Employees with Smartphones: An Employer’s Nightmare; the NLRB’s Dream

The NLRB recently issued an advice memorandum that said an employer policy prohibiting employees from photographing or video recording the company’s premises, processes, operations, or products, including confidential information without the company’s permission violation the National Labor Relations Act. 

Let that one sink in before reading more. 

Decades ago, the NLRB concluded in Flagstaff Medical Center that a policy prohibiting the use of electronic equipment during work time including “the use of cameras for recording images of patients and/or hospital equipment, property, or facilities” did not violate the Act because employees would not reasonably interpret the rule as restricting Section 7 activity; they would interpret the rule as a legitimate means of protecting privacy rather than a tool to restrain protected activity. Furthermore, there was no evidence that the hospital enacted the rule in response to Section 7 activity or applied the rule to prohibit Section 7 activity.

However now, the NLRB General Counsel (yep, the guy who has a personal crusade against social media policies) opined that a portion of an employer’s social media policy prohibiting employees from photographing or video recording the employer’s property was unlawful. He said that the policy could reasonably be interpreted to prevent employees from using social media to communicate and share information regarding Section 7 rights through pictures and/or videos.

The General Counsel also deemed unlawful the employer’s ban on using of the Company’ logo, trademark or graphics without prior written approval. Why? Because employees could understand the rule to prohibit the use of logos, trademarks, or graphics on leaflets, cartoons, pickets signs, and other material used to engage in protected Section 7 activity.

Thankfully, the General Counsel upheld the company’s prohibition against an employee defaming the employer’s goods and services through social media. Glad to hear employees are still not allowed to defame a company on Facebook.

The takeaway from this case: 1) know the NLRB’s stance on all things social media before implementing a social media policy; and 2) tailor your policy to the specifics of your company to avoid sweeping, overly broad language that may infringe on an employee’s Section 7 activity.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

A Lesson for Health Care Employers About HIPAA Violations and Union Organizing

I see this scenario too often. Unfortunately, employers do not fully know the do’s and don’ts during union organizing drives and resort to self-help action to punish union organizers. And employers always lose.

Here, a pro-union employee was going to be given a warning for failing to check a patient’s vital signs prior to the patient’s discharge from the hospital. In an effort to defend himself, the employee accessed and printed the patient’s electronic medical records for use in the hospital’s internal grievance procedure. The hospital ended up discharging the employee for what it called a HIPAA violation. Wrong move hospital.

The problem is that the hospital changed its story several times when trying to justify its reason for terminating the employee.

  • First, the hospital actually acknowledged that HIPAA allows the use of protected patient health information for the resolution of internal grievances;
  • Second, the evidence showed that the hospital had granted the employee permission to view, copy, and use the patient’s file in the grievance procedure, and there was no evidence that the employee exceeded the scope of the authorization.
  • Third, the hospital changed its tune after first telling the employee that he would not be fired but then abruptly firing him.
  • Fourth, the hospital did not discipline the doctor and the department manager who also accessed the same records for use in the same grievance proceeding.
  • Fifth, the hospital’s argument that it had an “honest belief” that a HIPAA violation had occurred was not credible to the NLRB because of the above facts.

The NLRB concluded (and I agree) that the hospital seized upon the alleged HIPAA violation as a thinly veiled attempt to rid itself of a known and vocal union organizer. Union organizers must be treated the same as all other employees. Obviously that did not occur here. The threshold for proving retaliation against a known union organizer is very low. So tread lightly – and involve labor relations professional like yours truly – before taking action against union organizers.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Not Negotiating with the Union About Changes to the Dress Code Violated Labor Law

Put this one in the “Duh” category.

The National Labor Relations Board found that the Memorial Hospital of Salem County in Salem, New Jersey violated the National Labor Relations Act when it refused to bargain with the Health Professionals and Allied Employees union over changes in the dress code and did not give the union relevant information the union requested.

The hospital changed dress codes to exclude hooded sweatshirts and fleece jackets, which were previously allowed to be worn during working times. According to the NLRB, this “resulted in discomfort from the cold to at least one employee due to her inability to wear sweatshirts or hoodies over her scrubs.

A change in the dress code is a change to the terms and conditions of employment and must be negotiated with the union. In other words, changes to a dress code is a mandatory subject of bargaining. Because the company changed the dress code without negotiating with the union, the company violated labor laws.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

 

Latest Facebook Firing Lawsuit Big Win for Employers

The latest Facebook lawsuit involves an ambulance company that took action against two employees for posts on those employees’ respective Facebook pages.

A paramedic for Monmouth-Ocean Hospital Service Corp (MONOC) lost a federal court lawsuit that alleged her employer illegally accessed and used a Facebook post to discipline her. Stated in the affirmative, an ambulance company properly disciplined an employee for a post she made on Facebook. Now for the rest of the story.

