Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

I arrived at the office this morning and checked my emails to learn we had been nominated for Lexis Nexis Top 25 Labor and Employment Law Blogs of 2011. We are thrilled with the nomination, and it validates our goal to provide a common sense resource for employers. The list of nominees is quite impressive and to be counted amongst them is truly an honor. 

Lexis Nexis wants readers to voice their support for their favorite blogs. That is where you come in… we need you to click on the link and comment about our blog at Labor and Employment Law Community. 

Each comment is counted as a vote toward the supported blog. To submit a comment, visitors need to log on to their free LexisNexis Communities account.  If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. (No, you will not receive any sales contacts for commenting)  Be sure to scroll down to the bottom of the page.  The comment box is at the very bottom of the blog nomination page.

The comment period for nominations ends on September 12, 2011. Thanks for your support!

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The National Labor Relations Board’s Acting General Counsel released a report yesterday, detailing the outcome of a mixed bag of 14 cases involving the use of social media by employees, their employer’s social media policies, and in one case the improper use of social media by a union. The report is a fascinating read for employers, and shows how the NLRB is really splitting hairs on what to do about employee use/misuse of social media. Each case is extremely fact specific. The waters are beginning to clear, but there is no bright line yet.

Eight of the cases reported, involved employees using Facebook to criticize their employer, supervisor, or fellow employee. In four of the cases, the NLRB ruled the employee’s activity was protected concerted activity. In the other four cases, the conduct was deemed to not be protected by the National Labor Relations Act. The difference lies in a determination of whether or not activity is, “Engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or induce or to prepare for group action” and where individual employees bring “truly group complaints” to the employers attention. Translated, this means whether or not the employee is acting alone, or in concert with others. To the extent the employee acts alone it is not concerted activity; to the extent the employee communicates with fellow employees, the more the activity looks concerted and is more likely to be considered protected activity.

One of the fourteen cases was about an employee tweeting, and four others concerned the question whether or not an employer’s social media policy was overly broad. Three of the social media policies reviewed by the Board were determined to be overly broad, one was not.  The take-away for employers is to understand social media cases will be reviewed by the NLRB on a fact specific basis. When presented with a problem of an employee’s potential misuse of social media, an employer should carefully review the facts.

• Who was involved in the social media communication?
• When?
• What was the subject of the social media communication?
• What was the purpose of the communication?
• Does the social media communication appear to be “concerted activity”?

The second step is to review social media policies to determine if they are overly broad, and have the effect of chilling an employee’s rights under Section 7 of the NLRA. Adding an exclusion which reads, “This social media policy is not designed to hinder, restrict, or compromise an employee’s rights under Section 7 of the NLRA,” is a very good idea.

Another good resource for employers is to review the recent “Survey of Social Media Issues Before the NLRB,” completed by the U.S. Chamber of Commerce. It covers 129 NLRB decisions concerning social media and workplace issues. The Chamber reported, “The vast majority of the cases we reviewed through this survey fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employer discharge or discipline based on an employee’s comments posted through social media channels.”
 

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The American Civil Liberties Union (ACLU) recently filed a notice of claim against the Rocky Mountain Academy of Evergreen in Colorado alleging it let go of a teacher because she pumped breast milk on the job. The school has 90 days to respond to the claim, after which point a formal lawsuit may be filed. Colorado passed a law which requires employers to make reasonable accommodations to allow mothers to pump milk while at work. Minnesota has a similar law.

Minnesota Statute § 181.939 states, employers must provide reasonable unpaid break time each day to a nursing employee who needs to express breast milk for her infant child, unless it would unduly disrupt the operations of the employer. The break time can be at the same time as other break times already provided to the employee. Minnesota employers must also provide an employee a private room or location to use to express her milk. A toilet stall is not considered sufficient under the law for this purpose.

In addition to Minnesota state law which provides this benefit to nursing mothers, my law partner blogged last year about the changes caused by President Obama’s healthcare reform, one of which provided unpaid lactation breaks for nursing mothers.

It is important for employers to consider any potential discrimination claims before taking adverse employment actions against employees. Employment actions must be grounded in facts and evaluated based on legitimate needs. Presently, the Colorado employer is claiming the employee was not retained because her position was changed. I will update you as this case unfolds.

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Taking a statement from an employee in a workplace investigation is an acquired skill, most investigators don’t have sufficient opportunity to practice or perfect. At this point in my career, I have represented clients in over 1,500 workplace investigations, from both sides of the table. I previously represented employees and now exclusively represent employers. I have come to the conclusion there are three words which can cause employees to drip sweat, and can strike fear in most union representatives. Those three words are; “Tell me about…” as in “Tell me about the pornographic sites found in your computer history;” “Tell me about why you were late for work;” “Tell me about the car accident with the company truck;” or “Tell me about the conversation you had with ...”

Asking an open-ended question invites the employee to provide a narrative response, likely to be broad in scope, and extremely helpful to the investigator. If asked as the very first question in the statement, it can provide an opportunity for the investigator to observe the demeanor of the employee, assess the employee’s comfort level with the process, and perhaps help in developing opinions about truth and veracity. Those three powerful words are extremely difficult for a union representative, because they make it difficult to predict what the employee will say in response, and they make it harder for the union to interfere with the statement. 

Several weeks ago I presented a three hour course on investigations called, “How to Take the Best Internal Affairs Statement of Your Career,” and shared these three most powerful words.   I advised all those attending the class, that if they remembered one thing from the class, they should remember the three powerful words, “Tell me about…” The quality of responses and the volume of information obtained from the employee being questioned will be greatly enhanced, resulting in a more complete investigative statement.  

For those wondering, the next question to ask after, “Tell me about,” is either, “Anything else?” or “What happened next?” Short prompting questions at this point will keep the employee talking, and provide even more valuable information to the investigator. 

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Factory workers were locked out Monday from entering seven American Crystal Sugar plants located in Minnesota, North Dakota, and Iowa, after rejecting a contract proposal offering a 17% wage increase over five years. The processing plants have brought in replacement workers, and the employees are flocking to file for unemployment benefits.

Rejecting a 17% wage increase over five years is outrageous and offensive in our present sluggish economy. Most factory workers are happy to just have a job and a paycheck. The Union responded to the press,“These negotiations are not and never have been about pay…” and instead offered increases in health insurance and concerns about job security as the reasons for rejecting the Company’s contract offer.

In response to the Union’s concerns, management explained, “Health care costs would go up an average of about $1,000.00 per employee, which is significantly less than their pay increase,” and indicated the Company had proposed language concerning job security. The Company proposal specified prior to any lay-offs, the Company would have to meet certain stipulations before being able to hire non-union workers.

The major disconnect here may very well be the fact the parties last contract negotiations were in 2004, when they agreed to a 7 year labor agreement that raised salaries by 2% and locked in health insurance rates for 7 years. The world has changed profoundly in the last 7 years, our economy has tanked, health care costs have sky-rocketed, and the unemployment rate is hovering close to double digits. The Union representing workers of American Crystal Sugar seems to have been trapped in a time warp. It is hard to have any sympathy for workers who reject a sweet 17% wage increase over 5 years, and opt for unemployment benefits instead. A reality check is in order.
 

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