Category: National Labor Relations Act

Responding to a Corporate Campaign

Published by Brett Holubeck on November 3, 2020

Image of a target with a lot of arrows to symbolize a company becoming the target of a corporate campaign. — Photo by NeONBRAND on Unsplash

You are a company leader. You’re getting ready for work. You turn on the television and see the name of your company blasted all over the news. You discover that there is a group that is very publicly advocating for a change in the company’s policies, or worse, you find out they want the company to close down altogether. You’re stunned. It’s your worst nightmare to see your company’s name dragged through the mud.

What can you do? You fear the answer is nothing.

Thankfully, that’s not the case. There are some steps that companies can take to respond to actions such as this, and that includes properly responding to what is called a “corporate campaign.”

What is a Corporate Campaign

A corporate campaign begins when enough people are motivated by some issue or action that the company has taken and these individuals attempt to force the company to change their position or correct what they did. A corporate campaign may or may not involve employees. It may involve stockholders, students, members of the community where the business is located, a union, customers, or even people with no relation to the company.

An example of this would be a university that has students asking it to divest from Israeli companies or companies that do business in Israel (see examples here and here. You may notice that the articles have very different views on the same event. Strong opinions on both sides are often present in corporate campaigns as they tend to focus on a hot-button issue.).

A corporate campaign is different than a union campaign (you can read about those here). A union campaign has the goal of having the employees at the facility unionize. Sometimes, but not always, a union may use tactics from a corporate campaign to boost their own union organizing at a company.

What Issues May be the Subject of the Corporate Campaign

While a corporate campaign can be about any particular issue, the most likely issues to initiate a corporate campaign are similar to those in a union campaign.

The most common issues of a corporate campaign are:

Higher wages
Improved safety
Gender wage gap issues
Diversity issues
Environmental issues
Investments in a particular country
Members of the community not wanting a business of that type in the community (e.g. opening a prison or a garbage dump near/in a community)
Accusations of monopoly
A union organizing drive
Urging the company to take a stance on a particular political issue
Ethical issues (e.g. the treatment of animals at a food processing facility)
Job related issues (e.g. accusations that the company is sending jobs overseas or closing a facility)

What A Corporate Campaign May Look Like

The main goal of a corporate campaign is to get the company to change or adopt a particular position or policy. Whoever is running the corporate campaign will use whatever means they can to put pressure on the company to increase the chances that the campaign is successful.

There are a number of strategies that the organizers may employ to conduct the corporate campaign such as:

Passing out fliers in the parking lot or in front of the building
Protesting or holding signs in front of the building
Employees going on strike
Seeking to get media coverage of the campaign
Starting a Facebook group, Instagram page, Twitter handle, or a podcast to release information about the company and to target them online
Letter or email bombing the company by sending a tsunami of emails or letters to the company
Contacting members of the Board of the company
Protesting outside the homes of members of the company’s board or executive team
Going to shareholder meetings and requesting a vote on an issue
Filing charges through the National Labor Relations Board
Making accusations against the company anonymously and/or against anonymous employees of the company (these are obviously difficult to disprove)
Trying to get hired by the company to report about it or try to take actions against the company from the inside (this is called salting)
Seeking out community leaders to address the issue and the company. These can include politicians, celebrities, religious leaders, and other people with influence.
Filing administrative claims with OSHA, wage and hour claims, discrimination claims, and other claims
Sharing content about the company online, in emails, and other mediums to shareholders, employees, customers, and members of the general public

The main goal of all of these tactics are to change the direction of the company and get them to adopt certain policies.

Is There Any Way to Prevent Being a Target

Attempting to prevent a corporate campaign is key. The best thing that could happen to you as a company regarding corporate campaigns is to never become the target of one in the first place. There are many companies that will never experience this such as small companies or companies in non-controversial industries.

