The National Labor Relations Board has historically been a politicized agency. After all, the members of the Board are appointed by the President and it should not be surprising that the composition of the Board is going to reflect the ideological bent of the President. As a result, the Board’s composition will tend to favor employers when its members are appointed by a Republican President, and will tend to favor employees and their labor organizations when the appointees are made by Democratic Presidents.

Regardless, a recently developing scandal is brewing at the Board that transcends the inherent political nature of the Board.

In a March 19, 2012 report, the Inspector General of the National Labor Relations disclosed that a current member of the Board, Terence Flynn, engaged in “improper conduct” while he was serving as the Chief Counsel for the Board prior to his appointment.

Specifically, it appears that Member Flynn passed along confidential NLRB information to outsiders. As if that were not bad enough, since Member Flynn at that time was a lawyer working for the Board, Flynn was allegedly passing on information to outside lawyers representing entities engaged in threatened litigation against the Board. In fact, one of the management lawyers linked to the scandal is a labor advisor to the Mitt Romney campaign.

These allegations are serious and warrant a more thorough investigation. After all, the allegations, if true, violate any ethical standard by which lawyer conduct is judged.

Imagine if your own lawyer was passing on confidential information about you to a lawyer representing someone you are suing. I think a grievance before the local Bar Association would be the least of the worries your unethical lawyer would have to face.

Truly, this matter is so beyond the pale of the traditional intra-agency political wrangling that federal authorities must investigate further.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.

Arbitration, as a means to redress disagreements between labor and management, has a long history of being beneficial as a procedure to settle labor disputes. Thus, an arbitration proceeding that is embodied in a labor agreement, with specified procedures that have been agreed upon through the representative of employees, can be an effective source of protection for employees.

However, arbitration, when imposed unilaterally by an employer on its unrepresented employees as a condition of employment, can be instead a source to limit employee rights.

Since at least 2001 it has been the law of the land that employers can unilaterally require their individual employees, who are not represented by a union, to arbitrate all disputes arising out of their employment.  The United States Supreme Court so held in Circuit City Stores v. Adams.

The end result of the Court’s Circuit City Stores decision is that an employer can force its employees who are not represented by a union to forego their right to sue the employer in court for violations of any number of laws which may govern the employment relationship. Thus, employees have little if any individual bargaining power to resist employer efforts to force employees to submit claims to arbitration that arise under, for example,  the Civil Rights laws, the Fair Labor Standards Act, the Family and Medical Leave Act and other laws governing terms and conditions of employment. Typically, in addition to forcing employees to waive their right to sue in court, or pursue their claims before an administrative agency, the employer will unilaterally establish the procedures that govern arbitration, as well as who the arbitrator will be.

Does anyone think that arbitration procedures crafted by an employer are intended to benefit individual employees?

While the prospects for avoiding arbitration are slim in the individual employment context, at the very least employees still have some recourse with the National Labor Relations Board.

In U-Haul Company of California, the NLRB ruled that it was an unfair labor practice for an employer to maintain an arbitration requirement that led employees to believe that unfair labor practices were subject to mandatory arbitration, rather than for disposition by the National Labor Relations Board.

Most recently, the National Labor Relations Board has gone further and found that individual arbitration provisions that limit the ability of individual employees to pursue class-wide grievances through such provisions are also unfair labor practices. In D. R. Horton, decided in January of this year, the Labor Board re-iterated its long-held position that individual employees have the right to engage in concerted activity and that concerted legal action against an employer that addresses wages, hours and working conditions is concerted action protected by the National Labor Relations Act. The Board emphasized that:

[t]o be protected by [the National Labor Relations Act], activity must be concerted, or “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”…When multiple named-employee-plaintiffs initiate the action, their activity is clearly concerted. In addition, the Board has long held that concerted activity includes conduct by a single employee if he or she “seek[s] to initiate or to induce or to prepare for group action.”…Clearly, an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce groups action and is engaged in conduct protected by [the National Labor Relations Act].

