NLRB General Counsel Memo Discusses Lawful and Unlawful Employer Handbook Rules

This past week the General Counsel for the National Labor Relations Board published a memo titled “Report of the General Counsel Concerning Employer Rules.”  You can download the PDF by following that link.

The report provides an update on the General Counsel’s view of lawful and unlawful employer handbook policies in the areas of confidentiality, professionalism, anti-harassment, trademarks, photography/recording, and media contact rules.  The memo provides examples of policies the General Counsel found lawful and unlawful under each area.

The NLRB GC has been actively challenging certain types of employer policies over the past few years as violations of Section 8 of the National Labor Relations Act.  Under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), an employer’s rule may violate Section 8 of the NLRA if employees would reasonably construe the employer rule to prohibit Section 7 activity.  Section 7 activities include, among other things, the right for employees to engage in concerted activity with regard to their working conditions by commenting or speaking about them with other employees and third parties.

The GC has been challenging policies with broad prohibitions on things such as social media comments about an employer, broad definitions of confidentiality, and broad prohibitions on contact with media regarding an employer as violations under Section 8.  The GC has also actively challenged employer policies that prohibit recording or photography in the work place.  This is a much greater concern for employers these days given the fact that seemingly every employee owns a cell phone capable of making an audio recording or taking a photograph.

As a result of the NLRB’s effort, there has been some level of uncertainty as to what language the NLRB would find acceptable in an employer’s policies on these topics under the NLRA and practitioners had been seeking guidance in order to properly advise clients.  This memo is the General Counsel’s response to that request.

Employers would do well to review this memo and consult with their attorney to determine whether their policies and procedures should be revised given this new guidance.

What Employers Should Know About the EEOC Mediation Process

Beginning in the 1990s, the EEOC implemented a mediation program as an alternative means for resolving employment discrimination complaints filed by employees against their employers or former employers.  You can read more about the mediation program’s history on the EEOC’s website.  This article offers some insights into the EEOC mediation process for employers, as well as tips for employers who are attending or are considering attending an EEOC mediation session.

The EEOC Mediation Referral Process

When an employee files a discrimination complaint against his or her employer, the employer and employee may have the opportunity to participate in the EEOC’s mediation process.  The EEOC will determine upon filing whether the complaint is appropriate to refer to its mediation program, and if so, the EEOC will offer both parties the chance to elect to participate.

If both parties agree, the matter is moved from the EEOC’s investigative division to the mediation division and the employer’s response deadline is suspended pending the mediation.  The EEOC mediator will coordinate with both the employer and the employee to schedule the mediation date.  If the mediation is successful, the complaint is resolved through a settlement agreement.  If, however, the parties do not come to an agreement at the mediation, then the matter is referred back to the EEOC’s investigative unit and the EEOC will give the employer a new deadline to file a response to the complaint.

What Happens at the Mediation

Every mediation is different but most follow a standard formula.  The parties usually start out in separate rooms upon arrival.   Most mediation sessions begin with the mediator bringing both parties together for a joint session where the mediator will explain the mediation process and the rules governing the mediation.  Each side usually has an opportunity to make an “opening statement” outlining its position with regard to the complaint that has been filed during this joint session.  Some mediators may allow the employee to decide whether or not there is a joint session.

The mediator may continue the joint session in hopes of further identifying underlying issues in the dispute or in hopes of a quick resolution if the matter is relatively simple and straight forward.  Most of the time however, the parties will move back to their individual rooms after the joint session and the mediator will begin shuttle negotiations.  During this process, the mediator will meet with each side individually to gain a better understanding of the employer and the employee’s positions.  After the initial round of individual sessions, the mediator will continue shuffling between the parties.

Each time the mediator meets with a party, the mediator will attempt to ascertain whether that party wants to make an offer or respond to an offer from the other party.  The mediator may also evaluate that particular party’s position by asking questions and pointing out weaknesses in that party’s argument or assessment of the facts.   The mediator may also comment on the other party’s position and suggest strengths or weaknesses to consider in evaluating or responding to an offer.

The mediator’s purpose is to assist the parties in reaching a resolution of the complaint.  Parties will and should share information with the mediator that they would not share with the other party.   One of the most significant benefits of mediation is that the mediator has (confidentially) heard both parties’ positions and can suggest alternatives or solutions to bring the parties together that they might not otherwise consider.