There are a few ways that companies can lessen the likelihood that they will become a target of a campaign. The main goal of these efforts is to ensure that the company is in compliance with the law and employees are happy. You can do this by:

Seeking feedback from employees
- Hold town halls to hear and address employee complaints and concerns (quarterly or monthly meetings with all employees in one meeting or holding enough meetings so that all employees can attend).
- Have meetings with representatives from different areas of the facility if the business is too large to have meetings with large numbers of employees. These representatives should seek input from their coworkers so that they can bring any issues to management.
- Conduct stay and exit interviews. Stay interviews are annual interviews with employees to get feedback from them, discuss what they are doing well, and what can be done better. Exit interviews are meetings with employees that are leaving and can be used to determine where the company can improve.
- Have a suggestion box.
- Make sure that you have an open-door policy.
- Encourage managers and members of the HR team to walk the floor and interact with employees on a daily basis.
- Have a complaint procedure that allows employees to report problems to multiple members of management and escalate as appropriate
Providing professional development training for managers on a variety of topics. You can read about the suggested topics on my post: How to Train Your Supervisor. Managers are often a source of potential lawsuits for companies either because of their failure to act or acting in the wrong way in a given situation. It is cheaper to train a manager than it is to defend a lawsuit. It also makes your company a better place to work.
Conduct wage audits to determine whether your wage rates are competitive (i.e. fair) and you are not engaging in disparate treatment of any protected group (i.e. no group of employees in any protected class (e.g. gender, age, race, etc.) is being paid less than other employees in the same job, with the same experience, and other relevant factors).
Keep good relations with the stakeholders in the company and members of the community.
Conduct anti-harassment and bystander training for employees so that they can address situations if no manager is involved in the incident.
Conduct safety audits of the facility to ensure that the employees are safe. You can read more about how to do this in my article on how to improve workplace safety.

What to Do Once a Corporate Campaign Begins

Unfortunately, sometimes even with taking these precautions a corporate campaign will take place. Large companies are much more likely to be pressured and consider making changes due to a corporate campaign due to their public exposure. In a similar way, you will see corporate campaigns a lot more frequently in controversial industries. After the company becomes aware of a campaign, a company needs to act quickly.

There are a number of things a company may need to do in a campaign. Determining what to do in a campaign requires examining the extent of the campaign, the weaknesses of the company, and the particular issues that are being raised by the group.

There are a few steps that apply in any campaign:

Continue meeting with employees to address issues that they may raise.
Ensure that confidential materials, such as contact information for the executive team and board members, are secure on company devices and shared files.
Develop a team, which may include outside help, to determine how to best address and respond to issues that the group raises.
Continue to maintain good relations with members of the community, the board if any exists, employees, and other stakeholders.
Assess the weak points that are present in the company, which may include supervisors, policies that need changes, or other issues.
Work to resolve the issues that are being raised to the extent that they should be resolved. This will depend on the issues that are being raised and the appropriateness of correcting them during the campaign. If a union is involved, then the company may not be able to make changes without violating the National Labor Relations Act even if the company was not aware of the issue before the campaign began. You can read more about responding to union organizing here.

Companies must address the specific problems of the campaign and develop a well-tailored plan to resolve the problems raised by the campaign.

Conclusion

Corporate campaigns are difficult to respond to. They can focus on any particular issue and arise unexpectedly. Companies, especially public companies, need to be prepared to respond to a potential corporate campaign. Again, being proactive and acting to prevent one from occuring in the first place is your best route as a company. If this is not possible, then the company should make a plan soon after a campaign begins.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2020 Democratic Candidates on Labor, Employment, and the Workplace

Published by Brett Holubeck on June 26, 2019

Picture of a ballot box to demonstrate the voting for the 2020 Democratic Candidates and highlight how the election may change the workplace — Photo by Element5 Digital on Unsplash

There are a lot of Democratic Candidates for president. As of today, there are 25 active Democratic candidates vying for the party’s nomination. Many of these candidates have not released specific proposals about their beliefs on employment and labor law issues. However, before tonight’s debate I wanted to outline some of the most interesting proposals of the candidates on labor and employment law and the workplace.

