WHAT'S HOT

The newest members of the National Labor Relations Board are aggressively bringing actions and promulgating rules that favor employees and unions. Remember, even if you do not have a union, certain rights are afforded to any worker. And if you do not have a union now, this Board is trying to make that easier to do too.

The FTC is requiring endorser disclosure, LLCs may not be covered by the MA Wage Act, and Wal-Mart dodged a bullet against a class action that changes the rules.

Finally, we are happy to announce that Version II of the 2011 Employers Guide to Understanding Massachusetts and Federal Workplace Law is available! We are committed to providing up- to- date information in this useful resource. Please contact us for your free copy.

THE NLRB IS ON A MISSION AND THAT MISSION GOVERNS YOUR COMPANY

As a general matter, the National Labor Relations Act protects the rights of workers in both union and non-union settings to communicate with each other about wages, hours and other terms and conditions of employment. Last December (2010) we all heard the collective gasp of employers when the National Labor Relations Board filed an unfair labor practice charge against a company for firing an employee who, among other things, called her supervisor a "mental patient" in a Facebook post that was read by many co-workers. We know now that the "Facebook Case" was just the beginning of what has become a trend by the NLRB to restrict employers' ability to promulgate and enforce policies that, in the NLRB's view, impinge on employees' rights to communicate. In the "Facebook Case", we learned that the NLRB would find employers' policies that would prohibit employees from posting disparaging remarks about the company and its supervisors as "overly broad" and as "unlawfully interfering with employees' exercise of their right to engage in protected concerted activity."

Several recent Board decisions have affirmed the Board's position that social media policies, disciplinary policies, and confidentiality clauses are susceptible to an allegation that the policy may "tend to chill employees in the exercise of their protected rights." The 1st U.S. Circuit of Appeals recently found that a temporary employment agency could not enforce a confidentiality provision barring workers from disclosing the terms of their employment because to do so would violate the National Labor Relations Act. The fact that the temporary employee in the First Circuit case was not involved in "concerted activity" yet was afforded protection under the National Labor Relations Act is a troubling development for employers.

All private sector employers should take note of these developments, regardless of whether their workforce is represented by a union. An employee who is disciplined for engaging in conduct that is protected by the National Labor Relations Act may challenge the discipline by filing an unfair labor practice charge, even if the employee is not represented by a union.

NLRB PROPOSES STREAMLINING ELECTION RULES

The NLRB is picking up where the Employee Free Choice Act failed in Congress by proposing rules that would make it easier for unions to organize. Among other things, the new rules shorten the time for campaigning; thereby limiting the time employers can disseminate information. In addition the rules streamline the time between the union petition filing and the secret ballot by delaying litigation over many voter-eligibility issues after the union election. The rules also would require employers to provide a voter list of all employees in electronic form sooner than the current timeline and include phone numbers and e-mail addresses. Given that unions won 63.8% of the elections in 2009, business groups assert there is no need to change the system to favor unions. Read more details

NOW THE FTC MIGHT BE IN YOUR POCKET: ENDORSER RELATIONSHIP

Employees who provide a favorable review of an employer's product on the employee's blog, Facebook page or Twitter account is considered an endorser under Federal Trade Commission endorsement guidelines. Under those guidelines, any material connection between an endorser and seller of a product or service must be fully disclosed. A material connection includes an employment relationship between an endorser and a seller. An employee-endorser and employer face potential fines of $11,000.00 violation if the disclosure is not appropriate.

LLCs NOT COVERED BY THE COMMONWEALTH'S WAGE ACT?

A Superior Court judge recently ruled that an employee who claimed he was owed money under the Massachusetts Wage Act could not recover from the limited liability company for which he worked. While this Superior Court decision is not controlling, it is a case of first impression. While the legislature may have overlooked the fact that the Wage Act addresses "corporations" and does not reference any other entities, any change in meaning may have to come from Beacon Hill or perhaps from the SJC.

We recommend that employers organized as LLCs proceed with caution in acting on the Superior Court judge's favorable decision.

WALMART vs DUKES: MAJOR UPSET FOR PLAINTIFFS

In one of the most closely watched cases of the term, and perhaps the most consequential, the US Supreme Court ruled that the 1.5 million women bringing gender discrimination claims against Wal-Mart did not form a class and cannot bring an action against the retailer collectively. In a 5-4 decision, the Court found that the plaintiffs needed more in common, more "glue," to form a class. Moreover, Wal-Mart could not have a policy and pattern of discrimination as it had, in fact, a stated policy against discrimination.

Beyond Wal-Mart, this case narrows the class action criteria and sets a higher bar for class certification, which has been low since Congress approved the criteria 45 years ago. The Court did not reject the class on narrow terms but established new rules that will make large class action claims more difficult in the future. Score one for adopting written anti-discrimination policies as well because that provided a shield against the claims for gender discrimination and related back wages.

OBAMA ADMINISTRATION UNVEILS STANDARDS FOR HEALTHCARE EXCHANGES

One of the cornerstones of the federal healthcare reform is the establishment of health insurance exchanges. In theory, the exchanges would pool insurance risks and premiums so that individuals and small businesses will have greater purchasing power. Every state will have an exchange by January 1, 2014. Federal officials will assess the states' "operational readiness" as of January 1, 2013 and will run the exchange in states unable or unwilling to (presently more than two dozen states are challenging the constitutionality of a requirement for most Americans to carry insurance).

In Massachusetts, healthcare exchanges were established five years ago. While the number of people insured has increased many would argue it has done little to affect cost, particularly for employers. Whether the federal program changes that remains to be seen. The significance of this most recent action is the administrations to forge on in the face of opposition with the sweeping healthcare reform. For more information, check out www.heathcare.gov