What are right-to-work laws, and should you care?

Michigan is poised to become the 24th state to enact a right-to-work law. These laws prohibit agreements between labor unions and employers that require employees to pay union dues as a condition of their employment, whether or not the employees are members of the union.

These laws are a creature of 1947’s Taft-Hartley Act. Before 1947, it was legal for unions and employers to agree, via their collective bargaining agreement, to maintain what is known as a “closed shop.” In a closed shop, unions and employers could require that employees join the union as a condition of employment. The Taft–Hartley Act outlawed closed shops, making it illegal for any employer to force an employee to join a union.

The Taft-Hartley Act, however, did not outlaw “agency shops,” in which employees do not have to join the union, but can be required to pay the union their share of union dues. Right-to-work laws were born out of an exception in the Taft-Hartley Act, under which individual states can pass laws outlawing agency shops.

Ohio is not a right-to-work state. Yet, this map (courtesy of National Right to Work Legal Defense Foundation), illustrates why every employer in every state should care about the right-to-work movement:

The map of right-to-work states bears a striking resemblance to the electoral maps in recent presidential elections. In other words, regardless of whether your state is, or is not, a right-to-work state, the state of these laws around the country says a lot about our current polarized (and polarizing) political system.

Moreover, with Republicans controlling Ohio’s governor’s office and both houses of Ohio’s legislature, do not be surprised when a strong push is made for this legislation in our own state. If so, it will make for a fierce battle between business interests—who argue these laws are necessary to attract companies—and unions—who argue that these laws are nothing more than a move to curb the power of labor and reduce its influence.

EEOC rejects staffing company’s “just following orders” defense

The EEOC recently announced that it filed a disability discrimination lawsuit on behalf of an employee fired because of her prosthetic leg. It not only brought the lawsuit against the company on whose behalf she had been performing work, but also the staffing agency that had placed her there.

The staffing agency had told the employee it was removing her from the warehouse position because the company did not want anyone bumping into her.

The EEOC, however, did not put any stock into the staffing company’s “we-were-just-following-orders” defense. From the EEOC’s news release:

“Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “It’s a pretty good bet that a worker with a prosthetic leg is always going to be protected by the ADA, and an equally good bet that flat-out firing the worker for that reason is going to violate the law. This scenario should not be all that difficult for employers to avoid. If they don’t, the EEOC will be there to make things right.”

For businesses, this story is a good reminder that staffing agencies and the employers that use their services often share liability under the various EEOC laws. If you are a staffing company, consider writing indemnification clauses into your agreements to help insure against liability when the company for whom you are staffing discriminates. Otherwise, there is a good chance that the law will not protect you from your customer’s discrimination.

WIRTW #252 (the “eat, drink, and be merry … and safe” edition)

The end of the year is here, which means that it’s time for the office holiday party. Deep from the archives, here are 7 tips for a safe workplace holiday party, a post which is as pertinent now as when I first wrote it two years ago.

As an added bonus, consider these tips on workplace holiday parties from some other bloggers:

• Horror Stories From the Workplace Christmas & Holiday Party — from Mike Haberman at Blogging4Jobs
• 10-Step Company Holiday Party Planning Checklist — from ERC Insights Blog
• Evil Skippy’s Ten Essential Office Party Tips — from Evil Skippy at Work
• Holiday Parties In The Social Media Age - You Never Know Who Is Watching! — from HR Defense Blog
• Employer’s Holiday Guide — from Heather Bussing at HR Examiner with John Sumser

As another added bonus, here are two exceedingly clever wrap-ups of the year in labor and employment law:

• Once “Moore” With Feeling: ‘Twas the Month of December – Again! — from Employment Essentials
• 2012 Employment Law Year In Review — from Labor Letter

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Don’t forget to cast your votes for the ABA Journal Blawg 100.

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Here’s the rest of what I read this week:

Discrimination

• 10 rules of etiquette that will save you from a pregnancy discrimination suit — from Robin Shea’s Employment and Labor Insider
• Attempted Suicide and the ADA — from Molly DiBianca’s Delaware Employment Law Blog
• Have Faith in Your Religious Accommodations — from Tim Eavenson’s Current Employment
• Hangman's Nooses And the “N-Word” — from Employment Discrimination Report
• “Younger people are the future” comment creates age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• You’re Damned if You Fall Into the Retaliation Trap — from damnedif

Social Media & Workplace Technology

• This Is How Much Time You Spend on Facebook, Twitter, Tumblr — from Mashable
• @noahkravitz and PhoneDog Settle Twitter Follower Lawsuit — from Social Media for Law Firms
• Employee/Ex-Employer Lawsuit Over Twitter Account Settles — from Eric Goldman
• Which Side Are You On? Employers and Employees Battle Over Ownership of Social Media Accounts — from Socially Aware Blog
• Massachusetts Court Rules That Facebook Posting of New Job Does Not Violate Non-Competition Covenant — from Trading Secrets
• Criminal Facebooking — from Workplace Prof Blog
• How to Respond to an Inappropriate Request for Access to Personal Social Media — from HR Gazette
• The Importance of a Bring Your Own Device to Work Policy — from InhouseBlog
• Obsessed With Checking Your Phone? You’re Not Alone — from ABC News