Of course, the Board’s decisions outlined above only apply to individual arbitration agreements that seek to require the arbitration of unfair labor practices or seek to restrict protected concerted activity in the form of class-based legal action addressing wages, hours or working conditions.

While the decisions of the National Labor Relations Board do not overturn the inherent unfairness of mandatory arbitration of employment claims unilaterally imposed by employers, these decisions afford some modicum of protection that should be considered when addressing the viability of mandatory arbitration in the individual employment setting.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.

The First Amendment to the Constitution of the United States is, at first blush, straightforward: “Congress shall make no law…abridging the freedom of speech….”

However, as so often happens in the legal world, and especially when employee rights are at stake, things are never quite as simple as they may appear at first blush. After all, one would think that in light of the First Amendment command that would be the end of the argument. It should follow then that the government should not be able to discharge or discipline employees of the government because of their speech.

Right?

Not so fast.

The United States Supreme Court in Pickering v. Board of Education recognized that public employees may not constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens. Notwithstanding that pronouncement, the Court also noted that the government, as an employer, has an interest in regulating the speech of its employees. As a result, the Court, as courts often times do, created a balancing test.

Thus, the Court in Pickering articulated a test that purports to balance the interest of the employee, as a citizen, to comment on matters of public concern and the interest of the government, as an employer, to promote the efficiency of the public services it performs through its employees. The rub, as it may be, is that even before a court engages in this balancing of interests, the statement by the public employee must be over a matter of “public concern.” If the statement over which the public employee was disciplined or discharged does not implicate “public concern,” a public employer may discharge the public employee and the balancing test is not applied.

What then is a matter of “public concern?”

In Connick v. Myers, the Supreme Court offered a hint at what a matter of “public concern” is when it noted that:

[w]hen employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

In Connick, the Court noted that speech that reflected an individual employee’s personal dissatisfaction with her working conditions, or a personal “gripe,” did not implicate matters of public concern. As a result, the Court looked no further into whether the public employer had violated the employee’s constitutional rights because matters of “public concern” were not at issue.

As if the decisions in Pickering and Connick didn’t minimize the First Amendment protections available to public employees enough, in 2006, the Supreme Court added an additional complication to the ability of public employees to enjoy free speech.

In Garcetti v. Ceballos, the Supreme Court further held that a public employee enjoys no First Amendment protection at all for speech made pursuant to the employee’s official duties. The Court found that when public employees make statements pursuant to their official duties, they are not speaking as citizens for purposes of the First Amendment. Therefore, according to the Court, the First Amendment does not insulate those types of communications from discipline by a public employer.

The implications of Supreme Court interpretation of the First Amendment is that public employees enjoy much less protection under the First Amendment than does the average citizen. First, statements made pursuant to official duties enjoy no protection. Second, even assuming a statement is made outside an employee’s official duties, the statement must relate to matter of “public concern.” Third, even if a public employee who has been discharged because his or her speech surmounts those hurdles, public employer action against an employee will still be upheld if it is more important to promote efficiency than protect employee speech.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.

Election Day is upon us and I urge you to vote on November 8th or early vote and to vote NO on Issue 2. If you would like to vote early you may do so this week at your local Board of Elections: We Are Ohio – Action.

Issue 2 is the referendum on Senate Bill 5 passed by the Ohio General Assembly. The referendum resulted from a huge grass roots effort to have the Bill passed on by the voters of Ohio before becoming law. On its face, Senate Bill 5 drastically reduced the rights of public employees including firefighters, police and teachers to bargain about the terms and conditions of their employment. Even the right to bargain over non-economic issues such as classroom size for teachers and protection equipment for firefighters was gutted by the bill.

It is critical that we vote on Election Day. While the most recent polling shows we are gaining momentum ( 25-point lead for Issue 2 opponents is huge, but off-year referendums can be unpredictable, says elections expert | cleveland.com) the key will be turnout. Every vote will be important!

Let’s send a clear message to the legislature and the governor. Please join me in supporting working class families and the middle class in Ohio and vote No on Issue Two.