$15 Minimum Wage

Joe Biden announced his support in his first campaign speech. Bernie Sanders has drafted legislation to increase the minimum wage to $15 an hour. As reported by Vox, only 4 candidates (Andrew Yang, Bill de Blasio, Jay Inslee, and Wayne Messam) have not taken a position on the minimum wage. Sen. Michael Bennet favors a 12 dollar minimum wage. Klobuchar, Hickenlooper, Warren, O’Rourke, Castro, Harris, Kirsten Gillibrand, Pete Buttigieg, Marianne Williamson, Tulsi Gabbard, Eric Swalwell, Cory Booker, Seth Moulton, Tim Ryan, Mike Gravel, John Delaney, and Steve Bullock all support a $15 minimum wage.

Increasing the minimum wage is likely to have a number of effects on labor and employment. Namely, the minimum wage increase will cause wages to rise for the lowest paid workers. This in turn may cause increased salary compression where higher paid workers do not receive the same increase in their wages that minimum wage workers receive. Many other workers that are not currently minimum wage workers, will need to have wage increases to reward their skills and ensure that they believe that they are adequately compensated. Individuals that have wages close to the minimum wage will expect an increase if they are not making that much more than the minimum wage after a minimum wage hike.

Of course, the minimum wage increase will also have a bigger impact on employers and industries that tend to be located outside of major metropolitan areas or in states where the cost of living is cheaper. For example, in 2015 there were 8 states had a median wage that was less than $15 an hour. Increasing the minimum wage in these states would have a dramatic impact on employee salaries as more than half of workers would need wage increases just to reach the minimum wage. Again, workers with wages that are currently under $15 an hour but above the minimum wage would need wage raises beyond $15 an hour to ensure that their talents are rewarded (i.e. they are getting fairly paid and making more than $15 or the minimum wage). For example, an EMT in Alabama currently averages $14.06 an hour. They would expect a new wage that would be significantly higher than any minimum wage worker making $15 per hour.

Card Check and Union Organizing

Joe Biden, Kamala Harris, Bernie Sanders, Elizabeth Warren, and many others support a law that will enable labor unions to organize by card check. This means that the individuals only need to get a majority of the employees in a workplace to sign union authorization cards. Union authorization cards authorize a specific union to represent the employee, which goes into effect if the union wins an election or the employer voluntarily recognizes the union if a majority of employees sign union authorization. If enacted, card check would mean that there would not be any election to decide whether to form a union in a workplace. Rather, if a majority of employees signed union authorization cards, then the employer would be forced to recognize the union without an election.

This would be a radical change in labor law and would remove, what in my opinion, is a critical piece of labor relations. Namely, that employees are able to vote on whether they would like to have a union in a way that enables their ballots to be secret and free from undue influence.

Eliminating the Gender Pay Gap through EEO-1 Data

Kamala Harris has proposed a requirement that she believes would end the gender pay gap. She is pushing to punish companies with a 1 percent fine for every 1 percent wage gap that exists in their ranks.

Companies will be required to certify that they are paying women the same as men for equal work. To the extent that pay disparities exist a company will need to show that the gap is based on merit, performance, or seniority. Companies will be required to obtain an equal pay certification to avoid paying these fines.

This would be a radical change and would require companies to devote significant resources to demonstrating that their pay practices are not discriminatory.

Sexual Orientation Discrimination

Democratic candidates generally support prohibiting sexual discrimination. This, however, is one issue that will likely be resolved when the Supreme Court decides two cases next year. Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda.

The Supreme Court will decide “Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.” The decision in these cases will likely determine the final proposals of any Democratic candidate on the issue.

Enacting Paid Family Leave

Kirsten Gillibrand reintroduced her legislation to create a federal paid family and medical leave program. Her plan is co-sponsored by Bernie Sanders, Cory Booker, Amy Klobuchar, Kamala Harris, and Elizabeth Warren.

