Work Stoppage in the 21st Century

What do the NFL, the cereal brand Kellogg’s, and Long Island University Brooklyn Campus (LIU-Brooklyn) have in common? They all have dealt with employee lockouts in the last five years. Given the September 14th end to the LIU-Brooklyn faculty lockout, in this issue of Astronology® we discuss lockouts and work stoppage in general.

Strike vs. Lockout…what’s the difference?
Both lockouts and strikes are forms of work stoppage. However, the ways they develop are different. Strikes occur when employees decide as a group to stop working during a labor dispute. In some cases, striking can be illegal. For instance, certain labor contracts, as well as certain public service employees, are not allowed to strike. An exception to this rule could be if the job has hazardous work conditions. Oftentimes, the National Labor Relations Board (NLRB) determines whether a strike is lawful.

Strikers fall under two categories. The objectives of “economic strikers” are better wages, hours, and/or working conditions. The objectives of “unfair labor practice strikers” involve rectifying unfair labor practice(s) allegedly committed by the employer.

Lockouts occur when management decides that employees should stop working during a labor dispute. In some instances, employers will hire replacement workers, even though locked out employees are entitled to their jobs after the lockout ends. The NLRB lists a number of things employers can do with respect to lockouts and strikes, including the following:

• Lock out employees defensively – provided it is not to interfere with or defeat union activity.
• Lock out employees defensively – in response to a “whipsaw” strike.
• Lock out employees offensively – if the sole purpose is to “bring economic pressure to bear in support of a legitimate bargaining position.”
• Hire temporary replacements to continue operations during a strike or lawful lockout.
• Hire permanent replacements to continue operations during an economic strike.

How often do work stoppages occur? According to the Bureau of Labor Statistics (BLS), there were only 12 major strikes and lockouts in 2015. These stoppages idled 47,000 workers. The lowest annual report was a total of five major strikes and lockouts back in 2009.

Lockouts in the Education Field

In the case of LIU-Brooklyn, the faculty lockout was an unprecedented move in the higher education field. SHRM mentioned in an online article that these lockouts rarely occur for a number of reasons. For instance, it is speculated that the current NLRB is more prone than prior boards to rule against employers. Publicized lockouts also can give the employer a negative label in the eyes of the public. In the case of the higher education sector, where the needs of the student are directly linked to the quality of the staff, if the staff isn’t happy, students aren’t either. For the business and advertising aspects of higher education, this is bad publicity, and bad for business.

LIU-Brooklyn initiated its faculty lockout in order to avoid a strike, since previous negotiations have resulted in strike votes. The faculty lockout, which started September 2nd, lasted until September 14, 2016. The solution reached? LIU administration extended the faculty members’ previous contracts until May 2017, and will reimburse healthcare costs incurred during the time period of the lockout for the affected 400 professors.

What of the other companies mentioned in the beginning of this article? Back in May 2015, Kellogg’s was found guilty of unlawfully locking out 200 employees for nine months at its Memphis, Tennessee cereal plant. Kellogg’s had to bargain with the union, offer to reinstate any locked out workers who had not returned to work, and give back pay and benefits lost during the lockout. For the NFL, in 2011 the 18 week, four day lockout ended with NFL owners approving a 10 year bargaining collective agreement that was later ratified by NFL players.

Has your organization ever faced a form of work stoppage? How was it handled? Share your thoughts with Astronology® and we may feature your response in a future article!

Workplace Frustration and Social Media Usage

An employee’s Facebook post and its comments about an organization resulted in the organization firing all employees that participated in the on-line discussion. The National Labor Relations Board (NLRB) found that these employees actually were engaged in protected concerted activity, making termination inappropriate.

Workplace venting via social media is becoming an increasing concern for employers and employees alike. Where do labor laws stand on the ever-growing issue of personal social media accounts and the workplace? How do organizations handle it? 

Since 2012 state lawmakers have been introducing legislation to prevent employers from requesting passwords to candidates’ and employees’ personal internet and social media accounts in order for those individuals to get or keep a job. By 2015, around 23 states have introduced or considered legislation that would protect employee privacy by barring employers or potential employers from requesting usernames or passwords to social media accounts and / or requiring employees to invite their employer to join their personal social media network.  Nine states (Connecticut, Delaware, Illinois, Maine, Maryland, Montana, New Hampshire, Oregon, and Virginia) enacted some form of social media legislation in 2015.

Besides being aware of state legislation, it is also important to understand labor laws from the National Labor Relations Board’s perspective.  One major legal concept to remember is the protection of an employee’s rights to engage in “concerted activity.”  Examples the NLRB’s website uses to explain concerted activity include the following:

·       Two or more employees addressing their employer about improving their pay.

·      Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.

·       An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

The Wolters Kluwer Legal & Regulatory U.S. blog gave other real-life examples of areas where employers have to be mindful not to violate employees’ rights in regards to social media usage, as well as not violate other labor laws:

·       Hannah v. Northeastern State University: Discriminatory Facebook posts from two professors were viewed as evidence to demonstrate hostility exists in the department…it also advanced the discriminated employee’s claim of retaliation as the two professors were also allowed to vote on said employee’s tenure (which was denied).

·     Pier Sixty, LLC: An employer was found violating NLRA sec. 8(a)(3) by firing an employee for venting workplace frustration on Facebook. The NLRB also noted the employee made the comments while on break and there was no evidence that the work environment was interrupted.

·     Liverman v. City of Petersburg: A federal court in Virginia found only one of two police officers disciplined for a Facebook conversation about rookie police officers in leadership positions was protected by the First Amendment. The city was found not liable because it never ratified its social networking policy.

Does your organization have policies and practices in order to avoid violating employees’ rights when it comes to social media usage and workplace venting? Are you keeping up to date with the evolving laws? What advice would you give to other employers in regards to how to handle this situation? Share your comments with Astronology – we’d love to continue the discussion with our readers!