In the aftermath of a shooting incident at the Holocaust Museum in Washington, D.C., paramedic Deborah Ehling posted the following on her Facebook page:

An 88 yr old sociopath white supremacist opened first in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? And 2. This was your opportunity to really make a difference! WTF???? And to the other guards…go to target practice.

One of Ehling’s Facebook friends forwarded the post to one of MONOC’s managers.

After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that her comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff did what many employees faced with discipline are doing these days and filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.

After several other disciplinary issues, Ehling was terminated. She sued alleging discrimination, wiretap violations, FMLA violations, and privacy violations. The crux of her lawsuit, though, was that MONOC illegally accessed her Facebook posting without her consent in violation of the federal Stored Communication Act. She was wrong.

MONOC did not violate the Stored Communications Act (or the Electronic Communications Privacy Act) because Ehling’s co-worker who forwarded the posting to management lawfully possessed it. He was an intended recipient of the electronic communication and had the lawful right to provide a copy to MONOC. This is good news for employers.

Hopefully this ends these types of lawsuits where plaintiffs allege that their employer illegally accessed their Facebook page.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Are You Paying Attention to the UAW and VW in TN?

The United Autoworkers Union desperately wants to organize a foreign automaker’s US plant, and it may have an ally. After decades of watching foreign automakers rebuff attempts by the UAW to organize their employees by having stellar employee relations practices and setting up facilities in Right to Work states, there is a little glimmer of hope for the union.

According to UAW president Bob King:

A majority of VW workers at the Chattanooga plant have signed cards saying they want UA representation. And more cards are coming in every day.

Only 50% plus 1 vote from the proposed bargaining unit members is needed under U.S. labor law’s card check scheme for unions to get into facilities without a secret ballot vote.

The UAW has convinced VW to set up a Works Council system similar to what VW and its union have in Europe. That works council system includes hourly and salaried workers. In Europe, workers at VW and other German companies have unions like the giant IG Metall that bargain over wages, benefits, and other economic issues, while the Works Council sets the production standards, overtime, vacation schedules, and considers other daily matters. The Tennessee plant’s Works Council cannot, under U.S. law, deal with financial issues

There is a lot of push back by current Chattanooga VW workers seeking to stop this union organizing effort. As you can imagine, this is a very hot topic with severe ramifications should the UAW get a toehold in a southern auto manufacturing facility. This blog will, of course, keep you updated as further activity happens

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

Employer On Hook for $315k for Not Knowing Basic Labor Laws

A Dallas, Texas plastic surgery center had to pay $315,000 to settle charges that it unlawfully fired two employees and then sued one of them after she sought help from the National Labor Relations Board.

Specifically, the employer fired a medical technologist for discussing bonuses with other employees. This is “employer bonehead mistake #1.” For some reason companies just don’t know that employees are allowed to discuss wages, bonuses, and other terms and conditions of their employment with each other.

The employer fired another employee, for defending the medical technologist and for engaging in other activity protected by the National Labor Relations Act. Both employees filed charges with the National Labor Relations Board.

While their charges were pending with the NLRB, the company’s attorney sued one of the employees in court alleging she was negligent and had breached her fiduciary duties. This is “non-labor lawyer bonehead mistake #1.” As I expected, the Board found this lawsuit retaliatory.

In the end, the employer had to pay the two employees back pay, had to cover the employees’ legal fees, and agreed to inform current and former employees of their rights to join, form, or assist labor unions at their workplace.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

Do You Know About Double Breasted Operations?

An employer that is engaged in double breasted operations has one legal entity with a unionized workforce and one without. This can be a useful tactic for employers because the employer can bid for union only contracts with its unionized company and have the other company perform work where a union is not necessary.

Some of my construction clients are double breasted operations. They have a unionized company when doing public, prevailing wage work. But when they are bidding for non-public jobs, i.e. construction projects that are not funded with taxpayer money, they submit a bid from the non-union company. Non-union construction companies are able to submit lower bids since their overhead and fix costs are generally lower because they do not have collective bargaining agreements to comply with.

The National Labor Relations Board and some courts look to the totality of the circumstances when deciding whether one of the companies is an “operational extension” of the other. Factors such as common ownership, premises, management and control over labor relations and daily activities are relevant to the determination of whether two companies are double breasted, joint employers, or alter egos.

An employer is required to disclose information regarding possible double-breasted operations if: 1) the union has a reasonable basis for suspecting the employer is diverting bargaining unit work, and 2) there is a reasonable basis for believing that this information will be helpful to collective bargaining efforts. But, in my experience, every union knows which companies are double breasted, so these disclosure requirements are somewhat superfluous.

Nonetheless, when a union receives information from the company’s president or from activity at separate jobsites that leads it to believe the company is engaging in double breasted activity, the Board usually determines that the company’s refusal to supply the union is a violation of the National Labor Relations Act.

Companies interested in setting up separate legal entities to avoid the detriments of unionization can do so only by taking specific, legally-required steps. Contact Austin Legal for guidance on how to set up a legal double breasted operation.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.