GTB&S labor attorney, John Roca, blogged about the Fair Labor Standards Act (FLSA) protections for employees who are misclassified by employers as so-called independent contractors. Roca noted that the practice is significant because independent contractors are not entitled to minimum wage or overtime, and the practice thereby avoids the obligations set forth in the FLSA.

On September 19, 2011, the Department of Labor issued a press release announcing that Secretary of Labor Hilda L. Solis and IRS Commissioner Doug Shulman entered a series of memorandums of understanding to improve the departmental efforts to end the practice of misclassifying employees as independent contractors.  It was noted that the departmental coordination should improve not only cracking down on employers who are evading payment of minimum wage and overtime requirements, but who also attempt to avoid other important state and federal protections for employees, such as workers compensation and unemployment compensation.  It was further noted that the memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers.

If you have questions regarding your classification as an independent contractor, and the application of the FLSA to your place of employment, the law offices of Gallon, Takacs, Boissoneault & Schaffer stands ready to review and analyze your situation. Feel free to contact us.

At Gallon, Takacs, Boissoneault & Schaffer, Co., LPA, our mission dedicates us to providing legal assistance to working men and women, individuals with disabilities, and labor organizations. We are very proud of that tradition.

Now, I’m happy to announce that the firm is providing legal representation to veterans of our military who have physical or emotional impairments as a result of their service to our country.

I have received accreditation by the Veterans Administration General Counsel to represent veterans and their families before the agency and we are now privileged extend our tradition of quality legal representation to the proud and deserving men and women of our military who have had the misfortune of encountering physical or emotional injuries as a result of their service to and/or defense of our nation.

If you are a veteran who needs help receiving the compensation to which you are rightfully entitled as a consequence of your service, please feel free to contact us. We look forward to the opportunity for us to be of “service” to you.

Through an important action that will impact employees nationwide, the National Labor Relations Board has recently implemented a rule that will require most private-sector employers to take steps to notify their employees of their rights under the National Labor Relations Act. The rule will require employers to post a brief summary of employer labor law rights at all workplaces beginning on November 14, 2011.

During the rule-making process which led to the new rule, the Board found that in order for employees to be in a position to exercise their rights they must know that those rights exist and that the Board, in turn, exists to protect  those rights.

The rule will require employers to post a notice at workplaces advising employees that they have the right to: (1) organize a union, (2) join a union, (3) bargain collectively with the employer, (4) take action with co-workers to improve working conditions, (5) strike and picket, (6) choose not to exercise their rights under the law, and other basic information about the rights that are available to all American workers.

Of course, employer groups, including the Chamber of Commerce, are upset about the new rule.

Is it at all surprising  that employers are offended that they are now required to advise their employees of their rights?

After all, the Board noted that some of the comments it received from various employers around the country during the rule-making process showed that those employers were themselves ignorant of employee rights to being with. Some of those comments were: “[i]f my employees want to join a union they need to look for a job in a union company,” “[b]elonging to a union is a privilege and a preference – not a right,” and “[i]f a person so desires to be employed by a union company, they should take their ass to a union company and apply for a union job.”

My personal favorite of all the comments the NLRB received from employers was: “[i]f they don’t like the way I treat them, then go get another job.  That is what capitalism is about.”

It’s because of this callous disregard for employee rights, as displayed in the comments received by the Board, that the new rule is necessary.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.

A Congressman from California, Darrell Issa, the one who complained about federal assistance for New York City and heroic firefighters after the 9-11 attacks and who issued a general invitation to American business to target for elimination regulations they didn’t care for, now has targeted the National Labor Relations Board.

Mr. Issa’s attacks on the NlRB arise out of an unfair labor practice charge filed by the Machinists Union. As the NLRB has repeatedly explained:

On March 26, 2010, the International Association of Machinists and Aerospace Workers, District Lodge 751, filed a charge with the NLRB alleging that the Boeing Company had engaged in multiple unfair labor practices related to its decision to place a second production line for the 787 Dreamliner airplane in a non-union facility.

Specifically, the union charged that the decision to transfer the line was made to retaliate against union employees for participating in past strikes and to chill future strike activity, which is protected under the National Labor Relations Act.