If the employer and the employee reach an agreement, then the mediator will draft a settlement agreement for both parties to sign.  The details of the settlement will be specific to the issues in each complaint, but the EEOC has a standard form and the settlement should result in no further investigative action by the EEOC.

Tips for Employers When Attending an EEOC Mediation Session

There are a number of things employers should keep in mind about an EEOC mediation to ensure the best chance of resolving the complaint before having to deal with an EEOC investigation.  Many of these are general tips for mediation but they apply equally well in this situation.

  1. First and foremost, leave your emotions at the door.  The purpose of the mediation is to resolve the dispute.  The issue can be just as emotional for the employer (particularly smaller employers) as it is for the employee but the employer does itself no good by allowing emotions to dictate its position or its response to the employee during the mediation.
  2. Remember that you do not have to reach a resolution.  There will be other opportunities to resolve the dispute with the employee at a later date (but not necessarily the EEOC).
  3. Remember that the mediation is not about determining who is right or wrong.  The mediator is not a judge or jury.  There is no fact finder.  The mediation is simply a forum to try to reach a resolution, agreeable to both sides, that resolves the matter.  Discussing strengths and weaknesses in both parties’ positions can be useful for coming to a resolution, but ultimately no one is going to determine which side is right at the mediation.
  4. Listen.  Sometimes employers can get a lot further along in resolving an employment dispute simply by listening to the employee and his or her concerns.  Sometimes employees just feel like they haven’t been heard and need an opportunity to vent.
  5. Very rarely will you reach a resolution that you are completely satisfied with.  Most settlements end with each side happy about some points and disappointed in others.

 Whether An Employer Should Be Represented By An Attorney at an EEOC Mediation Session

Being an attorney, I naturally answer this question yes.  But let me offer a few reasons why having an attorney is important for employers when attending an EEOC mediation by explaining the benefits to an employer in having an attorney represent the company.

  1. Preparation.  A lot of employers have limited or no experience dealing with an EEOC discrimination complaint nor any experience with mediation.  An attorney can serve as a useful guide to provide confidence and security to the employer.
  2. Knowledge of the Law.  Employers greatly benefit by having a thorough understanding of the law that applies to the employee’s complaint.  That understanding is important in determining the employer’s settlement position and whether any given settlement offer is reasonable.  An employer wouldn’t want to miss out on an early settlement opportunity if the liability and damage exposure were clearly in the employee’s favor.  Likewise, an employer wouldn’t necessarily want to settle an employee’s claim for a significant sum if the employer has a strong defense to liability or a basis for limiting its damages exposure.
  3. Stronger Negotiations.  No matter the setting, if you can apply objective standards to relevant facts and present logical arguments in support of your position then you are more likely to convince an opposing party to accept your position.  An attorney’s knowledge of the law, ability to distinguish relevant facts, and analysis of those facts, can support the legitimacy of the employer’s position.  This strengthens the employer’s arguments in support of its settlement position.  It also increases the burden on the opposing party to offer a specific and logical reason or a basis for the employee’s position. This could result in the revelation of new information that may be beneficial to the employer’s position or a lack of information that could weaken the employee’s position.
  4. Acts as a Firewall.  A mediator’s goal is to encourage the parties to settle the matter.  This includes critiquing a party’s position and asking questions about possible outcomes to test the party’s resolve.  An attorney can help an employer decipher whether the mediator’s questions and statements are legitimate concerns or mere puffery designed to encourage settlement.
  5. Settlement Documents.  EEOC mediators use a standard settlement agreement that often does not include a number of terms an employer would want to include in any settlement agreement.  An attorney can make sure the employer’s terms are included in the agreement, or alternatively, come prepared with a separate form to use at the settlement.

 

Employee or Independent Contractor? IRS Webinar

The IRS is hosting a webinar on March 12th titled “Employee or Independent Contractor?”  This is an opportunity for business owners with questions about employee classification issues to learn more about the IRS’s views, the investigative process, and opportunities to resolve inaccurate classifications.  Topics that the webinar will cover include:

  1. Defining “Employee”
  2. The three control factors.
  3. Key vendor characteristics.
  4. The Voluntary Classification Settlement Program.

You can read about the webinar and register to attend by clicking here.

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