The bill would essential replace unpaid FMLA leave with 12 weeks of paid family leave.

I’ve said it before (see my earlier post). Paid family leave is coming to the US. President Trump and the Democrats both agree on paid family leave but differ in how they wish to implement it.

Eliminating No Poach Agreements

Cory Booker and Elizabeth Warren have proposed legislation that would outlaw no poach agreements within franchise agreements. No poach agreements prohibit employers from hiring the employees of another employer that is part of the agreement. In fact, 11 state Attorney Generals launched an investigation into these no-poaching clauses and seven chains that represented more than 25,000 stores nationwide have dropped these clauses. With these investigations underway, it is unlikely that the bill or any proposal from a presidential candidate will dramatically impact the law because the court cases will likely decide whether these agreements are enforceable under Antitrust law.

Banning Noncompetition Agreements

Senators Warren and Klobuchar support limiting non-competition agreements. Noncompetition agreements permit employers and employees to enter into agreements to prohibit employees from competing against an employer after they leave that employer’s employment. Both of these Senators have called on the Federal Trade Commission to use their rulemaking authority to limit noncompetition agreements.

Elizabeth Warren has sponsored legislation to ban non-competes. Yes, all non-competes. It would not affect the ability of companies to protect their trade secrets.

The legislation fails to consider some of the important factors that matter for noncompetition agreements and why they are important. Granted, not all employees need nor should they be required to sign noncompetition agreements. For example, employees at Jimmy John’s do not need noncompetition agreements. Forcing the employees that make sandwiches to sign noncompetition agreements does not help the company. It destroys employee morale and makes it harder for the company to find employees once this policy becomes known because (surprise) employees want to be treated well.

Salespeople, executives, owners of companies that sell their company but agree to stay with the company during a transition period, and many other high-level employees are individuals that should sign noncompetition agreements. It makes sense that a former owner should not be allowed to open a competing business after he or she sells their business.

We can expect that if either are elected as President that they would seek to limit or do away with noncompetition agreements.

Ending the Tipped Wage

The Raise the Wage Act would phase out the tipped wage. Bernie Sanders, Cory Booker, Klobuchar, Gillibrand, Harris, and Warren have sponsored the legislation and thus support ending the tipped wage. As I said previously in this post (quoted below), the tipped wage has been a controversial subject for many states and cities.

The recent debate in DC to eliminate the tipped wage demonstrates that many groups have a wide variety of opinions on the issue of tips. The proposal was a voter initiative that would have eliminated the tipped wage and it passed, but it was ultimately undone by a DC council vote. Many restaurant workers expressed concern that the elimination of the tipped wage would cost them money as less people would tip.

Ending Arbitration as a Condition of Employment

Cory Booker, Kirsten Gillibrand, Kamala Harris, Amy Klobuchar, Bernie Sanders, and Elizabeth Warren are all cosponsors of the Restoring Justice for Workers Act. The bill would essentially end employment agreements where arbitration is a condition of employment (it is in an initial employment agreement) and would prohibit arbitration in many other circumstances unless the employee agreed to be subject to arbitration and the arbitration agreement met certain conditions.

Elizabeth Warren, in a letter to the Department of Labor’s Solicitor of Labor, requested information about the DOL’s approach in bringing enforcement actions against companies with employees that signed arbitration agreements as a condition of employment. It is clear that she would like to end arbitration agreements as a condition of employment.

Arbitration has some advantages and disadvantages. Robin Shea, at the Employment & Labor Insider, does a great job of outlining them. For many employers and employees, it is the best way to handle workplace disputes. Removing arbitration as a possibility for handling workplace disputes would radically change employment and labor law by requiring all disputes to be resolved through an already backlogged court system.

Conclusion

One thing is certain no matter which Democratic candidate wins the nomination there are a lot of proposed changes to labor and employment law and the workplace in general among the various proposals of the candidates. It will be incredibly interesting to see who the Democratic candidate will be, what policies they will propose, and how the election influences labor and employment law.

