This transcript has been auto generated
00;00;02;02 - 00;00;28;00
Tom Godar
Hello and welcome to the Husch Blackwell Labor Law Insider. I'm Tom Godar your host. I'm excited to share with you the developments in labor and employment law that we're seeing across the board and particularly through the National Labor Relations Board and its General Counsel Abruzzo. When President Biden was elected, he said he was going to have the most employee and union friendly administration ever, and he has fulfilled that pledge.
00;00;28;09 - 00;00;47;10
Tom Godar
I have HB colleagues and others who are thought leaders around the country taking a look at some of the issues, challenging employers and giving them pause for consideration and maybe making some changes in their own workplace. So as we move forward on our labor law podcast, get ready and buckle in for a wild ride exploring the Labor Law
00;00;47;10 - 00;01;15;07
Tom Godar
Insider. It's great to have you join us once again for the Labor Law Insider. I'm recording this after we did the complete recording of our conversation on this very practical approach to labor law issues that are coming up because of the changes in the NLRB and the interpretations offered by the General Counsel for the NLRB. As I told you, if you had the pleasure of listening to the first recording, you're going to hear my voice a little bit muddy.
00;01;15;07 - 00;01;33;12
Tom Godar
I made a little glitch here with a different kind of microphone and we normally use. So it's not going to sound quite as crisp as this sounds, but you're going to enjoy it. And we're going to pick up I'm asking a question about a fellow that I've decided to call Wily Coyote, and he's causing all sorts of headaches to the employer.
00;01;33;23 - 00;01;54;07
Tom Godar
And as I asked the question, it really is a carry on of the scenario we set up where Wily Coyote has created some chaos for the employer, but the employer may have only limited tools to respond because of the National Labor Relations Board. So let's pick it up right from there. That's great. And so we have to be aware that this scenario is I'm trying to roll it out.
00;01;54;18 - 00;02;19;21
Tom Godar
This person would call him Wily Coyote while he was potentially a low level to 11 supervisor. So we have to be really thoughtful because let's assume that while he was engaged in some of these behaviors, along with somebody who was clearly not going to be identified as a supervisor together, they're making it hard for other people who work in the scenario in the group all together.
00;02;19;28 - 00;02;51;04
Tom Godar
They're making fun of the common boss, maybe the area manager or director and together they're posting stuff on Facebook. They're using curse words to describe career or human and wily coyote, maybe as a supervisor, but really employee is not. How does that play out when we've got two people engaged in similar activities, we have similar policies, but one's a supervisor and one's not.
00;02;51;17 - 00;02;54;08
Tom Godar
We discriminate between the two of them because of their status.
00;02;54;28 - 00;03;20;22
Terry Potter
Yeah, you can. As a practical matter though I think I'd be very careful in doing that because what I would also want to know is are these individuals who have any credibility in the workplace, are they, you know, more or less viewed as having some sort of leadership role so that employees will work to them in terms of how to react regarding conflicts in the workplace.
00;03;21;12 - 00;03;46;14
Terry Potter
And so regardless of whether you might be able to discipline the supervisor or I think you've got to be careful. You don't want to make a martyr out of somebody. And it's going to be looked at very strongly by the workforce who say, wait a minute, how come Supervisor A is getting discipline but they're not doing it to employee B?
00;03;46;14 - 00;03;58;14
Terry Potter
This is favoritism. They're not going to look at it from a technical standpoint, whether they're a supervisor or not. They're going to look at it as maybe someone's playing favorites. I mean, they're going down a path you don't want to go down well.
00;03;58;27 - 00;04;24;18
Tom Godar
And most of our conversations don't. They include at one point in time you, the client saying to actually requiring the client working on a protected characteristics. Does the person how have they raised issues regarding retaliatory or discriminatory action based on their characteristics? And so what is why the coyote is 55 years old and has a disability or is a minority?
00;04;25;02 - 00;04;27;07
Tom Godar
Does that make the analysis more difficult?
00;04;27;16 - 00;04;47;28
Terry Potter
Yeah, absolutely. I mean, you've got to be careful. I mean, we've been talking about protected concerted activity under A, B and LRA, but as you know, there are other protected categories you have to be aware of, too. And I think that's a very smart suggestion on your part, is to be more aware in general regarding protected categories.
