Thursday, December 18, 2014

Merry Christmas from the NLRB!

And a stocking stuffer from the United States District Court for the District of South Carolina

The National Labor Relations Board (NLRB) was a very busy group of little elves this past week, wrapping up a couple of pretty gifts for labor, while simultaneously dumping coal into the stockings of businesses. Since earlier this year, when the board got slapped by the Supreme Court, invalidating many of their decisions due to illegally appointed members (see here ) it’s been chugging along in reaffirming many of those decisions and revisiting yet others. Which is the case with this past week’s gifts.

The board issued its final expedited election rules. Often referred to as the "quickie" election rules, or better yet, the "ambush" election rules, they allow for union representation elections to be conducted in 10 to 21 days following the filing of a petition by a union.  Currently, elections normally take 6 to 8 weeks, which allows employers to respond to union organizing efforts and fully inform employees of all sides of the issue. The final rule pretty much guts employer rights and their ability to respond in any substantive way to a union organizing effort. In addition, it requires employers to give union organizers personal information about their workers including home addresses, telephone numbers, shift schedules, work locations, and, where available, e-mail addresses. See Littler’s article here.

In the same week, the board reversed a long-standing rule in reference to an employer’s right to control its own property. In the 2007 Register Guard decision the board ruled that employees have no statutory right to use their employers’ e-mail systems for union organizing purposes. On December 11th,  the board reversed, in Purple Communications Inc., 361 NLRB No. 126 (2014). You can read more about this decision here. So, now businesses have no right to control how their own property and systems are used.

Well now, aren’t they generous! Conventional wisdom says that both decisions will most likely be challenged – again – in court.

Let’s hope the courts are a little more generous to business, as one was several days ago, giving us our stocking stuffer: EEOC Must Disclose its Own Background Check Policy. In suing BMW, the EEOC says the company’s background checking policy was discriminatory. BMW asked the court to compel the EEOC to disclose its own policy. The EEOC felt their policy was "irrelevant" to the case. The court disagreed, forcing the EEOC to fork it over.

Ahhhh, the holidays! I wonder what we’ll get for New Year’s.

Well, try to enjoy yourself anyway. Don’t embarrass yourself at the office holiday party; don’t let a co-worker drink and drive and never, ever give your boss a fruitcake. Seriously, those things are evil.

Merry Christmas, Happy Hanukkah!

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