Disclaimer: This is not a full list of all the candidates’ political positions on the workplace nor labor and employment law, but merely some highlights of issues you will see in play. If you know of or would like to highlight other aspects of any Democratic candidate that I did not mention or left out, then please feel free to comment below.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Responding to an NLRB Unfair Labor Practice Charge

Published by Brett Holubeck on January 10, 2019

Image of gavel to represent that the unfair labor practice is essentially a case against the company alleging that it violated the NLRA. — Photo by rawpixel on Unsplash

Getting an unfair labor practice charge against you can be confusing. Let’s start with the basics.

An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity.

Some of the most common violations that employers commit are:

Forbidding employees to discuss their salaries
Firing or disciplining employees that discuss the union or solicit employees to sign union authorization cards
Disciplining or firing employees that complain about working conditions, pay, or safety issues with or on behalf of a group of employees.

You can read more about other ways that the NLRA protects employees in one of my earlier posts.

The Best Approach is to Avoid Unfair Labor Practices

If you do not violate the law, then it is less likely, although not impossible, that an employee or a union will file an unfair labor practice charge. Employees can and do file frivolous lawsuits and unfair labor practice charges.

The best way to avoid an unfair labor practice charge is to train your managers, supervisors, and HR staff on what they can and cannot do. The easiest way to remember what can and cannot be done is to remember TIPS.

Threaten
Interrogate
Promise
Spy

Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).

So, what happens when you have an unfair labor practice filed against you?

The NLRB has a chart that shows exactly what happens. Let’s review the steps before a hearing occurs.

The Investigation

Companies need to act fast when they receive an unfair labor practice charge from the NLRB. Obviously, employers should seek legal counsel if they are not represented. To respond companies should:

Carefully read the unfair labor practice charge
- Who was involved in the incident(s)?
- When did they occur?
- What violation does the charge allege that the company committed?

The employer will also receive a Questionnaire on Commerce Information. It is best to agree or stipulate that the company is subject to the jurisdiction of the NLRB rather than filling out the form. Employers typically do not want to reveal more information than they need to.

Employers need to be careful about speaking to employees that were witnesses to the events leading to the unfair labor practice charge.

Matt Austin explains the basics of what employers need to do to speak to employees in these situations:

Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
1. communicate to the employee the purpose of the questioning;
2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
3. obtain the employee’s participation in the interview on a voluntary basis.

Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.

The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.

The NLRB will Want to Take Affidavits from Management Witnesses

As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.

Employers have a few options when it comes to determining whether to provide management witnesses. They can:

Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charge.
Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents.
Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.

Some Tips If You Provide Management Witnesses for Affidavits

The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.

Each witness and any attorneys present can review the affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors that a witness or their attorney find should be redone to make a clean copy of the affidavit. Be sure to ask the investigator to do this.

Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.

If the investigator does not ask a question or get information that a witness believes is necessary for the investigation, then they should speak up and get the information into the affidavit. The affidavit is your chance to provide any information that will be helpful to the employer’s case.

The NLRB’s Conclusion of the Unfair Labor Practice Investigation

Once the affidavits are completed, the employer should consider providing an additional statement of position concerning the facts of the case. This will be the last chance to state its position and defense before the NLRB reaches its conclusion on the unfair labor practice charge.

Once the NLRB makes a determination, then it will either dismiss all of the allegations (i.e. the employer/defense wins) or the charging party will withdraw the charge, dismiss some of the allegations, or dismiss none of the allegations. If the NLRB dismisses all of the allegations, then there is nothing left for the employer to do. If the NLRB dismisses some but not all of the allegations or none of the allegations, then it will be time to consider settlement. Each case is unique, so the best option is a fact specific determination that will need to be carefully discussed.

Conclusion

Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.

The information provided is my own and does not reflect the opinion of my firm or anyone else.