00;04;48;20 - 00;05;15;19
Tom Godar
Well, this is a little bit frustrating for the client now. It's like mean, I can't do anything about them reaching a confidentiality policy and assuming for a moment we're not using the analysis that this person's a supervisor and I can't do anything about sharing confidential information beforehand. But I am very concerned because of the of the fact that they were also sharing compensation information.
00;05;15;19 - 00;05;33;00
Tom Godar
They were trying to weasel compensation information out there, how some people got how much they got paid. We have a policy that says you don't discuss that kind of activity at work. It just makes everybody uncomfortable. Frankly, people are hired at different times. They come in with different skills. And we're not about to sit down with every employee.
00;05;33;04 - 00;05;46;29
Tom Godar
And each time we hire somebody, this is why somebody got a dollar more or less an hour than somebody else we hired within the last six months. And so they're really creating an upset within the workplace. Is that a good enough reason to continue down this path of discipline?
00;05;47;13 - 00;06;16;23
Mary-Ann Czak
I'd say likely not when it comes to, you know, the discussion or the sharing of wage information among employees, you know, wages, terms, a condition of employment. That's the phrase used specifically in the act. You know, employees do have a right to discuss that and to discuss that openly because P.K. and the animal rights, the statue really protects employees and enables them to help kind of better their status as a lot right.
00;06;16;23 - 00;06;50;25
Mary-Ann Czak
To work it certainly together to improve their working conditions and obviously wages being, you know, probably the most important working condition to most employees. Right. How much they get paid and you know, what they could do and afford to live. So by openly discussing that, yes, it could be frustrating to an employer. I would tread very carefully to take any adverse action or admonish an employee for doing so, because really that is, you know, one of the basic tenants of protected activity under under the act.
00;06;51;13 - 00;07;26;11
Tom Godar
Yeah. Discussing wage information, discussing terms and conditions of employment, discussing hours that sort of in the middle of it. And well in the past there was a certain amount of incursion, if you will, to some of those areas of discussion. I think it's frankly wide open. You can talk about any of that at any time and even in a sort of gross and shall we say, combative way with supervisors or even inside the sort of public airstream of the World Wide Web, there is a whole lot of contours that would slow down employers in discussing these things.
00;07;26;27 - 00;07;56;21
Terry Potter
You know, this has been an issue that's been around since I was a board agent. And discussing your wages in particular is such a protected conversation from, you know, RB standpoint, you can call up the greatest, you know, RB agent on the phone and ask him whether or not an employer can discipline an employee for improperly discussing their wages with another employee.
00;07;56;21 - 00;08;19;13
Terry Potter
And they will immediately say, Oh, yes, that's unlawful. No question about it. You know, come down and file a charge and we'll push that for you. And it really hasn't changed over the years. I mean, that's just one of those fundamental issues that has been in place for so long that, you know, it's really not subject to debate anymore.
00;08;19;22 - 00;08;44;02
Terry Potter
So, yeah, you've got to be very careful with those issues and not walk into a situation that's going to get you involved in a lot of litigation. And that's the problem is that to have a would appear to be a minor misstep result in the charge resourcing. The investigation will result in a hearing before an administrative law judge can result in an appeals hearing before the full board.
00;08;44;10 - 00;09;05;12
Terry Potter
And all of a sudden you're spending all this money, you know, which could be used for other purposes and space upon the actions of one employee, one employee, and make you go down this road. If you really were anticipating and start stirring the pot in the workplace, you know, it's not a good situation.
00;09;05;18 - 00;09;32;15
Tom Godar
But in this case, as we keep pushing the scenario, why don't you start before I let you guys go? In this case, as I suggested, there's residents, clients, patients, somebody that is being cared for in one way or another. And these folks are beholden not only to the organization, our employer. We're trusting in the scenario, but there are others to whom they can complain, whether it's the state or insurance company or who knows what.
