Archive for December, 2010


Yes, it is that time of year again. A time to start fresh; to think about all the possibilities. So how about some New Year’s resolutions for your management team? And just in case you don’t think you or your supervisors need to do anything differently, along comes the NLRB to give you something to think about. What am I talking about, you may ask? On December 22, the NLRB published a Notice of Proposed Rulemaking in the Federal Register. The proposed rule says all employers subject to the NLRA (and that is almost all private employers, regardless of whether your workforce is unionized) will be required to post a notice informing all employees about their rights under the NLRA.

Here is what the proposed poster will say:



The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity.  Employees covered by the NLRA are protected from certain types of employer and union misconduct.  This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA.  Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace. 

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. 

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.

• Question you about your union support or activities in a manner that discourages you from engaging in that activity. 

• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity. 

• Threaten to close your workplace if workers choose a union to represent them. 

• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.

• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to: 

• Threaten you that you will lose your job unless you support the union.

• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.

• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.

• Take other adverse action against you based on whether you have joined or support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Illegal conduct will not be permitted.  If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity.  You may inquire about possible violations without your employer or anyone else being informed of the inquiry.  Charges may be filed by any person and need not be filed by the employee directly affected by the violation.  The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law.  Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.

The NLRA covers most private-sector employers.  

Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors. (Although supervisors that have been discriminated against for refusing to violate the NLRA may be covered.)

This is an official Government Notice and must not be defaced by anyone.

You can see the whole thing at

So, what do you do about this?  You can submit comments regarding the proposed rule, but that probably won’t change the fact that this rule will become final in one form or another (at least until some court rules that the NLRB does not have the statutory authority to make this rule in the first place),  but you can at least have your voice heard. 

Or you can make sure you have a workplace where the employees don’t feel like they need a union. How do you do that? Start with your supervisors. Train them. Make sure they understand their role in keeping your employees engaged. Looking for some ideas on how to do this? Here is a couple of places you might consider starting:  And so I don’t look too self-absorbed, you can also find some great stuff from my colleagues here: and also here 

Or give us a call. We can provide training, not just on the law but on conflict resolution, managing generational differences in the workplace, employee motivation and many other topics that will help make your supervisors better supervisors and hopefully keep your staff from seeking help from the outside.

No Predictions this Year!

Well, it is the end of the year which is of course traditionally a time of year when one looks back on the accomplishments of the previous year and forward with anticipation to the year to come. Of course one of the advantages of writing a blog is that I get to do that in writing. So I thought I would take this opportunity to reflect on my past  brilliance and maybe make a prediction or two about the year to come. (What is really going on here is the marketing department wants me to write something before the end of the year and this was all I could come up with).

Two years ago, when President Obama was elected, and the House of Representatives and the Senate were controlled by the Democrats, we (by we I mean employment lawyers) were convinced that a major shift in labor and employment law akin to what happened during the New Deal was about to take place. And it did start out that way. The first bill President Obama signed into law was an employment related bill; the Lilley Ledbetter Fair Pay Act.  So of course, like everyone else who does what I do for a living, I thought, “Here we go!”

Man was I wrong. Now don’t get me wrong. Congress tried, they really did. They introduced a bunch of bills, bills to amend the WARN Act, bills to amend the ADEA and overturn Supreme Court decisions, bills to amend Title VII to include sexual orientation and of course the Employee Free Choice Act, a bill that I maintain may have the most misleading name in history.    And guess what?  Nothing came of it all. Now I’m not saying that is a bad thing, I’m just saying.

So what is going to happen next year. I honestly don’t know. But I can tell you this—I won’t even try to predict what Congress might do. I’ll stick to the courts and administrative agencies. For example, there is a lot of focus on so called “wage theft” and you can plan on the DOL to focus a lot of its effort on this issue. You can read about the issues here and here. You can also plan on the NLRB to become more aggressive in overturning some of the Bush-era Board Decisions.  You can read about what the Board is doing here. And finally, the Supreme Court has heard a couple of cases this term that will have broad application on such things as when is a complaint filed under the FLSA and how broad are the retaliation protections of Title VII.

