Labor Unions

TIP OF THE DAY – WHAT “RIGHT TO WORK” REALLY MEANS

“But Florida is a right to work state” is a phrase frequently uttered by employees protesting everything from a termination to the enforcement of a noncompete. The common misconception is that “right to work” means an employee cannot be fired without cause, and that a company cannot restrict a former employee from going to work for a competitor. Neither statement is true.

In fact, “right to work” is a union term. A “right to work” state, such as Florida, is a state where an individual has the right to apply for and accept employment at a unionized company regardless of whether that individual has a union card. Once hired, the employee has the option of either joining the union, or not joining the union. By contrast, a “closed shop” is a workplace where, once the employees have voted in a union, all employees must join – even those who voted against having a union – and anyone applying for a job must join the union as a condition of employment.

Florida is a “right to work” state. That means an individual has a right to accept a job and go to work regardless of whether they choose to join the union and pay union dues. Florida is also an “employment at will” state, which means that a company can fire an employee at any time for any reason or for no reason at all (so long as the firing is not based on unlawful discrimination or retaliation for protected activity, or in violation of a written employment contract). And Florida has one of the most employer-friendly noncompete statutes in the country, allowing a company to protect its legitimate business interests by restricting employees from going to work for a competitor.

Unfortunately, misunderstanding of the term “right to work” often leads to feelings of entitlement by employees, and a false sense of security in the workplace.

EMPLOYER ALERT – FACEBOOK FIRINGS COULD PROMPT LEGAL ACTION

Companies who fire employees for making negative comments about their jobs on a social media site could end up in hot water with the NLRB – even if the company’s employees are not unionized.

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act, a federal law pertaining primarily to union activity, which has been around since the 1930s. In the past, courts have held that, to a limited extent, this law also protects non-union employees, in areas such as the right to have another employee present during an employee disciplinary meeting (these are called “Weingarten Rights”), and the protection of “concerted activity” – i.e. the right of employees to meet and discuss issues such as wages, benefits and workplace safety, and to approach management to discuss those issues.

Recently, the term “concerted activity” has been applied to social network postings by employees, and civil complaints have been filed and are pending before the NLRB against companies that fired employees for positing certain comments. Not all comments are protected – they have to fall within traditional definitions of concerted activity, qualifying as a discussion between employees regarding protected activities. A recent article appearing in the Chicago Tribune provides details and insights into this evolving issue. See: http://www.chicagotribune.com/business/breaking/chi-workers-fired-over-facebook-twitter-posts-turn-to-1935-labor-law-20111202,0,6526315.story

The best approach is to review your current HR policies to ensure that they do not prohibit protected “concerted activity” by employees, and obtain legal advice on this issue before you terminate an employee based on their use of social media to air complaints about a supervisor or other workplace issues.

EMPLOYER ALERT – PITFALLS OF EMPLOYEE FREE CHOICE ACT

Touted by organized labor as the solution to a struggling economy, the Employee Free Choice Act, if passed by Congress, will pave the way for rapid unionization of many workforces, large and small. For employers, there are some very troubling aspects of this legislation to consider.

Currently, in order for a workforce (or category of employees) to join a union, 30% of the employees must sign an authorization card. The National Labor Relations Board (“the NLRB”) then schedules an election and, after a reasonable period of time has passed for discussion and consideration by the workers, the election is held by secret ballot.

Under the new proposed law, however, there is no period for discussion, and no secret ballot election is held. Instead, once a majority (51%) of the employees signs an authorization card, the union is put in place. And stiff monetary penalties will be levied against an employer who “interferes” with the process.

Under the current system, once a union is established in a business, collective bargaining begins and continues until an agreement is reached. If negotiations break down, workers can strike. The company can then either negotiate further to bring them back, or permanently replace the striking employees. The employer cannot be forced to sign an agreement with terms it objects to, and the union cannot be forced to sign an agreement it objects to. Under the new legislation, however, if a collective bargaining agreement is not reached within 90 days, either party can request mediation. If mediation does not result in an agreement within the next 30 days, the issues are decided by an arbitration panel, whose decisions are mandatory for both the employer and the workers for up to two years. The issues decided by the arbitration panel can include wages, work hours, benefits, and other terms of employment. The employer is bound by that “agreement,” notwithstanding the inclusion of terms it never agreed to.

Another problem with the legislation is the total elimination of employee privacy. Under the current system, a worker who feels pressured by colleagues to sign an authorization card can still vote “no” in the secret ballot election. Under the “card check” mechanism of the proposed bill, once that worker signs the authorization card, his “vote” is cast.

This bill was passed by the House of Representatives last year, but died in the Senate under threat of veto by President Bush. President Obama has already indicated he will readily sign this bill into law if it is placed before him. In light of the support the legislation has received, it is likely it will be passed this year.

Although historically Florida has not been a union state and, for the most part, only large employers have had a unionized workforce, the prerequisite of “concerted action” to form a union requires only two employees in a place of business. Accordingly, this legislation poses concerns for all Florida employers, regardless of size.

Because Florida is a “right to work” state, an employee can get a job regardless of whether they have a union card. Once employed, they are not required to join the existing union at their worksite – the payment of union dues is not mandatory. But the terms and conditions of their employment will still be subject to whatever collective bargaining agreement is in place.