HR & Employee Relations

• No flu shot? No job! — from EmployerLINC
• No Flu Shot? That's a Firing — from Donna Ballman’s Screw You Guys, I’m Going Home
• Are You a Bad Boss? — from The Sociable Lawyer Blog
• Management Lessons from the NFL: Avoiding Monday Morning Quarterbacking of Your Termination Decisions — from Jason Shinn’s Michigan Employment Law Advisor
• Favoritism at Work: How to Respond When Unequal Treatment Impacts Your Productivity and Satisfaction — from Workplace Fairness
• Should Employers Arbitrate Non-Compete Claims? — from Rob Radcliff’s Smooth Transitions
• The Ugly Side of Employee Complaints — from Elevated HR
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store? Part I — from The Emplawyerologist

Wage & Hour

• Is It Ever OK For Employers to “Round” an Employee’s Worktime? — from TLNT
• Lawsuits by Restaurant Employees Keep on Coming — from Overtime Advisor
• Sixth Circuit Awards Employer Over $55,000 in Costs in FLSA Collective Action — from Employer Law Report

The Internet is today’s employee complaint box

In Amalgamated Transit Union Local 1433 [pdf], an NLRB administrative law judge ruled that a union did not violate federal labor law by failing to disavow threatening posts made by employees on the union’s Facebook. While the legal nuances of the opinion are interesting, this case raises an issue of deeper import for employers. Labor unions are using social media, and using it effectively, to disseminate information to members and to reach potential members during organizing drives.

It is not just labor unions that are using social media and the Internet to engage employees collectively. Employees are using these tools outside the organizational outreach of labor unions.

Case in point—the recent launch of coworker.org. “What is coworker.org,” you’re asking yourself? “I’ve never heard of it.” I never had either until I read a post yesterday on the Workplace Prof Blog. Coworker.org, describes itself as a website that allows employees to start, run, and win campaigns to change their workplaces. Employees accomplish this mission on the website by starting online petitions.

To date, coworker.org only has one active campaign. It’s against Wal-Mart, seeking the reinstatement of an employee allegedly fired for speaking out against having to work on Black Friday.

I’ll be watching coworker.org to see if it gains any traction. Employers should be watching this site too, but not for the reason you think. Retaliation against any employees who post on the site would be illegal under the National Labor Relations Act, as employees have a right to engage in protected concerted activity.

Instead, employers should pay attention to coworker.org for the same reason they should pay attention to the Amalgamated Transit Union Local 1433 case, Facebook, Twitter, and the blogosphere. Employees are online, talking about what is happening in your workplace. The Internet is today’s complaint box. If you want to fix problems before they get out of control, you need only turn to social media sites and sites like coworker.org and Glassdoor. If your employees are online complaining about you, should you be paying attention?

Officially announcing the release of The Employer Bill of Rights

After a “soft launch” a couple of weeks ago, I am officially announcing the launch of my latest book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations. Among other topics, it covers—

• How to make personnel decisions that will help avoid costly litigation.
• The who, what, why, when, where, and how of each of the major federal employment discrimination laws.
• Cutting-edge human resources issues such as wage-and-hour disputes and managing social media in the workplace.
• How to hire and fire employee without the fear of an expensive lawsuit.
• How to control operations by implementing legal policies and procedures related to plant shut downs, employee scheduling, work rules, and the maintenance of confidential information.
• The importance of following the Golden Rule in all personnel matters.

I’m really proud of how the book turned out.

I have a lot of people to thank. Here’s what I wrote in the book’s acknowledgements:

First, I must thank all of my partners at Kohrman Jackson & Krantz and, especially, our managing partner, Marc Krantz, who knows that there exist many ways for a lawyer to market himself or herself. He never hesitated when I suggested that I author a legal blog or write a book (or two), and for his support I am eternally grateful.

Before attending law school, I worked at a few jobs that were less than glamorous. To all of the people who shared those jobs with me, thank you for unknowingly and unwittingly helping me craft my views on the modern workplace.

Thank you to anyone who has ever published anything I have written, quoted me in an article, hosted me on a show, invited me to speak at an event, re-tweeted one of my 140-character thoughts, or linked to my blog. Without each of you, this book would not have occurred.

I thank the wonderful publishing team at Apress—Jeff Olson, Robert Hutchinson, and Rita Fernando—along with the publisher itself. They made the writing process work smoothly, which was essential as I juggled the authoring of this book with my full-time legal practice. They also patiently put up with my less-than-perfect execution of their SharePoint site as we worked though the editorial process.

Thank you to my parents, who taught me the value of education without ever pushing too hard.