00;09;32;28 - 00;10;00;24
Tom Godar
And so the complaints come against a wily child to the wily coyote, uses them to get their cigarets or withholds food as punishment and stuff like this. But it's all in this context of these other activities as well that is complaining about wages, that is using foul language when they're doing so. That is recording the conversations, which might be a violation of a policy.
00;10;01;11 - 00;10;25;07
Tom Godar
How does this sort of other stuff come in? I mean, how do you sell through for their client and how does the client filter says, yes, we'd like to turn it. Sure, this thing into this other stuff, but we're just going to keep it really narrowly focused. Are we able to help clients focus that way and might we still find ourselves being challenged even if we try to say in the termination or this documents, it's narrowly focused that they're going to say no.
00;10;25;07 - 00;10;37;16
Tom Godar
We also heard that you're unhappy about this or that or the other thing that might implicate this very cycle or other decisions that go to protected and conservative. I know it's convoluted and you want to take a shot here.
00;10;37;20 - 00;10;58;14
Mary-Ann Czak
I think as attorneys, you know, we represent employers. We deal with this type of situation often. Right. The facts are never usually perfect. And I think it's as long as we're able to articulate a legitimate business reason that is unrelated to alleged protected activity, we stand by those reasons. You know, we are here and we don't want a hamstring.
00;10;58;14 - 00;11;19;23
Mary-Ann Czak
Our clients and employers and, you know, the board in the state of the NRA and the state of you know, the board makeup already makes that difficult to begin with. So to the extent the issues get muddled, I think we just have to do our best to demonstrate. And that's why we always advise clients, you know, maintain proper documentation, why you're taking this action.
00;11;20;00 - 00;11;46;03
Mary-Ann Czak
Don't just spring it the termination after now they've already engaged in the PCR. So now really what is the true reason for doing so? So I think ultimately employers can't be too fearful to take action when necessary. And obviously if this person is acting abusive towards clients or residence, that's extremely problematic. Those are just my thoughts as to that type of situation.
00;11;46;18 - 00;12;17;24
Terry Potter
Yeah, I think for me it gets down to training and having a pause button. In most of these situations, there's no need to rush through the disciplinary process. If you're unsure or think there may be some legal issues involved in a discipline, hit the pause button. You know, call up somebody more senior if you're uncomfortable with the decision making process and discuss it with them, contact your labor attorney.
00;12;17;24 - 00;12;47;21
Terry Potter
It won't make a big difference in most cases. Should be is it the pause button? Wait 24 hours or 48 hours before you step forward to training? You know, there's no need to train your first line supervisors to be labor attorneys, but there are certain hot topics you can cover with them. But more importantly, the senior h.r. Person on staff needs to know these issues fairly well and so they should be getting that necessary training to understand what are a hot button.
00;12;48;09 - 00;13;20;12
Terry Potter
What is it that i should be picking up the phone and talking to senior h.r. Folks or our attorney regarding. Well, we've got a situation here. We think it's a bit dicey and we need some assistance because, again, what may appear to be one very small disciplinary action being taken against one employee can result and a brand slide of activity impacting all the employees in the workplace.
00;13;20;24 - 00;13;42;19
Tom Godar
Well, and that was one of the best parts of the scenario, the pieces that were truthful that happened in sequence, just one employer. But that is that the the client called while there the employer's on suspension right in the scenario they're asking for advice. Right. They're saying okay and they were oh, that's out of the we can't use that.
00;13;42;19 - 00;14;03;25
Tom Godar
Oh maybe we shouldn't use that. Oh our policy might be flat on that one, but we could still try to discover whether or not out of this small soup of activities, there were some there would stand on their own, that you needed nothing else in order to justify discipline or possibly a termination. So I love your idea of a pause.
00;14;04;16 - 00;14;24;12
Tom Godar
And for this, when you come across, this is not unusual for any of us, I'm sure to say. Well, folks, let's take a look at your handbook, whether we do it or whether you have someone else do this, qualify or capable. But I almost invariably suggest whether we do it or someone else's, the training follows. Who was that management?
00;14;24;12 - 00;14;48;29
Tom Godar
Cordray To walk through the handbook and to talk about why those changes were made, they give an opportunity for the employer potential, a whole bunch of people, whether remotely or directly, if people gather in one place. But what should we be doing with tomorrow's policies? What should we be doing with disciplinary policies? How do we deal with this type of behavior or that type of behavior?