And if you really want to know what the Congress is going to do, you can sit in on our Webinar on Friday the 7th of January. The webinar will explore what the changes mean for HR professionals. Join us as attorneys from the Labor and Employment and Government Relations groups discuss possible legislation that may affect the workplace and how agencies such as the EEOC, NLRB and the Michigan Department of Civil Rights may approach workplace issues. You can register here.

Hope your holidays are happy and your new year is blessed.


Party Time – Is the Holiday Office Party Really Dead?

…or is it just so darn boring it seems that way?

I keep reading articles that say the time-worn tradition of the office holiday party, is dead. Dead, you say? Yes, dead. One article I read (really a very good one in Business Week—you can see it at ) is even entitled “The End of the Office Holiday Party.”  As proof positive that the traditional office party is dead, the author, Joel Stein, reports that the Queen of England has decided to cancel “Buckingham Palace’s biannual Christmas party.”  Mr. Stein then cites a bunch of statistics from a bunch of studies showing how companies from BNA to, well, the Queen of England, are either not having a party at all or are cutting way back on how much they spend. 

Here is what is weird though. Mr. Stein then goes on to describe many companies that are having what you can conservatively describe as all-out bashes. One Internet company, he reports, is renting a football stadium, hiring bands and flying in celebrity endorsers of its service. Another company (a personal injury law firm, according to the article) is reported to have hired Sting to play its company holiday party. I have said it before and I’ll say it again, I might be on the wrong side of the v.

So is the office party dead or not? I don’t know. I DO know our office is having one, and Sting will not be performing, but it would be nice. Here is what I do know: I’m an employment lawyer, and while my job may not be to kill the office holiday party, it is my job to make it so darn boring that it seems like it is dead (just in case you didn’t get it, that was a joke).  With that in mind, here are some things to consider when setting up your holiday party. And instead of giving you my own thoughts on the matter I am going to borrow some thoughts from our esteemed associate Greg Kilby.  Greg wrote an article on this topic last year. If you want to read the full article you can find it at–a_legal_minefield-12-4-2009_labor_law/. In short, here is what Greg suggested: 

  • Hire professional bartenders: Even if you have an open bar, it is better to have someone such as a bartender dispensing the alcoholic drinks. Instruct bartenders on when to limit alcoholic service. That way, gatekeepers limit the access to the alcohol and can prevent inebriated people from further imbibing.
  • Serve food: Make sure there are plenty of things to eat so that people are not drinking on empty stomachs; avoid having too many salty foods since these encourage people to drink more.
  • Have plenty of soft drinks: Provide sodas, sparkling juices, bottled water and lots of other appealing “soft” drink options.
  • Hand out drink tickets: Give all attendees a limited number of tickets for the open bar; once the tickets are gone, they can purchase their own drinks (reducing your liability) or drink the plentiful soft options.
  • Skip the alcohol altogether: Have an earlier holiday gathering, such as a lunch banquet, and do not serve alcohol.
  • Offer shuttles or taxis: Distribute free taxi passes, making it easy for employees to get to and from the party without driving. This way, employee can ride home that evening and back to work the next day in a cab.
  • Remind everyone of the policies: Before the party, circulate a memo reminding people of your sexual harassment policies; let them know that the policies apply to events outside of the 9-5 environment. Remind supervisors of the rules and what to do if they witness or hear of potential harassment.
  • Have a dress code: Suggest a dress code for the party that keeps things professional. Avoiding provocative dress can alleviate some forms of harassment.
  • Host a family event: Instead of limiting attendees to employees, invite their spouses or families. Consider inviting clients or business partners. The presence of other people may help keep the event appropriate.
  • Avoid certain traditions: While mistletoe may be your favorite decoration of the season, it really doesn’t belong in the office. Avoid anything that could contribute to an environment of harassment.


Happy Holidays.