Finally, thank you to my family—Colleen, Norah, and Donovan. You put up with my late-night and early-morning blogging and writing. You sometimes suffer in my absence caused by long workdays, late nights, or out-of-town trips. Yet, if I did not know that you are always standing behind me, none of it would be worth it. Thank you for loving me for who I am and supporting me for what I do.

If you want to purchase the book, it’s available in several places and formats:

• Amazon – paperback
• Amazon – Kindle (available soon)
• Barnes & Noble – paperback
• eBook

I have also been told that an iBooks version is coming, although Apple runs a tad behind the others on its approvals.

I cannot think of a better stocking stuffer for that special business owner, manager, supervisor, or HR professional in your life. Amazon will even gift wrap it for you.

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If you want to hear me talk about the book, you can tune in tomorrow to Stephanie Thomas’s The Proactive Employer. I’ll be live at 3 pm (and available on-demand thereafter) to discuss why employers need a bill of rights, the areas of greatest legal concern for employers, and how my book can help businesses make informed decisions and hedge against the biggest errors that too often result in expensive and time-consuming lawsuits.

Does an unaccepted offer of judgment moot a wage and hour case? Genesis HealthCare Corp. v. Symczyk

Let’s say an employee sues you, claiming that you withheld certain wages owed under the Fair Labor Standards Act. In addition to defending the lawsuit, you make her what is called an “offer of judgment” to make her whole for all wages she claims she is owed (including any liquidated damages and attorneys’ fees). Does the offer render her lawsuit—that she not only brought on her own behalf, but also sought on behalf of a class of similarly situated co-workers—moot? Alternatively, does the fact that she sought relief on behalf of others keep her lawsuit alive, despite the fact that she no longer has any personal skin in the game?

Yesterday, the Supreme Court took up this important issue in Genesis HealthCare Corp. v. Symczyk. The precise issue the Court considered during yesterday’s oral argument is as follows:

Whether a case becomes moot … when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims.

In the case below, the 3rd Circuit offered a succinct explanation of the doctrine of mootness, its role in federal court cases, and how an offer of judgment impacts it:

Article III of the United States Constitution limits the jurisdiction of the federal courts to “actual ‘Cases’ and ‘Controversies.’” When the issues presented in a case are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome, the case becomes moot and the court no longer has subject matter jurisdiction. An offer of complete relief will generally moot the plaintiff’s claim, as at that point the plaintiff retains no personal interest in the outcome of the litigation. Thus, whether or not the plaintiff accepts the offer, no justiciable controversy remains when a defendant tenders an offer of judgment under Rule 68 encompassing all the relief a plaintiff could potentially recover at trial. (internal quotations omitted).

Genesis HealthCare is not the Supreme Court’s first rodeo on the issue of offers of judgment in class actions. In Deposit Guar. Nat'l Bank v. Roper, the Court previously expressed its concern about the use of offers of judgment to strategically “pick off” claimants:

Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off'” by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement.

How did the Court address these issues in yesterday’s oral argument, and what do the Court’s questions tell us about how the Court may rule in the case?

• The left wing of the Court hit the employer’s counsel hard on the perceived underlying unfairness of dismissing an entire collective action based on the inactivity of one member of the class.
• The right wing of the Court hit the plaintiff’s counsel hard on the underlying procedural issues, and the inability of a named plaintiff to do anything to affect the interests of potential class members who have yet to join the lawsuit.

The outcome of this case is difficult to gauge based on the oral argument, because both potential sides of the Court attacked the underlying issues so differently. Again and again, however, this pro-business Court has revealed itself to be pro-employee in its recent employment rulings. Reading the tea leaves, I predict that the Court rules against the employer and concludes that the unaccepted offer of judgment did not moot the collective action in this case.

A copy of the oral argument transcript is available for download [pdf] from the Supreme Court’s website.

Do you have a workplace policy banning the electronic recording of conversations?

In Jones v. St. Jude Medical Center (6th Cir. 11/8/12) the employee—fired for surreptitiously recording workplace conversations about her job performance—sought the protection of Title VII’s anti-retaliation provision. She argued that because she made the recordings to gather evidence about discrimination, the act of recording was protected activity under Title VII. Because her employer fired her because of the recordings, she claimed retaliation.

The 6th Circuit concluded that the hospital fired Jones because she violated its policy against recording conversations in the workplace, and rejected her retaliation claim.

Importantly, the Court further concluded that Title VII’s anti-retaliation provision does not protect the act of recording in and of itself:

Jones has not shown why she needed to violate the recording policy in order to oppose defendants’ alleged discrimination. She might have taken notes of the conversations, obtained the same information through legal discovery, or simply asked her interlocutors for permission to record. Jones argues that her conduct was reasonable because the recordings were not illegal, did not breach confidential information, were not disruptive of business operations, and were not disseminated beyond the litigation. But none of this suggests that the recording policy was illegitimate or that it would have been futile to oppose the alleged discrimination in ways that did not violate the policy. In light of these considerations, we decline to hold that Jones’ recordings were protected.

What can an employer learn from this case?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy?

2. Your managers and supervisors should assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.