00;14;49;08 - 00;15;01;04
Tom Godar
Because honestly, Jerry, as you suggested, just going through the policies and making sure that they can stand up to board scrutiny without the training doesn't really get far enough, at least in my estimation. We are saying.
00;15;01;14 - 00;15;38;00
Terry Potter
Oh, yeah, I mean, you're absolutely right. You've got to have both. You got to have the training and you've got to do the legal review to make sure the policies are in line with current board understanding of what's protected and concerted activity and knowing again right now just a general atmosphere at the board in the aggressive nature that they're going out and prosecuting these cases might seem the most minor of violation, but but you've got to be very careful right now, at least until there's a change in administration.
00;15;38;00 - 00;15;49;25
Terry Potter
So we have somebody else in there being the general counsel for the Ann Oraibi, because she's taken an extreme position on everything. It's not just you just got to be careful.
00;15;50;15 - 00;16;18;04
Mary-Ann Czak
And I think it's important. You know, I did a recent training on handbooks for a client, and the first thing that we discussed, and it seems obvious, especially for the high level h.r. Or managers who are, you know, the brainchild behind the discipline or dealing with employees is, you know, you have to not only know the handbook exist, but read it, familiarize yourself with it so you understand it.
00;16;18;04 - 00;16;37;16
Mary-Ann Czak
It's so it's not just, oh, here legal, make the necessary changes, put it in a drawer and forget about it. There's real life consequences now when it comes to these policies and implementing them in a lawful manner, as well as making sure that the language in and of itself is lawful. So it's just, you know, hammering home that you can't just forget these exist.
00;16;37;16 - 00;16;41;08
Mary-Ann Czak
You have to understand them. So, you know how to implement them going forward.
00;16;41;20 - 00;17;05;06
Tom Godar
Those are great source. I mean, I have so much respect for those folks in the organization. So we have a pleasure and honor to represent who would take on this h.r. Labor role because there's so much going on that each employee brings with him or with her a whole potential list of issues. And the world doesn't get easier this week.
00;17;05;15 - 00;17;43;25
Tom Godar
You know, our colleagues did a fantastic job of writing about two more issues, not National Labor Relations Board or X stuff, but were there a call for nearly all prohibitions on restricted activity following employment in the terms of the non-compete or illegal with this, you know, the the signing of the executive order or whether it was the signing of an executive order, you know, 40% of all of the folks who are now getting paid on salaried basis as would exempt employer, might have to look at whether or not their wages are high enough to qualify for that exemptions.
00;17;44;06 - 00;18;04;00
Tom Godar
So this isn't the only thing that our wonderful h.r. Clients are looking at. This is just all the stuff that they have to face now it seems these days almost on a weekly basis. So let me just give you folks in that world and at a point at a group, I'm doing fantastic, but it is difficult and we appreciate that.
00;18;04;08 - 00;18;14;00
Terry Potter
Yeah, I agree. I can imagine at this point in time with all the decisions H.R. has to make on a daily basis, it's a lot of pressure. It's a lot of pressure.
00;18;14;23 - 00;18;43;15
Tom Godar
Well Mary-Ann, Terry, thank you so much for joining in the sort of practical application of what we're seeing, what are our clients you are seeing out in the workforce? How nearly crazy, scary cycle of decisions and announcements and pronouncements of the general counsel to the National Labor Relations Board are impacting day to day activity. So what we'll continue doing these labor law insiders because we haven't found yet
00;18;43;27 - 00;18;47;23
Tom Godar
that they're not needed. Mary-Ann, thank you so much for joining us.
00;18;48;07 - 00;18;49;06
Mary-Ann Czak
Thank you for having me.
00;18;49;23 - 00;18;52;27
Tom Godar
It was great, and Terry, always a pleasure to have you join us on a panel.
00;18;53;13 - 00;18;54;16
Terry Potter
All right. See you soon.
00;18;55;06 - 00;19;00;15
Tom Godar
All right, take care now and thank you for joining the Labor Law Insider.