The union also charged that the company violated the National Labor Relations Act by failing to negotiate over the decision to transfer the production line. The Machinists’ union has represented Boeing Company employees in the Puget Sound area of Washington, where the planes are assembled, since 1936, and in Portland, Oregon, where some airplane parts are made, since 1975.

…

The complaint issued by the Acting General Counsel (19-CA-32431) alleges that Boeing violated two sections of the National Labor Relations Act by making coercive statements and threats to employees for engaging in statutorily protected activities, and by deciding to place the second line at a non-union facility, and establish a parts supply program nearby, in retaliation for past strike activity and to chill future strike activity by its union employees.

The investigation found that Boeing officials communicated the unlawful motivation in multiple statements to employees and the media. For example, a senior Boeing official said in a videotaped interview with the Seattle Times newspaper: “The overriding factor (in transferring the line) was not the business climate.  And it was not the wages we’re paying today.  It was that we cannot afford to have a work stoppage, you know, every three years.”

The complaint also alleges that Boeing’s actions were “inherently destructive of the rights guaranteed employees by Section 7 of the Act.”

Then all hell broke loose. According to the AFL-CIO: “Almost immediately after the announced complaint, the Chicken Littles of the Right were out in full force. Former Republican attorneys general penning letters, Congress calling for hearings, senators holding presidential nominations hostage and threatening to defund the NLRB, the right-wing has been pulling out all the stops.” In fact, the same Right Wing forces have called for defunding the NLRB.

But it gets worse.

Congressman Issa has taken the unprecedented step of demanding that the NLRB hand over all documents relating to the case, including confidential, investigatory and privileged. This has led to a plea from labor law professors and labor policy experts to not interfere with the Board’s legal processes. In fact, these experts have written Congressman Issa pleading with him to allow the Board’s procedures to run their course.

Most recently, the House Oversight and Government Reform Committee, chaired by Congressman Issa, has issued a broad subpoena to the NLRB seeking the production of documents ”referring or relating to the Boeing Company” and “referring or relating to the International Association of Machinists.” As the Board’s General Counsel noted, this is the first time since 1940 that Congress has issued a subpoena to the NLRB. If the Board does not comply with the subpoena it could face contempt of Congress charges:

For now, it appears that Solomon will not be complying with the full subpoena request as he attempts to work out some sort of compromise solution to Issa’s request for documents. The showdown over the documents is sure to create a political crisis, as the legal integrity of the NLRB process is being questioned by Issa’s requests.

House Education and Workforce Ranking Member George Miller (D-CA) was quick to respond, saying: “Coming in the middle of a trial, this subpoena would unfairly force one side – the prosecution – to disclose its internal trial strategy to the other side. It uses congressional levers to obtain from the prosecution certain documents to which a judge has already ruled the other party is not entitled. Its broad scope, covering documents held by the Acting General Counsel or the NLRB itself, risks chilling not only the prosecution’s deliberations but the judge’s deliberations about the ongoing case.”

…

The ongoing drama about Issa’s requests of internal NLRB documents will surely escalate the Boeing Case politically and attract attention from critics of the NLRB. Congressman George Miller sees the attack on the agency as “troubling” and aimed at undermining the legal ability of the NLRB to enforce workers’ rights.

“The subpoena issued over the weekend by Chairman Issa threatens the integrity of an ongoing trial and the constitutional due process rights of the private parties involved in that trial. It ignores pleas from members of Congress and legal experts to be mindful of the line between proper oversight of an agency and improper interference with its proceedings,” says Miller. “It is issued in the midst of troubling Republican attacks on the National Labor Relations Board and the workers’ rights that it enforces.”

Congressman Issa has a checkered history exagerrating his accomplishments, not to mention personal encounters with law enforcement. But I digress.

What is important to note from all this is that by targeting the NLRB and using his high office to to interfere with the legal and adjudicatory processes of the Board, Congressman Issa is seeking to disempower the last effective body that by law stands up for the rights of working people. It isn’t a stretch to conclude that what Congressman Issa really wants is to disempower working men and women.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.

