a panel of the D.C. Circuit Court ruled that the Obamacare subsidies were not available through the federal exchange, while in King v. Burwell the Fourth Circuit ruled that the subsidies were available.

The D.C. Circuit panel held that the plain language of the ACA states that subsidies are available only on marketplaces “established by the state.”  This ruling eliminates—or at least places on hold—subsidies to around 4.5 million people, which may make health insurance unaffordable for many, and yet will subject them to penalties if they drop their coverage.

In contrast, the Fourth Circuit held that the Internal Revenue Service interpretation permitting federal subsidies for purchases through Healthcare.gov was “a permissible exercise of the agency’s discretion.”

These cases set up a clear split in the lower courts that the Supreme Court will likely have to decide.

Impact of the ACA on Employers:

Increasing numbers of employers are finding themselves squeezed between the mandated coverages (more generous and more detailed than most employers offered before passage of the ACA) and the required level of premiums (where at least one plan that an employer offers must have premiums for individual coverage that are no more than 9.5% of any employee’s wages).

When the Cadillac coverage provisions go into effect after 2017, employers will face yet another constraint. If they pay too much for their employees’ coverage, they will face huge surtaxes. Beginning in 2018, a 40 percent excise tax will be imposed on high-value healthcare plans

Thus, the sweet spot of permissible healthcare plans under the ACA is being compressed in three directions—by the coverages required, by the amounts that employees can be charged, and by the subsidies that employers can provide.

And now, depending on how the Supreme Court rules on the subsidy issue, the federal government may not be able to subsidize healthcare coverage either.

Moreover, if the federal subsidy is ruled to be unlawful, then the employer penalties for employees who get the federal subsidies will fall apart as well.

At that point, the ACA scheme is likely to collapse.

I have talked with benefit plan managers in recent weeks about the increasing problems and uncertainties they face in complying with the ACA. Some are considering eliminating their employee health insurance altogether, and taking the chance that the employer penalties will survive.

Others are considering moving to fully insured plans to eliminate the complexities of complying with the uncertain ACA requirements. These employers believe they have so little flexibility in designing plans to suit their employee populations that they see no benefit to maintaining any in-house expertise in managing healthcare. Instead of continuing the tailored benefit plans they have sponsored for decades, they will turn their employees over to private exchanges, and let the employees find their own plans.

None of these benefit managers believes that employee healthcare coverage will last many more years. As crafted under the ACA and as interpreted by current HHS regulations, employee healthcare coverage has outlived its usefulness.

The Need for Change:

Most complicated statutes need “technical corrections” after the language that Congress passed is examined more carefully by regulatory agencies and by those impacted by the new law. It was to be expected that the ACA would need modification.

I have written before that the ACA needs to be amended. Not repealed, as Republicans would have it, but amended substantially. Unfortunately, changing the statutory language will require compromise between sharply divided political parties.

Employers, Be Strategic In Implementing Health Care ReformBecause of the way that the ACA was passed—with only Democrat votes in support, and all Republicans in Congress opposed—the law has no bipartisan underpinning to foster compromise. The Democrats are now reaping the effect of their actions in cramming the legislation down an unready nation’s throat.

In the meantime, we must muddle along with imperfect legislation.

Unfortunately, President Obama’s unilateral actions in delaying and re-interpreting the ACA the way he wants is not the way to fix the law.

So the healthcare industry holds its breath, hoping that the myriad issues associated with the poorly written ACA get fixed before the industry collapses due to the uncertainty.

And all of us who need healthcare hold our breaths as well.

What do you foresee happening with the ACA?

 

 

 

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