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NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material,substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 2004 emphasized.

This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today.

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed.

Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system.

Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment—may properly be deferred until after they are imposed.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

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EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts

From ABA:

The Equal Employment Opportunity Commission has published new guidance that illustrates why a blanket ban on hiring employees with criminal records could violate discrimination laws.The guidance uses statistics to show how a blanket ban could have a disparate impact based on race and national origin. Such bans would violate Title VII, absent a showing by the employer that the exclusions are “job related and consistent with business necessity,” the guidance says.

The Enforcement Guidance can be found here.

via EEOC Guidance Emphasizes Possible Bias in Blanket Bans of Job Applicants with Criminal Pasts – News – ABA Journal.

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Facebook, US Senators Say Employers Who Seek Job Applicants’ Passwords Could Be Violating the Law – News – ABA Journal

Citing “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles,” Facebook’s chief privacy officer warned in a Friday post on the social network’s website that the company could “initiate legal action” against employers who do so.

The comment by Erin Egan suggested that information obtained in this manner could put employers at risk of a discrimination suit, reports Reuters.

Her comment follows news last week that lawmakers in at least two states, Illinois and Maryland, are considering possible legislation to prohibit employers from pressuring job applicants to provide their Facebook passwords. Lawmakers in California and Massachusetts also are mulling such legislation, the Associated Press reports.

Meanwhile, the Hill and the Technolog page of msnbc reported Monday that two U.S. senators are asking federal agencies to determine whether employers who act in this manner are violating statutes concerning computer use.

They are Sen. Richard Blumenthal, D-Conn, and Sen. Charles Schumer, D-N.Y.

The two asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether federal laws such as the Computer Fraud and Abuse Act and the Stored Communications Act are violated by the practice and say they are drafting legislation to make clear that the practice is illegal.

In a written statement, the American Civil Liberties Union earlier called a Maryland Department of Corrections practice of asking applicants to browse through their Facebook accounts in the presence of an interviewer an invasion of privacy, the Reuters article reported.

“You’d be appalled if your employer insisted on opening up your postal mail to see if there was anything of interest inside,” said attorney Catherine Crump of the ACLU. “It’s equally out of bounds for an employer to go on a fishing expedition through a person’s private social media account.”

via Facebook, US Senators Say Employers Who Seek Job Applicants’ Passwords Could Be Violating the Law – News – ABA Journal.

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