American unions have done a tremendous amount for working people in our country – union members or not.  Watch this video – it’s only a few minutes – and be reminded of why unions have played, and continue to play, such a vital role in our county.

Employers are under increasing pressure to cut costs. More often than not, employers increasingly look to concessions and reductions from their employees in order to achieve those savings. Some employers in fact cheat their employees in order to improve an employer’s bottom line.

The Fair Labor Standards Act, or the FLSA, was enacted by Congress in 1938 in order to establish minimum employment compensation standards across the nation and in order to provide a modicum of protection for employees from cut throat employers seeking to erode those minimum standards.

In very broad terms, the Fair Labor Standards Act requires employers to carry out two essential duties when it comes to the compensation of their employees. First,  employers must pay their employees a minimum wage. Second, an employer cannot work an employee longer than forty hours in a workweek unless the employer pays the employee time and one half the regular rate for all hours over forty. This guarantee is what is commonly known as overtime.

At first glance, these principles appear to be straightforward and relatively easy to apply and follow. However, Congress needlessly complicated matters by creating a series of exemptions from the protections of the FLSA for a variety of employment classifications.

Furthermore, unlike claims arising under the National Labor Relations Act, which are by law entrusted to a central body, the National Labor Relations Board, for relatively consistent adjudication, enforcement of the Fair Labor Standards Act depends primarily upon employees taking action into their own hands by retaining an attorney and suing an employer in order to protect their rights. Thus, more often than not, an employee cheated out of his or her overtime, for example, will need to obtain expert legal advise to remedy cheating by an employer.

While it is impossible to describe in depth the myriad cases which might arise under the FLSA, a number of issues have become common as employers feel the need to squeeze their employees and thereby deny to their workers the benefits of the Fair Labor Standards Act. This brief summary is illustrative only and is not intended to, and cannot substitute for, legal advise.

First, many employers classify their workers as so-called independent contractors. This is significant becasue independent contractors are not entitled to minimum wage or overtime, while employees are. As a result, employers will sometimes characterize their employees as independent contractors, when they are really employees, in order to avoid the obligations set forth in the FLSA.

Second, sometimes employers order their employees to clock in and out at set times to avoid showing more than forty hours in a workweek. These cases are commonly known as “off-the-clock” cases. Needless to say, these cases represent attempts by employers to force their employees to work, albeit “off-the-clock,” and avoid either paying employees for those hours or avoiding the payment of overtime for such hours.

Third, a common strategy by employers is to misclassify their employees. As noted above, the FLSA has a series of exemptions which will exempt, in whole or in part, certain job classifications from FLSA coverage. Some employers routinely misclassify their employees in order to wrongfully take advantage of those exemptions and not pay their employees the statutory minimums or overtime.

Fourth, often employers in the restaurant industry take advantage of an exemption which allows employers to pay less than the minimum wage to employees who receive tips. However, in order for an employer to take advantage of this exemption it must satisfy certain conditions called for by the law. It is not surprising that some employers unlawfully short their employees under the rubric of the tipping exemption.

Fifth, many FLSA cases involve issues regarding the number of hours worked, where an employer claims that certain hours are non-compensable. These cases often involve waiting or “on call” time. Other fact patterns involve rest and meal periods and some other cases involve travel time. In all of these scenarios, the Department of Labor has promulgated regulations which attempt ot provide guidance regarding when these activities are compensable or not.

Once an FLSA violation is established in court, an employee is entitled to not only the amounts which were shorted, but in addition is entitled to liquidated damages equal to the shorted amounts. Furthermore, employees are entitled to recover their attorneys fees.

As can be seen from this very brief summary, the Fair Labor Standards Act is a complex net of regulations and rules. While they are designed to assist employees in remedying their rights, they contain many pitfalls for the unwary.

If you have questions regarding the application of the Fair Labor Standards Act to your place of employment, the law offices of Gallon, Takacs, Boissoneault & Schaffer stands ready to review and analyze your situation. Feel free to contact us.

John Roca
Labor Attorney
Gallon, Takacs, Boissoneault & Schaffer Co. L.P.A.